Special Commission of Inquiry into matters relating to the Police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle
Opening Address of Commissioner Margaret Cunneen SC
Newcastle Supreme Court - Monday, 6 May 2013
1. Welcome to the public hearings of the Special Commission of Inquiry into matters relating to the Police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle.
2. I intend to make some introductory remarks about certain matters before inviting Senior Counsel Assisting, Ms Lonergan SC, to provide an opening address.
3. After that, I will take the appearances for parties authorised to appear at the public hearing.
4. The Special Commission of Inquiry was established pursuant to Letters Patent dated 21 November 2012 and 25 January 2013, issued in the name of the Governor of New South Wales and in accordance with the Special Commissions of Inquiry Act 1983.
5. It followed the broadcast of an ABC television report on the Lateline program on 8 November 2012 in which a senior Police officer, Detective Chief Inspector Peter Fox, made certain statements regarding alleged child sexual abuse by Catholic priests, including Father Denis McAlinden and Father James Fletcher, who are both now deceased, who had been associated with the Maitland-Newcastle Diocese. Detective Chief Inspector Fox referred to what he believed to be the covering up of such conduct by the Catholic Church, including the relocation of offending priests and, in what he suggested was an attempt to protect the good name of the Church, the apparent hindering of associated Police investigations into such alleged child sexual abuse.
6. During that same broadcast, Detective Chief Inspector Fox also made certain statements to the effect that he had been ordered by senior Police to cease investigating certain matters and had been directed to hand over his files in relation to those matters for reasons unknown to him.
7. The Terms of Reference for the Inquiry require me to inquire into and report upon the following matters:
(I) the circumstances in which Detective Chief Inspector Peter Fox was asked to cease investigating relevant matters and whether it was appropriate to do so (which can be described as the "First Term of Reference"); and
(ii) whether, and the extent to which, officials of the Catholic Church facilitated, assisted, or co-operated with, Police investigations of relevant matters, including whether any investigation has been hindered or obstructed by, amongst other things, the failure to report alleged criminal offences, the discouraging of witnesses to come forward, the alerting of alleged offenders to possible police actions, or the destruction of evidence (the "Second Term of Reference").
8. The expression "relevant matters" is defined in the Terms of Reference as meaning:
"any matter relating directly or indirectly to alleged child sexual abuse involving Father Denis McAlinden or Father James Fletcher, including the responses to such allegations by officials of the Catholic Church (and whether or not the matter involved, or is alleged to have involved, criminal conduct)."
9. The public hearings of the Inquiry scheduled for this week and the following week are directed at the First Term of Reference.
10. The Commission will hold separate public hearings in June and July, in Newcastle, in relation to the Second Term of Reference.
11. On 13 February 2013, the Inquiry’s public proceedings were formally opened. On that occasion, I made some opening remarks relating mainly to the Second Term of Reference, certain of which I now wish to repeat. I do so in particular, for the benefit of those who are present in the courtroom today from the Hunter region which has been so deeply affected by some of the matters investigated by this Inquiry.
12. First, children are inherently vulnerable and innocent. The sexual abuse of children is abhorrent. It exploits their vulnerability, irreparably damages their innocence and casts a shadow over their whole lives. It can be very difficult for children to break their silence about sexual abuse, and when they do, the collective responsibility to take action weighs heavily on all.
13. Further, the perpetrators of such child sexual abuse, including in a clerical context, will often hold positions of trust in relation to the child. When sexual abuse is committed by those in positions of trust and authority, it is even more abhorrent. The commission of such acts of sexual abuse always involves a reprehensible betrayal of the faith and trust placed in that person by the child and the child’s family.
14. Secondly, the Diocese of Maitland-Newcastle has had a very troubled history regarding _issues of child protection and the sexual abuse of children perpetrated by persons associated with the Diocese, including certain priests.
15. Two of those priests were Father Denis McAlinden and Father James Fletcher. Both of these persons are named in the Commission’s Terms of Reference. Each has been recognised, including by the Diocese, as having committed sexual abuse against children whilst serving in, or incardinated to, the Maitland-Newcastle Diocese.
16. Father Denis McAlinden is regarded by many as having a history of sexual offending against children over four decades. Many persons identifying themselves as victims of Father McAlinden have come forward over time. Father McAlinden died in 2005. In June 2010 Father McAlinden was publicly described by the then Bishop of the Maitland-Newcastle Diocese as having been "a predator", who should have been dealt with earlier.
