Recent events in Australia give little cause for optimism that we have either a clean, efficient and effective criminal justice system or an incorruptible and just policing regime.
The thuggery of Victoria Police during the COVID-19 lockdown has exposed Australia to a combination of disdain and pity internationally. Victoria Police’s brazen abuse of questionably derived authority, seen in the arrests and harassment of pregnant mothers, elderly women sitting in parks, peaceful protesters and other innocent Victorians indicates a justice system that is out of control and apparently beyond the reach of parliament or the voting public.
This essay appeared in a recent Quadrant.
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The court system as well has come under scrutiny and been found wanting. In the lead-up to Cardinal George Pell’s exoneration in April by the High Court of Australia of dubious charges of sex abuse, an international consensus formed suggesting that it was Australia’s justice system that was on trial and not just Cardinal Pell. The American writer George Weigel argued before Cardinal Pell’s appeal to the High Court:
Should the High Court uphold the conviction, the reputation of Australian criminal justice will be gravely and permanently damaged, just as the reputation of French military justice was destroyed by the false conviction of Captain Alfred Dreyfus—another innocent man victimized by rancid politics and irrational religious prejudice.
Cardinal Pell’s case, now embroiled afresh in new suggestions of internationally driven corruption of the legal process, is not the only case of a bastardised justice system delivering a wrongful judgment to a Catholic priest.
JOHN Fleming is a Catholic priest living in retirement in South Australia. He was initially a married Anglican priest. He has a family. He is a widely published scholar with an international reputation in the field of bioethics. He has been an eminent media commentator in his home state of South Australia. He was the inaugural President of Campion College, Australia’s highly regarded liberal arts institution in Sydney. The appointment to Campion bespoke the esteem in which Father Fleming was held: a respected priest and academic of unblemished character.
His career, reputation, financial security and family life were all but destroyed when, in 2008, the local Adelaide paper (the Sunday Mail, the stablemate of the Advertiser) ran a series of unsubstantiated allegations made by a journalist, Nigel Hunt, against John Fleming of the historic sexual abuse of a minor. These allegations had been previously examined and dismissed by the police in South Australia, casting extreme doubt on their veracity. There were other allegations made, but the claim by witness “Jane” was the most serious, as it alleged the criminal sexual abuse of a minor.
John Fleming (right) subsequently sued the Sunday Mail for defamation, and the case was heard in 2014. The Sunday Mail fought the action on the basis that the allegations it had published were true. When Justice Gray’s judgment finally appeared in early 2016 after an inordinate and unexplained delay—an inexcusable delay—Fleming’s defamation case was dismissed, the judge having accepted as truthful the stories published by the Sunday Mail. Fleming then appealed, unsuccessfully, to the full South Australian Supreme Court and finally, to the High Court of Australia.
The Fleming case shows above all else that Australia’s justice system deficits are by no means confined to Victoria. It reveals that there is something rotten with the state of South Australian justice, and, indeed, with Australian justice more broadly.
In Dr Paul Collits’s article about the case in May on the Freedoms Project website, the focus was broad and involved three aspects of the Fleming case:
# The anti-Catholic bias of the justice system exhibited in the Fleming trial and the fact that priests are now “fair game” in this era of moral panic about sex abuse against minors, the “we believe you” #MeToo culture embedded in the justice system and the legal and popular acceptance of “guilt by accusation”;
# The lack of procedural fairness in the trial and subsequent appeals; and
# The fatal shortcomings in legal reasoning of the judgment in the defamation trial and of subsequent appeals.
In this article the focus is more specifically on the manifest legal shortcomings of the judgment of His Honour Malcolm Gray of the South Australian Supreme Court in the initial Fleming case, shortcomings repeated in Fleming’s subsequent appeal to the full South Australian Supreme Court, and finally in the refusal by the High Court to entertain Fleming’s legal arguments in his final appeal. The High Court refused with no explanation, a refusal seemingly based on the assumption that the Fleming application for leave to appeal did not raise any questions of general importance, that is, unsettled matters of law. With the greatest respect to the High Court, this was simply not the case.
The errors in the Fleming judgment are many and significant, and a failure to address them has broader and continuing implications for the fairness of Australia’s justice system. These errors urgently need to be freshly examined, in the light of new evidence and in the light of the overturning of guilty verdicts against George Pell and other Catholic priests and religious falsely accused of sexual wrongdoing. The findings against John Fleming must not be allowed to stand.
The legal errors to which John Fleming was exposed also remind us that it is not only juries that sometimes get it wrong. Juries we already know about. The Pell case and others have shown the problems with juries, especially when the public atmosphere is toxic and where moral panic over sex abuse of minors is abroad.
A research project at Chicago’s Northwestern University in the 2000s called The Innocence Project explored the problem of jury error:
A Northwestern University study shows that juries in criminal cases are reaching incorrect verdicts. The study, which looked at 271 cases in four areas of Illinois, found that as many as one in eight juries is making the wrong decision—by convicting an innocent person or acquitting a guilty one.
In each case, while the jury deliberated, the judge filled out a questionnaire detailing what his or her verdict would have been had it been a bench trial. The verdicts only matched in 77 per cent of cases. The study assumed that judges are at least as likely as a jury to make a correct verdict, leading to the conclusion that juries are only correct 87 per cent of the time or less.
Other studies estimate that juries get the verdict right in only 75 per cent of cases. Christine Middap of the Australian has noted more recently:
When Cardinal George Pell’s conviction was overturned by the High Court, there was outrage in some quarters that the jury’s decision was reversed. It got journalist Richard Guilliatt wondering how common it is for appeal courts to overturn jury verdicts in sex abuse cases, and he didn’t have to look far: in the second half of last year  in NSW alone, five such cases were quashed on appeal. Not on technicalities either, but because of doubts about the reliability of the prosecution’s case and the soundness of the jury’s reasonings.
But the Fleming case is about the reliability of judges, another matter entirely, and perhaps even more worrying than the understandable lapses of juries. Here are five of the most significant legal errors of the Fleming judgment, uncorrected by the higher courts. They relate to:
# Overturning the presumption of innocence, the standard of proof in civil cases and the application of the “Briginshaw principle”;
# Faulty consideration of evidence;
# The treatment of the testimony of expert witnesses;
# The favouring of particular witnesses over others without reason; and
# Reflexively believing complainants to be “compelling” if they put on a good show in the witness box, irrespective of exculpatory evidence.
Some of these outstanding legal issues relate only to the Fleming case, and their resolution would provide a final legal remedy for John Fleming. Others not only affect the Fleming outcome, but have far broader significance for the administration of justice in Australia. These demand resolution, therefore, on a larger scale, and this is where both the High Court and the parliaments of Australia come in.
It is accepted in law that criminal cases are tried according to the principle of “beyond reasonable doubt”. In civil cases (such as John Fleming’s defamation case) the burden of proof is “on the balance of probabilities”. This, of course, is a lower standard of proof. But there is a caveat, one broadly accepted in the Australian legal system, or so John Fleming thought. And that is that where accusations of criminal conduct (such as sexual activity with a minor) are involved in the defamation, there is a far higher standard of proof required, approaching that required in criminal cases. It is known as the Briginshaw rule.
Judge Gray got this wrong, with dire consequences for the whole Fleming case. It was no trifling error. Gray’s wrongful interpretation of Briginshaw, indeed his dismissal of it, and the non-correction of this by higher courts, left the whole justice system hanging. And we know from the Pell case, among others, that the wrong treatment by juries and judges of accusations of historic sexual abuse can lead to the overturning of the fundamental legal dictum—“innocent until proven guilty”.
According to the Melbourne Law Review:
The Briginshaw approach is based on the principle that a court in a civil action should not lightly find that a party has engaged in criminal conduct. As accusations of wrongdoing usually involve serious consequences for the defendant, justice demands that the accuser, whether in civil or criminal matters, carries the burden of proof to the requisite standard. It is not surprising that this issue was at the forefront of Dixon J’s mind in Briginshaw, as he had but recently commented on it extra-curially in relation to Australian criminal law.
Briginshaw therefore directs a court to proceed cautiously in a civil case where a serious allegation has been made or the facts are improbable. If the finding is likely to produce grave consequences, the evidence should be of high probative value. The Briginshaw test focuses attention on the standard of the evidence required to prove the case to the ordinary civil standard—it is not a change in the standard of proof. There is no third standard of proof in the common law. More proof means nothing more than better evidence.
In other words, while civil cases normally judge “on the balance of probabilities”, in cases where someone’s reputation is at stake, with accusations of criminal behaviour, courts should tread very cautiously before assuming guilt. Even though it was Fleming initiating the civil action here, it turned out that he was the one really in the dock.
David Flint has observed, in relation to the Fleming case:
Arguing the Briginshaw principle, but losing in the lower court, he appealed and lost again in the South Australian Supreme Court in 2016. The Court surprisingly played down Briginshaw, claiming later High Court judgments do not import that presumption into the civil arena and that it was incorrect to raise it to an “onus”, “standard” or “principle”.
Yet in a subsequent case concerning allegations of fraud and not sex abuse, Poniatowska v Channel Seven (2019), the same court applied Briginshaw, restoring it to the status of a “principle”.
As we saw in the Geoffrey Rush case, this principle is crucial for those accused of sexual abuse. But the High Court has twice inexplicably refused to review Fleming and clean up the confusion.
Not to do so leaves the Court open to the criticism that rather than attending to core functions, it is more interested in producing, as they did recently, constitutional interpretations which would have the founders rolling in their graves.
It is that important. Flint, an emeritus professor of law, is arguing there is a serious matter of law that was dealt with inappropriately in the Fleming case, a matter of such concern that the Australian High Court should have heard John Fleming’s case.
And not only that. Other recent cases, including that involving published allegations of criminal behaviour against the actor Geoffrey Rush, demonstrated a very different interpretation of Briginshaw and the burden of proof. In the Rush matter, it was the publisher who had to prove the allegations to be true. Not so in the case of John Fleming. As it stands, it would seem that it is simply the luck of the draw that determines the burden of proof in civil cases involving allegations of criminal conduct. In yet another Briginshaw-type case, in South Australia no less, the same Supreme Court that found against John Fleming upheld a cognate argument in the alleged fraud case of Poniatowska v Channel Seven.
Such blatant inconsistencies in the application of the law require rectification as a matter of urgency.
There were at least five examples of legal errors relating to the consideration of evidence in the Fleming case and the judgment.
1/ The evidence versus the judge’s own preferred narrative;
2/ The burden of proof relating to evidence that can no longer be called on due to the passage of time was deemed to rest on the plaintiff;
3/ The acceptance of contextual evidence related to the Sunday Mail’s publication of Peter Kay’s and Diane Lynch’s allegations of separate and irrelevant sex acts between adults of a consensual nature;
4/ Alison Fleming’s evidence and character reference; and
5/ The judge’s extraordinary and baseless favouring of some witnesses over others—his so-called “principal witnesses”.
First, Judge Malcolm Gray simply preferred the uncorroborated narrative offered by complainant “Jane”, often in the face of evidence that powerfully contradicted Jane’s version of events. Perhaps Gray was simply swept up in the emerging ideology of “always believe the victim”. As the British lawyer Barbara Hewson has argued:
In my opinion, far too little attention has been paid to the lure of the victim narrative, and the rewards of victimhood (for those who are competent). These rewards can include the sympathy and attention which those proclaiming to be victims can expect, and the seduction of the “truthful lie”, both for its narrator and its audience.
This does not exonerate Gray of the charge that he failed to give proper consideration to all the evidence and all the witnesses before coming to a judgment. The same charge has been levelled at Justices Ferguson and Maxwell of the Victorian Supreme Court in relation to the Pell appeal, and with equal force, including by their fellow Judge Mark Weinberg. Such lapses by senior judges are inexcusable. That they can get away with it reflects very poorly on higher courts and on politicians who allow such lapses remain uncorrected and to persist.
Second, the judge in the Fleming case failed to give due and proper regard to the difficulties associated with defending allegations as to conduct said to have occurred many years ago, particularly when key witnesses are no longer alive. When the plaintiff becomes defendant, has to, in effect, prove a negative, and has lost over time access to potential exculpatory witnesses and associated records and evidence, the task of winning a civil action related to an ancient accusation and in the face of a judge overly sympathetic to the complainant’s “narrative” becomes next to impossible.
The appeal judges stated that any prejudice involved in witnesses unable to testify due to death or infirmity should be visited on the appellant. The reason these witnesses were unavailable to testify is the extraordinarily long delay in the complainants making their complaints. This ruling by Vanstone et al was not made on the basis of any stated authorities and may well now become a precedent for other cases. This is outrageous. Why did the High Court not see that this was a matter of law crying out for clarification?
Third, the defendants (the Advertiser/Sunday Mail) sought to use their publication of the allegations made by Peter Kay and Diane Lynch as “contextual truth” to assist their defence in circumstances where a defamation action had been taken over the imputations contained by their publication of allegations made by an unrelated person, “Jane”. The judge should have upheld John Fleming’s argument, in line with the most recent developments in defamation law, that the defendants’ use of the Kay and Lynch allegations as contextual truth be dismissed.
Fourth, the judge in the Fleming case treated Mrs Alison Fleming unfairly, in effect accusing her of being an unreliable witness who does not tell the truth. The judge also refused to accept as evidence a character reference for Alison Fleming, a critical eyewitness to at least one of the events in which she herself was alleged, scurrilously, to have been involved. It was, in effect, her word (as well as Father Fleming’s) against that of the complainant.
Here was a case where it wasn’t simply a case of “he said she said”. Someone else was there! And a truthful and a reliable witness at that.
The judge’s refusal to allow this evidence as to Alison Fleming’s character and likely truthfulness as a witness to the core alleged event of the whole trial was therefore critical, and a travesty. Linked to the court’s later dismissal of Alison Fleming’s exculpatory evidence, this move by the judge removed a core plank of Fleming’s case. The character witness was to have been no less than a former South Australian judge!
Fifth, the judge seemed to have favoured witnesses—“principal witnesses” which excluded all of the witnesses called by Fleming—and the rationale for the choice of who made the cut was opaque at best. This highly unusual and unjustified approach amounted to a bias against John Fleming.
Judge Gray refused to accept the expert testimony of a psychologist and scholar, Dr Michelle Arnold, called by the Fleming legal team, in relation to false memory. This was an error of great significance in the case. The judge also seemed to accept the suggestion that the expert was a “hired gun”. Naturally legal teams call witnesses that will provide exculpatory evidence. That is how the law works. But that doesn’t mean that a witness does not have relevant and reliable expertise, is not objective, nor that this expertise can easily be set aside along the lines of the Mandy Rice-Davies principle—“Well, he would say that, wouldn’t he?”
The expert witness’s testimony was based on solid science, was relevant, was clearly presented, was convincing, and made much sense in relation to the complainant. Judges need to do much better in keeping up with the latest scientific knowledge about issues that affect their capacity to have an informed view of the reliability of complainant witnesses.
This is a problem acknowledged by eminent legal practitioners, including the New South Wales judge and expert on memory Penelope Wass, who says:
Notwithstanding what the Courts have said since before Federation, one of the greatest misconceptions we continue to have about memory is that it is largely an accurate recorder, faithfully transposing into our brain events as they occur. From a witness’s point of view, it is important to remember that whilst we often doubt the memories of others, we rarely question our own. However, all witnesses, no matter how seemingly reliable and honest, are accessing changing or changeable data. The process of experiencing or acquiring, laying down or storing memory and then reproducing an account, all of which is involved in “recalling” or “remembering”, and therefore giving evidence in a criminal trial, is disconcertingly malleable. It is at best, almost always, a rough reconstruction with inaccuracies and distortions.
Memory, then, is imperfect at best, and can be distorted; this is widely acknowledged by non-legal experts, and should be accounted for by the courts. Alas, this truth escaped Judge Gray, who set his opinion on how memory works against the scientific account given by the expert witness. Wass, however, saw the relevance of this to historical child sex abuse cases:
Obviously, the passage of time is going to affect the accuracy of an eyewitness account. Even the law has to some extent caught up with this scientific fact. Events, such as historical child abuse allegations, that took place years ago are more likely to be challenged as being inaccurate. We know this to be true when we try to recall day-to-day events from childhood. However, the length of time before memory begins to decay is quite short. The rate of memory decay is not linear but it does decay quickly. A time-span of even few hours between the observation and the first viewing of a photo board or a line-up, or the first statement to police, or to a solicitor or friend, may be significantly unreliable.
Remember that Wass is a judge herself. Fleming’s case was entirely plausible in relation to false memory, without even going near the weight of exculpatory evidence, alas also ignored by the judge.
As occurred, shamefully, in the Pell case in Australia and in the notorious Carl Beech case in the UK, the judge simply “believed” the “compelling” complainants, despite considerable exculpatory evidence that suggested that Fleming could not have committed the alleged offences.
Whatever the depth and extent of moral panic in the community over sex abuse of minors, and whatever the guilt that people may feel for not believing complainants in the past, we should expect far more from the justice system, and from judges in particular. They have a duty to the rule of law, and to the rules of evidence. While a complainant’s poor performance in the witness box might suggest the falsity of their evidence, a good performance should never be taken as proof that what they say is true.
The complainant’s contradictory and uncorroborated testimony was anything but compelling, as the trial transcript demonstrates. Stories changed over time, there were long delays in the reporting of the alleged offences said to have been committed forty years earlier, there were significant gaps in memory on the part of the principal complainant, “Jane”, and an expert witness of excellent standing demonstrated how recovered memory can distort reality. There emerged no reason whatsoever during the trial for finding “Jane” either reliable or compelling. The police didn’t believe her, at least to the extent that they didn’t think her complaint could become the basis of a criminal prosecution.
These were all failures in relation to the evidence of the allegations, and strong suggestions of bias against one who was a Catholic priest. And there were many other problems during the trial and errors in the subsequent court decision. The judge had a preferred narrative, and nothing by way of evidence was going to budge him.
Where does this travesty of justice leave the predicament of John Fleming, and, of more general importance, the state of justice in Australia? There are two clear questions to be resolved, and they each require action by parliaments if not by the courts.
The first relates to the burden of proof required in civil cases involving allegations of serious criminal behaviour. This is the Briginshaw principle. As David Flint has pointed out, there is uncertainty and inconsistency in the courts’ understanding and application of this principle. Swinging one way can massively injure parties making claims in civil cases. It happened to John Fleming, and it alone may have cost him the case.
The second relates to the competence of the Australian courts and the justice system generally, and to the expectation of plaintiffs and defendants that judges will be intellectually equipped to hear the cases before them, that they will employ sound legal reasoning in making their judgments, and that their judgments will be timely and will be delivered with due deference to the evidence presented in court and without prejudice.
We know juries sometimes get it wrong. The Pell case shows this. And look also at the Carl Beech case in the UK. There are many others, for example that of Lindy Chamberlain, an innocent mother who was wrongfully convicted in one of Australia’s most notorious murder trials. The police and the prosecutors got it wrong.
It is more alarming when judges who should know the law and dispense justice competently and wisely also get it wrong. Two previously highly regarded judges of the Supreme Court of Victoria were found by the High Court—by a verdict of seven to nil—to have got the Pell case wrong. Commentary on both their lack of criminal law expertise and their acumen generally was at times brutal.
The analysis here demonstrates that the judges also got it wrong in the case of John Fleming. The judge overseeing the case made monumental blunders of legal reasoning, which were not reversed by two higher courts. There are two possible explanations for this outcome—bias or incompetence—to which might be added a third explanation, bias and incompetence. Whichever explanation one chooses, the answer is grim news for Australian justice.
While these questions remain unaddressed, a shadow will continue to be cast over John Fleming’s reputation. His life remains in ruins. The harm done does not go away. Having vile accusations stick as a result of a bungled court case means that they stick forever. Critics and enemies may continue to utter calumnies knowing they have the protection of a legal judgment. Unlike Cardinal Pell, there has been no final vindication, no reversal of the calumnies and the pain.
A shadow has been cast over the whole justice system. While the unacceptable new standard in the law of a reversal of the onus of proof in historical sex abuse cases remains, no one ever accused of such crimes will stand a chance. It can be very difficult to prove you did not do something, especially in the distant past, where exculpatory evidence is hard to come by, where witnesses may be no longer available, and where written records that otherwise might prove valuable to a defendant may no longer be at hand.
While immediate solutions to these now embedded problems are not easy to come by, there are a number of measures that could be enacted to eradicate at least some of the problems revealed by the Fleming case. These actions are needed urgently:
# Support from the South Australian parliament for a fresh appeal by John Fleming to the Supreme Court of South Australia;
# Making more resources available to the Supreme Court to reduce the need to bring back retired judges who may have lost touch with the law and current thinking and developments;
# Making more resources available to the High Court;
#A parliamentary inquiry into the application of the Briginshaw principle relating to the burden of proof;
# Addressing the question of the credibility of witnesses—“we believe you”—in the light of the Pell, Fleming and Bradley Murdoch cases in Australia and the Carl Beech case in the United Kingdom; and
#Addressing the reversal of the onus of proof that has occurred by stealth under the weight of public panic over child sex abuse. While in the past too few sex abuse victims were believed—by anyone, including parents and authorities—the law has clearly moved too far in the other direction, where unthinking and virtue-signalling national leaders spooked by moral panic exhort the justice system to believe every complainant. The law is clearly not immune to prevailing public moods and political orthodoxies.
To make a start on these reforms to Australia’s court system should be an urgent legal and political priority. Our society is separated from barbarism only by the rule of law, justly applied to all who come before it.
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus