Re : Contesting Admissibility of Dr Max Howell Affidavits - Brisbane Grammar School Royal Commission Case Study 34. Submission Introduction 1. For the benefit of significant numbers of victims in Case Study 34 who have not as yet had the opportunity to contest evidence submitted by Brisbane Grammar School in Case Study 34, it is Submitted that opportunity should be granted to all victims by the Royal Commission. It would be prejudicial to many victims who have valid claims against Brisbane Grammar School if the Royal Commission denied this Submission the full consideration it so deserves. 2. It is alleged that Mr David Lloyd, Counsel Assisting the Royal Commission prior to tendering such important evidence as affidavits should have in fact verified the authenticity of the evidence, rather than take the evidence at face value and accept it without further question. However such rudimentary fact checking it is accepted at times can be easily overlooked in such a complex Royal Commission Case Study. Nevertheless it should be expected the legal capabilities of Mr Lloyd should have identified and drawn the following highlighted issues of deficient evidence to the attention of the Commission for further consideration at the time. 3. Brisbane Grammar School in both the 2002 mediation process and the recent Case Study 34 hearing have relied heavily on affidavits signed by Dr Max Howell. During the 2002 Brisbane Grammar School mediation process, the signed affidavits were taken at face value. It would appear the Royal Commission have also accepted Dr Max Howell’s affidavits on the face of the former headmaster being such a distinguished headmaster without further question. 4. In considering this Submission, the Royal Commission should be mindful of the circumstances surrounding the signing of the affidavits by Dr Max Howell in the period of 2002. Insurers to Brisbane Grammar School at one point prior to signing refused cover. 5. This Submission seeks to contest the admissibility of the former headmaster of Brisbane Grammar School, Dr Max Howell’s signed affidavits tendered as evidence in Case Study 34 pursuant to the Oaths Act 1867 Part 4 Section 14 “Form of declaration” and Part 7 Section 41 “Who May Take Affidavits.” Relevant Legal Acts 6. This Submission is pursuant to the Oaths Act 1867 Part 4 Section 14 “Form of declaration” and Part 7 Section 41 “Who May Take Affidavits.” Oaths Act 1867 Part 4 Section 14 Form of declaration In all cases where a declaration in lieu of an oath shall have been substituted by this Act or by virtue of any power or authority hereby given or where a declaration is directed or authorised to be made and subscribed under the authority of this Act or of any power hereby given although the same be not substituted in lieu of an oath heretofore legally taken such declaration unless otherwise directed by the powers hereby given shall be in the following form— 'I A.B. do solemnly and sincerely declare that [let the person declare the facts] and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1867.'. Oaths Act 1867 Part 7 Section 41 Who may take affidavits 1. A person’s affidavit may be taken by any of the following persons without a commission being issued for the purpose - (a) a justice, commissioner for declarations or notary public under the law of the State, the Commonwealth or another State (b) a lawyer (c) a conveyance, or another person authorised to administer an oath under the law of the State, the Commonwealth or another State; (d) if the affidavit is taken outside Australia – a person authorised to administer an oath under the law of the place in which the affidavit is taken 2. This section applies to an affidavit taken for Queensland law, whether it is taken inside or outside Queensland (including outside Australia). 3. In this section – taken includes received and sworn Submission Argument 7. Brisbane Grammar School has had the benefit since May of 2000 when the public exposure of allegations of sexual abuse became public knowledge to review each and every statement by over 100 victims in order to ascertain the veracity of those statements. 8. Most victims in this horrifying case study have not had the benefit of reviewing documents and evidence held by the institution of Brisbane Grammar School until only very recently. This is very true of the significant numbers of victims in Case Study 34 who have not even had the opportunity of legal representation and cross examining evidence at the November 2015 hearing. 9. Significant numbers of victims have a material interest in the evidence presented by Brisbane Grammar School. The ability to challenge evidence presented by the Institution should be available to all victims in the discovery of truthful testimony. 