Usher and Lucas have foreshadowed their defences to these charges in a Four Corners report - http://www.abc.net.au/4corners/stories/2012/06/28/3535079.htm - in 2012, and the 'independent' report by Antony Whitlam QC that the Church commissioned in response - http://www.parra.catholic.org.au/news---events/latest-news/latest-news.aspx/report-by-the-hon-antony-whitlam-qc-released.aspx. Lucas and Usher claimed that, contrary to Peters' letter, Farrell did not make clear admissions of his sexual abuse at the meeting. Manning has claimed he never received the letter. But these unsurprising denials do little to undermine the letter's potential force. And, according to the Whitlam report, Lucas and Usher admitted that they knew of allegations against Farrell and 'suspected there was probably some substance' to them.
Lucas and Usher may also seek to prevent the letter gaining admission on the basis it is hearsay evidence. The argument would be that it is unsafe to rely upon Peters' letter as proof that they heard the admissions being made because the statements it contains were not made in court under oath and cannot be tested by cross-examination. But such objections are unlikely to be successful. The letter appears to fit squarely within a recognised exception. Peters, deceased, is unavailable to testify, and the letter appears to carry sufficient indicia of reliability: Evidence Act 1995 (NSW) s 65.
Manning would not be able to raise a hearsay objection because, with regard to any charges against him, the prosecution would be relying simply upon the letter having conveyed information to Manning, and not on its accuracy. Other evidence proves Farrell's offences. The letter is evidence that Manning, assuming he received it, may have had a belief that Farrell had committed such offences, but failed to alert the police.
Despite the evidence against them, the clergymen may argue that the DPP should not prosecute because it would be against the public interest. Farrell's offences occurred several decades ago, and the clergymen's concealment of the offences occurred more than a decade ago. Added to this, the clergymen are old and, perhaps, in poor health. Despite these arguments, public interest strongly favours prosecution. The church covering up child sexual abuse is of general public concern, prevalent, and calls for deterrence. Above all, child sexual assault, and its concealment, are extremely serious offences. Child victims are vulnerable, and often suffer long term psychological harm as a result of the abuse. The abuse and its concealment by members of the church constitute an appalling abuse of power and a betrayal of trust.
DAVID HAMER teaches law at Sydney Law School, University of Sydney.