SUBM.1039.011.0001
ROYAL COMMISSION INTO INSTITUTIONAL
RESPONSESTOCHILDSEXUALABUSE
ATSYDNEY
COMMONWEALTHOFAUSTRALIA
RoyalCommissionsAct1902
NEWSOUTHWALES
RoyalCommissionsAct1923
PUBLICINQUIRYINTO
SportingInstitutions
CASESTUDY39-TENNIS
VIGNETTE
SubmissionsinReplyOfBXB
1. BXB agrees with and supports the submissions of Counsel
Assisting and submits that the Commission should make the
findingsproposedbyCounselAssisting.
2. BXBmakestheadditionalsubmissionssetoutbelow.
3. Tennis NSW’s Investigation of BXJ’s complaint was flawed in
bothprocessandintent.
4. BXBsubmitsthatforthereasonsarticulatedinSubmissionsof
CounselAssistingandthosesetoutbelow,theinvestigationof
BXJ’scomplaintwasflawedinbothprocessandintent.
5. NeitherTennisNSWnorRigbyCookewasskilledorequippedto
undertakeaninvestigationofcriminalconductinvolvingsexual
assault.ThisshouldhavebeenapparenttobothTennisNSW
and Rigby Cooke especially as submitted by Tennis NSW1this
wasthefirsttimetheorganizationhaddealtwithallegationsof
abuse by an adult against a child. If by 1998 Tennis NSW
supported147clubs,associationsandcourtoperatorsandhad
39,000 registered participants2, Tennis NSW should have then
hadinplaceclear,reasonedandwellresearchedprotocolsfor
dealingwithcomplaintsofthisnature.TennisNSWshouldnot
1
2
2
Submissions of Tennis NSW SUBM.1039.005.0001 at [3]
Submissions of Tennis NSW SUBM.1039.005.0003 at [22]
SUBM.1039.011.0002
be heard to complain about the absence of clear or specific
protocolsandproceduresinanswertoshortcomingsaboutits
process.TennisNSWshouldhaveobtainedappropriateadvice
attheoutset.ItwasincumbentonTennisNSWtoensureRigby
Cooke was sufficiently skilled and experienced to know
whether or not and how to conduct a sensitive investigation
andonRigbyCooketoadviseTennisNSWofthelimitationsin
either skill or experience of Maria Shand to undertake an
investigationintoallegationsofsexualassault.
6. Asummaryofthedisclosuresofabuseissetoutin4.4.3ofthe
Submissions of Counsel Assisting. In the course of the
investigation, Maria Shand and others met with BXJ and
questioned her on 2 further occasions. Whilst those meetings
arereferredtoas‘interviews’,theyareineffectinterrogations
orexaminationandchallengeofBXJ’scomplaint.
7. It was inappropriate, unacceptably intrusive and harmful for
BXJ to be interrogated repeatedly about the complaints. BXB
disclosed her abuse to Ms Chaplin, the Assistant Coach3who
informed her superiors, and later repeated her complaints at
the meeting of 3 August 1999 with the then CEO of Tennis
NSW, Mr Watson, Mr Giltanan, Ms Langsford and Ms Dorn
Fogarty where the allegations were discussed 4 . After the
appointment of Rigby Cooke, BXB was then interrogated on a
further 2 separate occasions. Being forced to repeat her
complaint and subject to repeat questioning and challenge
aboutthecomplaintislikelytohavebeenharmfultoBXBand
ledhertoconcludethatTennisNSWdidnotbelieveher.
8. SavefortheneedforTennisNSWtounderstandthecomplaint
by BXJ in full and to make a prima facie assessment about
whethertheactscomplainedofmayhaveoccurred,itisBXB’s
submission that Tennis NSW should not have undertaken any
interrogationandchallengeofBXJ’scomplaintatall.Thiswasa
matterfortheNSWPoliceandtheCourts.TennisNSWshould
have investigated the matter only to the extent necessary to
makeaprimafacieassessmentonwhetherornotthealleged
conductmayhaveoccurredandaninvestigationlimitedtothat
purposewouldhavesufficedtoallowTennisNSWtoconsider
itspositioninrelationtoNoelCallaghan’songoingemployment
andtoassesstherisktoothertennisstudents.Itwasnotthe
roleofTennisNSWoritsinvestigatortoreplicateorusurpthe
3
4
Exhibit 39-0018, ‘Statement of Amanda Chaplin’, Case Study 39, STAT.0949.001.0001_R at [13]-[17]
Exhibit 39-0017, ‘Statement of BXB’, Case Study 39, Stat.0967.001.0001_R at [39]-[40]
SUBM.1039.011.0003
role of a Police investigation and Court process for final
determination of the complaint and in so far as the process
sought to resolve the matter finally, that was a flaw in the
processandintentoftheinvestigation.
9. Further, the Tennis NSW Board, or certain members of the
Board, appear to have suffered from the misconception that
BXJ had to convince each of them about the truth of her
complaintorthateachofthemhadtomaketheirownfinding
about whether the abuse. This likely informed the approach
taken by Tennis NSW Board following the receipt of the
InvestigationReportpreparedbyMariaShandasevidencedby
certain entries made by Maria Shand in her file note of 14
September 1999 that the Board or some members of it ‘Feel
cant form a view’ or say ‘Evidence inconclusive’ 5 . BXJ’s
evidence wasn’t ‘inconclusive’. The views of the Board,
comments made by Maria Shand and with respect, Senior
Counsel, are uninformed and reflect a lack of understanding
abouttheverynatureoftheevidenceinchildsexualassault.It
is frequently uncorroborated, depends on the word of the
‘child’againstanadultwhooftendeniestheconductandwho
frequently continues to deny the conduct. Any process
undertaken without this understanding about child sexual
abuse is flawed. The submissions of Tennis NSW at [67]-[71]
and [74]-[76] suffer from the same misconception and lack of
understandingandshouldberejected.Tosuggestthatareport
isinconclusivebecausethesexualassaultcomplaintinvolvesan
uncorroboratedallegationbyoneagainstanotherwouldmean
nearly all complaints of child sexual abuse are inconclusive
unless they are witnessed or a perpetrator confesses. This is
not an ‘invidious position’ but rather the reality of complaints
of child sexual abuse and Tennis NSW’s failure to understand
this reality lies at the heart of the Tennis NSW’s failures to
respondappropriatelytowardsBXJ.
