E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 4 Number 3 (September 1997) Copyright E Law and/or authors File: perr43.txt ftp://www.murdoch.edu.au/pub/elaw/issues/v4n3/perr43.txt http://www.murdoch.edu.au/elaw/issues/v4n3/perr43.html ________________________________________________________________________ Should Western Australia Adopt An Evidentiary Privilege Protecting Communications Given In Religious Confessions? Michael A Perrella Religious confessions[1] 127. (1) A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy. (2) Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose. (3) This section applies even if an Act provides: (a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or (b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground. (4) In this section: "religious confession" means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned. INTRODUCTION 1. From as early as 1972 the Commonwealth Government evinced an intention to enact uniform evidence legislation across Australia.[2] This intention was put into action through the introduction of the Evidence Act 1995 (Cth) (hereafter Commonwealth Act),[3] which was largely a reproduction of the New South Wales Evidence Act 1995. Not unlike other Australian states, Western Australia's Evidence Act 1906 differs in many respects with the Commonwealth Act. In particular, the Western Australia statute does not provide protection for communications given in religious confessions whereas the Commonwealth Act does. 2. In late 1996 the Standing Committee on Uniform Legislation and Intergovernmental Agreements tabled its Evidence Law[4] report before the Legislative Assembly. This report considered whether Western Australia should join the move to uniform evidence legislation by considering each provision of the Commonwealth Act. The report concluded, among other things, that a number of the Commonwealth provisions should not be adopted. In particular, the report recommended that: [o]n balance, section 127 is a provision Western Australia might prefer to omit from any version of the model legislation it chooses to enact.[5] 3. This recommendation was largely based on a rejection of any blanket privilege, favouring instead judicial discretion in matters of confidential communications as recommended in 1987 by the Australian Law Reform Commission (ALRC).[6] Although the ALRC specifically suggested the identification of circumstances in which confidentiality should always be preserved, it nevertheless generally recommended a discretionary approach even in the case of sacramental confessions.[7] 4. The reasoning underlying both recommendations centred on firstly, the fact that if such a privilege existed it would hardly ever be invoked, and secondly, it would open the floodgates for other professions and groups in society who also feel their confidential communications ought to be privileged. 5. This paper will examine the merits of these and other arguments. It will consider the history of the clergy-penitent relationship as it currently exists by exploring firstly, the issue at common law, and secondly, the legislation (or lack of) in other Australian states. Finally this paper will conclude that Western Australia should, in its Evidence Act 1906, adopt the clergy-penitent privilege found in s.127 of the Commonwealth Act. Clergy-Penitent Privilege at Common Law? 6. Denise Doyle in her paper, "Religious Freedoms and Canadian Church Privileges"[8] argues that in England prior to the Reformation there was a civil recognition of the Catholic Church's confessional seal.[9] Doyle explains that it is more certain, however, that after England severed its ties to Rome, such a privilege was no longer accorded to any member of the clergy. Doyle concludes that the British practice, while never settled in law, denies in theory, if not always in fact, such a privilege.[10] 7. However, Callahan[11] claims that Lord Coke, in the 16th century, stated that such a privilege existed at common law. Further, Callahan argues that, unlike Doyle's claim, the privilege has not been displaced by any law since the Reformation. 8. There are many sources supporting the argument that no clergy-penitent privilege existed at common law.[12] Some academics cite Normanshaw v Normanshaw and Measham[13] as the leading authority on this view. In this case a vicar was compelled by the court to give evidence regarding his conversation with a respondent in a divorce suit as to her alleged act of adultery. The President of the Court of Appeal in the case stated that it was "not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law".[14] However, it is not clear whether this case involved a conversation which, even today, would not be covered by s.127 of the Commonwealth Act.[15] 9. Another case which is often cited as being further authority for the lack of the privilege at common law is R v Hay.