Supreme Court New South Wales Medium Neutral Citation: DEF v Trappett [2016] NSWSC 1387 Hearing dates: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refuse the fifth defendant's application for a direction under s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give his evidence by audio visual link (2) Order the fifth defendant to pay the plaintiff's costs of the application. Catchwords: EVIDENCE – application by fifth defendant for evidence to be given by audio visual link – application opposed by plaintiff – consideration of factors in s 7 of Evidence (Audio and Audio Visual Links) Act 1998 – likely that fifth defendant will be cross-examined on credit – application refused Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 7 Cases Cited: ASIC v Rich [2004] NSWSC 467 Category: Procedural and other rulings Parties: DEF (Plaintiff) Scott Trappett (First Defendant) Dan-Phuong Nguyen (Second Defendant) Mark Eustance (Third Defendant) Hon John Dunford QC (Fourth Defendant) GHI (Fifth Defendant) Representation: Counsel: W Muddle SC/M McAuley (Plaintiff) T Boyle (Third Defendant) D O'Brien (Fifth Defendant) Solicitors: McAuley Hawach Lawyers (Plaintiff) Unsworth Legal (Third Defendant) Mullins Lawyers (Fifth Defendant) File Number(s): 2014/374692 Judgment: EX TEMPORE Introduction 1. The fifth defendant applies for an order under s 7 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act) that his evidence be taken by audio link or audio visual link from a participating State. The fifth defendant, who is described in the proceedings by an acronym GHI, is an archbishop of an area in Australia which is not particularly far from Sydney but is not in New South Wales. 2. The order is sought on the basis that the fifth defendant resides within that participating State and his evidence is likely to take in the order of one hour. He would prefer to give evidence in his home city and, having regard to the length of the evidence likely to be taken from him, it is submitted that I ought not be satisfied that his evidence can be more conveniently given or made in this State, namely, New South Wales, rather than his home State and that I ought not be satisfied by the plaintiff who opposes the making of the direction, that the direction would be unfair to the party. The fifth defendant's submissions 1. Mr O'Brien, who appears on behalf of the fifth defendant, relies on an affidavit of Patrick Mullins of 26 September 2016 who deposes to the preference of the fifth defendant to give his evidence from his home State and the insufficiency of the $50 conduct money provided, or made available, by the plaintiff. It appears to me that the second matter has been accommodated by an undertaking made by the plaintiff's solicitors to meet in advance the fifth defendant's proper expenses or travel to an accommodation in Sydney for the hearing. 2. The fifth defendant has not provided any explanation based on Mr Mullins' affidavit or otherwise as to any physical infirmity or any other reason why the fifth defendant could not conveniently travel to New South Wales. I am prepared to accept that the fifth defendant by reason of his role as archbishop has many calls on his time in his home State and home city and would prefer to give evidence by audio visual link rather than to have to fly to Sydney for the purposes of the proceedings. The plaintiff's submissions 1. Mr Muddle, who appears on behalf of the plaintiff, has explained the context in which the plaintiff seeks to call the fifth defendant to give evidence in the plaintiff's case. The fifth defendant has not sworn an affidavit in the proceedings and does not propose to give evidence in his own defence. 2. By way of a brief background, the plaintiff is a priest in the fifth defendant's archdiocese. A complaint was made in respect of the plaintiff to the third defendant who is the Director of Professional Standards for the Catholic Church in that region. The third defendant appointed the first and second defendants to be assessors of the plaintiff's conduct. The first and second defendants have filed submitting appearances. 3. The assessment of the plaintiff's conduct appears to be governed by a protocol, known the Towards Healing protocol, which has been adopted by the Catholic Church generally and by the fifth defendant in particular. The protocol sets out a process of dealing with complaints including those against priests of the Catholic Church. 4. The plaintiff's case is that he was denied natural justice in the assessment of the complaint against him. He alleges: first, that he was not given notice that there were allegations of a criminal nature made against him by a complainant; and, secondly, that he was not given a proper opportunity to respond because he was suffering from a psychotic episode at the time of the assessment. It appears that the plaintiff was susceptible to such episodes as a result of the Vietnam War in which he is said to have suffered substantial trauma at the hands of the Viet Cong. 5. The assessment report prepared by the first and second defendants is said to be very damaging to the plaintiff. The plaintiff alleges that the report has so substantially damaged his reputation that his prospects of being able to practice as a priest in the Catholic Church have been substantially diminished, if not extinguished. The plaintiff has been stood down from active service in the clergy since 2014. 