DP (a pseudonym) v Bishop Paul Bird (Ruling No 3)
[2021] VSC 731
•30 September 2021 (written reasons 11 November 2021)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 01541
| DP (A PSEUDONYM) | Plaintiff |
| v | |
| BISHOP PAUL BERNARD BIRD | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27–28 July, 2–6, 13 August, 21–23, 27–28, 30 September 2021 |
DATE OF RULING: | 30 September 2021 (written reasons 11 November 2021) |
CASE MAY BE CITED AS: | DP (a pseudonym) v Bishop Paul Bird (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 731 |
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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Application to tender excerpt from record of interview and psychologist report - Admissibility of evidence –Whether interview conducted in contemplation of reasonable probability of litigation –Finding that probative value of excerpt of record of interview substantially outweighs any prejudice to defendant – Finding that probative value of psychologist report does not substantially outweigh danger of unfair prejudice to defendant – Application granted - ACCC v Advanced Medical Institute (2005) 147 FCR 235 - McHugh v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; FCAFC 223 - D.P.P v BB (2010) 29 VR 110 - Bryant v Edenborn Pty Ltd [2020] FCA 715 - R v Suteski (2002) 137 A Crim R 371 - Galvin v The Queen (2006) 161 A Crim R 449 - Evidence Act 2008 ss 55, 69, 135.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G Boas with Dr E Kelly, of counsel | Ken Cush & Associates |
| For the Defendant | Ms R Annesley QC with Ms T Skvortsova, of counsel | Colin Biggers and Paisley Lawyers |
HIS HONOUR:
At the conclusion of viva voce evidence, counsel for DP and the Diocese sought to tender a number of documents as part of their respective cases. The majority were able to be dealt with summarily. Two applications, however, required consideration.
The first concerned the proposed tender by DP of an extract of a typed interview of Gerald Ridsdale (‘Ridsdale’) in June 1994.[1] This application was made pursuant to the business records exception to the hearsay provisions: s 69 of the Evidence Act 2008 (‘the Act’). This was opposed by the Diocese on the basis that the exception was not engaged as there was prospective litigation against the Catholic Church when the interview was conducted.
[1]T1246.
The second related to the proposed tender by the Diocese of a medical report prepared by DP’s treating psychologist in March 2015, apparently at the request of DP’s then solicitor. This was opposed by DP because of the danger that, if admitted, it would be unfairly prejudicial to his case and that would outweigh its probative value: s 135 of the Act.
I gave my decision on the final day of the trial. As promised, but delayed, these are my reasons.
First issue: Can Extracts of the Ridsdale record of interview be tendered by DP?
On 6 June 1994, Ridsdale was interviewed by a representative of Catholic Church Insurances (‘CCI’). It is apparent that the record of interview was reduced into a typed account of some 22 pages. It is headed ‘Transcript of Interview with Gerald Francis Ridsdale at the Pastoral Centre, St Francis’ Church, Lonsdale Street Melbourne on 6 June 1994 between 10AM and 2pm’ and is in question-and-answer form. Its authenticity was not in issue.
DP sought to tender a relatively short extract from the interview containing Ridsdale’s account of a discussion between himself and the Bishop of Ballarat, Bishop O’Collins (‘O’Collins’) in 1962.
It is now common knowledge that Ridsdale in his capacity as a Catholic priest was a notorious paedophile who preyed on young boys under his charge. By the time of the interview, he was already the subject of criminal charges and at least five civil claims were on foot. He was subsequently convicted of serious criminal offences and remains incarcerated. He was not called as a witness at the trial. He is now 87 years of age.
There is no contemporaneous evidence concerning the purpose of the commissioning of the interview or by whom it was conducted. It appears to have been compulsorily obtained by the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’), at which Ridsdale gave evidence in May 2015.
The record of interview covers many aspects of Ridsdale’s life as a trainee priest and as a priest, which included the following:
· Ridsdale’s time as a trainee priest at the seminary in Werribee from 1954–1958.
· Ridsdale’s training at an international seminary in Genoa, Italy, from 1958–1960.
· Employment secured by Ridsdale as Housemaster in England while on summer vacation from a seminary in Italy.
· Ridsdale’s training at ‘All Hallows’ seminary in Ireland from 1960–1961.
· Ridsdale’s ordination in July 1961.
