Punish our Trespasses! An Examination of Private Tribunal Law as Applied in the Anglican Church's Trial of Bishop Donald Shearman

“PUNISH OUR TRESPASSES!” AN EXAMINATION OF PRIVATE TRIBUNAL LAW AS APPLIED IN THE ANGLICAN CHURCH’S TRIAL OF BISHOP DONALD SHEARMAN HOWARD MUNRO* I INTRODUCTION In June 2004, the Anglican Diocese of Brisbane convened a hearing before its Diocesan Tribunal to determine the guilt or innocence of Bishop Donald Shearman (aged 78) who was charged with having “committed disgraceful conduct which is/ would be productive of evil report”. 1 The conduct in question referred to events alleged to have occurred in a church-run hostel in Forbes, NSW, during 1954-56. Having found Bishop Shearman guilty of such misconduct, the Tribunal recommended that he be deposed from holy orders. In response to the Tribunal’s findings, the Archbishop of Brisbane, the Most Rev Dr Phillip Aspinall, who had the power under the Tribunal Canon 2003 (the church’s disciplinary legislation) to accept, suspend or mitigate the decision recommended by the Tribunal in the exercise of his ‘prerogative of mercy’, 2 took the view that no mitigation of sentence was warranted. Dr Aspinall, declared (without giving reasons) that: The positive ministry that Mr Shearman was able to exercise, as a result of his misconduct against the complainant not generally being known for so many years, is not a reason to mitigate what I accept is the appropriate response to the offence. 3 * 1 2 3 Howard Munro BA (Hons)/LL.B (UQ), BTh (BCT), PhD (Griffith) is Dean of St John’s College, The University of Queensland. Decision of the Diocesan Tribunal at [1]. (The Decision of the Diocesan Tribunal in the case of Robert Cunningham v Donald Shearman (Diocesan Tribunal of Brisbane, Australia, July 2004) referred to in this paper as the Decision of the Diocesan Tribunal - was published by way of an email attachment to all Brisbane clergy on 26 August, 2004. A statement by the Archbishop explaining his decision was published in the September 2004 edition of the Diocesan newspaper Focus). Tribunal Canon 2003 s 36(1) (Anglican Diocese of Brisbane). The Tribunal Canon 2003 is published as part of folio titled The Constitution and Canons of the Diocese of Brisbane 2003 by the Corporation of the Synod of the Diocese of Brisbane, 2004. This opinion is contained in Archbishop’s Sentence – DN Shearman at [11], which accompanied the e-mail attachment containing the Decision of the Diocesan Tribunal. 52 QUTLJJ Vol 5 (No 1) “Punish our Trespasses!” An Examination of Private Tribunal Law Prior to the instigation of the Tribunal hearing, the events complained of had come to the attention of the church and had been handled at various levels. These prior efforts to resolve the issue were examined at length in the Board of Inquiry into the Past Handling of Complaints of Sexual Abuse in the Anglican Diocese of Brisbane 2003 chaired by Mr Peter O’Callaghan QC and assisted by Professor Freda Briggs. 4 After reviewing all the evidence available to it, the Board concluded that the Diocese had not adequately dealt with the complaints. The Board stated that: The subject complaint was not handled fairly, reasonably and appropriately, in that there was and remains a failure on the part of the Respondent [Bishop Shearman] to make a full and unconditional apology for his conduct towards the Complainant. 5 Hence, the Tribunal hearing was instigated by the Archbishop of Brisbane and Bishop Shearman was officially censured and punished, with the result that he is now no longer in holy orders so far as the church is concerned, as of 25 August 2004. II ISSUES Whilst the case against Bishop Shearman is now closed from the church’s point of view, I nevertheless wish to argue that Bishop Shearman’s trial by the Tribunal in the Anglican Diocese of Brisbane reveals the legal vulnerability of unrepresented accused persons before ecclesiastical courts. It would appear from the recorded judgment of the Tribunal that the accused bishop could not afford legal representation. The Tribunal, in the early stages of its judgement, notes a letter from Bishop Shearman’s solicitors to the Tribunal as saying: Another relevant matter, again as earlier advised, the cost of legal representation before the Tribunal is beyond Mr Shearman. Mr Shearman was a priest for all of his working life and is retired at an elderly age on a modest and limited pension\stipend. 6 Bishop Shearman therefore, facing a Tribunal that had the ultimate sanction of deposing him from holy orders – a matter Archbishop Aspinall described as “the most serious step the church can take in relation to an ordained person” 7 – had no legal representation and was not even self-represented; and even if he were, he would have had to be advised as to the conduct of his case by the President (or Deputy President) of the Tribunal, which would have been a situation that was far from ideal. The final outcome for the unrepresented accused Bishop is that he bears the odium of being found guilty of an ecclesiastical offence, the consequence of which is to suffer the ultimate penalty of being publicly deposed from holy orders. As a result of being deposed, Bishop Shearman also loses any chance of casual employment as a minister of the church, which, were it not for the fact that the Bishop is retired, would indicate that 4 5 6 7 P O’Callaghan and F Briggs, Report of the Board of Inquiry into Past Handling of Complaints of Sexual Abuse in the Anglican Church Diocese of Brisbane (Queensland State Parliamentary Papers, 2003). Ibid 337-338 [20.1]. Decision of the Diocesan Tribunal at [18]. Jeff Waters, Anglican Bishop defrocked over sexual abuse allegations (2004) ABC Online <http://www.abc.net.au/am/content/2004/s1185518.htm> at 4 April 2005. 53 MUNRO (2005) there are very few procedural safeguards protecting clergy from deprivation of their economic livelihood. The fact that the Tribunal tolerated this situation exposed Bishop Shearman to the potential hazards that confront all legally unrepresented accused persons when they are summoned before courts and other tribunals. Bishop Shearman would, in the ordinary course of events, have been well served by having counsel representing him in order to make submissions on his behalf in determining issues (to be considered below) such as (i) the jurisdictional claims of the Tribunal; (ii) the procedural rights of the accused; (iii) whether the Tribunal ought to have afforded the accused the protections of criminal (or quasi-criminal) jurisdiction compared to the lesser standards of ‘disciplinary’ proceedings; (iv) whether the facts as alleged had been proved; and (v) the recommendation on the penalty to be imposed. The trial of Bishop Shearman under the Tribunal Canon was in many respects a test case in ecclesiastical law in the Anglican Diocese of Brisbane. As such it could well have been deserving of legally aided (privately sourced from church funds) or at least pro bono support to the accused Bishop to ensure that a number of potentially legally complex issues were ful (...truncated)