Royal Commission Case Study 29 (Jehovah's Witnesses) — Hearing Transcript, Day 153 (2015)
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ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE
Public Hearing - Case Study 29 (Day 153)
Level 17, Governor Macquarie Tower Farrer Place, Sydney
On Wednesday, 5 August 2015 at 10am
Before The Chair: Commissioner:
Justice Peter McClellan AM Professor Helen Milroy
Counsel Assisting:
Mr Angus Stewart SC
.05/08/2015 (153)
15748 Transcript produced by DTI MR STEWART: As your Honour pleases, the first witness today will be Mr Vincent Toole.
THE CHAIR: It's necessary for you to be sworn. Will you take an oath on the Bible?
MR TOOLE: Yes, certainly. Just excuse my voice, there are some problems.
<VINCENT JOSEPH TOOLE, sworn: [10.04am]
<EXAMINATION BY MR STEWART:
MR STEWART: Q. Mr Toole, will you state your full name, please?
A. Vincent Joseph Toole.
Q. Do you have a copy of your statement dated 10 July 2015 to hand?
A. Yes, I do.
Q. Are there any amendments or corrections you wish to make to the statement?
A. No.
Q. Do you confirm the statement to be true and correct?
A. Yes.
MR STEWART: I tender the statement.
THE CHAIR: Mr Toole's statement will be exhibit 29-023.
EXHIBIT #29-023 STATEMENT OF VINCENT JOSEPH TOOLE DATED 10/07/2015
MR STEWART: Q. As I understand it, you were baptised as a Jehovah's Witness in 1972; is that correct?
A. Yes, that's correct.
Q. How old were you then?
A. I was born in 1948, so probably 23, 24.
Q. How did you come to be a Jehovah's Witness?
A. I was - I moved into a unit with someone who was having a Bible study. I'd been brought up quite religiously. I'd attended a religious boarding school for five years prior to that, but after I left school
15749 V J TOOLE (Mr Stewart) Transcript produced by DTI I basically stopped attending church and, later on, when I moved into this unit, this man was studying.
I'd never really read a Bible before.
Q. Mr Toole, sorry to interrupt you. I'm just looking for an a short answer. So you were introduced through someone you were sharing with?
A. Yes, I studied and was satisfied that this was the truth and wanted to dedicate my life to serve God.
Q. You were appointed as an elder in 1977, as I understand it; is that right?
A. Yes, that's correct.
Q. As I understand it, between being baptised and being appointed an elder, typically there would be no formal, full-time training that someone would go through before being appointed an elder?
A. No formal training, no.
Q. So it would be through involvement in the various activities of the congregation and the teaching and so on; is that right?
A. No tertiary education or anything like that. It was just involvement in the church, application, and involvement as such.
Q. You were a circuit overseer from 1980 to 1989; is that right?
A. Yes.
Q. From 1989 you commenced working at the branch headquarters; is that right?
A. Yes, that's correct.
Q. Would it be right to refer to that as Bethel?
A. Yes, that's another term.
Q. And that term is also used to refer to the world headquarters in Brooklyn; is that right?
A. Yes, that's correct.
Q. When you commenced working at branch headquarters, is it then that you commenced your legal studies?
A. Yes, not long after I arrived there.
Q. Did the branch committee, or did the Jehovah's Witnesses, then sponsor your legal studies?
A. Yes.
Q. In 1993 you completed those studies and were admitted as a solicitor; is that right?
A. Yes, that's correct.
Q. Since then you've done legal work for Jehovah's Witness Australia or Watchtower Bible & Tract Society Australia on a voluntary basis; is that right?
A. Yes, that's correct.
Q. Since 1995, you have also had your own legal practice under the name Vincent Toole Solicitor?
A. Yes, that's correct.
Q. Does that legal practice do independent work outside of Jehovah's Witness work, or do you only do Jehovah's Witness work through that practice?
A. Primarily just Jehovah's Witness work, but I've done work for my family and other people.
Q. But am to I understand that you don't run it as a commercial law practice?
A. Not as a commercial practice, no.
Q. Since 2010, as I understand it, you've had oversight of the legal department in Australia; is that right?
A. Yes, that's correct.
Q. So you've been involved in the legal department, am I right, since 1989,and have had oversight since 2010?
A. That's correct.
Q. I take it, then, you also live at Bethel?
A. Yes, I do.
Q. Your daily needs are provided for as a member of the worldwide order of special full-time servants of Jehovah's Witnesses; is that right?
A. Yes, that's correct.
Q. In much the same way as Mr Spinks described yesterday?
A. Yes, exactly.
Q. If I can refer to your statement, and starting at paragraph 13?
A. Paragraph 13?
Q. Yes. You say:
All elders serving in congregations of Jehovah's Witnesses throughout the world have been directed to contact the Legal Department in their local Branch Office as soon as they learn of an allegation involving child [sexual] abuse.
So am I to understand that there is a uniform process set out which applies throughout the world? A. Subject to the fact, of course, that many branches mightn't have a legal department, but they would contact the branch there. But in Australia we do have a legal department.
Q. That process, which is applicable throughout the world, is determined by the Governing Body?
A. It's a general direction throughout the world, as I understand.
Q. Yes, and it's a general direction throughout the world determined by the Governing Body?
A. Well, as far as I understand, it's a direction that elders have been given.
Q. Yes, but, Mr Toole, you seem to be trying to avoid what I understand to be quite well accepted, which is that it's the Governing Body that determines that direction?
A. That's what I understand, yes.
Q. And that is typical, is it, of all Jehovah's Witnesses policies and procedures - that is, they are determined by their Governing Body and made applicable throughout the world?
A. Yes, the general policy would be determined by the Governing Body, but the application in the local setting would depend on the branch committee applying it to the relevant things in their local area.
Q. Yes. Whether a policy is actually followed in practice is a separate question, but dealing with the setting of what the practice is supposed to be, that is set by the Governing Body?
A. That's what I understand.
Q. Coming to the question of responses to child sexual abuse allegations specifically, the Australia branch then follows the guidelines of the Governing Body; is that right?
