SUBM.1021.017.0001
SUBMISSIONS IN REPLY TO THE SUBMISSIONS OF OTHER PARTIES ON BEHALF OF SHISHY 1. MR TERRY OCONNELL DIRECTIOR OF REAL JUSTICE AUSTRALIA. We support the submissions made on behalf of Terry O’Connell. 2. SUBMISSIONS ON BEHALF OF JYOTI, APK, APL, APA, APH AND TIM CLARK ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEX ABUSE We submit that the Commission should be very cautious in accepting the evidence of the victims where it is adverse to Shishy. We submit that the Commission should be cautious in accepting the submissions of Mr Obrien which seek or support adverse findings against Shishy. The circumstances which we submit should be considered are these. On 10 November 2014 a letter was drafted seeking payment of 1 Million dollars on behalf of each of Mr O’Brien’s clients. At a time when the public hearings had not commenced the letter said: There is no doubt that the Royal Commission will determine that my clients have suffered, to various degrees and without particularisation: child sexual abuse by a person in a position of trust and who was the Australian leader of your client's organisation; prolonged physical abuse; unpaid physical labour; related long standing psychological and psychiatric disorders; loss of education opportunities; related past and future economic loss; and, ongoing need for counselling and therapy. The letter stated that the offer would be left open until 10 December 2014. Statements were prepared by Commission officers for Mr Obrien’s clients in late November. On 3 December 2014 public hearings commenced and Mr Obrien was given leave to appear for Jyoti, APK, APL, APA, APH and Tim Clark. On 5 December 2014 an undated unsigned statement Titled Supplimentary Statement of Tim Clark appeared on the bar table. No explanation has ever been offered as to how the statement was prepared. In that statement Tim Clark alleges sexual abuse not mentioned in his prior statement prepared by Commission Officers. Other supplementary statement for Mr Obrien’s clients also appeared alleging matters well beyond those included in prior statements. The circumstance of the provision of the additional statements was unusual and in contradiction of the Commissions Practice Guidelines which requires documents and statements be provided to Counsel Assisting who can assess the material against proper criteria and seek the tender if appropriate and relevant to the Commission’s investigation. At the completion of his clients’ evidence but prior to the evidence of the current members of the ashram, Mr Obrien handed Mr Kernaghan a letter dated 10 November 2014 which requested a payment of $1 Million dollars to each of his clients. The Royal Commission is an inquisitorial, fact finding body, with co erosive powers not made available in civil proceedings. The purpose of evidence in the Commission is to find the truth not SUBM.1021.017.0002
build a civil case against the ashram. We are concerned that the confusion of the roles casts doubts on the veracity of the evidence. We do not seek to cast aspersions on Mr Obrien. The confusion of different proceedings is apparent in Mr Obrien’s submissions 49 Where he seeks a finding that: 42. Compensation should be awarded for all those who have suffered. They have suffered, to various degrees and without particularisation, child sexual abuse by a person in a position of trust, prolonged physical abuse, unpaid physical labour, related long standing psychological and psychiatric disorders, loss of education opportunities, related past and future economic loss and ongoing need for counselling and therapy. The submission is a reflection of Mr O’Brien’s letter of demand to the ashram. We seek therefore that the Commission looks carefully at all of the evidence including the evidence in Ex x and other transcript held by the Commission but not produced in the tender bundle, where many of the witnesses before the Commission in 2014 gave evidence of the matters relevant to the Commission investigation including the relationship between Shishy and the younger residents, the degree to which discipline was applied, education, Shishy lack of authority, the domination of Akandananda, Shishy’s assistance in encouraging the young people to tell their parents about the sexual abuse ( prior to the meeting with Sandra Smith) and Shishy”s role together with Craig Legatt SC in reporting the sexual abuse to the police. We submit that where there is a conflict in the evidence – findings should not be without corroboration. SUBMISSIONS ON BEHALF OF WITNESS BHAKTI MANNING IN RELATION TO ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE We make no submission in relation to the submissions on behalf of Bhakti Manning. However we note that her experiences of sexual abuse by Satyananda closely corroborates the evidence of Shishy. SUBMISSIONS ON BEHALF OF DR SANDRA SMITH We note the evidence and submission that Jyoti was 17 years old when the sexual abuse by Akandanada commenced. There is no doubt that at 17 Jyoti was a venerable child – as was Shishy when the sexual abuse of her by Akandananda commenced. SUBMISSIONS ON BEHALF OF ALECIA BUCHANAN The Commission takes a very sympathetic view of the situation that Alicia Buchannan found herself in when she facilitated the sexual abuse of younger children by Akandananda by persuading them to go to bed with him. That understanding of the force of the disciple/ guru relationship is entirely appropriate and should be extended to Shishy. We note that although Alicia was aware of the sexual abuse of younger girls she was not able to report the matter to the police. SUBM.1021.017.0003
