Case Study 14: Hearing room updates
The Royal Commission held a public hearing in Sydney from Tuesday 24 June 2014 into the response of the Catholic Diocese of Wollongong to allegations of child sexual abuse against John Gerard Nestor.
Friday 27 June 2014 – Day 4
Bishop Peter Ingham, Bishop of Wollongong continued giving evidence on day 4 of the Royal Commission’s hearing into the case of John Gerard Nestor.
The evidence went to the processes that were followed in forwarding the case to the Congregation for the Defence of the Faith (CDF) and the subsequent decision of Pope Benedict on 17 October 2008 to dismiss Nestor from the priesthood.
The responsibility to notify Nestor and others of the decision of the Holy Father fell to Bishop Ingham, who also informed priests in the Wollongong Diocese and people involved in the case, including victims. But Bishop Ingham decided not to publicise the decision more broadly.
When asked if it would have been safer to notify the public, Bishop Ingham said he wasn’t sure how Nestor would respond, and that the matter had been off the public radar for some time.
Bishop Peter Comensoli then took the stand. Bishop Comensoli is Apostolic Administrator of the Archdiocese of Sydney. While he was a priest in Wollongong, he was chancellor in the Diocese from September 2000 to July 2006.
Bishop Comensoli was asked about the processes the Diocese put in place to ensure the Diocese complied with the new laws in NSW requiring notification to the Ombudsman’s office of allegations of sexual assault of children.
He said there was regular contact with the Ombudsman and the Catholic Commission for Employment Relations. Workshops were run in the Dioceses about who needed to sign employment declarations and so on around the new legislation. Workshops were also held for clergy and principals in the schools, including international speakers on child protection.
Bishop Comensoli learned in March 2006 that Fr Nestor had returned to Australia, which prompted the Diocese to consider its obligations under the Ombudsman Act.
Counsel Assisting drew Bishop Comensoli’s attention to Nestor’s submission to the Congregation for the Clergy (which was a document that had never been provided to Bishops Wilson or Ingham) in which Nestor claimed that, in connection with his application for a bus drivers licence in NSW, he had obtained from the authorities in NSW a clearance to work with children. Counsel Assisting said that enquiries made by the Royal Commission had confirmed that Nestor’s application would have involved a police check only, not a working with children check.
Sr Moya Hanlen gave evidence that she became Chancellor of the Diocese of Wollongong after Fr Comensoli. She holds a licentiate in Canon Law, which she obtained through studies in Canada. She is the child protection delegate for the Diocese and as such ensures the Bishop complies with the Ombudsman Act.
After seeking advice, she determined that the Nestor matter came under the jurisdiction of the Ombudsman’s office. Her view was subsequently confirmed by the Ombudsman’s office which said that the allegations against Fr Nestor were reportable under the Act.
Sister Hanlen’s attention was drawn to the 2003 version of Sacramentorum Sanctitatis Tutela (SST) which in Art 25 says that the judicial trial cases with which SST deals are subject to the pontifical secret. Sister Hanlen was asked by the Royal Commission of her understanding of the pontifical secret. She replied that the secrecy obligation related to all details of a judicial trial case which were not known in the public arena.
Sister Hanlen in her second written statement to the Royal Commission had referred to three other cases involving CDF action against a priest of the diocese with which she had been involved while chancellor. In response to questions from Counsel Assisting she elaborated on these cases.
Justice McClellan, in questions to Sister Hanlen, explored with her the extent to which the jurisprudence of the CDF and the Apostolic Signatura relating to action against priests could become known within the broader Church.
The final witness was Father Bryan Jones who had been Administrator of the Diocese in the interregnum between Bishop Wilson and Bishop Ingham. Fr Jones in his evidence spoke about the difficult position he found himself in following the decision of the Congregation for the Clergy to uphold Fr Nestor’s recourse to it against Bishop Wilson’s decrees and pending the appeal to the Apostolic Signatura. That appeal had not been formally instituted before Bishop Wilson left the Diocese to take up his appointment as Archbishop of Adelaide. Fr Jones said that it was of absolute importance for the Church in Australia’s commitment to Towards Healing for the appeal to be made the Apostolic Signatura.
The hearing has now concluded. A timetable is to be agreed between Counsel Assisting and counsel for the Truth Justice and Healing Council for the lodgement of written submissions.
Thursday 26 June 2014 – Day 3
The Royal Commission heard evidence today from Dr Kevin Matthews, a canon lawyer and parish priest of the Port Pirie Diocese, Fr Mark O’Keefe, priest of the Wollongong Diocese, and the Bishop of Wollongong, Bishop Peter Ingham.
Dr Matthews was Fr Nestor’s canonical advocate from 1998.
He told the Commission that accusations alone against a priest in the nature of those made against Fr Nestor were sufficient for a bishop to place the priest on administrative leave.
Dr Matthews said there is a lacuna, or gap, in canon law. He said that when investigation of allegations revealed insufficient proof to meet the required standard for a canonical penal process, a priest cannot be tried. However the suspicion about the priest may be such that the Bishop cannot permit the priest to return to ministry.
Dr Matthews said in such cases, the priest remained a priest but was not given an ecclesiastical appointment. This effectively left him on permanent administrative leave.
Dr Matthews agreed that Bishop Wilson’s proposal that Fr Nestor undergo an assessment at Encompass was an appropriate way to approach the issue of risk in his case.
