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Ecclesiastical Case Reports
Cunningham v Shearman
(Diocesan Tribunal of Brisbane, Australia July 2004)
Ecclesiastical offence – relinquishment of orders – resignation
The promoter Robert James Cunningham, who was appointed by the Archbishop of Brisbane, promoted a charge against the respondent the Right Reverend Donald Norman Shearman, who was a bishop resident in the Diocese. The respondent was charged with an offence under section 3(1)(f) of the Tribunal Canon 2003 of conduct whenever occurring which would be disgraceful if committed by a member of the clergy, and which at the time the charge is preferred is productive or if known publicly would be productive of scandal or evil report. The particulars of the charge were that between 1954 and 1956 the respondent when the warden of a hostel and assistant priest in Forbes, New South Wales had maintained a sexual relationship with the complainant who was aged 15 to 17 years.
Prior to the charge being preferred the respondent executed a document entitled Deed Relinquishing Holy Orders of Deacon, Priest and Bishop. The Tribunal found that on the basis of Canon 76 of 1603 and Barnes v Shore (1845) 8 QB 640; 163 ER 1074 the respondent did not thereby terminate his holy orders. After the charge was preferred the respondent sent a letter to the Archbishop stating that he had severed his relationship with the Anglican Church of Australia. The Tribunal found that the respondent by sending the letter of resignation from the Church did not deprive the Tribunal of jurisdiction.
The Tribunal found that the hearing of the charge was analogous to a disciplinary proceeding. The Tribunal relying on the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 350, 362-363 applied the civil standard of proof of the balance of probabilities, but having regard to the seriousness of the allegations and the consequences if they are found proved. The Tribunal had no hesitation in accepting the truth of the complainant’s account of events and unanimously found the respondent guilty of the charge.
In making its recommendation to the Archbishop the Tribunal accepted that the offence was at the extreme end of the scale of events against morality by a person in holy orders, and that the complainant had endured suffering as a result of being a victim of the respondent’s sexual misconduct and abuse of position. It was relevant to penalty that the respondent’s offence had had a deleterious effect on the reputation of the Church in the community. The current age (78 years) and the state of health of the respondent had no bearing on the nature of his misconduct and abuse of position and the widespread publicity following the reporting of his conduct. The Tribunal unanimously recommended that deposition from holy orders was the only appropriate penalty in the circumstances. On 26 August 2004 the Archbishop accepted the recommendation of the Tribunal and pronounced sentence that the respondent be deposed from holy orders. The Archbishop considered that the positive ministry which the respondent was able to exercise was not a reason to mitigate against what he accepted was the appropriate response to the offence.
The Diocesan Tribunal comprised the Honourable Justice Debra Mullins, Deputy President, the Revd Canon BE Maughan, the Revd IJ Trainor, Mrs LJ Briggs, Mr AJ Gallimore and Mr AD Levick. The Diocesan Tribunal is the court of the Archbishop and has jurisdiction to hear and determine charges of breaches of faith, ritual, ceremonial and discipline and ecclesiastical offences against persons licensed by the Archbishop or any other person in holy orders resident in the Diocese. See Constitution of the Anglican Church of Australia, Chapter IX, s 54. Case note kindly provided by Garth Blake SC.
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