[16] Here the accused was charged with stealing a silver watch. A Roman Catholic priest, who handed the watch to the police, was called as a witness to explain from whom he had received the watch. The priest, unwilling to violate his obligation of sacrament, refused to give an answer. The court held that the question called for evidence of fact and not of communication, which therefore required the priest to give an answer. However, the priest remained defiant and was consequently held to be in contempt of court and jailed. 10. A third case often cited is Wheeler v Le Marchant,[17] which dealt with the issue of legal professional privilege. In his obiter dicta, Lord Jessel stated: Communications made to a priest in a confessional on matters perhaps considered by the penitent to be more important than even his life or his fortune are not protected.[18] 11. This is considered by McNicol[19] to be the most authoritative argument used by legal commentators and academics who argue that there is no common law privilege of clergy-penitent communications. However, Lord Jessel's statement was obiter and not ratio decidendi. 12. There does exist some case law which tends to contradict the claim of no clergy-penitent privilege at common law.[20] The most compelling of these is R v Griffin[21] in which a woman was charged with the murder of her infant child. The chaplain with whom she discussed the child's death was called to give evidence. Alderson B upheld the Chaplain's refusal to give such evidence stating: I think these conversations ought not to be given in evidence ... because without unfettered means of communication ... the prisoner would not have proper spiritual assistance.[22] 13. The issue of clergy-penitent privilege has always been a discretionary matter for judges. Although many legal writers concede that there does not exist a clergy-penitent privilege at common law, I suggest that their views are inconclusive and the issue ought to be settled through legislative measures. Legislation in other Australian States 14. At present there exists a clergy-penitent privilege in four Australian jurisdictions: New South Wales[23], Northern Territory[24], Tasmania[25] and Victoria[26]. The Northern Territory, Tasmanian and Victorian provisions are almost identical and allow removal of the privilege where the penitent consents. The New South Wales provision (from which s.127 of the Commonwealth Act is derived), although very similar, is broader and allows for removal of the privilege only where the communication was made for a criminal purpose. 15. At present Queensland, South Australia and Western Australia are the only three jurisdictions that do not have a statutory clergy-penitent privilege. An analysis of the arguments for and against such a privilege is necessary before reconsidering the position in these States. ARGUMENTS IN FAVOUR OF A PRIVILEGE Religious Confessions as a Sacrament 16. Religious confession is considered a sacrament and is practiced in the Roman Catholic, Lutheran and Orthodox churches and is also provided for in the Anglican church. Although it is not compulsory to receive the sacrament in each of these cases, religious confessions are nonetheless considered an important sacrament for the forgiveness of sins, of reconciling oneself with God and spiritual guidance. 17. In the Catholic Church, confession is an obligatory sacrament as is the case with some Anglican ministers who choose to take a similar vow. In the former institution this imposes a duty on every faithful member to confess his or her sins to a priest at least once a year. It is the confidentiality of the confessional, which the church promotes as sacrosanct, that encourages, if not ensures, penitents faithfully receive the sacrament. It would be a grave violation of this confidence if communications given in the confession were later subject to inquiry by a court of law or any other person.[27] 18. As an obligatory sacrament there are also duties placed on members of the clergy to respect the relationship of trust and confidence that exists in religious confessions. In each of the churches where confession exists as a sacrament, disciplinary action may be taken against those members of the clergy who violate their penitent's trust and confidence. In particular, the Catholic Church under Canon Law 1388 §1, provides a significantly severe penalty, such that: A confessor [ie. member of the clergy] who directly violates the sacramental seal, incurs a latae sententiae excommunication reserved to the Apostolic See ...[28] 19. This means that a Catholic priest who chooses, with full knowledge of the above mentioned penalty, to divulge the contents of a confession to any person, even if required to do so by an order of any court of law, faces immediate excommunication from the Catholic Church.[29] This penalty does not require the authority of the Pope to execute. It is immediate and permanent, and can only be lifted by means of a lengthy and difficult appeal to the Apostolic See.[30] 20. In law, if a member of the clergy refuses to divulge that a confession has taken place or refuses to divulge the contents of the confession in the face of a court order, he or she will be held to be in contempt of court. If convicted he or she will be liable to imprisonment for one year.[31] It is clear then that the lack of a clergy-penitent privilege in these circumstances places some clergy in an unfair and inescapable dilemma. Furthermore, the bulk of authority suggests that a member of the clergy would not give way to any State law which conflicts with Church law. As one Catholic priest put it, "the issue being dealt with here is two completely different jurisdictions - that of God and that of the State".[32] On many occasions clergy have made it quite clear they would obey God's law where it conflicts with the laws of humankind.[33] Fr Brian Lucas, a non-Catholic minister, made this observation quite clear when he said, "It does not really matter what you blokes do in Parliament. No Catholic priest will break the seal of the confession".[34] Freedom of Religion 21. The confidence of the confessional is a highly significant factor for a penitent deciding whether or not to receive the sacrament. One might say that the possibility of the court eavesdropping on the confessional may have a substantial deterrent effect or possibly even a prohibiting effect for those otherwise inclined to receive the sacrament. 22. The very nature of a religious confession requires full disclosure and complete confidentiality on the part of the clergy. The Honourable E. P. Pickering[35] made the pertinent point that, if a person "cannot freely confide in a priest or member of the clergy when seeking remission of sin or seeking spiritual aid and comfort in the context of a confession, this would strike at the concept of confidence in a most critical area".[36] 23. In churches where the sacrament is obligatory the consequences could be seen to be so significant as to actually prohibit the free practice of these religions. Section 116 of the Australian Constitution reads: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ... 24. Penitents who have committed offences against the State [37] may be less inclined to confess such sins if they are aware that at present most courts in Western Australia have the power to force disclosure of the contents of any confession. This presents a particularly grave dilemma for penitents who have committed a serious offence against the State and in most need of the spiritual guidance offered in a religious confession. For a penitent whose religion considers the sacrament of confession as obligatory, it could hardly be said that such a person is not prohibited from practising his or her religion. 25. Furthermore, legally compelling members of the clergy to disclose the contents of a confession without approval from the penitent places them in an inexplicable dilemma, which can clearly prohibit the free exercise of their religion. 26. Section 116 should provide a constitutional safeguard to members of the clergy who give spiritual guidance and forgiveness to those who may have fallen by the wayside. It is this reconciliation which appears to many Australians to be: an integral part of the practice of at least some religions in this country and that practice could not be freely carried out if it were accepted that members of the clergy could be obliged to give evidence of confidential communications they have received from persons consulting them for spiritual purposes.[38] 27. Thus, it is argued that section 116 provides a constitutional guarantee for the clergy-penitent privilege by allowing for: (i) the free exercise of a penitent's religion by not discouraging or possibly even prohibiting penitents going to confession; and (ii) a clergy's religious role in protecting and sealing a penitent's confidence without the real dilemma or fear of penal sanctions. THE ARGUMENTS AGAINST A PRIVILEGE Discrimination against non-Catholic confessions 28. Criticism has been raised against the definitional problems associated with terms such as 'religious confessions' and 'cleric',[39] in that they will inadvertently result in discrimination against some religions. In particular, arguments have been raised[40] that subsection (4) of section 127 discriminates against those religions which do not have a ritualised form of confession. Reverend the Honourable F. J. Nile argued that the subsection, in effect, will only operate to protect the ritual of confession in the Catholic Church.[41] 29. It is conceded that complex definitional problems arise, as with many legislative provisions, and that in particular, the use of the words "... according to the ritual of the church ..." may, in operation, only apply to Catholic confessions. However, it is argued that the sacramental nature of the Catholic confession renders it different in character to that of other denominations and religions.[42] 30. Furthermore, most members of the clergy who receive the sacrament not only abide by a strict code of ethics, but also the self-regime to enforce that code. If other religions or any other class of people have a history of a strictly enforced code, then perhaps the legislature should be made aware of the importance placed on that particular relationship and legislate accordingly. If any religion has a ritual which involves confidences that are extremely important to their particular belief system then the State should recognise these and legislate a privilege accordingly. If the rite deals with "genuine conscience issues"[43]and not merely a private clergy-parishioner conversation, then the legislature, as representatives of people's interest limited only by the ends of justice, should recognise and legislate for a form of clergy-penitent privilege as defined in s.127 of the Commonwealth Act. The Privilege Will Hardly Ever Be Invoked 31. Given the lack of case law over the last few centuries to support any conclusive common law rule on the issue of clergy-penitent privilege, it would be fair to say that the issue has not been and will probably not be raised very often. For this reason some argue that there is no need for a statutory privilege, instead the issue should remain in the realm of judicial discretion.[44] The other side of the coin then is, if it isn't going to be used often what's the harm in having it? 32. Moreover, a move to adopt section 127 of the Commonwealth Act would strengthen the relations between Church and State. There is much to be gained from the State securing the rights of its citizens who engage in religious confessions by legislating for their right to unfettered confidentiality between clergy and penitent. 33. Alternatively, by not having the privilege legislatively provided for, one may only cause undue pressure on faithful members who receive confession, whether as an obligatory sacrament or not. One may also create undue tensions for members of the clergy attempting to abide by the spiritual and the temporal, and in some cases see clergy receive a needless conviction and possibly go to prison for their religious beliefs. Legislating for a clergy-penitent privilege provides a real opportunity for the State to strengthen its relations with the Church.[45] Privilege Proliferation 34. Many claims have been put forward by other professions seeking to have their relationships of confidence covered by an evidentiary privilege, these include, among others: doctor-patient; accountant-client; psychotherapist-patient; journalist-informant etc.[46] 35. The Evidence Law report, in rejecting a s.127 privilege, argued that "given the amelioration of the privilege with regard to marital communications ... it is questionable whether privileges of this kind ought to be extended any further".[47] It is argued however, that the relationship which exists in the confessional is unique in that it deals with matters of the conscience, of acknowledging guilt and seeking spiritual absolution - it is not concerned with physical or material welfare or temporal punishment. It exists on a different level to a privilege protecting marital communications and to some faithful it may even be considered a privilege of greater importance. Hindering Police Investigations 36. A legitimate argument mounted in relation to rules of evidence and particularly the law of privilege is the concern that a privilege may hamper police investigations by creating an obstacle to fact finding. However, as already discussed above, history has shown that there are very few situations where a member of the clergy would be compelled to answer questions asked in relation to the contents of a confessional. 37. Furthermore, there are other means available to law enforcement agencies to obtain the evidence they require without the need to question members of the clergy. The Australian Federal Police have openly made a specific allowance[48] for a clergy-penitent privilege by claiming that it will not significantly hinder their operations. CONCLUSION 38. The common law is unclear as to whether there exists a privilege protecting clergy-penitent communications in confessions, and the majority of Australian Sates have already legislated for the privilege. Given the Commonwealth Government's push for uniform legislation it seems logical that Western Australia should adopt the privilege in it's Evidence Act 1906. 39. The arguments are persuasive: Law enforcement agencies specifically approve of the privilege; section 116 of the constitution guarantees by implication that there ought to exist a privilege; there are advantages for strengthening Church-State relations; and the privilege in section 127 of the Commonwealth Act is broad enough so as not to discriminate against other religions. 40. Finally, the arguments proposed by the Western Australian Standing Committee's Evidence Law Report have not been rigorously examined and appear to be based on fear more than logic. Most compelling of all the privilege will not offend the reason for the existence of evidence laws - to arrive at the truth and see the administration of justice. 41. The ALRC's recommendation to leave the issue in the hands of judicial discretion fails to provide a written safeguard for penitents and members of the clergy who may still be liable to penal sanctions for temporal allegiance. Leaving the issue for judges to decide fails, in this author's view, to take seriously the importance placed by many West Australians on a clergy-penitent privilege. NOTES [1] Evidence Act 1995 (Cth). [2] Moves toward uniform evidence laws for all Commonwealth and Territory courts was motioned in The Evidence (Australian Capital Territories) Bill 1972 (Cth) and approved by, the then, Commonwealth Attorney General, Peter Durack in giving his terms of reference to the Australian Law Reform Commission on 18th July 1979. [3] Moves toward uniform legislation across the whole of Australia was confirmed by Mr Kerr in the second reading speech of the Evidence Bill 1993 (Cth). See, Australia House of Representatives, Parliamentary Debates (Hansard) No.13, 1993, 4088 (15 December 1993). [4] Western Australia Legislative Assembly. Standing Committee on Uniform Legislation and Intergovernmental Agreements Evidence Law (Hon P.G. Pendal, Chairperson) (Perth: The Legislative Assembly, 1996). [5] Ibid at 15. [6] Australian Law Reform Commission Evidence Report 38 (Canberra: AGPS, 1987), para 203, 116. [7] Ibid at para 205, 118. [8] Doyle, Denise J, "Religious Freedom and Canadian Church Privileges" (1984) 26 Journal of Church and State 293. [9] See also Allred, Vincent C, "The Confessor in Court" (1953) 13 The Jurist 1, 4. [10] Above, note 8 at 294. [11] Callahan, M, "Historical Inquiry into the Priest-Penitent Privilege" (1976) 36 The Jurist 328, as cited in McNicol, S, Law of Privilege (Sydney: Law Book Company, 1992), 325-338 at 326 [12] Buzzard, J., May, R, & Howard, M. N, Phipson on Evidence, 14th ed (London: Sweet and Maxwell, 1990), 501 citing Normanshaw v Normanshaw and Measham (1893) 69 L.T. 468; Wheeler v Le Marchant 17 Ch.D 681; Gedge v Gedge the Globe, July 13, 1909; and Pais v Pais [1971] P. 119. See also R. v Lynch [1954] Tas S.R. 47; followed in R v Howse [1983] NZLR 246 (CA). [13] (1893) 69 L.T. 468. This case has been cited in McNicol, S, Law of Privilege (Sydney: Law Book Company, 1992), 325-338 at 327; Buzzard, J. et al, Phipson on Evidence 14th ed. (London: Sweet and Maxwell, 1990), 501; and Heydon, J, Cross on Evidence 4th ed (North Ryde: Butterworths, 1996), 718-719. [14] See McNicol, S, Law of Privilege (Sydney: Law Book Company, 1992), 325-338 at 327. [15] Ibid. [16] (1860) 2 F. & F. 4. [17] (1881) 17 Ch. D. 675. [18] Ibid at 681. [19] Above, note 14 at 327-328. [20] Buzzard et al, above note 12 at 501, citing R. v Griffin (1853) 6 Cox C.C. 219; Broad v Pitt 3 C. & P. 518; R. v Hay 2 F. & F. 4; Re Keller 22 L.R.Ir 158, 160; Tannian v Synott, 37 Ir.L.T. 275; Ruthven v De Bour, 45 S.J. 272. [21] (1853) 6 Cox C.C. 219. [22] McNicol, above note 14 at 324. [23] Evidence Act 1995 (NSW) s.127. [24] Evidence Act 1939 (NT) s.12(1). [25] Evidence Act 1910 (Tas) s.96(1). [26] Evidence Act 1958 (Vic) s.28(1). [27] Note however, in Gedge v Gedge, the Globe July 13, 1909 a Catholic priest was compelled to divulge the contents of a confession to his bishop, cited in Buzzard et al, above, note 12 at 501. [28] Catholic Church, The Code of Canon Law (Collins Liturgical Australia, 1983), 246. [29] For further evidence of the importance placed on the Sacrament of confession in the Catholic Church, see also Can. 983 § 1 and Can. 984 § 1 in The Code of Canon Law, Id at 177. [30] Telephone Interview with Fr Kazimierz Stuglik, The Very Reverent Dean of The Avon Region (30 April 1997). [31] Criminal Code Act 1913 (WA) (as amended) s.178. [32] Telephone Interview with Fr Greg Carroll, Judicial Vicar, Archdiocese of Perth (29 April 1997). [33] McNicol, above note 14 at 328. [34] New South Wales Parliament Parliamentary Debates, 1989, 12757 (16 November 1989). [35] Former New South Wales Minister for Police and Emergency Services and Vice-President of the Executive Council. [36] Parliamentary Debates, above note 34 at 12805 (21 November 1989). [37] As distinct from offences against the particular religion. [38] Australian Law Reform Commission, above note 6 at para 209, 119. [39] Australian Law Reform Commission Evidence Report 26 (Canberra: AGPS, 1985), para 907, 507. [40] See New South Wales Parliament Parliamentary Debates, 1989, 12831 (21 November 1989); and Australian Law Reform Commission, above note 39. [41] Parliamentary Debates, above note 34 at 12831 (21 November 1989). [42] Australian Law Reform Commission, above note 39 at para 906, 507. [43] Fr Greg Carroll, above, note 32. [44] Evidence Law, above note 4 at 15. [45] See also Australian Law Reform Commission, above note 6 at para 212, 120. [46] See also McNicol, above note 14 at 331; Buzzard, above note 12 at 501; Australia Parliament, Senate Standing Committee on Legal and Constitutional Affairs Evidence Bill 1993 Interim Report (Canberra: AGPS, 1994), 41-42; and Waight & Williams, Evidence Commentary and Materials (Sydney: Law Book Company, 1995) 223. [47] Western Australia Legislative Assembly, above note 4 at 15. [48] Australian Law Reform Commission, above note 6 at para's 202 and 213, 116 and 120.