· Ridsdale’s appointment as a priest ‘filling in’ at five parishes from 1961–1962. This included descriptions of his sexual misconduct in Inglewood, Camperdown and North Ballarat.
· Ridsdale’s appointments in Mildura (1964–1966), Swan Hill (1966–1969) and Warrnambool (1970–1972). The record of interview also contained descriptions by Ridsdale of his sexual misconduct in each of these locales.
The relevant representations (‘the representations’) contained within the extract and sought to be adduced can be summarised as follows:
· Ridsdale’s description of his sexual misconduct towards a young boy who lived near Winchelsea.
· Ridsdale’s account of a discussion with O’Collins in 1962: O’Collins told him that his conduct was the subject of a complaint by the boy’s parents.
· O’Collins told him that he was being transferred ‘to the missions’.
· Ridsdale was subsequently given a post at Mildura.
The purpose of tendering the extract (and its relevance) is said to be that the representations demonstrate that the Bishop of Ballarat knew, by 1962, of the possibility of a Catholic priest under his charge engaging in sexual misconduct with young boys. This is relevant, so it is argued, to the question of whether the Diocese or the Bishop should have reasonably foreseen that other priests in the Diocese, including Coffey – who is the subject of allegations in this case – might engage in such conduct.
I am satisfied that the extract meets the test for relevance under s 55 of the Act.
Application of s 69 of the Act
DP sought to tender the extract under s 69(2) of the Act. Section 69 is the business records exception to the hearsay rule which is set out at s 59.
The extract is clearly hearsay and must fall within an exception to be admissible at the trial.
Sections 69(1) and (2) read as follows:
69 Exception—business records
(1) This section applies to a document that—
(a) either—
(i)is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—
(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
The tender was resisted by the Diocese on the basis of s 69(3) of the Act, which reads as follows:
(3) Subsection (2) does not apply if the representation—
(a)was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b)was made in connection with an investigation relating or leading to a criminal proceeding.
It was accepted by the Diocese that the record of interview emanated from the business records of CCI and therefore satisfied the terms of s 69(1). It was acknowledged that the representations were recorded in the course of CCI’s business.
It was also not in issue that, for the purpose of s 69(2), the representations were made by a person who had personal knowledge of the asserted facts: Ridsdale’s description of his own conduct towards the boy and his account of the subsequent discussion with the Bishop about the parents’ complaint.
So, the extract is admissible under s 69(2). The dispute between the parties turns upon whether s 69(3)(a) precludes its admission. In essence, it was said by the Diocese that the interview was conducted in contemplation of litigation and this defeated the operation of s 69(2).
Each party filed two affidavits in support of their respective positions. I am satisfied that the following matters were established:
· As at June 1994, there were five civil proceedings on foot in relation to Ridsdale’s sexual abuse of minors. Those claims were made against Ridsdale personally and/or Catholic institutions insured by CCI.
· The Bishop and/or the Diocese had in force at that time a ‘claims made’ insurance policy with CCI, which arguably provided cover in respect of Ridsdale’s conduct.
· There was no claim on foot, nor was one suggested or identified, in relation to Ridsdale’s conduct as described in the extract.
· The interviewer had in his possession at the time of the interview:
o a list of persons who alleged sexual abuse by Ridsdale; and
o details of some of the sexual abuse perpetrated by Ridsdale.
· In 2013, Mr Rush, the managing director of CCI, informed a parliamentary committee that CCI had paid out claims involving Ridsdale which had been made in the early 1990s.
· CCI, at some time in the 1990s, learnt that Bishop Mulkearns, Bishop of Ballarat in the 1970s, became aware of Ridsdale’s conduct in 1975. Once CCI learnt of that knowledge it considered denying indemnity in relation to claims concerning Ridsdale’s conduct that occurred after 1975.
· In April 1999, CCI, the Roman Catholic Trust Corporation of Ballarat and the then bishop entered into an agreement which, effectively, denied indemnity to the Diocese in relation to any claims made concerning Ridsdale’s conduct after 1975.
Counsel for the Diocese contended that when the record of interview was read as a whole it is clear it is directed to obtaining an overview of litigation which might arise against the Catholic Church as a result of Ridsdale’s conduct. On at least two occasions during the interview there is reference to potential civil litigation. As noted, at the time the interview was conducted, five claims were on foot.
Counsel for DP argued that the purpose of the interview was not to attempt to gauge the level of litigation involving Ridsdale, but rather to determine whether CCI should continue to grant indemnity under its policy to Catholic Church entities or deny cover on the basis of Ridsdale’s unlawful conduct.
