Kieran Tapsell: Lawyers under the Spotlight at the Royal Commission

The John Ellis Case Study (No 8) at the Royal Commission into Institutional Responses to Child Sexual Abuse concerned the experience of John Ellis with the Towards Healing protocol in dealing with his complaint about being sexually abused by Fr Aidan Duggan. The case was unusual for its revelations about the relationship between Cardinal Pell as head of the Archdiocese of Sydney and his lawyers, Corrs, Chambers Westgarth, its senior partner Paul McCann and his assistant, John Dalzell. Such communications rarely come to light even in Royal Commissions because the Royal Commissions Act 1902 respects legal professional privilege where it exists. However, there is a long line of authority for the proposition that where clients make allegations of misconduct, professional negligence or breach of retainer against their lawyers, such privilege is waived. Cardinal Pell alleged that he was not properly informed about offers of settlement by his legal team in the Ellis case.

The ethical issue for the lawyers arose because in his Supreme Court proceedings to extend the limitation period, John Ellis was cross examined for days about whether the abuse really took place in circumstances where the Church’s independent investigator, Michael Eccleston, had found in a report described by Justice McLellan as “legally perfect” that the abuse had occurred. The partner from Corrs in charge of the case, Paul McCann, told the Commission that “counsel were instructed almost from the start of the matter”. He also agreed that the decision to challenge Ellis was a “tactical one”, decided by the “legal team.” He then said,

“The trial was being run on behalf of the defendants by two well-known and respected now senior counsel, and how that trial ran was very much in their domain.”

McCann admitted that his firm was giving the instructions, and that he was intimately involved in these decisions. When the junior solicitor, John Dalzell went into the witness box to give evidence, his ethics in allowing this cross examination was also challenged. Justice McLellan asked:

  1. Then how could you sit there and let that happen, knowing what you knew?

There is a certain unreality about this for those with only a modicum of knowledge of how the Australian legal system works. Pell and the Trustees of the Archdiocese were represented by a senior counsel, and a well-respected junior. Then in the pecking order came the Corrs partner, Paul McCann and the most junior of all, John Dalzell. Any lawyer who has briefed senior and junior counsel knows that Paul McCann was correct about the practice: counsel call the shots on who is cross examined and to what extent. That does not relieve solicitors of their own ethical responsibility, and McCann quite properly accepted that.

There is one possible explanation as to why the two barristers were not called by the Commission to provide their own “please explain”: they were not told about the Eccleston report. But even that seems unlikely because if the file revealed this to be the case, there were much stronger reasons to criticise McCann and Dalzell for failing to provide critical information to counsel. One would have expected them to be grilled about it. They were not. Without some explanation from the Commission, we do not know why the barristers were not called when the issue of cross examination was principally within their domain.

The Commission seemed to have gone to the other extreme in Case No. 15 dealing with Swimming Australia by examining the conduct of counsel in that case. The main point of contention was the failure of the Director of Public Prosecutions in Queensland to proceed with charges of sexual assault against the State and National coach, Scott Volkers. In September 2002, the charges were dropped by the Director of Public Prosecutions who was satisfied that there was no reasonable prospect of a conviction because of credibility issues about the allegations. After criticism of this decision, the NSW Director of Public Prosecutions was asked to provide a second opinion. Margaret Cunneen SC, a Deputy Crown Prosecutor, was given the job of providing the advice.

Cunneen’s advice that there was no reasonable prospect of a conviction became the subject of scrutiny during the Royal Commission. She and Judge Clare, the former Queensland Director of Public Prosecutions were extensively questioned about the basis for their opinions. The former NSW Director of Public Prosecutions, Nick Cowdery agreed with Cunneen’s advice, but did not agree with some of the language she used.

Lawyers are like bookmakers: they are asked to predict how the horses will run in court. They are guided by the leather bound form guides that pave the walls of their offices. But when it comes to the credibility of witnesses, the form guide says very little, and lawyers have to operate on the basis of educated guesswork and practical experience. A witness can give a positive impression in the confines of a conference room but fall to pieces in the witness box – and vice versa. The Commission might very well come to a different conclusion to Cunneen, Clare and Cowdery, but it is very difficult to see any systemic problem which the Commission under its terms of reference is required to identify and make recommendations to correct. One cannot help but infer that the main reason for subjecting them to such an examination was to try and demonstrate that they had got it wrong over Volkers. Appeal courts regularly find that trial judges get it wrong. Differences of opinion about the credibility of evidence and even inferences that can be drawn from undisputed facts will keep happening so long as human beings run the legal system. If that is a systemic problem it is incurable, and it equally affects the Commission itself.

Kieran Tapsell is a retired lawyer and the author of Potiphar’s Wife: The Vatican Secret and Child Sexual Abuse.