10. Invariably both Institutions and victims have a vested interest in the final outcome and conclusions drawn by the Royal Commission as it may dictate any future claims against Brisbane Grammar School and the level of those claims. 11. The perception from public communication by Brisbane Grammar School is that the School has settled over 100 claims against the School. Victims wholly dispute this claim by Mr Howard Stack on behalf of Trustees. It is almost certain Mr Stack on behalf of Trustees is basing any legal defence of legal claims against the School using Dr Howell’s affidavits as rebuttal to any such claim. This puts the School in financial jeopardy in the likely event the Royal Commission accept this Submission. 12. It is submitted to the Commission that all victims in Case Study 34 regardless of whether they were called as witnesses by the Commission should have the opportunity availed to them by the Commission to contest evidence presented. 13. If evidence presented to the Commission in Case Study 34 does not confirm to the full legal requirements that evidence should ordinarily be ascribed, the Commission should be duty bound to further consider the merits of accepting and or striking out that evidence. 14. Dr Max Howell signed two affidavits that Brisbane Grammar School have relied extensively upon in both defending legitimate claims against the School in relation to the sexual perpetrator Kevin Lynch and in submissions to the Royal Commission in Case Study 34. 15. Those affidavits signed by Dr Max Howell are identified as being signed on 15 April 2002 submitted at Supreme Court of Queensland DOC.103.002.0156_R - DOC.103.002.0163_R and another dated 27 September 2002 identified as DOC.370.002.0597_R - DOC.370.002.0599_R. 16. Victims accept that Dr Howell is no longer able to be cross examined. Having regard to the authenticity and legal integrity of the affidavits signed by the headmaster, Dr Max Howell they should still be subject to the highest legal scrutiny. Despite Dr Howell not being able to personally defend himself and those signed affidavits. 17. Dr Max Howell’s affidavits are perhaps “helpful” to the Commission in determining the events as the former headmaster saw them. But the Commission needs to proceed with extreme caution, if the affidavits are to ever be used as a determining factor in drawing any future final conclusions. 18. The affidavits in question, signed by Dr Howell are likely to be materially significant to the final conclusions eventually drawn by the Royal Commission in Case Study 34. They are therefore likely to sway the Commission one way or the other. 19. It would be an injustice to so many victims in Case Study 34 who have not had the opportunity to scrutinize evidence produced by Brisbane Grammar School until only very recently by public disclosure to deny this Submission the utmost importance and on its own merits. Legal Remedy 20. It is Submitted to the Commission that if those affidavits identified as being signed by Dr Max Howell are found to be legally deficient in any way, the Royal Commission can only but accept that Dr Max Howell’s affidavit singular and or affidavits plural must be struck out as evidence in Case Study 34. 21. If the Commission accepts this Submission that the affidavits signed by Dr Max Howell should be struck out as being legally deficient, then the Commission could not rely on those affidavits when drawing any final conclusions in Case Study 34. 22. In the submission dated 11 March 2016 SUBM.1034.011.0001 - SUBM.1034.011.0053 by Walter Sofronoff QC on behalf of Brisbane Grammar School parties states in Para 49 that “Not every particle of every witness evidence is true.” Par 49. SUBM.1034.011.0014 These circumstances also give rise to the possibility, that has to be considered when weighing all the evidence, that not every particle of every witness’s evidence is true. A conclusion not to accept some of this evidence of complaint does not imply that any witness was deliberately lying. Nor is a conclusion that no complaint was made in any particular case necessary. What is required is for the Commission to consider whether, having regard to the gravity of the allegations, including some made against a person who is no longer alive to defend himself, and the circumstances which have given rise to this evidence being given, it is safe to accept this evidence. 