I was much assisted by the submissions made by counsel for both parties. However, with respect, it seems to me that upon a close reading of the subsection the focus of the analysis needs to be not only on the record of interview and the surrounding circumstances – which provide context – but more specifically on the representations sought to be adduced under s 69(2).
The relevant representations are those set out at [10] above.
As I mentioned earlier, it was not in issue that, for the purpose of s 69(3)(a), the representations were prepared or obtained by CCI.
Nor is there any evidence or suggestion that, at the time Ridsdale was interviewed, the content of the representations (i.e., as to the assault of the boy, the complaint to O’Collins and O’Collins’ remarks about transfer) were either connected to existing litigation or to the conduct of existing litigation.
There is, however, a third limb to s 69(3)(a), one that involves consideration of future litigation: namely, where the representation is prepared or obtained ‘in contemplation of … an Australian … proceeding’.
The authorities, of which there are a few, establish the following.
First, the inquiry is directed to ascertaining the purpose of the person obtaining the representation.[2]
[2]Averkin v Insurance Australia Ltd [2016] NSWCA 122 [112].
Second, the phrase ‘in contemplation of an Australian proceeding’ means the person obtaining the representation must at that time (i.e., when obtaining it) consider that a proceeding is likely or reasonably probable.
Lindgren J in ACCC v Advanced Medical Institute,[3] said as follows:
[3](2005) 147 FCR 235.
The meanings of ‘in contemplation’ in s 7C(1) of the Evidence Act 1905 (Cth) and ‘anticipated’ in s 14B(3) of that Act were considered by Beazley J in Feltafield Pty Ltd v Heidelberg Graphic Equipment (formerly aka Aldus Ltd) … Her Honour treated the two expressions as synonymous, reviewed the authorities, including Robinson v Stern, and concluded that the correct test was to ask whether there was a reasonable probability or likelihood of proceedings in the mind of the maker of the statement.
In Waterwell Shipping Inc v HIH Casualty and General Insurance Ltd … Giles CJ Comm D, treated ‘in contemplation’ in s 69(3) as meaning ‘likely or reasonably probable’ … Importantly, his Honour also stated … :
Depending upon the facts, the positions of the parties may be that, while they see it as possible that there could be legal proceedings once sufficient investigations have been made to enable them to form their respective views upon whether there is a valid claim, it is also possible that there will not be legal proceedings because when the facts are known the insured might not maintain its claim or the insurer might acknowledge the claim. The distant, unassessable, possibility of legal proceedings once the facts are known is not, in my view, contemplation of legal proceedings for the purposes of s 69(3).
I agree with Beazley J in Feltafield that the test is subjective, and do not understand Giles CJ Comm D to have suggested otherwise in Waterwell. The question to be asked is whether the person who ‘prepared’ or ‘obtained’ the representation contained in the document, prepared or obtained it having in mind that legal proceedings were likely or reasonably probable, not merely one possibility.[4]
[4]Ibid, 241 [41]–[43] (emphasis added) (citations omitted).
This approach was recently applied by the Full Federal Court in McHugh v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs, in which Mortimer J said:
That is not the approach required by s 69(3). The phrase ‘in contemplation of’ in s 69(3) refers to the person who ‘prepared’ the representation, or who ‘obtained’ it. It is that person who must have ‘contemplated’ legal proceedings. And the person must have contemplated that proceedings were likely to be reasonably probable, not simply possible … The purpose of the exception is to guard against the admission of hearsay statements which may have been prepared with a self-serving purpose in mind, to assist the proof of a fact relevant or apprehended to be relevant in a proceeding …[5]
[5]McHugh v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; FCAFC 223, 472 [322] (citations omitted).
Therefore, the question posed by s 69(3)(a) is as narrow as this: At or prior to the time of the interview did CCI contemplate or anticipate that there was a reasonable probability of litigation in respect of the conduct of Ridsdale in relation to the Winchelsea boy?
I do not accept, as the Diocese’s submissions implied, that the subsection can be engaged by an assertion that the purpose of the interview was to canvas all aspects of potential litigation against Catholic Church entities in relation to Ridsdale’s conduct. The relevant nexus must be between the representation sought to be adduced and a putative but specific ’Australian proceeding’. Of course, this proceeding does not need to be in existence – ‘indeed need never in fact commence’.[6]
[6]Averkin [115] in reference to ss (3)(b).