A. The guidelines. But they will apply it in any way that needs to be adjusted in the local - for the local area.
Q. Let's just be clear on that. The particular application may vary from case to case; is that right?
A. Yes, yes.
Q. But that application is intended to be within the parameters of the policy or procedure itself; is that right?
A. Yes, I'd agree with that.
Q. It's the case, is it not, that the Australia branch office will not itself set any practice or policy to apply normatively, unless it's been approved by the Governing Body?
A. In terms of policy, they will adjust it to the local circumstances. So, for example, if there was no legal department in Australia, for example, that direction wouldn't apply, so they'd have to adjust it to whatever the local situation was.
Q. Well, there wouldn't then be a direction from the Governing Body that the legal department should be contacted. In a country where there was no legal department, the direction from the Governing Body, which the branch would then set, or apply, would be that the branch office be contacted?
A. Yes, that's right.
Q. Is there a constitution by which the Jehovah's Witnesses internationally are governed?
A. I don't think I could answer that, but my understanding, it's clearly just what the Bible has to say.
Q. But seeking to address it, for a moment, from a legal perspective, what I understand from the statements is that one has a Governing Body situated in New York, but having an operation, I suppose, throughout the world, and then branches in various geographic areas and, also, congregations -A.
Yes.
Q. -- within the jurisdiction of each branch. That's right so far, isn't it?
A. Yes.
Q. And in Australia it's said that each congregation is, in a legal sense, a voluntary association; is that right?
A. Yes.
Q. Yet the congregations take their direction and instructions from the branch, which, in turn, takes its direction and instruction from the Governing Body - that would be right factually?
A. Yes, I think that's a reasonable --
Q. So, now, by operation of what legal rule or norm does that occur? In other words, by what legal rule or norm does the congregation take its direction from the branch? Is there a constitution, a contract, a corporation? Is there something that does it? A. Not that I'm aware of.
Q. Is it not the case that the Governing Body sets out what the roles and responsibilities of all the various structures are and their relationship to each other, and the whole system, internationally, is operated in accordance with that?
A. You're really talking to me about an area I don't have much experience in, in terms of that. I just work in a local branch. But I think, in general terms, what you're saying, I would understand to be correct.
Q. Is there a manual or a document published by the Governing Body which sets that out - what its responsibilities are, what the branches' responsibilities are, and so on?
A. I'm unaware of any such document.
Q. So is there not, to your knowledge, a document which sets out the responsibilities of each of the Governing Body committees, for example?
A. I have no knowledge about that whatsoever.
Q. And a document, perhaps, which sets out how members of branch committees are to be appointed?
A. I have no knowledge about that. I've never seen or heard of such things.
THE CHAIR: Q. Can I just understand: are you the senior lawyer advising the Jehovah's Witnesses in Australia?
A. I'm not sure about "senior", but I look after the legal department. But I'm being asked questions about things that I really haven't been involved in at all.
Q. I know, but I'm trying to get to understand your relationship to the management structure in Australia and in New York, you see. Normally, in an organisation, if there's a legal department and a head lawyer, then that person's services would be used to advise in relation to documents - the meaning of documents, the drafting of documents and so on.
A. Nothing - I've never been involved in any of the document types of situations that I'm being asked about, at all.
Q. Who, in the branch here, holds the reins?
A. The branch committee.
Q. The committee. How many people are on that committee?
A. Probably nine or 10, but it might be - it's around that figure. I'm not actually certain, but it's somewhere around that figure.
Q. Is that their job, to be members of that committee, or do they have other roles in the organisation?
A. They are appointed members of the branch committee. They collectively serve together, but they would have administrative roles at the branch doing different things.
Q. At the branch, though?
A. Yes, at the branch.
Q. They are all people who work at the branch?
A. Yes, they are at the branch.
Q. Is one of them, as it were, the head of the committee? A. I think it's first among equals. I don't think anyone is head of the branch, as such, but Mr O'Brien cares for the coordination of that particular branch committee. But I don't think anyone has greater authority or lesser authority. If you're a member of the branch committee, I understand your an equal member of the branch committee.
Q. The next step in the hierarchic organisation of the Jehovah's Witnesses from the branch committee is to where?
A. I think the branch committee goes back to the Governing Body.
Q. In New York?
A. In New York. That's as I understand it.
Q. Do you know whether they have to provide a report to
the Governing Body?
A. I've never been on a branch committee. I don't know what happens there.
Q. You mean you work as the Jehovah's Witnesses' lawyer, but you have no knowledge of what -- A. I have never been involved in a report given that way because it's not a legal matter. Nothing has ever been discussed with me about that.
MR STEWART: Q. The branch committee members, Mr Toole are appointed by the Governing Body; is that right? A. I understand that's the position, yes.
Q. You say your understanding is that the branch
committee members are equals. One of them is actually designated coordinator, is that not right? A. Yes, I think he's the coordinator of the - of the branch committee.
Q. And that designation or responsibility also is an appointment by the Governing Body?
A. I believe so, but I'm not absolutely certain - but I believe so. I'm sorry I don't have a lot of information on that,but I just- I've never been involved.
Q. There are other copies coming shortly, but I'd just like to show you - there's a copy for you - a document. You see it's headed "Branch Organisation Effective December 15, 1977, Revised February 2003". It
says.
This material in Branch Organisation --
being the name of the publication --
should not be copied or duplicated except
05/08/2015 (153) 15756 V J TOOLE (Mr Stewart)
Transcript produced by DTI with the permission of the Branch Committee.
It's published in the USA, I understand, by the Governing Body. Have you seen this publication before? A. No, I have not.
Q. Do you know if this is the current edition?
A. I would have no idea.
MR STEWART: Your Honour, I call for any revision or subsequent edition to the publication "Branch Organisation".
MR TOKLEY: Until just then it wasn't called for. I will have a look.
THE CHAIR: I am sorry?
MR TOKLEY: I'll have an inquiry made about it. There are revisions.
THE CHAIR: More than that: we'd like to know the answer.
MR TOKLEY: Of course, your Honour. Without wishing to interrupt my learned friend's line of questioning, Mr O'Brien is coming to give evidence today. It may be that some of these questions are best directed towards him.