Dr Matthews gave evidence that he had not seen key documents, including the judgement of Judge Phelan in the NSW District Court, during the time he was assisting Fr Nestor.
Dr Matthews said that only in preparing for the Royal Commission hearing had he become aware of the evidence on which Bishop Wilson and subsequently Bishop Ingham had proceeded in taking the steps they had taken against Fr Nestor. He said he thought Bishop Wilson had proceeded very carefully, and had done everything in his power to ensure correct steps were taken.
Fr Mark O’Keefe gave evidence that, following Fr Nestor's acquittal on appeal of criminal charges, Fr O'Keefe wrote to Bishop Wilson in September 1997 in support of Fr Nestor. Fr O'Keefe's view at that time was that following the acquittal the Diocese should have affirmed Fr Nestor. Fr O 'Keefe had been unaware of the further allegations against Fr Nestor that Bishop Wilson had received.
Fr O 'Keefe agreed he had been critical of Bishop Wilson. He thought Fr Nestor was being treated unfairly and had been concerned by the delay in steps taken by Bishop Wilson in relation to him.
Following the decision of the Congregation for the Clergy in favour of Fr Nestor, Fr O’Keefe had been surprised that Fr Jones, the Administrator of the Wollongong Diocese decided to appeal.
Fr O'Keefe said he was now aware of information that, if he had known it at the time, would have caused him to change his actions.
After lunch, Bishop Peter Ingham, current Bishop of the Diocese of Wollongong took the stand.
Counsel Assisting took Bishop Ingham through the processes whereby Fr Nestor sought recourse to the Congregation for the Clergy against Bishop Wilson's decrees limiting the exercise by Fr Nestor of his priestly faculties. Then Bishop Ingham described the five year process leading to the Diocese' successful appeal to the Apostolic Signatura against the decree of the Congregation for the Clergy.
Bishop Ingham described Fr Nestor' s persistence throughout this time in seeking to exercise his priestly faculties at various places overseas.
During this time the Australian Bishops wrote to the Holy See expressing their support for the Diocese of Wollongong in appealing the decision of the Congregation for the Clergy.
Bishop Ingham said if the appeal hadn’t been successful he would have had to resign as Bishop. Bishop Ingham said it’s a serious thing for a bishop to resign. “But you couldn’t live with your conscience”, he said.
Upon Fr Nestor's return to Australia, Bishop Ingham instigated an investigation under the Ombudsman Act (NSW) into the sexual abuse allegations against Fr Nestor. The findings of the investigation that certain allegations were sustained ultimately became part of the case which Bishop Ingham presented to the Congregation for the Defence of the Faith in relation to Fr Nestor.
Bishop Ingham will continue giving evidence tomorrow.
Wednesday 24 June 2014 – Day 2
Day two of the Royal Commission’s examination of the Fr. John Nestor case in Wollongong continued in Sydney today with former bishop, Philip Wilson continuing his evidence dealing with the years he spent trying to have Nestor dismissed as a priest.
Archbishop Wilson was asked about the structure of the Holy See and the apparent confusion prior to 2001 between the responsibilities of the Congregation for the Clergy (CFC) in Rome and the Congregation for the Doctrine of the Faith (CDF) in relation toclergy accused of child sexual abuse.
Archbishop Wilson, having stood Nestor down in 1998, told the Commission that he had been required to wait for the outcome of Nestor’s recourse to the CFC before he could take any further action. In December 2000 the CFC decided the matter in favour of Nestor, directing that he be reinstated.
Archbishop Wilson told the Commission that he felt bound in conscience to his duty to protect children, and had always been prepared to appeal to the Apostolic Signatura, the equivalent of the Vatican’s Supreme Court, and the Pope, had the decision of the CFC gone against him.
He said with all he had learnt from his investigations, he could not in conscience allow Nestor to return to ministry.
The appeal of the CFC decision to the Apostolic Signatura succeeded in 2006, and in 2009 the CDF removed Nestor from the priesthood.
In examination by counsel for the Wollongong Diocese and TJHC, Jane Needham SC, Archbishop Wilson said that canon law does not impose restrictions on people fulfilling obligations under civil law.
He said the release in 2001 of Sacramentorum Sanctitatis Tutela had clarified that the CDF rather than the CFC should have jurisdictionin matters involving child sexual abuse. It also provided clear procedures to be followed regarding applications to have priest dismissed, which had been less clear when he had commenced his process in 1997.
When these procedures were applied in Nestor’s case, the CDF returned a prompt decision dismissing Nestor from the priesthood. This decision had accepted evidence which included the outcomes of investigations under Australian civil law, (the Ombudsman Act), Australian church procedure (Towards Healing), and canon law.
The Chair asked Archbishop Wilson about confessional secrecy, and the potential conflict between knowledge given to a priest and an obligation to report knowledge about certain crimes to the authorities.
Archbishop Wilson acknowledged the issue. He told the Commission that confessional secrecy is one of the highest values that governs the ministry of priests in the Catholic Church and this was not something that people were willing to change.
He was however open to the idea that there might be academic discussion around the topic within the church.
He reinforced to the Commission such was his conviction about Nestor not being a suitable person to work in ministry with children, that had his appeal to the Signatura been unsuccessful, he would have appealed to the Pope, and if necessary resigned as a Bishop rather than reinstate him.