Cardinal George Pell to Face the Music

Allegations that Cardinal George Pell tried to cover up abuse by bribing a victim to keep quiet have once more been thrust into the spotlight at the Royal Commission into Institutional Responses to Child Sexual Abuse. Cardinal Pell has strongly denied the allegations, but has been called on to front the hearings again.

While Cardinal Pell has repeatedly maintained he didn’t attempt to buy the victim’s silence, the situation does raise an interesting issue about the legality of bribing victims and false accusations in general.

Within all jurisdictions of Australia, it is a crime to interfere with or pervert the course of justice. This includes the making of false allegations and any interference with justice, which may involve bribes, threats or violence, with witnesses, jurors, court officials, police officers or the judiciary.

This principle is reflected in the Crimes Act (NSW) and a person faces serious consequences including a possible prison sentence if found guilty of these types of offence.

What is interfering with justice?

The interference of justice is any action which could potentially interfere with or make fun of the process of law.

It includes:

• Making a false accusation.
• Hindering investigations for serious indictable offences, including hindering the discovery of evidence.
• Concealing a serious indictable offence, without reasonable excuse.
• Any act or omission intending to pervert the course of justice.

Making a false accusation

Section 314 of the NSW Crimes Act reads:

“A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for seven years.”

The section incorporates ‘intending’ and ‘knowing’ as elements of the of the offence, meaning that the prosecution will fail if it is unable to establish the required state of mind ‘beyond reasonable doubt’.

This would mean that anyone who misidentifies a person through honest error could escape liability. It would have to be proved that a person knew the accused to be innocent and had the intention to make the accused the subject of a police investigation.

Hindering investigations

Section 315(1)(a)–(c) of the Act covers conduct with the intention of causing a problem to the investigation of a serious indictable offence. This includes hindering the investigation, the finding of evidence, or the apprehension of a suspect.

A person who has given a deliberate false witness statement and has aided in the tampering of evidence can be charged with hindering an investigation.

Concealing an indictable offence

The question often arises as to why professionals who may have known about certain offences are often not charged under this provision, especially in the wake of the Royal Commission.

Under section 316, it is a crime to conceal information about a serious indictable offence which might be of material assistance to authorities, unless there is a reasonable excuse for failing to disclose the information. A reasonable excuse will be determined on a case by case basis.

However, the provision allows for certain protections of some professionals who may have become aware of the offence within their professional capacity. If a person is within the stipulated professions, then an action cannot be brought against them unless it has first been approved by the Attorney General. A member of the clergy of any church or religious denomination is one such protected group of professionals.

This section also allows for payments to be made to people who may have been a victim of the indictable offence as a way of the making good of loss or injury. Under this section, no person can be accused of ‘bribing for silence’ if the money is for the genuine purpose of reasonable compensation for loss or injury incurred as a result of the indictable offence.

The Catholic Church’s idea of compensation

The Catholic Church has developed its own scheme of ‘compensation’ for the victims of sexual abuse, called Towards Healing.

This scheme was designed for victims to receive a settlement from the church for their loss and injury. It was paid through the church’s own insurance company, and seemed to have the intent to keep the matter in-house.

If a victim decided to inform the church directly about their abuse, the Towards Healing process would begin. However, if a victim took their complaint to the police before or during the Towards Healing process, then the church would halt the settlement process.

Through the Towards Healing scheme, many settlements were issued with a confidentiality order attached. This was often misunderstood as a ‘gag order’. The difference between the two is that a gag order hinders a person from talking to anyone else about the abuse.

However, a confidentiality order is designed to prevent someone from discussing the payment amount. The misunderstanding of the two may have resulted in sexual offenders going unprosecuted.

A complex area of law

Although it is a criminal offence to bribe someone to keep quiet about a crime, it is not an offence to pay someone for loss or injury suffered because of a crime.

It is an offence to interfere with an investigation of a serious crime, but the investigation must be taking place.

It is a crime to stop someone from reporting a crime to the police, although confidentiality is a different situation.

As stated, it is a crime to withhold material information about a serious crime unless there is a reasonable excuse, or if the information is heard by a person in a protected profession. The reasonable excuse is determined on its merits, and some professions have protections over their disclosures.

This can be a tricky area of the law. So if you suspect that someone has made an allegation against you, or you have inadvertently offered reparation that has been taken as a bribe, the best protection is to seek legal advice from an experienced criminal defence lawyer.