Submissions for Bert Franzen (Royal Commission‐ Case Study 21) We join with the submissions made on behalf of Bert Franzen and in particular note the following: Procedural fairness. The submissions of Counsel Assisting in assessing the responses of the ashram are entirely negative in that they criticise the ashrams attempts to deal with the survivors of sexual abuse without suggesting what should or could have been done instead of the actions taken. It would be unfortunate if the message to organisations from the Commission’s report is that matters should be dealt with entirely by lawyers. Counsel Assisting criticises those persons who attempted to communicate with the victims of sexual assault as unqualified and inexperienced without saying what discipline, training or experience is available in the community and should have been called upon. We note that paragraph 8 of Submissions on behalf of Bert Franzen repeat an error contained in the statement of Fiona Seiner – that Craig Legate SC was Akandananda’s lawyer at the appeal. We note that we have attempted to correct this error by providing a statement of Craig Leggat SC to the Commission and have asked that it be accepted to evidence. 8 Yogasandhan (Fiona Steiner) also made a reference to seeking legal advice from a Nityapuja (Craig Leggat SC) a lawyer associated with the Ashram6 I asked Nityapuja (Akhandananda's lawyer for the appeal) if Satyananda had been reported for sexual abuse. He did not think so but said to check the high court papers. We submit that as a matter of fairness, Mr Craig Legatt SC should be given the opportunity to comment and make submissions to the Commission on the inclusion in the Commission’s report of an allegation that he was Akandananda’s lawyer ‐ a suggestion which he might consider adverse to his reputation. WRITTEN SUBMISSIONS IN REPLY ON BEHALF OF THE BIHAR SCHOOL OF YOGA Paragraph 4: From the Commission proceedings it is evident that Shishy and Akhandananda used their positions of power to abuse the Survivors both physically and sexually at the Mangrove Mountain Ashram. However, abuse in any form is contrary to the teachings, philosophy and principles of yoga. Therefore, all findings must be viewed in that isolated contextual setting of SUBM.1021.017.0004
Mangrove Mountain. For any meaningful analysis the abuse must be seen in the context of the actions of Shishy and Akhandananda only. The Commission should not accept that Shishy held any position of power or authority in ashram structure. The Bihar School of Yoga did not confer any position or authority on Shishy. Counsel for the Bihar School of Yoga did not suggest to Shishy in evidence that any position or authority had been conferred upon her or recognised by the organisation in India or Australia. The only people who had a position recognised by the Indian structure are Akandananda who was appointed by Satyananda as the head of the organisation in Australia and Atmamuktanada who was also appointed by Satyananda. In her evidence at T 11483:23‐30 she says that she has no knowledge or any direction from India appointing Shishy in any position of authority in the hierarchy. She only know Shishy to be Akandananda’s partner and that she looked after the children. Q. But as far as you know, have you ever heard any suggestion that she had an official role in the hierarchy? A. Only that she was Akhandananda's partner and looked after the children. Q. I think you've told the Commission today that they, meaning Akhandananda and Shishy, directed people where to go. Who made the decisions about where people went? A. Akhandananda. Q. So, if Shishy was the person who told people where to go, where would that authority come from? A. Akhandananda. Q. As far as you know, and you know a lot about the way the ashram works, would Shishy ever have the power to direct somebody such as yourself to go and live in Manly? A. Well, if she did, I wouldn't obey it. She's not my guru and neither was Akhandananda, but I knew that I didn’t need to be at Mangrove too, so I quite gladly went to Manly. We submit that there is nothing in that exchange which indicated that Shishy power of authority of her own or vested in her by Akhandananda. The submission relies up the suggested findings of Counsel Assisting. Counsel Assisting was not able to identify any authority or power that Shishy exercised. Counsel Assisting relies upon the impressions of the witnesses who were children at the ashram and not able to properly assess the power or otherwise of adults. Paragraph 7 SUBM.1021.017.0005
It is submitted that the Survivors at Mangrove Mountain Ashram were not abused because of the teachings of yoga. The Survivors were abused by the actions of Akhandananda and Shishy. Both 'individuals exploited their position and power under the guise of yoga as well as the guru‐disciple relationship so as to foster grossly inappropriate, predatory and paedophilic relationships with the survivors. As stated above, we reject the assertion that Shishy had any position of power within the ashram. The publications setting out the nature of the guru / disciple relationship were tended during the evidence of Shishy. Shishy has never said, nor was it ever put to her that the guru / disciple relationship justified her actions towards other residents of the ashram. The point of the questions and the context of the questions about the effect of the literature available to Shishy in her early days at the ashram was to explain why Shishy allowed herself to be abused by Akandananda and the effect of that abuse on her ability to remove herself from the abuse and take actions which we might consider appropriate. 