THE CHAIR: We'll let counsel take his course.
MR TOKLEY: Of course, your Honour. Understood. One final thing, if I may, could I ask for a non publication order in respect of that? I would assume that it is a very confidential document.
THE CHAIR: You'd have to persuade me of that, Mr Tokley. The Royal Commission, as far as possible, operates in public.
MR TOKLEY: Understood, your Honour.
THE CHAIR: Presently, I can't see why this document should not be a public document. You'd have to persuade me.
MR TOKLEY: Thank you, your Honour. I might take instructions over the morning break on that.
MR STEWART: I haven't tendered it yet, your Honour.
THE CHAIR: I think we assume it's coming.
MR STEWART: Yes, it is. I'm grateful to my learned friend in relation to what he says about Mr O'Brien because, really, that underscores the point that we really need, if there is such a document, a revision or updated version of this during the course of the morning, so that Mr O'Brien's evidence later in the day can serve some purpose.
THE CHAIR: Do you seek to be tender it now?
MR STEWART: There is no need to tender it right now, your Honour. I'll allow my learned friend to take his instructions with regard to a publication order or otherwise.
THE CHAIR: All right.
MR STEWART: Q. Can I take you, Mr Toole, to paragraph 15 of your statement?
A. Paragraph 15?
Q. Paragraph 15, yes. That's Ringtail 03. You'll see you say:
Where the law does not require ministers of religion to report allegations of child abuse, the Legal Department has been instructed to direct the elders to clearly explain to the victim and/or their families that they have an absolute right to report the matter to the authorities and that they should feel completely free to do so.
So you say there, that "the legal department has been instructed to direct", and then you go on to say what you've been instructed to direct. Who gave that instruction?
A. Well, I understand that's just a branch committee direction in harmony with the directions we've been given.
Q. Let's just clarify the terminology there. You say, "the legal department has been instructed", so is that the case - the legal department has been instructed to direct, as you set out in that paragraph?
A. In harmony with the direction we were given in that previous letter about reporting, my understanding clearly is that's the direction that we are expected to give whenever we receive a call in relation to this matter.
Q. So it's the branch committee that has given that instruction to the legal department?
A. I understand, in harmony with that letter.
Q. In harmony with which letter?
A. The letter that is referred to just a little earlier, that one there, 1 October 2012.
Q. That's at tab 124.
A. And that certainly is our practice.
Q. Can you identify where, in the letter, the legal department is instructed or directed to direct elders to clearly explain to the victim and/or their families that they have an absolute right to report the matter to the authorities?
A. No, I can't, but it's in the spirit of what's being discussed there. It has always been my understanding that that's the direction that we're to give.
Q. Well, Mr Toole, just to be clear, you say in your statement that the legal department has been instructed to do something. I understand, now, you are shifting from that and you're saying that that is in the spirit of this letter - it's not an instruction; is that right?
A. We don't have a written instruction to do that, no, if that's what you're asking.
Q. You don't have any instruction, do you?
A. We've been informed that that's what we should be advising people when they call.
Q. Isn't it the case that the legal department advises on legal obligations to report or otherwise, and then, with regard to other matters, the call from the elders is then passed on to the service desk?
A. I've been taking these calls pretty well exclusively now for the last two or more years. The direction I give specifically when someone calls in - we discuss the matter as far as any mandatory reporting obligations that may apply, and then I make a particular point.
I say - if the mandatory obligation doesn't apply in a certain State, I say, "I want you, two elders, to go back to the victim or their family and explain to them very clearly that they have the absolute right to be able to go and report this matter to the authorities. That's their privilege and they need to understand that, and that you will support them in whatever decision they make." That's the instructions I give every time.
Q. So that's your practice, as opposed to being something you've been instructed to do?
A. Well, they don't - I haven't received formal instructions, that's what I'm saying, but that's what I understand clearly we have been asked to do.
Q. You say you've done this exclusively for, did you say two years or two and a half years?
A. Yeah, approximately two years, I've been taking the calls myself.
Q. These are calls about allegations of child sexual abuse?
A. Yes.
Q. And how many such calls have you taken in that period, would you estimate?
A. I couldn't tell you, but we probably get three, sometimes four, a month.
Q. In respect of any of those, did you take the view that mandatory reporting requirements applied and, therefore, that the elders concerned had an obligation to report?
A. Yes.
Q. And in respect of which States would those have been?
A. South Australia and Victoria.
Q. I'd like to refer you to the Shepherd the Flock of God handbook at tab 120 and, in particular, at page 133 paragraph 22, Ringtail 134, under the heading "Taking Brothers to Court". You are familiar with this section of the handbook, I take it, Mr Toole? A. Reasonably familiar.
Q. There is a strong scripturally based message here, in these paragraphs 22 and 23, isn't there, against the referral to secular authorities of disputes?
A. This is entirely civil matters; nothing to do with criminal.
Q. This is what I wanted to come to. What is the basis for you saying that that is entirely civil and not criminal?
A. Well, this is dealing with situations where people have personal differences - maybe there is a difficulty with work; maybe there is a situation with defamation - or situations that people may well have a dispute with each other, and so the admonition is why not apply scriptural principles to try and resolve the matter. But it has - and if you go on a little further, it actually speaks about there are some things that even though they are personal matters, civil matters between individuals, they are the kind of thing that the congregation has no authority or no jurisdiction to be able to adjudicate on - things like custody matters, probate matters and things like that. So it's just dealing with issues that exist between individuals, but certainly not criminal matters in any way, shape or form.
Q. You would appreciate that if not in all, certainly in most circumstances that might give rise to a criminal charge,a civil wrong would also have occurred which might give rise to a civil claim or dispute?
A. Well, that's potentially possible, yes.
Q. Well, let's be more specific. In the case of a sexual abuse allegation, that may give rise to both a criminal charge and a civil claim?
A. All I can tell you is that that particular scripture does not prevent --
Q. It's going to help us if you just answer my question I'm not talking about the scripture. I asked you a specific question which, between you and I, as lawyers, we should be able to discuss and find common ground quite easily.