23. Mr Sofronoff QC on behalf of Brisbane Grammar School should therefore not have any objection for Dr Max Howell’s affidavits being subjected to a much higher level of scrutiny than they may otherwise. That is since Mr Sofronoff QC is possibly insinuating in his own Submission para 49 SUBM.1034.011.0014 that victim’s statements themselves may not be entirely truthful. 24. It is likely to only be assumed by Mr Sofronoff QC that by mere convention that Dr Max Howell’s affidavits would naturally be wholly truthful, when in fact Dr Max Howell’s affidavits could equally be untruthful. 25. Under the circumstances that Dr Max Howell signed the affidavits his own reputation, including those he had worked with for so many years and the reputation of Brisbane Grammar School were in fact being challenged. What is far more likely scenario under the circumstances the affidavits were signed, is that Dr Howell had more of a genuine reason to be untruthful than any victim or parent of a victim. 26. Dr Howell by denying all allegations of sexual abuse levelled at Brisbane Grammar School during the time he was headmaster including school bullying and racism would in fact help secure not just his own reputation, but many others around him including the School Institution who relied on Dr Howell’s reputation not being sullied in any way. Dr Max Howell Affidavit - 15 April 2002 27. Affidavit signed by Dr Max Howell dated 15 April 2002 submitted at Supreme Court of Queensland DOC.103.002.0156_R - DOC.103.002.0163_R is identified as being taken by a Solicitor from the law firm Corr’s Chambers Westgarth. It is not wholly apparent as to the name of the solicitor from Corr’s who took Dr Howell’s affidavit. 28. While not alleging to be a handwriting expert and this would be an issue for further direction by the Commission, in the event of a dispute as to the identity of the Solicitor who took Dr Howells affidavit. It is Submitted to the Commission a tendered document of a letter dated 30 May 2002 DOC.101.001.0071_R and only a month following on from Dr Howell’s affidavit has a very similar style of signature. This letter is from the offices of Corr’s Chambers Westgarth and purported to be signed by Mr David Abernethy. 29. It is Submitted to the Commission that Mr David Abernethy is therefore almost certainly the solicitor who took Dr Max Howell’s affidavit on the 15 April 2002. Mr David Abernethy should be immediately requested to verify the truthfulness of this allegation. 30. As prescribed and pursuant to the Oaths Act 1867, Part 4 Section 14 “Form of declaration,” for an affidavit to be accepted under the act as a legal document and therefore to be relied on in a Court of Law should it be required, it would have to comply and clearly have a statement according to the Act 'I A.B. do solemnly and sincerely declare that [let the person declare the facts] and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1867.'. 31. Dr Howell’s affidavit of the 15 April 2002 contains no such statement to affirm his statement to be true according to the Oaths Act 1867 Pursuant to Part 4 Section 14. Dr Howell’s statement begins and ends with only these words and proclamation. MAXWELL ARTHUR HOWELL of REDACTED the State of Queensland, Retired Headmaster, states on oath: --- All the facts and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my Affidavit 32. Under such circumstances where Dr Howell’s affidavit clearly does not comply with the requirements set down under the Oaths Act 1867 pursuant to Part 4 Section 14, the Royal Commission if request and the affidavit is challenged should inquiry further from the person who took Dr Howell’s affidavit dated the 15 April 2002. 33. In order to confirm the allegation that Mr David Abernethy took the affidavit for Dr Max Howell on 15 April 2002, it is Submitted that Mr David Abernethy be respectfully summonsed by the Royal Commission to appear in Case Study 34. Mr Abernethy can then answer questions under oath before the Commission in relation to the tendered evidence identified as DOC.103.002.0156_R - DOC.103.002.0163_R known as Dr Max Howell’s affidavit dated 15 April 2002. 34. If under oath, Mr David Abernethy accepts he took the affidavit for Mr Howell on the 15 April 2002, it is Submitted that he be further cross examined. Specifically it is Submitted that Mr Abernethy be requested to answer the question, “To his knowledge did he have any reason to suspect that the contents and or any statement contained in Dr Howell’s affidavit signed on the 15 April 2002 was anything other than truthful?” 35. It is further respectfully Submitted that Mr David Abernethy be specifically requested to answer the following question under oath, “Did Mr Abernethy attend Brisbane Grammar School ?” and if Mr Abernethy accepts he attended the School, ”Was Dr Max Howell the headmaster at any time during his attendance as a student at Brisbane Grammar School ?” 