There is no evidence to suggest that CCI obtained this information on the basis that it was reasonably probable that a proceeding would be issued in regard to Ridsdale’s misconduct with the Winchelsea boy. There is no reference within the extract to any potential proceeding and no other evidence was provided by the Diocese to suggest that any had been threatened or, indeed, has ever been initiated. To put it bluntly there is not a scintilla of evidence demonstrating that the representations had a relationship to any prospective litigation. Moreover, the one organisation that has the ability to produce such evidence is the Diocese — as it demonstrated in the course of this application.
Accordingly, s 69(3)(a) is not engaged.
If this characterisation of the application of the subsection is too precise then I think that it also fails at the more general level asserted by the Diocese: that CCI’s purpose in conducting the interview was to ascertain the prospect of civil litigation generally in relation to Ridsdale’s conduct.
This proposition cannot be sustained: given the absence of any evidence from CCI as to the purpose of obtaining the representations or in conducting the interview, it is speculation to endeavour to determine the purpose of the interview. It may have been in relation to risks of litigation generally. It may have been in relation to specific cases of which it was aware. It may have been in relation to obtaining an understanding of Ridsdale’s overall conduct or, as DP suggests, it may have been for the purpose of determining insurance cover.
Moreover, if this broad approach is taken it undermines the purpose of ss (3). It is intended to prevent the admission of self-serving representations pursuant to ss (2) made in the knowledge of specific litigation — either on foot or reasonably probable.[7] It was not intended to provide a blanket exclusion of representations made by a person in relation to multiple unlawful incidents — some, or all, of which might in the future be the subject of civil litigation.
[7] Charan v Nationwide News Pty Limited [2018] VSC 3 [473]-[474].
Counsel for DP was correct, in my view, when he contended that there needed to be cogent evidence to support the application of s 69(3) that provides the link between the probability of litigation and the relevant representation. None has been put forward.
Accordingly, on the general basis relied upon by the Diocese, it has not established that the subsection is engaged.
The Diocese’s application under s 69(3)(a) fails.
Should the evidence be excluded under s 135?
Counsel for the Diocese submitted that DP should have called Ridsdale and thus produced ‘the best evidence’ as to his behaviour towards the boy and his discussion with O’Collins. In the circumstances, counsel contended that there is a danger that the untested evidence of Ridsdale is unfairly prejudicial to the Diocese, and that this substantially outweighs the probative value of the representations.[8]
[8]Evidence Act 2008 s 135.
Whilst I accept that the probative value of this evidence, at least at the moment, is not overly strong, it is the only direct evidence that DP can adduce of knowledge of the Diocese of sexual misconduct of priests under the control of the Bishop of Ballarat. Admittedly, it does not relate to the actions or behaviour of Coffey, but it is nevertheless a relevant piece of evidence going to the knowledge of the Diocese.
On the other hand, there is an air of total unreality about the submission made by the Diocese. It was seriously contended by the Diocese that DP, who alleges sexual abuse by a fellow priest of Ridsdale, should call a convicted paedophile clergyman to assist his case. And that counsel for the Diocese would then cross-examine him.
Putting that observation to one side, it was not at all clear what could be gained by the Diocese from cross-examination of Ridsdale. Amongst the material provided on this application is a portion of the transcript of the examination of Ridsdale by counsel assisting the Royal Commission. When the contents of the extract were put to him Ridsdale stated that he had no recollection of it other than endeavouring to explain what ‘sent to the missions’ meant. He is now 87 years of age and eight years have passed since he gave that evidence. It is fanciful to think that his memory may have either improved or indeed remained constant.
In the circumstances, the prejudice to the Diocese in being unable to cross-examine Ridsdale is, in my opinion, close to nil — more importantly, to reverse the test in s 135, it is substantially outweighed by the probative value of the evidence.
Conclusion
DP’s application to tender an extract from the interview of Ridsdale conducted on 6 June 1994 is granted.
Second issue: Can the report of Dr Pagano be tendered?
In 2015 DP made a claim to the Without Healing organisation in relation to physical and verbal abuse whilst a student at St Patrick’s Primary School, Port Fairy in 1976 and 1977 (‘the school abuse’). This occurred subsequent to the alleged abuse by Coffey, which is the subject of this proceeding. He was cross-examined extensively about the claim and the effects the alleged school abuse had upon him.