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2 Responses to Kieran Tapsell: Lawyers under the Spotlight at the Royal Commission

  1. Frank Brennan says:

    I see this royal commission and government agencies taking some wrong turns, risking an outcome similar to the pink batts inquiry. As Kieran highlights, the commission was selective in which lawyers it singled out for scrutiny. It has yet to put state agencies under the spotlight together with the churches. And it is yet to get the buy-in from state agencies. Let me give one very clear example of the Royal Commission’s failure to get buy-in by State agencies. Consider the Catholic Church’s “Melbourne Response” and the Victoria Police. Last year, the Victoria Police gave evidence to the Victorian parliamentary inquiry and ran a media campaign suggesting they had long been dissatisfied with the Catholic Church’s attempt to come to terms with child sexual abuse in its ranks. But that Inquiry found: “The Catholic Church established the Melbourne Response (in 1996) in consultation with Victoria Police and the Victorian Government. The Assistant Police Commissioner and the Solicitor-General each approved and signed off on the process. There was no indication that at anytime before April 2012 Victoria Police told the Catholic Archdiocese of Melbourne that it had any concerns about the Melbourne Response. It is clear that Victoria police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.” When conducting its case study on the Melbourne Response, the Royal Commission did not see fit to call any Victorian police officer to give evidence about the police perception of the Melbourne Response (whether in 1996, April 2012 or in 2014) nor about the relationship between the Catholic Church and the police (whether in 1996, April 2012 or in 2014). For future protection of children, it is essential that the relationship between the church authorities and the police be clarified, understood, publicised and improved if it can be. It is not good enough just to allow State agencies the option to stand by as observers in this process, especially when they have been players, and more especially when as in this case the Victorian Police had tried to move all blame onto the Church when they had co-operated closely with the formulation of the protocols. The Royal Commission tabled a very extensive list of exhibits but very few from the Church and the police about their relationship. No exhibit from the Church or the police indicated in any depth any Victorian police concerns about the Melbourne Response. There was tendered a letter from Assistant Commissioner Gavin Brown, Victoria Police, to the Catholic Church, 21 May 1996 making suggestions for modifications to the proposed protocol as to how to deal with complaints to police. He wrote: “My proposals would, I believe build on the effective working relationship developed between Victoria Police and the Vicar General’s Office.” Then there is a letter from the Church’s lawyers to Assistant Commissioner Brown, dated 18 October 1996, suggesting a formula of words about the relationship to be inserted in the instrument for the appointment of Commissioner Peter O’Callaghan QC: “The Commissioner immediately upon there being made or referred to him a complaint of sexual abuse (which may constitute criminal conduct), shall inform the complainant that he or she has an unfettered and continuing right to make that complaint to the police, and the Commissioner shall appropriately encourage the exercise of that right.” Three days later Brown responded saying that the amendment “seems eminently helpful”. Then there is the Victoria police media release of 30 October 1996 stating: “Victoria Police have welcomed today’s announcement of a series of initiatives in response to sexual abuse by priests, religious and lay people under the control of the Catholic Archdiocese of Melbourne. The announcement is seen as a positive step in tackling this very sensitive community issue. Police have also welcomed the appointment of Peter O’Callaghan QC to the position of Independent Commissioner. They say they are pleased to see the appointment of the Commissioner will not in any way conflict with police investigations or actions in respect to sexual abuse. Police are hopeful that the appointment of the Commissioner will assist identify those engaging in sexual abuse, and result in them being dealt with by the law.” There is then a gap of 16 years, and then a file note from the Church’s Independent Commission about a meeting on 17 September 2012 with Victoria Police to discuss the problem of reporting abuse to police when the complainant does not want to be identified. I am one citizen who expected the case study into the Melbourne Response to lay bare the real relationship between the Church and the police. It did not. It should have, for the good of kids in the future. We needed to hear directly from the Victoria Police about their concerns with the Church, when those concerns came to the fore, when they were expressed to the Church and its lawyers, and what was the Church response. After days of televised investigation into the Melbourne Response we are none the wiser. The issue of Church reporting to police when a complainant does not want to go to the police remains confused and contested. If Justice McClellan’s final report on the Melbourne Response is based only on last month’s “Case Study” with evidence only from the Church and from victims, it will suffer the same structural defects as the Hanger Commission on pink batts not having heard from all the key players. The State agencies have to be brought to the table. If they’re not, those citizens who are survivor focused will be left weeping. I look forward to the Commission’s forensic analysis of the Victorian police’s response to and co-operation with the “Melbourne Response” since 1996.

  2. Kieran Tapsell says:

    Frank’s concerns are legitimate in terms of where the Royal Commission is going. However, in Volume 1 of its Interim Report, the Commission set out why it needed an extension of time to complete its work. One of the matters referred to is:
    “To properly complete the task set for us in the terms of reference we must:
    • identify what institutions and governments should do to achieve
    ‘best practice’ in reporting and responding to child sexual abuse in
    institutional contexts.”
    One can only assume that that issue is still to be dealt with. The issue of reporting, particularly in the situation where the victim does not want to get involved in any criminal proceedings is an important one. Victoria has recently passed legislation along the lines of the Irish legislation where failure by persons in authority is a criminal offence with a defence available where the victim specifically does not want it reported. NSW effectively has a similar system, but it needs some more specific definition to what is a “reasonable excuse”.
    I would have thought that the disagreement between the Church and the Victorian police has effectively been dealt with by the Victorian Parliamentary Inquiry, in the passages Frank quoted. The problem as I see it with the Melbourne Response was that there was a significant conflict of interest in the Church’s appointee giving victims advice on whether they should or should not go to the police, and that was a matter that I thought was dealt with by the Commission when dealing with the Melbourne Response. “Best practice” will obviously involve avoiding that kind of problem. Hopefully, Frank’s concerns will be dealt with when the issue of reporting arises.

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