NSW Attorney General Mark Speakman has asked the Director of Public Prosecutions to consider reviewing a 2013 decision not to prosecute one of the state’s most senior Catholic educators for concealing child sex crimes.
It follows the landmark conviction of Archbishop Philip Wilson in May for failing to report child sex allegations about a Hunter priest to police and child abuse royal commission concerns about DPP decision-making review processes.
The DPP advised police in 2013 that charging the former NSW Catholic Schools Commission member and Christian Brother Anthony Whelan, 77, was “not in the public interest”, despite noting “there would appear to be a prima facie case” over his handling of allegations against teacher Thomas Keady in the 1970s.
The DPP decision devastated Hunter man Rob Roseworne whose complaint in 2010 initiated a Catholic Church investigation. It found Brother Whelan, as school principal, sacked Keady from St Patricks College, Sutherland in 1979, but took no further action after four boys alleged “sexual misconduct” during a school excursion.
“Brother Whelan did not inform the police of the allegations by the four students nor did he inform their parents of the allegations they had made against Thomas Keady,” a report by professional standards investigator and former NSW police assistant commissioner, Norm Maroney said.
“He advised each student to inform his parents of the assaults.”
In a recorded statement for the church investigation Brother Whelan said he sacked Keady on the advice of the Catholic Education Office.
Keady was later convicted of further child sex crimes in the Hunter area in 1994 and died in 2012.
Mr Roseworne received a settlement from the Christian Brothers after Mr Maroney found he was abused by Keady and reported the abuse to another St Patricks College teacher, Brother John (Chris) Roberts, in 1977 when he was 11. Roberts was jailed in 2016 for child sex offences.
Brother Whelan denied Mr Roseworne’s allegation that he also reported the Keady abuse to him.
NSW Attorney General Mark Speakman said on Thursday that he had “written to the Director of Public Prosecutions asking that he consider the matters raised by Mr Roseworne”, after Liberal MP Catherine Cusack wrote to Mr Speakman to support Mr Roseworne’s review request.
“I would ask you to take an active interest in past decisions of the DPP where it was determined ‘not in the public interest’ to prosecute. In the wake of the Royal Commission, a far more enlightened and anguished public would want these cases revisited, reviewed and wherever possible prosecuted,” Ms Cusack wrote.
Mr Roseworne said he was relieved the matter was now before the DPP.
“It’s been eight years of battle to get to this point. That pretty much says it all,” he said.
In its advising to police in 2013 the DPP said the prosecution of Brother Whelan for misprision of felony – concealing a serious crime - was not in the public interest because of the “relatively low level of criminality against Whelan; his lack of antecedents [lack of criminal history]; the absence of any issue of specific deterrence; the staleness of the alleged offences and the likelihood that a conviction would result in, at best, a negligible penalty”.
In its Criminal Justice Report released in 2017 the Royal Commission into Institutional Responses to Child Sexual Abuse said it had “not particularly anticipated finding significant problems in decision-making processes” within Australian DPP offices, but investigations “revealed such problems”.
It recommended “robust and effective” internal audit processes after finding some DPP decisions failed to comply with decision-making policies. It stopped short of recommending judicial reviews of DPP decisions after noting such reviews were not favoured by the High Court or DPPs.
“We remain of the view that the absence of judicial review leaves a gap capable of causing real injustice if a prosecutor makes a decision not to prosecute, or to discontinue a prosecution, without complying with the relevant prosecution guidelines and policies and the affected victim is left with no opportunity to seek judicial review,” the royal commission said.
Newcastle solicitor Peter Kelso, who has represented some Keady victims, said the DPP’s advising on the Brother Whelan case “needs to be reconsidered”.
Although it was only five years ago the royal commission had exposed many areas that needed to be looked at again, Mr Kelso said.
“In the light of the Wilson case I think it would be reasonable to have a fresh look at it,” he said.
NSW Greens MP and justice spokesperson David Shoebridge called on the DPP and police to review cases where perpetrators had been convicted to consider whether others should be charged for concealing offences.
“What the Wilson case shows is that you can get convictions. When we say it’s a landmark case it is, but on a law that’s been on the statute books for three decades and not used until very recently,” Mr Shoebridge said.
NSW remains the only Australian state where conceal-related cases against clergy have been prosecuted. In 2009 the late former Maitland-Newcastle Catholic Vicar General Tom Brennan was convicted of making a false statement after he told police he had not received any allegations about a notorious Hunter paedophile priest. A court accepted at least 10 people had reported allegations about the priest to Brennan.
In 2014 a Newcastle magistrate dismissed conceal charges against another Hunter priest. In 2017 a Hunter Marist Brother was charged with knowingly making making false statements to police and perverting the course of justice after telling detectives in 2014 that he “did not remember ever” reporting a complaint about a Marist Brother to a superior. The matter is listed for trial.
In a statement on Wednesday the Christian Brothers Oceania Province said the order and Brother Whelan “make no comment at this time”.
Mr Speakman said the NSW Government legislated new offences last week of failure to report and failure to protect against child abuse as part of a comprehensive package of criminal justice reforms in response to the royal commission.
“The Government remains committed to ensuring justice for survivors,” Mr Speakman said.
The DPP said it would not comment on the matter.
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