Kieran Tapsell: Lawyers under the Spotlight at the Royal Commission

Sep 24, 2014

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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