17. Father James Fletcher was ultimately convicted and sentenced in NSW in 2004 of having committed nine offences relating to the sexual abuse of a minor, who had been an altar boy. The sentencing judge described these offences as involving a "gross and inexcusable breach of trust" Over time, a number of other victims of Father Fletcher came forward.
18. Following the conviction of Father Fletcher, in December 2004, the then Bishop of the Maitland-Newcastle Diocese issued an apology to the victims and the victim’s families for the pain and suffering caused by the criminal actions of Father Fletcher. Father Fletcher died in gaol in January 2006 [from natural causes].
19. A third matter of importance should be noted. A number of persons who have identified themselves as victims of Father McAlinden or Father Fletcher have information that is relevant to the Inquiry and have come forward to provide that information since the announcement of the Inquiry. I have previously encouraged, and continue to encourage, these people to contact the Inquiry so that their voices may be heard, and so that steps can be taken to consider the information that may be available. It has rightly been said that child sexual abuse is no longer a crime in which the conspiracy of silence continues to the grave.
20. Fourthly, this Inquiry provides an important opportunity for persons who held relevant positions within the Catholic Church to come forward and provide information to the Inquiry about events that occurred in the past.
21. Conceivably, this may include information both as to the good and the bad that occurred in the past, including (if it be so) an acknowledgment that things could well have been handled differently and better. I have previously encouraged, and continue to encourage any such person who may have relevant information also to come forward and provide it to the Inquiry.
22. Fifthly, this Inquiry will principally look at matters that occurred in the past. In doing so, while there may be some important aspects that are regarded as immutable, some care may need to be taken about necessarily judging events of the past solely by today’s knowledge and standards. I now take the opportunity to mention some further matters by way of introduction. First, as is now well known, after the establishment of the present Special Commission of Inquiry a National Royal Commission into Institutional Responses to Child Sexual Abuse has been established. The National Royal Commission was effectively established on 11. January 2013, pursuant to Letters Patent issued by the Governor-General on 11 January 2013 under the Commonwealth Royal Commissions Act 1902 (Cth).
23. The terms of reference of the National Royal Commission are broadly stated. Consistent with its terms of reference, the Royal Commission can look at, among other things, any private or non-governmental organisation, including a religious organisation (such as a Diocese), that is, or was in the past, involved with children, and to consider the institutional responses to allegations and incidents of child sexual abuse and related matters.
24. The present Inquiry is authorised to and has established arrangements for the referral and sharing of evidence, information and matters coming to the attention of the Inquiry which fall outside the scope of terms of reference but which may be of relevance to the National Royal Commission.
25. This Inquiry has been able to utilise this procedure to refer material, received from a number of different sources, for examination and investigation by the Royal Commission, and will continue to do so as appropriate.
26. The Inquiry has received from Detective Chief Inspector Fox a large quantity of evidence and material that, while falling outside the Terms of Reference of the present Inquiry, raises matters of significant importance. This includes matters in relation to the general manner in which the Catholic Church has dealt with child sexual assault allegations. This evidence and material provided by Detective Chief Inspector Fox has been referred to the Royal Commission for further examination and investigation.
27. A significant focus of the Inquiry’s work has been dealing with victims of past sexual abuse by Father McAlinden and Father Fletcher and with victims’ families. This leads me to the second matter of present importance. The Inquiry will adopt the practice of using pseudonyms to protect the identity of particular persons, mainly victims and family members, who may give evidence, or otherwise be referred to in evidence or documents before the Inquiry. The use of such pseudonyms has regard to the particular sensitivities of victims and family members who may already have suffered severely because of the offending conduct of Father Denis McAlinden or Father James Fletcher.
28. It is expected that counsel and witnesses will also use designated pseudonyms when referring to victims and victims’ families.
29. I also intend to make non-publication orders regarding the names of such persons or any matters that would tend to identify them.