6. In answer to the plaintiff's claim, the fifth defendant does not address the allegation of denial of natural justice but rather alleges, in his pleaded defence, that the plaintiff has not suffered any loss because the assessment report prepared by the two assessors (the first and second defendants) was merely a report and no decision had been made on the basis of it. 7. Mr Muddle explained that the plaintiff wishes to establish that the case pleaded by the fifth defendant (that the plaintiff has not suffered loss because the report is merely a report and no decision has been made) is not in accordance with the actual facts. Mr Muddle relies on provisions of the Towards Healing protocol and in particular cll 42.3, 42.5 and 42.6, which provide as follows: "42.3 If abuse is admitted, or an assessment under these procedures reaches the conclusion that on the basis of the findings of the assessment there are concerns about the person's suitability to be in a position of pastoral care, the Church Authority, in consultation with the Director of Professional Standards and the Consultative Panel, shall consider what action needs to be taken concerning the future ministry of the person, taking account of the degree of risk of further abuse and the seriousness of the violation of the integrity of the pastoral relationship. The Church Authority may commission such other professional reports or make other inquiries as are necessary to determine what action should be taken. . . . 42.5 If a cleric or religious has admitted to or been found guilty of abuse, the Church Authority shall, in person or through a delegate, meet with the offender to discuss honestly and openly the offender's future options. The offender may be accompanied by a support person and/or legal adviser. The discussion shall take into account the seriousness of the offence and all relevant circumstances. It is unfair to hold out to a serious offender any hope of a return to ministry when it is clear that this will not be possible. The decisions of the Church Authority as to future ministry of a cleric or religious are to be made in a manner that is not inconsistent with the provisions of Church law. . . . 42.6 In making decisions on the future of a person found guilty of abuse, the Church Authority shall take such action as the situation and the seriousness of the offence demand. In relation to child abuse, the Church Authority shall be guided by the principle that no-one should be permitted to exercise a public ministry if doing so presents an unacceptable risk of abuse to children and young people." [Emphasis added]. 1. Mr Muddle contends that the effect of these provisions was that the report was a highly significant matter. He relies on the wording of cl 42.3 which contemplates an assessment reaching a "conclusion" and the wording in cll 42.5 and 42.6 which refers to a finding of guilt of abuse, which, in the context, appears to be a reference to a finding in an assessment report. 2. Mr Muddle also relies on a document which is contained in a submission which was made to the Royal Commission in the institutional responses to child sex abuse by the Truth, Justice and Healing Council dated 30 September 2013. In [85] of that submission, the Council said as follows: "In practice, church authorities almost invariably accept the findings and recommendations contained in an assessment report." 1. Mr Muddle also relies on the Towards Healing guidelines for church authorities in which it is made clear that the protocol has not only a pastoral purpose but also a disciplinary purpose. He relied on the following statement: "Towards Healing is also concerned with the discipline of offenders. It provides a means for the investigation of complaints and this may well lead to some form of disciplinary action." 1. Mr Muddle argues that it is apparent from those guidelines that the consequences for the person who is described in the guidelines as an offender is to be dealt with as part of the protocol and where there was a finding of predatory conduct it is said that predatory behaviour ought lead to a complete removal from pastoral ministry. 