10. It was inappropriate for any official of Tennis NSW to be
presentwhenBXJwasbeingquestionedorinterrogatedabout
the complaint. The complaint was sensitive and personal and
intimate. It was inappropriate for BXJ to have been subject to
questioning by multiple persons in the second meeting on 1
August 1999. This was unacceptably intrusive and harmful to
BXJ. In terms of the nature of the questioning of BXJ at the
meetingof1September1999,itshouldhavebeenapparentto
5
Exhibit 39-0015, ‘File note of Maria Shand’, Case Study 39, TENN.0004.001.0595_T_R (Tab 66 of Tennis
Bundle)
SUBM.1039.011.0004
both Whittaker and Watson that the nature of many of the
questions to BXJ were not relevant or appropriate and given
theywerethetwomostseniorfiguresintheorganization,they
could have and should have put an end to the inappropriate
questioningofBXJ.
11. BXB supports the submissions in particular at paragraph 312
and 313 of Counsel Assisting Submissions as to the power
dynamics of having senior officers of Tennis NSW present at
the second ‘interview’ particularly when BXJ was subject to
questioning about the manner of her dress and seeking to
examinerher‘character’andsexualconductmoregenerally6in
thecontextofhercomplaintagainsttheseniorcoachatatime
whenBXJwasstillambitiousabouthertenniscareer.
12. Both the process of the investigation and the intent of the
processhavingregardtothenatureofthequestioningdirected
toBXJcausedBXJunnecessarydistressandharm.
13. TennisNSWapproachtoBXJ
14. Tennis NSW failed to tell BXJ that Maria Shand had believed
her, or to offer her and her family any support even though
TennisNSWknewoftheearlierdisclosurebyBXJtoMsChaplin
and Ms Chaplin’s report to her superiors, the meeting on 3
August 1999 and the interviews of BXJ, BXB and BXJ’s father.
Tennis NSW’s failure to tell BXJ that her complaints had been
believedbyMariaShandcausedBXJfurtherpsychologicalharm
andemotionaldistress.
15. Tennis NSW could have and should have more supportive of
BXJ. BXJ’s complaint was important both individually for BXJ
and for Tennis NSW in its role supporting the 147 Clubs and
39000 registered tennis participants. BXJ deserved
encouragement and praise for bringing forward this
information to senior officials of Tennis NSW and Tennis NSW
should have offered her and her family support then and
ongoingsupportthroughthelegalprocess.
16. BXB notes the submission by Tennis NSW that ‘it should have
given BXJ more information about the content of the
InvestigationReport,toldBXJthatClarkepreferredherversion
of events, and explained why it needed more advice before
6
Exhibit 39-015, ‘Transcript of Meeting with [BXJ], Kate Wood, John Whittaker, Craig Watson and Maria
Shand’ Case Study 39. TENN.0004.001.0416_R (Tab 57 of Tennis Bundle)
SUBM.1039.011.0005
decidinghowtoproceed.7’BXBwasentitledtothesupportof
Tennis NSW even as Tennis NSW grappled with its legal
obligations vis-à-vis the ongoing employment of Noel
Callaghan. BXB agrees that Tennis NSW could have explained
toBXJwhyittookthecourseitdidandshouldhaveofferedBXJ
counselling but BXB says that Tennis NSW had sufficient
information upon which to act to terminate or suspend Noel
Callaghan following BXJ’s complaint and following the
investigationbyMariaShand.
17. BXBnotesthestepstakenbyTennisNSWtoreviewitspolicies
and procedures and welcomes the steps identified in
paragraphs89andfollowingofTennisNSW’sSubmissions.
18. Finally,BXBsubmitsthatherevidencethattheeffectofTennis
NSW’s investigation on BXJ was profound and long lasting
should be accepted in full. Her evidence about hearing her
daughter’s distress during the interview on 1 September 1999
and about her daughter running away immediately after that
interview was not challenged. Her evidence that BXJ never
played tennis again should be accepted. Her evidence of the
profound impact of BXJ feeling that she was not believed
should be accepted in its entirety. BXJ, BXB and her family
have suffered greatly from the effects of the abuse and the
effects of the Tennis NSW investigation and in particular
withholding from BXJ the outcome of the investigation. The
unchallenged evidence in this case study was that Maria Shand,
CraigWatsonandCarolLangsfordbelievedBXJhadbeenassaulted
byNoelCallaghan.
19. WhetherTennisNSWintendeditornot,theeffectofitsresponse
tothecomplaintsdisregardedBXJ’sinterestsandfeelingsandthe
impact of Callaghan’s acts on BXJ. Tennis NSW undertook a
processthatsubjectedBXJtoconsiderabledistressandthenfailed
to take any action to support her or to tell her she had been
believed.
7
MariaGerace
CounselforBXB
28June2016
Tennis NSW Submissions Subm.1039.005.0015 at [80]