30. A final matter should be mentioned, although it will have greater relevance to the hearings in June and July in relation to the second Term of Reference. On occasion, the Inquiry may be required to take certain evidence in camera (le without access to the media or the general public present). Under the Special Commissions of Inquiry Act, I am authorised to take evidence in camera where it is considered desirable to so, including so as not to prejudice, by pre-trial publicity, any potential future criminal proceedings or influence evidence that any witnesses might give at such proceedings. In circumstances where I am commissioned to inquire into particular matters which relate to allegations of "concealment" by members of the Catholic Church of sexual abuse of children, and the subsequent co-operation of Church officials with relevant police investigations, I do not make such orders lightly. However, the necessity for such procedures arises primarily due to the fact that the present Inquiry was announced against the background of an existing Police investigation (Strike Force Lantle) into alleged concealment of sexual offences by Catholic Church officials. This Inquiry must not compromise any potential future criminal proceedings in any way.
Text of the opening address by Julia Lonergan, SC.
Special Commission of Inquiry into matters relating to the Police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle.
Opening Address of Ms Julia Lonergan SC
Newcastle Supreme Court - Monday, 6 May 2013
1. Was Detective Chief Inspector Fox asked to cease investigating matters about alleged cover-ups of church paedophilia in the Maitland-Newcastle Diocese?
2. If so, why did that happen?
3. What were the circumstances in which Detective Chief Inspector Fox was asked to cease investigating those matters?
4. What exactly was Detective Chief Inspector Fox investigating in 2010 and where were his investigations up to when he was asked to cease and hand over his material?
5. Were these matters investigated or shelved?
6. Were alleged cover ups of child sexual abuse allegations relating to the Catholic Church in M/N diocese being properly investigated or put to one side as too complex or too difficult?
7. These are the sort of questions I am sure are circling in the minds of people who heard about or watched that ABC Lateline program in November last year or read DCI Fox’s open letter to the Premier.
8. They are very important questions. They strike at the heart of the administration of justice and child protection in this region. Although an inquiry into local matters, the concerns are universal.
9. Shortly I will indicate what evidence I expect this Commission will hear which will explore those questions.
10. Before turning to certain matters that may provide some context for the evidence I anticipate may be given, it might be helpful Commissioner, for the benefit of those who are present in the Courtroom, to set out a little about the Commission’s processes.
11. First, my role as Counsel assisting you, along with Mr Kell and Mr Hunt, instructed by the Crown Solicitor’s Office, is to present, fully and fairly, relevant evidence that has been uncovered in the course of the Commission’s investigative phase. Evidence of a more non-contentious nature will be dealt with by the tendering of written statements. Where necessary, the oral evidence, that is what witnesses say here before you under oath, will be tested, so Commissioner you can determine what evidence is reliable for the purposes of the final report you are required to prepare for the Governor.
12.Various interested parties are represented here, including in particular relevance to this Term of Reference 1, the New South Wales Police Force, and Detective Chief Inspector Fox. I expect on occasion, Commissioner that you might give legal representatives leave to ask questions to clarify the evidence of particular witnesses or to address matters that relate to their client’s particular interests in the subject matter of this Inquiry.
13. Since the announcement of the Inquiry in November last year, and following the public opening of proceedings in February this year, much work has been done. The Commission has conducted over 100 private hearings and interviews, and many thousands of pages of documents have been obtained from Church agencies and the NSWPF, and closely reviewed.
14.A large number of statements have been sought and obtained. A great deal of information has been provided on request without the need for a formal process.
15. In other cases, compulsory processes have been used in order to obtain information.
16.A number of persons have come forward with important information and been seen at the Commission’s Inquiry Information Centre in Wallsend in March and April and as recently as yesterday.
17.Apart from oral evidence, I expect that you, Commissioner, will ultimately be required to consider and assess a great deal of relevant documentary material that has been extracted from the voluminous materials considered during the investigative phase.
18.0ur specific purpose over the next two weeks is to examine the assertion by a senior police officer of 34 years’ experience, that he was ordered to cease investigating things that touch upon firstly, the safety of children and secondly, suspicions and allegations of cover up by church officials of knowledge of sexual abuse of children by two priests who were incardinated to the M/N Diocese. Their names are Denis McAlinden and Jim Fletcher and from now I will refer to them simply as McAlinden or Fletcher.
19. By way of history, I anticipate that the Inquiry will hear evidence that despite documented knowledge of allegations of sexual abuse as far back as 1976 (and some undocumented knowledge as far back as the mid-1950s) being held by the M/N Diocese, and/or its personnel, it was not until late 1999 that any complaint about McAlinden sexually abusing children was conveyed to the NSW Police Force.
20.That complaint was taken to the police by the victim, not by the Church.