8 It is submitted that children and families were discouraged and even separated from one another at the Mangrove Mountain Ashram due to the individual actions of Akhandananda and Shishy. According to the phi losophy, principles and teachings of yoga, there is no rationale for the separation of family members and therefore this separation derives solely from the actions of the individuals concerned. We reject the assertion that children were separated from their families by Shishy. The overwhelming force of the evidence is that Akandananda made all decision in the ashram including where everyone lived The separation of children from their parents appears to have commenced with the initiation ceremony. The genesis of the ceremony is unclear. The commission did not hear evidence on whether or not renunciation of the relationship between parent and child was derived from the Indian tradition or was a “local” invention. The effects of the ceremony remains unclear. The commission heard evidence from initiates who were children at the time of the initiation. The commission did not hear the evidence of any parents who participated in the ceremony. However there is no suggestion that any parent was forced to renounce their relationship with their children or that any parent was prevented from removing their children from the ashram. SUBM.1021.017.0006
Some matters are clear. Shishy did not design the ceremony or take part in the ceremony in regard to others. Whatever authority was handed over by parents was not handed over to Shishy. It was handed over to the gurus – either Satyananda or Akandananda. Shishy was also a child of 17 when her parents renounced her and when she renounced her parents. There is no clear pattern of children being deliberately removed from parents. As pointed out in the Bihar submissions Shishy’s parents remained at Mangrove. Some parents who refused to be separated from their children remained with them at Mangrove. There is also no evidence that guardianship of the children was handed over to Shishy. The evidence is clear that some parents signed documents allowing Akandananda to act as guardians when they were not present in order to deal with emergencies. Regardless of the impressions of the witnesses who were children at the time – there is no evidence that legal guardianship was taken over by Shishy. Paragraph 8 No such protection occu rred at the Mangrove Mountain Ashram. Furthermore, evidence has been given regarding the legal guardianship of children being transferred from the parents to Shishy, and the child support payments made to the ashram account. Again this evidence arises only in the context of Mangrove Mountain Ashram. See above comments The evidence of Shishy as it relates to the Bihar School of Yoga 18 Due to her assistance in the investigation and subsequent criminal proceedings the extent of Shishy's role in facilitating the abuse, as well as the physical, mental and sexual abuse she herself perpetrated was not known. We have been deeply distressed and shocked by these accounts. Shishy 's betrayal of the trust the children placed in her, and the horrific physical and sexual abuse inflicted under the guise of the teachings of yoga is a matter of grave concern which we sincerely hope will be addressed by this Royal Commission. 19. In her evidence Shishy provides accounts of alleged interactions whilst at the Bihar School of Yoga.7 We submit that the Royal Commission can place no weight and reject such evidence given that it is: (a) Uncorroborated by anyone before this Commission or otherwise (b) Unsubstantiated by anyone before this Commission or otherwise SUBM.1021.017.0007
(c) The evidence is from a person who is potentially criminally concerned with the outcome of these proceedings. (d) The evidence is from ∙an admitted paedopile.8 (e) From a person that provided inconsistent and conflicting evidence with the account of abuse given by Survivor's before the Commission. Shishy gave evidence of matters relating to the Bihar School of Yoga and Satyananda including: 1. Akandananda expected her to have sex with others including Satyananda when he visited Australia and that following that direction Shishy did have sex with Satyananda both when he was visiting Australian and in India. 2. Satyananda kept consorts in the manner that Akandananda kept her as a consort. 3. Both Satyananda and Akandananda required Shishy to drink their urine from their penises. 4. Shishy travelled to India in early 1987 and disclosed the sexual abuse of the children in Australia and asked Satyananda to intervene but he refused. During Shishy’s evidence the Bihar School of Yoga was represented and able to cross examine Shishy. The counsel for Bihar did not cross examine Shishy on any of the above matters or suggest that her evidence was untruthful or mistaken. In relation to Shishy’s evidence of her trip to India in 1987 she says that Niranjanan was present at the meeting. Her evidence was not challenged by counsel for Bihar. We submit that the Commission should not be persuaded by the Bihar School of Yoga to reject Shishy’s evidence in circumstances where it declined the opportunity to suggest the contrary to her in evidence. In relation to points 19 a‐e above we submit a.‐b (a) Uncorroborated by anyone before this Commission or otherwise (b) Unsubstantiated by anyone before this Commission or otherwise As the Commission knows sexual abuse is by its nature usually private and therefore difficult to corroborate. However the evidence of Bhakti Manning is of sexual abuse of her by Satyananda and corroborates the evidence of Shishy. (c) The evidence is from a person who is potentially criminally concerned with the outcome of these proceedings. Shishy is not potentially criminally concerned with the outcome of these proceedings. Recommendations by the Royal Commission do not effect legal rights. The Royal Commission cannot recommend a prosecution of a named person for an offence. Counsel SUBM.1021.017.0008
