The Catholic church has failed in its bid to permanently stay a case alleging a priest sexually abused a child in the 1960s.
The NSW Supreme Court rejected the application in relation to proceedings brought by a woman who alleged that she was sexually assaulted as a 14-year-old.
The priest who was the alleged perpetrator had worked in the northern New South Wales diocese.
The Church's internal records showed it knew the priest was a paedophile but did nothing other than move him from parish to parish.
Lismore Sexual Assault Allegations
On Friday, 24 September 2021, the decision of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 was handed down which rejected the Catholic Church's application for a permanent stay.
The proceedings had been brought by a woman who alleged that she was sexually assaulted in 1968, when she was 14 years old. The alleged perpetrator was Father Clarence Anderson, a priest with the Lismore diocese.
The church had argued it could not possibly have a fair trial and that the case was "unjustifiably oppressive". This submission was based on the fact that it had been over 50 years since the alleged incidents took place. This had the practical effect of limiting the number of witnesses who were still alive to give evidence.
Indeed, Father Anderson himself had passed away along with clergy who had knowledge of the matter.
However, sexual assault lawyers for the woman argued that the church's internal records showed that Anderson's superiors had observed that he had a "sexual interest in children", which he was prepared to act on. These observations were recorded as early as 1965.
Rather than bring the matter to the attention of police so that he could be charged with sexual intercourse with child, the church had simply moved him from parish to parish.
Priest Not Charged with Sexual Assault
The church also held documents detailing complaints from the parents of boys abused by Father Anderson. The documents also revealed that he was suspended from his office and told to undergo psychiatric treatment following one of the incidents. Despite this, the church continued to allow Anderson to be around children.
One of the complaints was made in 1971, when the parish priest of Kyogle - Monsignor Ryan - warned the archbishop of Brisbane's office that he had directly witnessed Anderson committing an indecent assault on a young boy.
"These conclusions I reached from observation of him handling boys in the school playground and in his car," he wrote to the archbishop's office. "From the upper floor of the Presbytery I saw him on one occasion with a boy spreadeagled under him over the car bonnet, performing what seemed to be sexual movements upon the boy."
Monsignor Ryan also told the archbishop he had been approached by a father who said the priest had abused his son and six others.
Ryan stood down the priest, however Anderson was then, "appointed to a Parish further down the coast, Macksville in fact, with the direction to go monthly to Sydney for treatment".
Permanent Stay Rejected
The NSW Supreme Court found the documentary evidence "amply demonstrates that Father Anderson's misconduct was well-known to his superiors, well before the event relied upon by the plaintiff".
Sexual assault lawyers also presented evidence from another five children who claimed to have been abused by Anderson, including four children from Macksville.
One recalled that Anderson was known as "the surfing priest". Some of the boys were coached by Anderson. Others were taken out by him shooting or surfing.
Justice Stephen Campbell found the church had not done enough to prove the "exceptional" circumstances required for a permanent stay of proceedings.
"A trial of the issues in this case would be no mere charade calculated to bring the administration of justice into disrepute amongst right-thinking people," he said.
His Honour was critical of the submissions tendered by the church's child abuse lawyers in support of the permanent stay.
The woman told media outlets, "I want to thank my legal team and especially thank the court for carefully considering my matter. I am so pleased that I can continue to present my case and seek justice from the court."
In 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse recommended that jurisdictions abolish time limitations to bringing abuse cases, prompting changes across the country, including in NSW.
Justice Campbell noted that the removal of limitations could be taken as an indication of parliament's intention that, "child abuse actions should be permitted to proceed despite the effluxion of even long periods of time and an inevitable resulting degree of impoverishment of evidence, provided a fair, not perfect, trial can be had".
Sexual Intercourse with Child Charges
Section 66A of the Crimes Act 1900 (NSW) sets out that if you engage in sexual intercourse with a child, you can be guilty of an offence.
You can fight a sexual intercourse with a child charge in two ways. Firstly, the prosecution must prove beyond reasonable doubt:
- You had sexual intercourse with the alleged victim; and
- The alleged victim was a child
You can be found 'Not Guilty' if one of the following defences to sexual intercourse with child applies:
- Honest and reasonable mistake: if you are charged with 'Sexual intercourse with child between 14-16 years', it is a defence that you held an honest and reasonable belief that the alleged victim was above the legal age of consent;
- Identification: The Crown cannot establish beyond reasonable doubt that you were the offender;
Consent is not a defence as a child cannot give consent to sexual activity of any kind. This is different to adult complaints where someone is charged with sexual intercourse without consent.
An offence of 'Sexual intercourse with child between 14-16 years' carries a maximum penalty of imprisonment of 10 years. There is no standard non-parole period (SNPP)
The maximum penalty for 'Sexual intercourse with child between 10-14 years' carries a maximum term of imprisonment of 16 years. The standard non-parole period is 7 years imprisonment
Looking at statistics for child sexual assault sentencing over the last 5 years, it is unsurprising to see that over 80% of persons found guilty of sexual intercourse with a child were sentenced to full-time imprisonment. You can view come recent cases where defendants were found 'not guilty' for sexual assault charges by clicking here.
Plainly, jail is very likely for this offence. Recent sentencing amendments have done away with suspended sentences, which further increased the likelihood of a term of imprisonment being imposed if you are found or plead guilty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