21. I expect the evidence will reveal that police officers took a statement detailing that particular sexual abuse of that child by McAlinden. That abuse had occurred in the 1950s. A warrant was issued for McAlinden’s arrest on 1 December 1999, however evidence suggests that McAlinden was not arrested as he could not be found.
22.The Inquiry will also receive evidence that in 1992, McAlinden had been charged and acquitted of sexually abusing a child in Western Australia in 1982.
23.1t is not clear whether the NSW Police Force knew of the Western Australian charges at the time they were dealing with the 1999 complaint.
24. For the next two weeks most of the oral evidence will be from police officers. The Commission will commence with Detective Chief Inspector Fox who will give evidence that is of course central to this Inquiry’s terms of reference. His evidence now will focus on matters relevant only to TOR 1. He will be recalled at the beginning of the public hearing re TOR 2, to give evidence regarding those matters.
25.The Inquiry will also hear evidence from Ms Joanne McCarthy, a senior journalist with the Newcastle Herald regarding her role in bringing certain information to the attention of the NSW Police and her subsequent interactions with DCI Fox and other police officers.
26.1 expect this will be followed by the evidence of other police officers or former police officers broadly in chronological order in terms of the sequence of events relevant to this Inquiry.
27.By way of general background regarding McAlinden, evidence obtained by the Commission suggests that intelligence regarding a number of other complaints about McAlinden filtered through to the NSW Police Force in the early 2000s. At that time, it was asserted by Church officials that no-one knew where McAlinden was.
28.The evidence is likely to reveal that as a result of matters being followed up by NSW Police in relation to Operation Peregrine, an unrelated police operation concerning outstanding warrants, the outstanding 1999 warrant for McAlinden was actioned. Further investigations were then undertaken by Detective Grono in Western Australia, who ultimately located McAlinden in that state in September 2005. McAlinden was not extradited due to significant health issues.
29. He was still living in WA when he died in November 2005
30.1 now turn to some observations regarding investigations into Fletcher. In 2002-2004 DCI Fox successfully investigated and prosecuted Fletcher for repeated sexual abuse of a boy, aided by tendency evidence from another victim of Fletcher.
31. Certain aspects of the handling of that matter on the part of officials of the M/N Diocese were of concern to DCI Fox.
32.That matter and related matters will be explored in the TOR 2 public hearings that commence on 24 June 2013 here again in Newcastle in this court.
33.This Inquiry is likely to hear evidence from DCI Fox over the next few days that in 2004-2006, he sent reports to the police hierarchy, documenting his concerns in relation to a potential paedophile ring operating in M/N Diocese. This was against a backdrop of other police investigations into paedophile behaviour by priests and associates of the Maitland Newcastle diocese which are not the subject of this inquiry — known as Strike Force Georgiana. Some broad background evidence will be given re those investigations by Det Sgt Faber. This Inquiry understands that DCI Fox had no active role in that Strike Force.
34.1 anticipate it will be established that by 2007 DCI Fox had been promoted to the position of Crime Manager, Port Stephens LAC.
Some attention will be given to describing the responsibilities of that position within the Police hierarchical structure.
35. Moving now to 2010, 1 expect the evidence will demonstrate that a series of events in the first half of 2010 activated particular interest in issues relating to McAlinden. Certain confidential church documents were provided to the press, and were published in particular by Ms Joanne McCarthy, who had over the years written a number of newspaper reports raising issues regarding paedophilia in the M/N Diocese.
36.1 anticipate that DCI Fox will give evidence that from around early June 2010 he pursued certain investigations that he kept confidential to himself, rather than logging them through the usual police channels and that he will explain why he took that course.
37.The evidence will show that in September 2010, DCI Fox was then allocated a matter to investigate. It was a ministerial complaint regarding certain concerns that at least one other priest knew, or ought to have known, of Fletcher’s offending conduct with young boys at, and around the time, it was occurring.
38.1 anticipate that the Inquiry will hear evidence that this file - consisting of the complaint letter — came to DCI Fox the day he was to go on leave for a month.
39.The evidence is likely to show that whilst on leave, DCI Fox’s office was searched for this and any other material regarding "church investigations". It is anticipated that evidence will be taken from him regarding his reaction to that and evidence from at least one of the officers involved as to why this search was done.