for Bihar does not say how Shishy evidence is compromised by potential criminal matters. We submit that there is no connection between Shishy’s evidence in relation to the Bihar School of Yoga and any matter which could potentially involve criminal proceedings. (d) The evidence is from an admitted paedophile. Shishy has given evidence that she commenced a sexual relationship with APQ when he was a child under circumstances of extreme violence and intimidation by Akandananda. Her evidence was unchallenged. There is no evidence that she has a sexual attraction to children or has had other similar relationships. The term paedophile is completely inappropriate and demonstrates a lack of understanding of the meaning of the term on the part of the author. The term paedophile should not used in the Commission’s report in relation to Shishy. (e) From a person that provided inconsistent and conflicting evidence with the account of abuse given by Survivor's before the Commission. We agree that Shishy has given accounts inconsistent and conflicting with the account of abuse given by survivors before the Commission. This is not a reason to challenge Shishy’s credit. Shishy has made statements and given evidence on multiple occasions on the matters which are now before the Commission. An examination of the transcript of the criminal proceedings will show that the evidence given by survivors in the criminal trials was not at variance with Shishy’s evidence at that time. Shishy’s evidence at the Commission is consistent with the evidence given by her in the criminal trials. THE RESPONSE OF SATYANANDA YOGA ASHRAM TO ALLEGATIONS OF CHILD SEXUAL ABUSE BY THE ASHRAM'S FORMER SPIRITUAL LEADER IN THE 1970s AND 1980s We adopt the submissions of counsel for the Ashram in paragraph 10 ‐14. We have dealt with some matters of procedural fairness in the submission of Mr Williams SC in relation to the suggested available findings proposed by Counsel Assisting. In relation to the importance of fairness in the conduct of the hearing and the fair treatment of all witnessed we draw the Commissions attention to the numerous matters in which Shishy was treated differently and unfairly in the proceedings. These include: 1. While other witnesses were invited by the Commission to make a statement and indeed their statements were presented to the Commission on the Commissions logo. Shishy was not assisted in that manner. 2. Shishy was prevented from sitting in the foyer during the proceedings. She was prevented from sitting in the hearing room to be present when the evidence of other SUBM.1021.017.0009
witnesses was give. While giving her evidence she was escorted in from a room in the back of the building. 3. Before her evidence the Commission gave a warning to the gallery. All of the above points 1‐3 had the effect of demonising Shishy and creating a very hostile and unwelcoming atmosphere in which to give her evidence. All other victims of child sexual abuse were invited to read their statements. Shishy was not. Her statement was tendered. Counsel Assisting sort very little information of the type sought from other victims ‐ such as the details of the abuse and the effect on her life Commission guidelines include the commitment that no victim of child sexual assault will be compelled to give evidence. The option was never offered to Shishy. The codename offered to Shishy was a codename that identified her as it was the same name used for her at the ashram. She was not offered an anonymous codename as were the other victims of child sexual abuse. Shishy was not treated in anyway as a victim in the proceeding despite the fact that on any version she was no more than 17 when Akandanada started a sexual relationship with her‐ a similar age to Joyti and Bhakti Manning and within the definition of child adopted by the Commission for all other witnesses In evidence Counsel Assisting cross examined Shishy on matters of credit and sort to discredit her on the basis that she included in a bibliography on a CD compiled in recent years that she had been a part of the Satyananda ashram. No other witness was required to show that they completely disassociated themselves for any part of the practices including, meditation, yoga, chanting etc. In support of the value of the cross examination Counsel Assisting said: "It lends the lie to the fact that that period of time at the ashram was some idyllic wonderful time for you and others who were there. Do you accept that?" s Both Ms McGlinchey and Mr Kernaghan objected however the line of questioning was allowed. In assessing the assertion that Shishy suggested the ashram was an idyllic place I suggest that the Commissioner read Shishy’s statement including the acts of brutality inflicted upon her. Karen McGlinchey 26 march 2015