A. Sure.
Q. What I said to you is: in the case of a sexual abuse allegation, the facts of the allegation may give rise to both a criminal charge and a civil claim.
A. Yes, potentially.
Q. So a person who has been abused would have an issue or a dispute with their abuser, which might give rise, in the law, to matters to be resolved - one criminal, and one civil?
A. Potentially, yes.
Q. Is it not the case, then, that, absent any clear guidance to the contrary, publishers who have access to information like this would understand it to mean that their dispute which arises from a sexual abuse allegation is not to be referred to the courts -- A. No.
Q. -- whether that's the criminal component or the civil component?
A. No, I completely disagree.
Q. Did you follow the evidence in the Commission last week?
A. Yes.
Q. Particularly of the two survivors, [BCB] and [BCG] who gave evidence?
A. Yes, I did.
Q. You would have heard [BCB] give evidence that she was taught that these passages applied equally to criminal complaints?
A. I did hear her say that.
Q. If I can take you to paragraph 16 of your statement, the quote that you have in that paragraph says that there is no obligation on elders to report if the law does not oblige it?
A. This is paragraph 16, did you say?
Q. Yes, that's right. So:
Where the law does not obligate elders to report cases that come to their attention, there is no need for them to do so, but if the matter becomes known to the authorities [they must cooperate] ...
And so on - well, it doesn't actually say that:
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15762 V J TOOLE (Mr Stewart) Transcript produced by DTI ...
they are required to disclose information they have in their possession, they will do so unless they can claim ecclesiastical privilege.
As I understand it - and since you're the one who advises on reporting obligations, perhaps you can confirm - within the Jehovah's Witness view of things, in the absence of a legal obligation to report to authorities - whether police or child protection authorities - there is no moral obligation to report; is that right?
A. Elders do not have the scriptural authority to take away the right of an individual to decide whether or not they want to pursue the matter or not. They have the right to make a decision in terms of their own best interests.
Q. You'll appreciate, Mr Toole, that there are often circumstances in which an individual can't exercise such a right, such as a child, for example, whose parents, for whatever reason, don't exercise that right of reporting on their behalf?
A. Well, their guardian/parent would be perfectly entitled to decide what's in their best interests.
Q. And if their guardian/parent did not report, or told the elders, "I'm not reporting", by reason, for example, that she doesn't want the abusing father to be charged and potentially go to gaol, then the child remains at risk. Would that not, within the Jehovah's Witness view of things, give rise to a moral obligation on the elders to report in order to protect the child?
A. That's why they contact the service department and discuss the whole situation and work out how best to be able to protect the child. There might be a whole lot of other avenues that the service department, in conjunction with the local elders, can discuss about how that's to be done. But at the end of the day, if you go back to an article that we have, published in 1985, it says that when you hear a report of child abuse, whatever is necessary to be done needs to be done to protect the child.
Q. So would it be right that, in some circumstances, there would be a need for elders to report to the authorities?
A. There may well be, yes.
Q. Do you see, then, where this quote says there is no need for them to do so:
Where the law does not obligate elders to report cases that come to their attention, there is no need for them to do so ...
A. Where are you reading from?
Q. In the quote, in italics:
Where the law does not obligate elders to report cases that come to their attention, there is no need for them to do so ...
So that is, indeed, a discouragement to elders from reporting, isn't it?
A. No, I think you're possibly reading it a little in isolation. What that's saying, in terms of mandatory reporting obligations, if there is an obligation to report, the elders report. If they don't have an obligation to report, well, then, as far as their legal obligation is concerned, then they have no requirement to report. It's not discussing leading people in or out of danger. It's just simply stating what their obligation is under the law.
Q. Could I show you tab 131A, which is a very recent document, 6 November 2014, a letter from the branch to All Bodies of Elders, and it's headed, "Procedures when legal issues are involved". You were probably involved in drafting this letter, were you, Mr Toole?
A. No, I was not.
Q. But you're familiar with it, I take it?
A. Reasonably, yes.
Q. Perhaps we can go to the third page, paragraph 14, which deals with "Handling reports of crimes":
When the elders learn of alleged criminal activity on the part of one of Jehovah's Witnesses or someone associated with the congregation as the accused or the victim, they should immediately call the Legal Department.
It goes on. You can read it to yourself if you like, but I think it's the seventh line down on the left-hand side it starts:
Strict confidentiality ..
Do you see that?
A. Yes.
Q.
Strict confidentiality must be maintained to avoid unnecessary entanglement with secular authorities who may be conducting a criminal investigation of the matter.
A. Yes.
Q. Just in relation to that, this approach presupposes that any report of criminal activity is confidential - that would be right?
A. Can you restate the question, please?
Q. What is stated here presupposes that an allegation of criminal activity is confidential?
A. No, it presupposes that, as far as the elders in dealing with the matter, information is confidential, but the other aspect, they don't want to get involved or in any way disturb a police investigation or situation like that.
Q. Of course, that confidentiality then, as I understand it, is confidentiality within the congregation; is that right?
A. Well, it's within - the confidentiality within the person who is actually hearing it, in fact - it would be the elder dealing with the matter, if they were dealing with it.
Q. Other than as provided for, to have to tell the Body of Elders, where that's required, that information would not be passed, or should not be passed, by that elder to others in the congregation?
A. No, they would keep it confidential.
Q. But there would be no breach of that confidentiality in the elder reporting an allegation of criminal activity to the authorities, would there?
A. I guess that would depend on the circumstances, but in actual fact, they are breaching a confidentiality to do that,but that may well be necessary in certain circumstances.
Q. I understand in certain circumstances it may be, but it's not necessarily so. In other words, if someone reports to an elder that they saw some criminal activity let's say a robbery or something - absent a specific request from the person reporting that it be kept confidential, there would be no obligation of confidentiality on the elder, surely A. Not in relation to that matter, unless they were handling it themselves. They only have second-hand information there.
Q. Passing information to the authorities would not, as it is put there, produce an entanglement with the secular authorities; it would be merely making a report to the secular authorities?
A. If they were simply passing on that information, no, it wouldn't be - they are passing on a comment that they have heard from someone else. Isn't that what you're asking?