DP has been treated at Western Psychological Services, at Melton, since 2011 and has been a patient of Dr Angelo Pagano, clinical psychologist, since 2014.
On 31 March 2015, Dr Pagano completed an eight-page report (‘the report’) concerning DP, addressed to his then solicitors, Messrs Slater and Gordon.[9]
[9]The report provides a detailed account of DP’s treatment, history, and diagnoses - major depressive disorder and recurrent and persistent depressive disorder, panic disorder and chronic agoraphobia. It also contains a good deal of detail of DP’s personal life. It does not refer to the Coffey abuse.
The purpose of its compilation is identified in the report:
As I understand it is to comment on the abuse that occurred between 1976 and 1977 while Mr Dyson was a student at St Patrick’s Primary School, Port Fairy, the psychological and likely effects subsequent to the abuse, other problems and recommended treatment and likely cost.
It was subsequently provided by DP’s solicitors to the Without Healing organisation in support of DP’s claim.
Counsel for the Diocese now seeks to tender the report. This is opposed by counsel for DP, who contends that it is inadmissible pursuant to s 135 of the Act as, if admitted, the danger of unfair prejudice would substantially outweigh its probative value.
It was not contended that it was inadmissible on any other basis.
In my view, the report is of significant probative value. I say that for the following reasons.
First, Dr Pagano is the treating psychologist. He has not been called to give evidence. He has seen DP on many occasions over the last seven years. He appears to be familiar with each of the asserted causes of DP’s psychological state. To put it bluntly, he is a crucial witness. His evidence, in whatever form, is highly relevant.
Second, one of the most difficult tasks for determination in this case is endeavouring to ascertain what, if any, causal relationship exists as between the alleged abuse by Coffey and DP’s psychological condition – both past and present. Inevitably there must be an examination of the role that other traumatic events in DP’s life have played and their contribution, if any, to the asserted damage to his psyche. This is particularly so given the emphasis placed by DP (at least on the history to Dr Pagano described in the report) of the effect of the school abuse upon him.
Third, there is already in evidence references to this report. The second report of the consultant psychiatrist engaged by DP’s lawyers (June 2021),[10] Professor Quadrio, refers to it. Dr Jager, the consultant psychiatrist engaged on behalf of the Diocese, was provided with a copy of this report, which he read before providing his opinion.[11]
[10]Exhibit P11.
[11]Exhibit D19.
There is other material authored by Dr Pagano already in evidence.[12] This includes a letter commissioned by DP in 2015, in support of his claim for compensation in relation to his psychological reaction to the death of his parents.[13]
[12]Exhibits D3, D6, D23, D24.
[13]Exhibit D24.
The risk of prejudice asserted by counsel for DP is that the tender of the report means that it stands alone without any explanation given by its author as to its contents.
I accept that there is a degree of prejudice occasioned to DP by the tender of this report. DP is deprived of the opportunity to cross-examine Dr Pagano — and to, at least, obtain an explanation for (or test) the opinion expressed in the report and, if in dispute, query the accuracy of the history recorded.[14]
[14] R v Suteski (2002) 137 A Crim R 371, 390 [126]–[127] ; Galvin v The Queen (2006) 161 A Crim R 449, 459 [40].
If this were a jury trial, and assuming other tests for admissibility were satisfied, I consider that the admission of the report, without its author giving evidence before the trier of fact, would create a danger of unfair prejudice to DP. That danger would, given the mode of trial (and notwithstanding directions by the trial judge as to its use) substantially outweigh its probative value. And therefore, warrant its exclusion under s 135.
However, in a trial before a judge alone, the weight to be attached to the report can be evaluated and appropriate weight allowed for the inability of DP’s counsel to cross-examine the author. In other words, the degree of prejudice is ameliorated by the form of the trial.[15]
[15] D.P.P v BB (2010) 29 VR 110 [21] – [22]; Bryant v Edenborn Pty Ltd [2020] FCA 715 [36]-[37].
Ultimately, I do not consider that the probative value of the contents of the report is substantially outweighed by the danger that the report might be unfairly prejudicial to DP.
For the sake of completeness, I should add that I also do not believe that given the mode of the trial, the report is likely to be misleading or confusing under s 135(b).
The Diocese’s application to tender the report of Dr Pagano to Slater and Gordon dated 31 March 2015 should be granted.[16]
[16]Now exhibit D25.
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