40. I anticipate the Commission will hear evidence relating to the establishment of the police investigation known as Strike Force Lantle, which was directed to investigate allegations of concealing offences by clergy formerly and or currently attached to the WIN Diocese. Evidence available to the commission suggests that on 12 October 2010, Detective Sgt Kirren Steel of the Newcastle Local Area Command was allocated carriage of that investigation, with assistance from Acting Detective Inspector Quinn and supervised by DCI Tayler.
41. Evidence will also be heard in relation to DCI Fox’s attempts to contact Detective Sgt Steel to "get their heads together" on the investigation, but for reasons which 1 expect the evidence will explore, this never occurred.
42.The Inquiry will hear evidence from a number of police officers about a meeting at Waratah Police Station on 2 December 2010.
43.1 anticipate that DCI Fox will give evidence that as a consequence of a direction given during this meeting, then Superintendent Max Mitchell, the then Commander of the Newcastle LAC, DCI Fox perceives he was ultimately removed from any investigative role relating to child sexual abuse matters within the Catholic Church. There will be significant focus on what occurred at that meeting and in the lead up to it and what various officers did after the meeting. Most officers attending that meeting will be examined as to relevant events.
44.1 expect the Commission will receive evidence about the fact that shortly after this meeting, the three officers appointed to Strike Force Lantle went off work on sick leave for a variety of reasons and have not returned to the NSW Police force.
45.In their place, the matter was allocated to Detective Sgt Little on 30 December 2010 and some limited public evidence will be given regarding the progress of the investigation after that.
46.Commissioner, as you have indicated, this Commission must not prejudice or compromise any potential future criminal proceedings which might arise from Strike Force Lantle or any related investigations. There are good reasons why some aspects of evidence relating to that investigation must be taken "in camera".
47.1 anticipate there will be evidence about the degree to which there was consultation with other police agencies in moving the Strike Force Lantle investigation forward.
48.1 expect, toward the end of this public hearing, to call expert independent evidence from a highly experienced former crown Prosecutor regarding the quality and sufficiency of the Strike Force Lantle investigation completed by Detective Sgt Little.
49.An important background issue, relevant to the circumstances we are exploring is that Ms McCarthy continued to publish newspaper articles addressing the Strike Force Lantle investigation and its subject matter. 50. I anticipate that there will be evidence from some police officers to the effect that there was some initial concerns as to confidentiality relating to the Strike Force Lantle investigation and that to protect the integrity of the investigation, steps were taken to avoid further information being "leaked" to the press.
51.1 anticipate that the Commission will receive evidence that in late March 2012 Superintendent GraIton, the Commander of Newcastle LAC, confirmed that directions given to DCI Fox on 2 December 2010 were to remain in place.
52.In April 2012 there were some exchanges between Det Sgt Little, his supervising officer Detective Inspector Parker and DC1 Fox regarding the Strike Force Lantle investigation. I expect evidence to be given about those matters.
53.The evidence will show that by late 2012, Detective Chief Inspector Fox was sufficiently concerned about events as he saw them, and what he regarded as the absence of any obvious investigation, that he ultimately participated in an interview on the Lateline program on 8 November 2012.
54. Police were invited to respond to matters raised by DCI Fox on Lateline. Assistant Commissioner Carlene York, the Northern Region Commander, formally responded to the following effect:
i) Strike Force Lantle was established to ensure a thorough and coordinated investigation was undertaken in relation to the matters raised;
ii) DCI Fox was the Crime Manager at Port Stephens Local Area Command and it would be unusual for a Crime Manager from a neighbouring LAC to work on a Strike Force in another LAC, particularly one like Newcastle City LAC where there were already two Detective Inspectors overseeing the investigation;
iii) DCI Fox had been informed that the Strike Force would be fully investigating the allegations; and
iv) He was consulted on numerous occasions and asked to provide information to assist the investigation.
55.1 anticipate the Inquiry will hear evidence from DCI Fox that the first he knew these were the reasons he was asked to cease his investigation was when these answers were published as part of the Lateline program on 8 November 2012.
56. It is expected that AC York’s evidence will focus on those matters and other decisions made by her in establishing Strike Force Lantle.
57.Commissioner, the focus of the following two weeks will be upon exploring the evidence to find answers to the kinds of questions I raised at the start of this opening. This will assist you Commissioner to fulfil the obligations with which you are charged in relation to TOR 1.
58.To commence that process, after a short adjournment, appearances will be taken and I will commence the oral evidence, first calling DCI Fox.