Q. Yes, that is what I'm asking. So in the case of a sexual abuse allegation, you would accept it's the victim's confidentiality?
A. Yes, and their right to be able to preserve or decide what they want done about it.
Q. And if the victim does not require of the elder to not report, then there is no breach of confidentiality in reporting?
A. If the victim was quite happy for the elder to report, there'd be no reason why the elder wouldn't - maybe even accompany the parent along to make sure that the report was made. There's no reason why that wouldn't be done. For example, in that case - one of those reporting situations that I mentioned in Victoria, that's exactly what was done. The two elders went to the police, spoke to the parent. The parent and the two elders went to the police and reported the matter.
Q. If we look at paragraph 15, this question of confidentiality goes a little further. Do you see paragraph 15. It's in relation to "Search warrants":
Elders should never give consent for anyone to search a Kingdom Hall or any other place where confidential records are stored.
Conscientious elders do all they reasonably and peaceably can to preserve the confidentiality of the congregation in harmony with the principle set out in Acts 5:29.
You are familiar with what that principle is,are you,Mr Toole?
A. 5:29.
Q. "Peter and the other apostles said: 'We must obey God as ruler rather than men'", are you familiar with that?
A. Yes.
Q. Isn't that a clear message that there are circumstances in which God's law, or rule or requirement will override what the authorities may require?
A. That's possible, but I wonder if we could go back to I think it's paragraph 4 of this document - I think it's 4. Let's see. Yes. There it says:
Direction on handling child abuse matters can be found in separate correspondence. However, we are pleased to provide consolidated direction on handling other congregation matters involving legal issues.
See, these are just general legal principles, but it's not specifically dealing with child abuse matters.
Q. I accept that. But dealing with it at the level of general legal principles, you will accept that what is said here, in a reliance on Acts 5:29, there is a clear message sent to people, which is to not cooperate with secular authorities unless you have to?
A. No. The principle of 5:29 is that we will obey the authorities in whatever they ask us to do, but there is a relative subjection in the sense that we won't do what they ask us to do if they ask us to break God's law. I think Mr Spinks basically touched on that fairly clearly yesterday. So if, in fact, there is no basis to be able to retain information, we willingly will provide it. If there is a subpoena to ask for documents, we'll provide it. If there is a protection to that document, then, that might be a different situation, but if there is no legal protection - and when it comes to child abuse matters, you may or may not be aware that ever since 1999 we've cooperated with the authorities, as far as I understand, on every instance where the authorities have asked for information.
Elders have made statements, they have appeared as witnesses, documents have been produced when they have been requested. We have been absolutely open every time we've been approached by the authorities in relation to this matter.
Q. I'm just addressing this right now at the level of the message that is sent to people reading Jehovah's Witness publications, including elders and publishers. Let me give you another example. If we can go to tab 127, and starting at the first page so you can see what the publication is, it's Keep Yourselves in God's Love. It's published in 2008 and, again, this is a November 2014 printing of that publication, published by the Governing Body. If we can look at page 59, Ringtail 16, paragraph 18, that deals with the concept of "Taking up 'The Complete Suit of Armour'". You'll see it says:
Those who keep themselves in God's love also enjoy spiritual protection from Satan, who wants to deprive Christians, not just of happiness, but of everlasting life ... "We have a struggle," said Paul, "not against blood and flesh, but against the governments, against the authorities, against the world rulers of this darkness, against the wicked spirit forces in the heavenly places."
Then there is a scriptural support for that:
The word "struggle" suggests that our fight is not long-distance - from the safety of a hidden bunker ...
and so on.
Furthermore, the terms "governments," "authorities," and "world rulers" indicate that attacks from the spirit realm are highly organised and deliberate.
I'm suggesting to you that this sends out a very clear message that adherence to the Jehovah's Witness system of beliefs should be sceptical of secular authorities and not cooperate with them, unless they really have to?
A. I completely disagree.
Q. How are we to understand this?
A. We're talking about spiritual things in terms of Satan, demons, things that are really trying to attack your faith. There is a battle. To be able to preserve morality and preserve a code of behaviour that is acceptable to Christians is a battle in today's world.
Can I just again point you to something so that it really clarifies this issue?
Q. Of course. I would welcome that.
A. It's in Romans chapter 13. It was read yesterday. This is the message that all Christians, Jehovah's Witnesses, take really seriously. Chapter 13, and it's talking about the governments, it's talking about the secular authorities here, it says, chapter 13 verse 1:
Let every person be in subjection to the superior authorities, for there is no authority except by God; the existing authorities stand placed in their relative positions by God. Therefore, whoever opposes the authority has taken a stand against the arrangement of God; those who have taken a stand against it will bring punishment against themselves. For those rulers are an object of fear, not to the good deed, but to the bad. Do you want to be free of fear of the authority? Keep doing good, and you will have praise from it; for it is God's minister to you for your good. But if you are doing what is bad, be in fear, for it is not without purpose that it bears the sword. It is God's minister, an avenger to express wrath against the one practising what is bad. There is therefore compelling reason for you to be in subjection, not only on account of that wrath -that's the authority of the government or the secular authorities -but also on account of your conscience.
So Christians are being told that they are duty-bound to be obedient to the governments.
Q. But simultaneously they are being told they are in mortal struggle against governments and authorities.
A. Yes, but --
Q. You see. This is the difficulty, Mr Toole: I accept that there are very clear scriptures like that, but it's the case, too, isn't it, that there are equally clear scriptures reproduced and referenced in your publications which say just the contrary?
A. I think if you read the whole of that in context and look at it, it's quite clear what it's saying, but one thing you could never ever cite against Jehovah's Witnesses is that they are ever encouraged to disobey the law. We take it really seriously. In fact, if we weren't going to be obedient to the law, we'd be in contravention of what it says there in Romans chapter 13.
Q. I'm not going to take up the invitation to pursue that, because that will really divert us. I'll leave that for now with the suggestion I've made to you and your response to it.
A. Thank you.
A. Thank you.
Q. In paragraph 21 of your statement, you say:
The Legal Department is not involved in managing the risk of child sexual abuse within the Jehovah's Witnesses Church.
