Kawicki v Trustees of the Marist Brothers

Category: Procedural rulings

Parties: Mr Kawaki (Plaintiff) (self-represented)
Trustees of the Marist Brothers (Defendant)

Representation: Counsel:
N Polin SC (Defendant)
Solicitors:
Carroll & O’Dea Lawyers (Defendant)

File Number(s): 2021/00273103

Publication restriction: Nil

JUDGMENT

1. I am dealing with the question of the admissibility of a statement made to the Royal Commission into Institutional Responses to Child Sex Abuse (the Royal Commission) by an unnamed victim of child sex abuse perpetrated by Brother Romuald (Br Romuald), who is a person referred to in these civil proceedings. The case against Br Romauld brought by Mr Kawicki, who is self-represented, is that, while he was a student at the college conducted by the defendant at Maitland, Br Romauld inflicted serious physical abuse upon him under the guise of lawful chastisement involving the use of a cane.

2. I should say that in the statement that was made to the Royal Commission, dated 19 August 2016, the name of the person referred to as ‘CQW’ is redacted and replaced with the pseudonym consistently with the restrictions on publication contained in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). It is not quite clear to me how Mr Kawicki obtained a copy of CQW’s statement as he is unable to recall now how this document came to hand from the various materials he sourced whilst preparing his case.

3. As the true identity of CQW is not known to Mr Kawicki, it would appear to me that CQW’s statement does not satisfy any of the provisions under cl 4 of Pt 2 of the Dictionary to the Evidence Act 1995 (NSW) (Evidence Act or the Act) in terms of categories of persons who are taken to be unavailable to give evidence. It would follow therefore, s 64 of the Evidence Act is not engaged.

4. Mr Polin of senior counsel, who appears for the defendant in these proceedings, submits that the only other possible exception to the hearsay rule that may be available is s 69 of the Evidence Act which concerns business records. I have some doubt myself whether the conduct of a Royal Commission constitutes a ‘business’, notwithstanding the broad definition of ‘business’ contained in the Dictionary to the Act which extends to ‘an activity engaged in or carried on by the Crown in any of its capacities’. However, Mr Polin SC relies upon the exception to admissability contained in s 69(3)(a) that the provision does not permit the admission of any statement, ‘prepared or obtained for the purpose of conducting, or in contemplation of or in connection with, an Australian or overseas proceeding.’ He submits that the public hearings conducted by a Royal Commission fall within the ordinary meaning of a ‘proceeding’ under that subsection.

5. For the purposes of s 69(3)(a) of the Evidence Act, ‘proceeding’, as opposed to ‘civil proceeding’ and ‘criminal proceeding’, is not defined in the Dictionary to the Act, and although the Royal Commission is an investigative inquiry rather than the workings of a court, it may be that, applying its ordinary meaning, the word ‘proceeding’ covers the conduct of those public hearings. Putting it another way, one could sensibly talk of the proceedings of the Royal Commission without in any way stretching the ordinary meaning of the language in s 69(3)(a). It is unclear to me whether the Harman undertaking, which applies to the use of material prepared for other court proceedings, also applies to Royal Commissions, and that matter has not been raised.

6. I have already ruled this morning that a statement by another person who claimed to suffer sexual abuse at the hands of Brother Florentine, who features heavily in these proceedings, was admissible as tendency evidence. Mr Kawicki relies upon that reasoning for the admissibility of the statement of CQW. That, of course, does not deal with the problems of the hearsay nature of the statement. But I am also inclined to think that if the hearsay objection could be overcome, the statement is not really admissible in these proceedings as tendency evidence under s 97 of the Evidence Act because it deals only with the misconduct of Brother Romuald in a sexual manner. And Mr Kawicki’s case, so far as it involves misconduct by Brother Romuald, as I have already said, relates to the allegation that he inflicted serious physical abuse on Mr Kawicki by caning him under the guise of lawful chastisement.

7. The statement of CQW is wholly concerned with Brother Romuald’s sexual abuse of him, for which, from the statement, it does appear that Brother Romuald was duly convicted at some time prior to 2016 and subsequently sentenced to a lengthy period of imprisonment. Even if the hearsay problems could be overcome, and so far, they have not, I am of the view that the evidence is not admissible in these proceedings because it is not relevant to any fact that Mr Kawicki is required to prove to make good his case.

8. I reject the statement of CQW dated 19 August 2016.

**********