2. In these circumstances, Mr Muddle says that, although the plaintiff proposes to call the fifth defendant in his case, there is a substantial prospect that leave will be sought by the plaintiff for the fifth defendant to be questioned as though the plaintiff were cross-examining the fifth defendant under s 38 of the Evidence Act 1995 (NSW). In other words, there is a substantial prospect that the fifth defendant will be treated as an unfavourable witness and therefore his evidence may well involve a degree of cross-examination to permit the plaintiff to explore the apparent inconsistency between the fifth defendant's pleaded case and the documents to which I have referred (which have been marked as exhibit 2). Mr Muddle submits that in these circumstances, the plaintiff ought not be deprived of the forensic benefit of being able to put documents to the fifth defendant in person and have him deal with those documents in court. Consideration 1. Section 7 of the Act relevantly provides: NSW courts may take evidence and submissions from outside State (1) A NSW court may, on the application of a party to a proceeding before the court, direct that evidence be taken, or submissions made, by audio link or audio visual link, from a participating State. (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that evidence or submissions can more conveniently be given or made in this State, or (c) the court is satisfied by a party opposing the making of the direction that the direction would be unfair to the party. . . . 1. It is common ground that the location where the fifth defendant resides is within a "participating State". It is not suggested that the necessary facilities are unavailable or cannot reasonably be made available within the meaning of s 7(2)(a) of the Act. The issues between the parties are those set out in s 7(2)(b) and (c) above. 2. It is a matter of common experience that cross-examination on credit, particularly where documents will be shown to the witness, is better done in person, where the cross-examiner, the witness and the tribunal of fact are in the same physical location. I am satisfied on the basis of the evidence and Mr Muddle's submission that the evidence of the fifth defendant can more conveniently be given or made in New South Wales and accordingly, I am prohibited from making a direction under s 7(1) of the Act by reason of s 7(2)(b) of the Act. 3. However, I should, for completeness, note that I am satisfied that a direction that the fifth defendant give his evidence by audio visual link would be unfair to the plaintiff. Accordingly there is a second basis on which I am prohibited from making a direction under s 7(1): s 7(2)(c). This is largely for the reasons I have referred to already, as to the process of the likely taking of evidence from the fifth defendant which could well involve a significant challenge to his credibility and reliability. 4. In making this decision I take into account the decision of Austin J in ASIC v Rich [2004] NSWSC 467 in which his Honour identified the matters to be taken into account. Of the matters identified by his Honour, I consider that the following are of particular relevance in the present case. 5. First, the importance of the evidence of the witness is a significant matter. I do not accept Mr O'Brien's submission that the fifth defendant is merely a formal witness. The relevance and gravamen of any assessment report concerning the plaintiff is obviously an important issue in the trial and is a matter about which the fifth defendant's evidence is likely to provide a significant illumination. 6. The second relevant matter is whether there is likely to be an assessment of credit. I am satisfied for the reasons given above that the credit of the fifth defendant is in issue at least insofar as there is an alleged disparity between his pleaded case and the actual position as evident from the documents. 7. The third relevant matter is that there is likely to be a number of documents put to the witness by the plaintiff's counsel. This process can be more efficiently conducted if the fifth defendant is in Court. 8. The fourth relevant matter is whether there are likely to be technological difficulties which mean that evidence cannot have been conveniently been given by audio visual link. Where there are documents to be shown to the witness in a remote location, there is a potential for delay and interruption in the conduct of proceedings in this Court. 9. The fifth relevant matter is the likely length of the examination or cross-examination. It appears that it may be able to be completed within a period of about an hour. This will mean that the disruption to the fifth defendant's life will be possibly many numbers of hours as he may be required to overnight in Sydney and travel the distance from the participating State to Sydney. However, I do not regard this as being a weighty matter, since this is a matter of fact and degree and the participating State is not far distant from New South Wales. There is also, in my view, particularly when credibility is in issue, a substantial benefit to the court as well as to the parties in having the witness present in the court room. Accordingly I decline the fifth defendant's application for a direction under s 7 of the Act. 10. In my view there is no reason why costs of the application ought not follow the event. Orders 1. I make the following orders: 1. Refuse the fifth defendant's application for a direction under s 7(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to give his evidence by audio visual link. 2. Order the fifth defendant to pay the plaintiff's costs of the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2016