That's, as I understand it, because you advise on the legal obligations; is that right? A. That's right
A. That's right.
Q. Such as whether to report --
A. That's as far as the legal department goes.
Q. Earlier you said it goes one step further: you, as a practice, make it clear to the elders -- A. Yes, yes, what we discussed.
Q. Just dealing with mandatory reporting requirements, you set out in your statement how, currently,the position of the law is that mandatory reporting requirements vary from State to State and Territory to Territory?
A. I missed the first part?
Q. I'm moving now to deal with the question of mandatory reporting requirements.
A. Yes.
A. Yes.
Q. You have set out in your statement that, insofar as the law is concerned, those requirements vary across the States and Territories of Australia; is that right?
A. Yes.
Q. I would take it, then - and I'm asking you - that that is burdensome on an organisation such as yours, to keep track of the differences in each State and have to advise accordingly? A. Yes
Q. Whether it's achievable or not, of course, is another question entirely, but I take it you, as a lawyer - the senior lawyer in the organisation - would welcome it if the requirements across the States and Territories were made uniform?
Q. With regard to confessional privilege which you mention in various places, but, for example, let's look at your paragraph 29.
A. Paragraph 29?
Q. You'll see in 29(a) you're dealing with South Australia and you say:
... a number of nominated persons in various professions, including ministers of religion ... are required to report ...
Then four lines down you say:
... provided that the suspicion is formed in the course of the person's work or in carrying out their official duties with the exception of disclosures made in the confessional.
Am I to understand there that, leaving aside the specific wording of the law in question, in South Australia the position is that there is an exception for disclosures made in a confessional setting; is that right? A. Yes.
Q. Then in 29(b), in relation to Victoria, equally in the sixth line you say:
This obligation does not apply if the belief was obtained in a religious confession.
A. That's correct.
Q. I think I took you to the paragraph earlier in another document that referred to minister/communicant privilege. It is really that that I'm addressing in the Jehovah's Witness context. You, as I understand it, advise elders on their obligations under these provisions? A. Yes.
Q. So you would be involved in advising when this confessional exception is available to them or not? A. For the last 15 years, even if it was a confession, if the authorities approached the elders seeking information, they have completely cooperated. So there's been no claim for confessional privilege at all during that period.
Q. So do I understand from that, that within the Jehovah's Witness view of things, an obligation of confidence that arises from a confession being made is one that is overridden by any requirements of the law?
A. That's the position we've taken.
Q. Not so in some other religions where a priest, who receives a confession in the requisite circumstances, would face gaol before breaking the confidence of that confession?
A. Yes, that's the situation.
A. Yes, that's the situation.
Q. Within the Jehovah's Witness understanding of things, what would be the elements or the requirements for something to amount to a confession?
A. Well, someone confesses.
Q. As simple as that?
A. Well, I guess you can have different settings, but if somebody came to me personally and confessed, I'd consider that as a confession. If it was a serious matter that we were dealing with and there was a judicial committee and the person confessed to what, in fact, was some wrongdoing, or whatever, that would be a confession.
Q. Let me clarify it. In the first example you gave, if someone came to you, I take it that's you as an elder?
A. Yes, that's what I mean.
Q. So it would need to be to an elder or - an elder of the organisation, not someone else - would that be one of the elements?
A. Yes, that would be one of the elements.
Q. And would another element be that the confession was made confidentially; in other words, that the person made it in circumstances where a confidence attached to it?
A. In circumstances of confidence, yes, that would be the case.
Q. Would that include in circumstances where the elder to whom the confession was made was not going to pass it on to others?
A. Well, that would depend upon the usage, for example, of the church. For example, if, in fact, a confession had been made about a very serious matter, the usage of the church in the context of that would be to mention to the Body of Elders that a very serious matter - broadly the nature of that wrongdoing, without any details. Then the Body of Elders would appoint a committee to meet with that individual. They would then all collectively hear the confession.
Q. And that might then lead to a judicial committee?
A. Yes, or that would be - yes.
Q. And that would lead to a report to the branch?
A. Yes, and the report to the branch would simply set out - that would be handled in the service department.
They would simply, under the same cloak of confidentiality, take that, put it in a file, if it was, for example, something, and then it would be filed there, "child abuse", permanently.
Q. And available for people having the requisite authority or responsibility in the branch to access in years to come?
A. In terms of the service department, those that were charged with that, yes, that would be the usage of the church - usage of a confessional structure, yes.
Q. And the details would be filed, also, in the congregation files?
A. Yes, basic details, yes. Because now, if - are we talking about a child abuse matter or just generally?
Q. Well, let's be specific about child abuse; you might as well take that as an example?
A. Well, that would be - the branch now, in the service department, retains all of the files in relation to that. The congregation there, if they dealt with it, have sufficient just to be aware of what had happened. But there would be a notation there, but it would be retained in the service department.
Q. Is it not the case that some report has to be put in a sealed envelope and kept in a congregation file?
A. Yes, a brief little report. Yes.
Q. Is the purpose of keeping it in the files so that it can be referred to in the future, if it needs to be?
A. Yes, if that was the case. Yes.
Q. That may be elders some years down the track who had no involvement earlier on?
A. Well, the direction is that anyone that opens that should be one of the people that were involved in handling the matter. That might not always be possible, but that's the --
Q. What I'm getting to, Mr Toole, as you will have seen, is really the confidentiality of the confession in the case of the Jehovah's Witnesses is very qualified, isn't it? It can end up being a lot of different people who end up having access to that information?
A. That's possible, but in view of the position we've taken in this country as far as disclosing information, if the authorities seek information about the particular confession in relation to child abuse matters, we have been forthcoming and we've waived any privilege that might otherwise have existed anyway.
Q. Of course, that may not always be the case. There may be circumstances in which you change the position?
A. That's potentially the case, yes.
Q. Dealing with the question of Working With Children Checks or analogous checks, I understand that if someone is nominated to be an elder, then a Working With Children clearance is sought; is that right?
A. Well, they normally would have had one before they were nominated as an elder, because even as a ministerial servant they are required to have one before they can serve in that capacity in those States where it's a requirement.