36. It is likely to be helpful to the Commission in exploring the authenticity and the context surrounding Dr Max Howell’s signing the affidavit dated 15 April 2002, if Mr Abernethy under oath could also answer the question as follows, “When did Mr Abernethy personally commence an adversarial relationship with Brisbane Grammar School?” 37. Dr Howell’s affidavit dated 15 April 2002 references in detail allegations by the victims BQP and BQL. In the affidavit Dr Howell denies the allegations. In fairness to the significant numbers of victims in Case Study 34 who suffered in silence for so many years and therefore did not have the fortitude to directly confront Mr Howell, but perhaps wish they had, the Royal Commission is duty bound by the Commission’s own Act of 1902 to discover truthful testimony. 38. Under such circumstances where Dr Howell’s own affidavit has been found to be deficient this will obviously place a greater burden on accepting the version of events, witness statements and oral testimony by those witnesses who alleged they confronted Dr Max Howell, rather than Dr Howell’s denial of those events and allegations. 39. If the Commission accepts the argument once further testimony is given by the solicitor who took Dr Howell’s affidavit dated 15 April 2002 that it is legally deficient in any way, the Commission should immediately strikes it out. The Commission could not therefore rely on this affidavit when drawing any final conclusions. Dr Max Howell Affidavit - 27 September 2002 40. In response to an affidavit filed by a victim’s father known as BQH on the 17 September 2002, DOC.103.002.0180_R - DOC.103.002.0183_R, Dr Max Howell signed a further affidavit dated 27 September 2002. In this affidavit DOC.370.002.0597_R - DOC.370.002.0599_R signed by Dr Max Howell he denied the allegations as declared to be true by BQH in his affidavit dated 17 September 2002. 41. The Commission should be reminded of the legal requirement as stated under the Oaths Act 1867 Part 4 Section 14 “Form of declaration,” 'I A.B. do solemnly and sincerely declare that [let the person declare the facts] and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1867.'. 42. What is perfectly clear and there should not be any dispute from the evidence of the affidavit signed by BQH on the 17 September 2002 DOC.103.002.0180_R - DOC.103.002.0183_R that it has been affirmed as truthful and fully complies with Part 4 Section 14 of the Oaths Act 1867. I, BQH REDACTED in the State of Queensland, DO SOLEMNLY AND SINCERELY DECLARE as follows: --- And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of "The Oaths Acts, 1867 to 1960". 43. In response and obviously in an attempt to discredit and counter the affidavit signed by BQH, Dr Max Howell signed a further affidavit dated 27 September 2002 as DOC.370.002.0597_R - DOC.370.002.0599_R. In this affidavit Dr Max Howell proclaims as follows : MAXWELL ARTHUR HOWELL of REDACTED the State of Queensland, Retired Headmaster, states on oath: --- All the facts and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my Affidavit. 44. The Commission should immediately accept that this affidavit DOC.370.002.0597_R - DOC.370.002.0599_R signed by Dr Howell on the 27 September 2002 certainly does not comply with the Oaths Act Part 7 Section 41 “Who May Take Affidavits.” There are certainly no distinguishing marks to identify specifically who may have taken Dr Howell’s affidavit as required under the act. 45. A cynic given the circumstances Dr Howell’s alleged affidavit was signed may draw the only conclusion, that Dr Howell could not face the true reality of having a untruthful statement witness by anyone. On the face of it that is certainly what it appears to suggest when such an important document does not clearly attached the name of a solicitor who took this affidavit in order for it to be truthful and be legally binding in a Court of Law 46. It begs the question if the Royal Commission accepts the Submission that Dr Howells affidavit of the 27 September 2002 to be wholly deficient why did both Mr David Abernethy and Mr Stack place such faith in such an important document at the very time in September 30 2002 and into October 2002 the School was due to commence mediation with over 60 claims against Brisbane Grammar School? 