Why George Pell likely won't face charges over royal commission findings

By Jessica Longbottom
Australian Broadcasting Corporati(ABC)
May 10, 2020

https://www.abc.net.au/news/2020-05-10/george-pell-not-likely-to-face-charges-royal-commission-findings/12230156

The royal commission said it was satisfied that by 1973 George Pell was conscious of child sexual abuse by clergy. Photo by Paul Miller

Cardinal Pell is Australia's most senior Catholic. Photo by Paul Miller

Attempts to prosecute former Ballarat bishop Ronald Mulkearns (left) failed. Photo by Margaret Paul

After a two-year wait, the Royal Commission into Institutional Responses into Child Sexual Abuse has released its findings on what Cardinal George Pell knew about clergy abuse.

It found Cardinal Pell was aware of general allegations that children were being abused in the Ballarat diocese from 1973.

It also found that he was told that paedophile priest Gerard Ridsdale was being moved because of his alleged sexual abuse of children at a meeting in 1982.

The royal commission found that later on, as he rose through the ranks in the Archdiocese of Melbourne, Cardinal Pell should have advocated for the removal of paedophile priest Peter Searson when he received a list of allegations of bizarre behaviour by him in 1989.

Cardinal Pell was also aware of an allegation of sexual misconduct against Searson.

In a statement released on Thursday, Cardinal Pell said that he was surprised at some of the findings and that they were not supported by the evidence.

Cardinal Pell maintained that he was not told the specific reason for Ridsdale's transfer.

The Cardinal said that the allegations about Searson given to him in 1989 did not include sexual assault and that he acted to remove Searson on becoming Archbishop of Melbourne in 1996.

Another high-ranking member of the clergy, former archbishop Phillip Wilson, was tried and convicted in NSW of concealing child sex abuse in 2018.

His conviction was overturned after the NSW District Court found that there was insufficient evidence to establish that he was told of the alleged abuse by another priest.

But could authorities pursue Cardinal Pell in a similar manner?

That's unlikely according to legal expert Keiran Tapsell, a former acting NSW district judge and solicitor who has also written a book on canon law.

"Theoretically it's possible, but it's a big time gap," he said.

Laws around mandatory reporting of child sex abuse for clergy weren't brought in in Victoria until 2014, and the laws don't apply retrospectively.

Before 1981, Victoria had "misprision of felony" legislation, which made it a crime not to report a serious offence to the police.

That meant anyone who concealed information about a crime that occurred before 1981 could theoretically be charged by police, but there would be almost insurmountable hurdles to pass in practice, Mr Tapsell said.

"Things like time lapse, memory — there's a huge problem with that," he said.

The person would also have to have knowledge about a specific crime taking place, rather than general information that abuse may have been occurring.

In its final report, the royal commission didn't make any finding that Cardinal Pell knew of any specific offences taking place.

The crime would also have to be classed as a serious crime, or "felony" at the time, and many sex abuse crimes were not.

After Victoria abolished that law in 1981, it replaced it with an offence making it illegal for a person to conceal a crime, but only if they gained some sort of benefit from that concealment, under section 326 of the Crime Act.

The "benefit" doesn't have to be a financial, but experts say any sort of intangible advantage would be hard to prove.

It also only carries one year in jail as a maximum penalty.

Victoria Police has already tried to prosecute one senior Catholic figure for what he knew about child sex abuse when he was in charge of the Ballarat diocese in the 1970s and '80s.

In the early 1990s, it set up Operation Arcadia to investigate Ballarat Bishop Ronald Mulkearns, who was found by the royal commission to have moved abusive priests from parish to parish to cover up their crimes.

But many of the crimes he'd helped conceal were only legally classified as "misdemeanours", so they weren't captured under the "misprison of a felony" laws.

The attempt to prosecute him failed.

The laws former archbishop Wilson was tried under in NSW have no equivalent in Victoria.

In 1990, when the state abolished its own "misprison of felony" legislation, it amended the Crimes Act to create a new offence of concealing a serious indictable offence.

Unlike in Victoria, the person does not have to conceal the crime for benefit, for it to be an offence.

Victoria Police, however, is not completely ruling out the possibility of investigating the cardinal.

In a statement, it told the ABC it would "receive a copy of the redacted [royal commission] findings and will then undertake an assessment of those findings".