Q. What happens when someone is nominated, or there is an intention to nominate someone, and they can't get that clearance?
A. They are not appointed.
Q. The efficacy of that system, of the Working With Children Checks and analogous checking systems, of course, depends upon the authorities having a database of information with regard to sexual offences; is that right? A. Yes, I understand so.
Q. So that they can then reference that database to decide whether a clearance will be given in a particular case, or not given?
A. Yes.
Q. So the efficacy of the system then depends on what information is furnished to the authorities to be captured in the database?
A. I - that's a corollary, yes, I presume.
Q. What I suggest is that if the Jehovah's Witnesses don't systematically report offenders within their midsts, then that information does not get to the authorities and it undermines the efficacy of the system?
A. To some degree, but, on the other hand, to report the matter when they're not required to, if the - if the people involved, who are the victim in this instance, don't want it reported, you've got two contrary principles competing with each other. In actual fact, under those circumstances, to go and report it anyway, in the face of someone saying, "I don't want it reported", when there was no requirement for the minister to report it, basically means you're walking all over the right of someone to decide what is in their best interests.
Q. We've traversed that and you've accepted that there may very well be circumstances in which a person is not in a position to report, or they require reporting in order to be protected, so the blanket statement doesn't apply across the board?
A. Yes.
Q. But, Mr Toole, you'll appreciate there is a distinction between what the law may require and what is right and what is wrong. What we are really exploring here is what is the right way in which these matters should be handled, with reference to morality. What I'm exploring is, as it would appear with reference to the Jehovah's Witnesses' morality, it's not regarded as right to have a systematic system of reporting credible child sexual abuse allegations arising in your communities to the authorities? A. The position basically is that it's not right to overturn someone's right to decide whether they want it done. Elders are simply not scripturally authorised to take over the best interests of someone's family.
Q. Yes, I think we've canvassed that, Mr Toole. There are circumstances in which the allegation a child may have will not be reported by his or her parent or guardian, and others having responsibilities within that community, such as elders, are in a position to report to the authorities and protect the child - but you won't do it? A. We would do it if we thought it was necessary to protect the child, unhesitatingly. If I came across a situation and the only way that I believed I could protect a child that was in danger - I would have absolutely no hesitation at all in going to authorities, even though I'm not required by a mandatory reporting law.
Q. So you are saying the only reason why there has never been such a report is because those circumstances haven't arisen?
A. You're presupposing there's never been a report.
Q. That's the evidence that is before the Commission thus far.
A. I don't think you can conclude that automatically. As was pointed out yesterday, there are some - of the cases that you have, there are some 383 that have had police or authority involvement in it. The extent to which elders may or may not have reported that, I have no idea, but I do know that, according to the figures that are produced, some 383 times the authorities have been involved, so I can't tell you --
Q. Let's just deal with the 383. That figure was arrived at by doing a search of words --
A. Yes.
Q. -- in the files for things like "police", "authority" and so on?
A. So the authorities were involved in it.
Q. Well, they may not have been, because what was actually written on the document may have said, "Do not report to the authorities"; the search would have picked up the word "authorities" and you've counted that in the 383? A. Even so, the point that I'm making, if you divided the figure substantially, it's still impossible for me to agree that elders have never gone, because I don't know, but I do know the authorities have been involved in a number of those cases.
Q. For several weeks, now, you've had those figures and the Royal Commission's analysis of your 1,006 perpetrator files, and you've not found a single case where there was a report by the elders or by the branch, other than where there may have been a mandatory requirement?
A. Well, I haven't been looking through the cases and I haven't been looking through the numbers. All I'm saying, as a general proposition, to say it has never happened - it may well not even appear in the file to say that the elder went; it may just say that - that the authorities became involved. I don't know what the circumstances are in every case. I'm not trying to make a major point out of it at all. I'm just simply saying it's very difficult to say definitively that elders have never been involved in reporting a case, because we just don't have the facts to be able to base that on. But in terms of mandatory reporting in those files, that's not the case.
Q. You'll accept there is no evidence of elders ever having reported other than when they were mandatorily required to do so?
A. I haven't reviewed all the files, but, in simple terms, I assume - if that's the way the files read, I assume that must be correct. But I'm not prepared to accept the proposition the elders have never been involved, when, in fact, I don't have the facts to be able to substantiate that.
Q. Just on the files, you may not have searched the files, but you've had the opportunity to do so, haven't you?
A. Well, for the last little while I've had hardly the opportunity to do anything. In responding to the requests of the Royal Commission we've been working to bend over backwards to cooperate and hardly had time to turn around. So that's why I asked someone else if they would do it. That's what they came back and said.
Q. So you did have someone search the files?
A. Well, they did exactly what you said there - on those word things on the files that you had, the figures that you gave us, yes.
Q. Yes. That's in the correspondence I tendered yesterday.
A. Yes.
Q. I'd like to take you to tab 115. You'll see this is a letter from the Australia branch, September 12, 2008, it says to the "Service Committee". As I understand that, that is to the service committee of the Governing Body, would that be right?
A. Yes, that would be correct.
Q. It was from - you'll see on the second page Mr Mouritz and he preceded you as being the senior lawyer at the branch; is that right?
A. No, that's not correct.
Q. I apologise. Who was he?
A. This is Harold Vivian Mouritz. He's the brother of the person who was involved in the legal department.
Q. And he was a member of the branch committee, was he?
A. Yes, he was.
Q. Was this a letter you were involved in at all?
A. No.
Q. You'll see in the third paragraph, on the first page --
15778 V J TOOLE (Mr Stewart) Transcript produced by DTI A.
When I say "wasn't involved", I didn't write the letter; that's what I mean. There might have been some discussions with me about certain things, but --
Q. Do you remember were there, or were there not?
A. Yes, there would have been some discussion, but I just didn't draft the letter; that's all I'm saying.
Q. Okay. You'll see it says:
You ask ...
So that's to the Governing Body, "You" the Governing Body, or the service committee:
... ask about how we propose to track persons who are accused and/or disfellowshipped for child molestation and other abuse. We intend to continue doing what we have done in the past, that is, maintaining a list of such individuals along with the necessary details of what transpired. All appointments processed by the Service Department are checked against the list of names.
So there is a list of names, I take it, as referred to in that letter?
A. My understanding - this is all done in the service department, but my understanding is they simply use the case files. So they may have a list of case files, but they just use the case files that they have. That's their checking mechanism, as I understand, but I've had no involvement with that at all.
Q. So there is a list of names?
A. There's a list of cases - the cases that you've got.
Q. Well, there are a number of - there are 1,006 files. We've produced our own list. I understand there is no separate list of the files that was produced to us, but I assume that the branch office, in addressing correspondence to the Governing Body, takes care to be accurate in what they say?
A. Well, I'm certain.
Q. And would not say that there is a list of names, if there wasn't a list of names?
A. I assume they are just - I've asked the question of the service department and that's what I have been told, that they simply use the case files. So they possibly have a list of the case files they've got. That would be fairly logical. But beyond that, I can't help you, because I'm not involved in that area.
Q. So is there a list of the case files?
A. Beg your pardon?
Q. Is there a list of the case files?
A. I don't know.
Q. A subpoena was issued by the Royal Commission - it's subpoena number S-NSW-462 - on it looks like 28 May 2015, in which what was sought was in relation to specifically to this letter - this letter was identified. What was sought was, "a list of all individuals who are accused and/or disfellowshipped for child molestation and other abuse", and nothing has been produced. Are you able to explain that?
A. All I can explain is that, on the basis of that summons, we have complied - we have attempted to comply as fully as possible. My understanding is there is no list, as such. They use the case files, which is what you've got. That's what I've been told.
Q. If there is no list, as such, then the branch committee is not putting the facts to the Governing Body in saying there is a list.
A. Well, I can't say what they were putting to them. As I said, I wasn't involved.
MR STEWART: I call for the list of names referred to in this document, and perhaps my learned friend can respond some time later as to just what the position is.
MR TOKLEY: I'm happy to do so, your Honour.
MR STEWART: Q. I just want to take you specifically to the case of [BCG] A. Mmm-hmm.
Q. And to tab 38 in volume 1. This is a letter from [BCK], and that is [BCG]'s eldest sister. It has written across the face of it: Attention: Vin Toole
Private & Confidential.
It has a fax header of 15 October 2002 and the letter itself is dated 13 October 2002. Did this letter come to you?
A. I believe so.
Q. Do you know how it came to you? In other words, did it come to you from [BCK], or did it go to someone else and was then sent to you?
A. I don't recall, but I know [BCK] personally, so I assume it was just faxed to - to the branch office, but I can't tell you specifically how it got to me.
Q. If you read that opening paragraph where she says:
I am writing about some concerns that I have about my father ... I am concerned that he may still have contact with young children in his congregation and they may be in danger of being abused by him.
Perhaps we should just, on the chronology, understand that at the time of this letter, October 2002, [BCH] had been reinstated, having been reinstated in November 1992.
A. That's what I understand.
Q. She goes on:
I'm sure not many in his congregation are aware of his attitude toward pedophilia and may unknowingly expose their children to risk. As you are most probably aware, he has had a long history of abusing children - starting with myself when I was very young ... and even though, after learning the truth from the bible, and bringing his life into harmony with it for a time, he later allowed himself to other incidents.
And she goes on. What did you do in response to this letter, do you recall?
A. No, I don't specifically recall.
Q. Do you recall that, at that time, [BCH] was at the Loganholme congregation?
A. I don't think I had any idea where he was at that time.
Q. But you would have been able to find out very easily?
A. Yes, I could.
Q. Do you recall whether you did find out?
A. No, I would only say what would have been my practice. If I received a letter like this, I would have taken it to the service department and then they would have dealt with the matter, because that's their - that's their role.
Q. If you look at the next tab, tab 39, this is now 10 days later, and again it's addressed "Private and Confidential" to your attention from [BCK]. Did you receive this letter?
A. Did I?
Q. Receive this letter?
A. Yes, I did, I believe.
Q. She says:
In my letter dated October 13 2002, I spoke about how my father has abused my two sisters ...
referring to the younger sisters --
[one of whom] has spoken to me about what my father did to her and because this matter has not been dealt with - I feel I have an obligation to let you know what she told me.
Then she details what she'd been told regarding a very serious sexual assault; would you agree?
A. Yes.
Q. What did you do in response to this letter?
A. Again, I don't recall, but my practice would have been just to take that up to the service department.
Q. These are very serious matters that were being brought to your attention, weren't they?
A. The letter is obviously bringing it to my attention.
15782 V J TOOLE (Mr Stewart) Transcript produced by DTI Q.
The underlying concern in those letters was a current concern with regard to child safety?
A. And I was also aware that there was a court case going on at that time involving the very issues that, in principle, are being raised in these letters.
Q. Did you follow up with the service desk as to what had been done - whether anything had been able to be achieved?
A. I don't recall.
Q. Mr Spinks yesterday explained that the reference on a letter to "LLC" is a reference to the legal department; do you agree with his evidence?
A. Yes, that's right.
Q. I will show you tab 40. You will see this is a letter a week or so later to "The Presiding Overseer" at the Loganholme congregation, and the reference is "LLC". I take it that came from the legal department? A. I've seen that letter. I looked at it in the bundle. That is the symbol that I used. I don't recall writing this letter. I must have had some input into it, or it wouldn't have my symbol on top, but I don't disagree with the contents.
Q. What this letter does, Mr Toole, is it asks the Loganholme congregation to look into the position of [BCH] and to appoint two elders to approach him and inform him of various things, and that he should be asked to explain, and so on, as an investigation preceding a possible judicial committee, is that not so?
A. Based on the fact that he's supposedly - according to paragraph 2, is it? - that he's actually on the public record of pleading guilty to these charges.
Q. What this suggests, Mr Toole, is that what you did in response to the two letters is you wrote this letter to the congregation; you didn't take the letters to the service department?
A. No, I would never deal with a matter - this is a service department matter. But because it's a court case on foot, they no doubt came and discussed it with me. Maybe I produced a rough draft that was finalised, but anything to do with child abuse is service related.
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