47. The Commission should be mindful that just prior to Max Howell signing the affidavit dated 27 September 2002, Brisbane Grammar Insurers had dropped insurance cover to zero and therefore Max Howell is likely to have been under duress to sign an untruthful affidavit. Mr Howard Stack as Chair of Brisbane Grammar School Trustees in communication to other Trustees at the time in September / October 2002 highlights and states as follows : 1.1 The position on this issue, which is central to our ability to compromise with the boys "out of court", has oscillated alarmingly since our last board meeting. 1.2 You will recall that I was then hopeful that the underwriters' offer to pay 80% of all settlements would be improved upon. We were working up our arguments, and briefing a "name" Sydney Q.C. to add to the pressure, when the boys' lawyers produced a new affidavit from the father of an old boy (not a plaintiff) who says he informed Max Howell in mid 1981 of a complaint by his son that Lynch had interfered with him sexually. This second such allegation is particularly concerning because: 48. It is submitted to the Commission that it would be an error in law if the Commission based any future findings on Dr Max Howell’s affidavit signed on the 27 September 2002 given that it is deficient and there can be little dispute as to the affidavits deficiency. 49. If it is accepted by the Commission that Dr Howell almost certainly knew allegations of sexual abuse to be true and he did nothing about it and therefore attempted to ignore it, this would suggest Dr Howell was certainly very aware that he should have in fact acted. Dr Howell should therefore not be excused for not acting on allegations, as he should have done. This is what a professional headmaster most surely ought to have done. Fee paying parents almost certainly would have expected Dr Howell to have acted had many parents known their child had been viciously and repeatedly sexually assaulted, bullied and racially taunted while in the care of Brisbane Grammar School. Submission Summary 50. The Commission can only but immediately act on this Submission and review the affidavits signed by Dr Max Howell 51. It is submitted that the Commission can only but reach a conclusion to strike out Dr Max Howell’s affidavits. 52. It is submitted that Case Study 34 is now wholly unsafe and the Commission can only but accepted the only course of action is to hold a 2nd case Study 34 hearing. This 2nd Case study hearing would allow for the cross examination of evidence already tendered and accepted, but is now being challenged by this Submission. 53. A 2nd Case study hearing would offer the opportunity for new evidence to be tendered, new witnesses called in order for the discovery of truthful testimony. It would provide the necessary forum for significant numbers of victims to be satisfied the Royal Commission has “Left no Stone Unturned.” That is exactly what victims in Case Study 34 want and have so far been denied the opportunity by the Commission for all evidence, statements and testimony to be considered in drawing final conclusions and reporting 54. It is again drawn to the attention of the Qld Minister for Education, the Honourable Kate Jones MP for further consideration the suitability of Trustees including Mr Howard Stack to remain as Trustees. 55. It is submitted to the Honourable Kate Jones, that in the event is accepted that Dr Max Howell’s affidavits are inadmissible and therefore Brisbane Grammar School may longer relying on them in defending legal claims against the School, it would be prudent to action under the Grammar School Act 1975 and appoint administrators to the Institution. 56. At the time Dr Max Howell signed the affidavit on the 27 September 2002 almost certainly as a response to both BQH’s affidavit dated 17 September 2002 and the very fact the Schools insurance declined to provide cover, the Education Minister at the time should have been fully informed of the situation that the School was in fact in financial peril. The Grammar School Act 1975 requires Board of Trustees to provide information to the Minister in such an event. No evidence has been produced by the Board of Brisbane Grammar School Trustees that suggests they did inform the Minister of the School’s financial predicament. 57. Considering Mr Stack has remained at the Chair of Trustees for over 26 years and presided over the situation, victims found it difficult to understand why the Minister has not acted to remove the Board of Trustees. This is particularly in view of the mounting evidence that Brisbane Grammar School Board of Trustees have not in fact acted within the parameters of the Grammar School Act 1975. Statement made by victim of Kevin Lynch as a litigant in person who attended Brisbane Grammar School in Royal Commission Case Study 34 on this Day the 8th day of February 2017 Lynch Victim Signature Lynch Victim Respond via email to : lynchvictim@gmail.com