R v Pidoto [2002] VSCA 60

R v Pidoto [2002] VSCA 60 - VSCA 2002 case summary — Zoe

[35]

The complainant's mother, as I have earlier indicated, was involved in a motor car accident in July 1978. She was seriously injured and hospitalized for approximately 16 months. She stated that there has been some impairment of her memory in consequence. She gave evidence that she was a regular church-goer and came to know the applicant when he assumed the role of assistant parish priest for the area. This, she believed, occurred in 1977. The applicant became a weekly or fortnightly visitor to the family home. Her sons were playing football at around that time and she told him that they were sustaining some football injuries. The applicant said that he might be able to do something for the complainant and told her that he was a masseur. After that conversation, when he visited the home, he would inquire about the children and then take the complainant into the bedroom to "check the football injuries". This happened approximately weekly. She provided the applicant with a jar of vaseline when he asked for it on one occasion. She stated that the glass on the servery window between the kitchen and the boys' bedroom was more brown than yellow in colour. The window was in working order. There was a window (which was curtained and equipped with blinds) in the boys' room adjacent to the verandah. This window provided a view into and presumably from the neighbour's yard. During the day, the curtains and blinds would normally be left open. She did not recall a table being taken into the boys' room for the purposes of massage or that the complainant's brother had received any massage treatment. It was after the complainant's mother met the applicant, that her son reported to her that he had "a sore bum". In due course, she took him to Dr Sherman, who in turn referred her to a specialist surgeon, Mr Mackey, for treatment for this condition. She did not remember when the complainant was taken to be seen by Dr Sherman. She disagreed that, in 1976, her son had been examined by a surgeon named Mr Neil Johnson. However, she accepted that at the committal hearing she had said that she recalled such a visit having taken place.

[60]

"COUNSEL: Just one matter that I was a little bit concerned about, Your Honour. I didn't recollect Your Honour telling the jury how to use the documentary evidence. Here we have got the two letters from the solicitors which fall into one category and we have got the doctors' histories which fall into a different category. I submit that it would be wise to - - - HIS HONOUR: What do you say I should tell them about it? COUNSEL: Firstly, that they are entitled to use the letters to the solicitor when weighing [the complainant's] declaration that he was not interested in compensation. I would seek a direction that he says that the solicitors were not acting on his instructions and yet the solicitors appeared to be doing just that. HIS HONOUR: It is specifically put to the jury in the course of the resume of [the complainant's] evidence that he did indeed concede that he was claiming compensation. COUNSEL: He did say that but he said repeatedly that he wasn't interested in money. HIS HONOUR: I know he did but at the end of his evidence - Question: `You have been to Mr O'Callaghan twice. All along you say, "I'm not interested in compensation?" Answer: "The solicitor told me [you're] entitled to it, and I say I don't want it. He goes, "Look, it's there. It's put up for you sort of people, people who have been affected by the clergy or by an order." I say, well you just do whatever you have got to do. I don't care - doesn't, you know, it's not my main interest.' What more do you want than that? COUNSEL: Your Honour, that must be balanced against his repeated declarations that he did [not][6] want compensation, that he had not given the solicitors authority to write that letter. That appears at p.48. The difficulties with his instructions to his solicitor which appears at p.54 and, in my submission, these letters have simply been left hanging. My perception of it, Your Honour, is that it is still a live issue in his evidence as to whether he did really want compensation or whether he was just doing this to stop Father Pidoto being a priest. It was his denial that he was interested in compensation that was the significant part of that and that is the bit that those letters go to. That, Your Honour, deals with the letters. As to the histories, they have histories which have been attested to by Mr Mackey and by Dr Sherman and those histories are evidence of the truth of their contents and they may treat them as that. HIS HONOUR: - - - , the histories have been read into evidence. They are part of the viva voce evidence. Both doctors have said - the ones who have been called, I have no particular recollection but this is my note and this would be what the situation is. COUNSEL: In fact, Mr Mackey went further and said he recollected ringing Mr Johnson and he - - - HIS HONOUR: The jury would have been told that. COUNSEL: Your Honour, it is just that documentary evidence does fall in a different category from viva voce evidence. HIS HONOUR: What do you want me to tell the jury about the medical documents? What do you want me to say? COUNSEL: That they are evidence of the truth of their contents and they may use those to support the evidence of the doctors who gave that evidence and they may use their view of the evidence for what help it is in assessing [the complainant's] evidence. Those are the two matters."

[94]

"1. The offences were alleged to have taken place in a bedroom of the complainant's family home while members of his family were present in the house. 2. The bedroom was connected to the kitchen by a coloured glass servery window. This window opened to connect the two bedrooms. It was in fact opened by the complainant's sister during one of the massages. There were other windows opening onto the verandah towards the neighbour's house at the side. 3. There was no support for the complainant in respect of any noise from the bedrooms save from his sister who claimed to have heard creaking bedsprings. This was not consistent with the evidence from the complainant and his brother that a kitchen table was carried into the bedroom for the purpose of massages, that the massages took place on the table, and that the assaults took place during the massages. 4. The assaults were alleged to have taken place during the (junior) football season of 1977. This season ended in July 1977. 5. The complainant claimed that as a result of the assaults his anus bled and that he was taken to the family doctor. This was supported by his sister who said that he complained that his anus bled and was taken to the doctor within a few days. The family doctor, Dr Sherman, said he was consulted in October 1977 for a complaint described as haemorrhoids ("blue grapes came out of his bum"). He referred the complainant to Dr Mackey who took a history which included `No bleeding'. 6. The complainant claimed that he had no problems medically until he bled as a result of being assaulted by the applicant. Medical evidence showed that he had consulted a general surgeon Neil Johnson in 1976 and received treatment for haemorrhoids. He also consulted and received treatment for haemorrhoids in December 1978. 7. When examined by Dr Sherman in October 1977, Dr Sherman saw no sign of sexual interference. When examined by Mr Mackey in November 1977, he saw no sign of trauma. 8. There were a series of inconsistencies in the evidence of the complainant as to his efforts to get compensation. He denied instructing Hollows Solicitors to seek compensation on his behalf. A letter from Hollows Solicitors was tendered indicating that they were acting on his behalf and seeking compensation Exhibit A. 9. The complainant denied seeking compensation from Mr P. O'Callaghan QC, the Independent Commissioner of the Catholic Church. Yet he visited Mr O'Callaghan on two occasions and his solicitor's letter sought referral to the compensation panel set up by the Catholic Church. 10. There was conflict as to the complainant's attendance at `Broken Rites' (a support group for those complaining of sexual assaults by members of the clergy). The complainant said that after attending once he did not go again. He told his wife he had been to other meetings but he in fact went to the pub. She said that at the time she was alive to the contradiction of him going off to a Broken Rites meeting and coming home with alcohol on his breath; she sometimes smelt alcohol on his breath when he came home. 11. There was no complaint about the applicant for 17 years after these events. 12. The applicant denied these allegations when they were put to him by the police, gave evidence on oath denying them and called evidence in support of both the legitimacy of his sports massage technique and his conduct with young men at that time."

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties