Evidence, Memory and the Law

philip wilsonA New South Wales court on Tuesday found Roman Catholic Archbishop of Adelaide Philip Wilson (left) guilty of covering up sexual abuse of boys by a priest he knew forty years ago. It was alleged and accepted by the court he had been informed by two separate victims in the 1970s that parish priest James Fletcher had sexually assaulted them, and had failed to act on that information. At the time, Fr Wilson was a junior priest who shared a house with Fletcher. By failing to act at the time, and by failing to give evidence of the information he held at the time of Fletcher’s trial in 2004 and 2005, Wilson was found to have covered up Fletcher’s repeat sexual offences.

Magistrate Robert Stone said that he had been convinced by “the number of people who have complained, and weight and quality of these people”  and that “The whole of the evidence as to sexual abuse from all families provides material that a person would believe.”

Indeed. No one doubts that Fletcher abused the complainants, or that he was a deceptive and selfish individual who betrayed his church and vulnerable people in his care, and who caused great harm to his victims. Anyone with a heart could not help but be saddened by that harm he did, and supportive of his victims, who were entirely right to feel betrayed and angry. But that was not the question.

The question was, when was Fr Philip Wilson made aware of the abuse committed by James Fletcher against Peter Creigh?  Creigh first told his family about the abuse he had suffered in 2009, more than thirty years after the abuse took place, five years after Fletcher’s trial for abuse of other boys at about the same time, and three years after Fletcher’s death. When asked why he not mentioned the abuse before, he aserted he told the priest who shared the house with Fletcher. That priest was Philip Wilson. When questioned later, a second victim, un-named at this stage, also claimed to have told Wilson about the abuse at the time it occurred in the mid-Seventies.

At this point it may be appropriate to note the vitriol directed at Archbishop Wilson because he said, again in response to questions, that he did not make assumptions about anyone’s guilt or innocence on the basis of accusations only, but preferred to wait until the matter had been proven in court. This is, of course, the position that any sensible person, including police, journalists, and the courts, should take. But Wilson has not only been abused for this in the popular media, but was also, bizarrely, reprimanded by the presiding Magistrate in his case. Reprimanded for taking a view which is exactly the objective and careful view a magistrate would take.

In 2009, Creigh told his family about the abuse. In 2010 he wrote to his local bishop. He and the bishop (not Wilson) then met, and the bishop subsequently wrote to Creigh outlining what support the diocese was able to offer. Two and half years later, in 2013, Creigh was interviewed by police, and alleged that he told Wilson about the abuse at the time. Another person known to Creigh was subsequently interviewed by police, and when questioned, made a similar claim. Since he was apprised of these claims in 2014, Archbishop’ Wilson’s position has been exactly the same: he insists he has no memory of those conversations ever having taken place.

What really happened? There are a number of possibilities.

First, the two boys, now men, have clear and accurate memories of conversations they had forty years ago with a priest whom they correctly identify as now-Archbishop Wilson. This is the position Magistrate Robert Stone says is proven.

At the other end of the scale there is the possibility that the recollections cited in evidence were not accurate. They might, for example, have informed someone other than Wilson and, over the intervening years, seen their memories of the event distorted. Memory is a strange thing, and as cognitive psychologist Elizabeth Loftus has demonstrated, the merest word or question or suggestion can create “memories” which the person holding them absolutely believes are the accurate recall of real events.

So again, what really happened? Further, was the court’s faith in memory misplaced. As the Sydney Morning Herald noted in reporting the guilty verdict against Wilson:

It was a circumstantial case and the prosecution had to overcome a number of significant hurdles in their bid to prove Archbishop Wilson concealed the sexual abuse allegations against Father Fletcher.

Not only did Crown prosecutor Gareth Harrison have to prove that Mr Creigh told Archbishop Wilson about the sexual abuse in 1976, but that Archbishop Wilson remembered it and had a belief that the allegations were true between 2004 and 2006, after Fletcher had been charged with child sex offences and before his death in jail.

They also had to prove that Archbishop Wilson knew or believed he had information which might be of assistance in securing the prosecution of Fletcher for the sexual abuse offences against Mr Creigh.

While I have a passing acquaintance with Archbishop Wilson, and acknowledging that my view is subjective, it is my belief that had he known of the alleged offences, he would have brought them to the attention of his bishop and not hesitated to come forward to give evidence later when Fletcher went to trial. Someone who knows the complainants may take the view that they are people of courage and integrity, and that they would not have made the claims they have unless they were sure they were true. It is entirely possible for both of these things to be correct.

What is not possible, as I see it, is to reach the conclusion that one option is proven beyond reasonable doubt. Yet that is exactly the opinion reached by Magistrate Stone. Many will look upon his decision not as an end in itself but as the basis for an appeal.

Peter Wales is a former Anglican clergyman who now runs an IT consultancy business on Kangaroo Island in South Australia

  • Lawrie Ayres

    If Archbishop Wilsons accusers are considered to be men of honour, honesty and truthfulness by the Magistrate why does he assume the Archbishop is not also a man of honour, honesty and truthfulness? It still seems to be a case of he said something to someone 40 years ago and that is proof of a crime. Such a paucity of evidence would not convict a murderer or a thief so why Wilson? Newcastle court has a history of being harsh on priests, less so on accusers.

  • prsmith14@gmail.com

    It is simply astounding that someone could have been convicted on the evidence as it has been reported. It is inexplicable why charges were ever brought in the first place. It says little good about the administration of justice.

    • Quilter

      I have no idea of the truth in this matter but also what appals me is that we are now apparently running down and killing off as quickly as possible anyone left from the Christian churches while simultaneously ignoring any instances it would appear of abuse by non- church institutions (ie government run), the fact that most abuse takes place within families often by mum’s new boyfriend, and any form of abuse by immigrants (genital mutilation) and the indigenous (2 yr with many reports of abuse. Let’s lock up some one who was not a perpetrator and get rid of those pesky churches. Even if he had covered up reports of abuse, I do not see how this could be worthy of a conviction and jail. What is the matter with us?

  • Salome

    Is not going to the police with second-hand information (hearsay) from an alleged victim concealing a crime? Were the victims concealing the crime if they didn’t go to the police? Who else was told and didn’t go?

  • BJAS1961

    It is one thing to say that assumptions should not be made about a person’s guilt or innocence and that the matter is best left to a Court, provided the matter is appropriately investigated, charged and brought to trial. Based on the reports, this case was about Fr Wilson’s conduct, or lack of it, in relation to the latter and it does not require any consideration of the former. If it was established that Fr Wilson had information worthy of complaint, report, investigation and perhaps ultimately charge, and he took no steps to bring it before an appropriate authority, then it is a relatively unexceptionable application of the old common law principle of misprision of felony that is now a statutory offence contained in the NSW Crimes Act. Whether the evidence justified a factual finding against Fr Wilson I cannot and do not know, but the media reports suggest that there was evidence before the Court that the matters were brought to his attention and he chose not to take action. Fr Wilson might well have properly taken the view that he is not the arbiter of Flecther’s guilt or innocence, but that would not relieve him of the obligation to report the matters, or protect him from the consequences of having chosen not to reveal allegations of what must be conceded was, potentially, serious crimes by Fletcher.

    All of that said, this case apparently ran for some time, and there is clearly much evidence that has not been reported in the media, and that which has may not have been accurately reported. Making judgments about the outcome of Court cases based on media reports is a fraught process.

    • prsmith14@gmail.com

      Hey BJAS1961 whoever you are, what a load of pretentious tendentious rubbish. There should be no evidence not reported in the media. We don’t live in a police state. And why do idiots use the most preposterous nom de plumes?

      • Jody

        The answer lies in your very question.

      • BJAS1961

        Ad hominem personal abuse; what well reasoned response.

        The media cannot possibly report all of the evidence in a case that goes for a single day, let alone many days or weeks. The average transcript of evidence for each day in most cases is often between 70 and 100 pages, and that says noting of evidence tendered by statement or documents as Exhibits. The fact that apparently don’t know or understand that says all anyone needs to know about your understanding of legal process.

  • Augustusoz

    The media cannot reasonably be expected to report every piece of evidence, and this does mean, as BJAS1961 points out, that any assessment based on media reports is necessarily tentative. It is entirely possible that any one media outlet may have omitted some critical point. But it is unlikely that every major outlet should fail to report the same argument or piece of evidence which was essential to the court’s findings. So it is possible to have a reasonable and careful discussion of any court finding, provided some care is taken.

    The SMH report quoted in the article is a fair summary of what was required to be proven by the prosecution before the defendant could be found guilty as charged. A reasonable doubt at any step should have resulted in a finding of not guilty. The finding of guilty is an assertion that each step is proven. A key step is the magistrate’s acceptance of the accuracy of the boys’ reports of conversations they allege took place over forty years ago.

    One of my concerns about this is that the magistrate seems to have no awareness of research conducted over the last half century into the construction, development and malleability of memory. Given that this is the single most important factor in his arriving at a guilty verdict, he had a responsibility to familiarise himself with this now substantial body of knowledge. It might be suggested that it was up to the defence team to draw this material to the magistrate’s attention, and it is surprising and disappointing they did not.

    Trial histories are full of examples of witnesses, often multiple witnesses, swearing that x was what was said, y was what happened, and z was the person who did it, with guilty verdicts being delivered on this evidence, and sometimes, in the US, death sentences being imposed, only to find later through audio or video recorded evidence, or DNA or other scientific evidence, or other witnesses, that x was not what was said, y was not what happened, and z was out of the country at the time.

    However, even if there were conversations and they took place substantially as the boys remember, it is possible that then Fr Wilson did not understand what was being said to him. Even in everyday conversation there is often a substantial gulf between what the sender intends, and what the receiver hears and understands.

    To give an example, I have a close friend who is a teacher. An autistic girl at the school at which she works developed an attachment to her, and became her intermittent shadow. She would often chatter as the teacher was at work, on yard duty, marking, preparing lessons. Often the teacher listened attentively, but just as often, her attention was necessarily elsewhere. On one occasion the child’s parents withdrew her from the school, claiming (quite reasonably as it turned out) that she was being bullied. School authorities said they had not been aware of this, but the parents’ response was that her daughter had told them she had reported it to the teacher, my friend. My friend was horrified. She had no memory of this at all. Was it possible she had simply tuned the child out, or had been so distracted by other things that she did not hear or absorb what was said?

    This was reported only a few weeks after the conversation was supposed to have taken place. Conversations allegedly involving Fr Wilson were reported between thirty and forty years after they were supposed to have taken place. This length of time is another confounding factor. Statutes of limitations are not a technicality. The more time goes by, the harder it is for an accused person to remember where he was and what was said and done, harder to find diaries or other documents or witnesses who would be able to show he was elsewhere. The more time goes by, the more cautious a court needs to be, and the more it needs explicitly to recognise the additional difficulties faced by an accused person in finding and presenting exculpatory evidence. If anything, this obligation becomes greater rather than less, the more odious the alleged crime.

    On the information so far publicly available, Magistrate Robert Stone attended to the preceding factors in a cursory if not frivolous fashion, and proceeded directly to considering the credibility of Archbishop Wilson. Even if he was entirely justified in accepting the boys’ accounts, and in putting aside the difficulties faced by Archbishop Wilson in responding to events alleged to have occurred so long before, he made two sets of comments which suggest this assessment was not entirely objective.

    Firstly, as noted above, his reprimand to Archbishop Wilson for what Stone described as “technical” objection, that is Wilson’s comment, when asked, that he would not make any judgement about the guilt or otherwise of any person before that guilt had been proven. This was reported in the media, and seems to have been taken by Stone, to mean that Wilson would not have taken allegations of abuse seriously, and would not have acted on them, because he would not have believed them anyway. But that is a very long way from what Wilson actually said. A sensible process is to listen carefully and respectfully to allegations of abuse, to follow up and investigate carefully, to report to police or other authorities if appropriate, but to withhold final judgement until all the facts have been thoroughly and fairly considered. That has been the practice of Catholic authorities for many years. It ought to be the practice of any investigating body, and of the courts.

    Secondly, and equally disturbingly, is Stone’s dismissal of Archbishop Wilson’s claim that he had never heard, directly and to him as the first point of contact, any complaint of sexual abuse. Stone’s disbelief of this claim is not based on any evidence, but on Stone’s prejudices. I was a clergyman for thirty years. I never in that time had made to me personally, any complaint of sexual abuse by another minister. I knew complaints were made, and over the period of my ministry three of these involved people I knew; I know hundreds of clergy. I had one complaint made to me about sexual abuse by a family member (something vastly more common than abuse by clergy) which I reported, and later in my ministry I had multiple complaints of emotional and verbal abuse by a senior clergyman, which I acted upon to the best of my ability so as to be fair both the complainants and to him. But not once a direct complaint of sexual abuse by a priest or minister. It seems odd to me that Stone should have been so adamant that this was impossible or even unusual.

    To summarise, I would not find Archbishop Wilson guilty even on the balance of probabilities, and Stone’s finding of “proven,” that is, guilty beyond a reasonable doubt, goes so far beyond the available facts as to seem absurd.

    There is no justice for victims in sending the wrong people to jail.

    Peter Wales

  • Augustusoz

    Just one more comment on this story:

    It is accepted in criminal law that if there is a reasonable explanation of the evidence that is consistent with the innocence of the accused, then a verdict of “Not guilty” must be returned. Those responsible for delivering that verdict, whether a jury or a judge or magistrate, have a duty to keep this consciously in mind at every stage of proceedings. Magistrate Stone does not appear to have done so. There are reasonable alternatives to his conclusions at every link in the chain of reasoning. On the available evidence, this case should not even have been brought to trial. If Archbishop Wilson were not a high profile Catholic leader, it almost certainly would not have been.

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