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Hostility towards Christianity is now pervasive in every single aspect of our Australian society. There is no exaggeration in stating that we are now both a majority non-Christian nation and openly antagonistic to orthodox Christianity. According to Michael Sexton SC, the Solicitor-General of New South Wales since 1998, “the forces of political correctness” are presently “waging a war” on everything that is regarded as inconsistent with their own secular “articles of faith”. These zealots, Mr Sexton continues, desire to eradicate from the public square anything that is inconsistent with their own radical and secular worldview. They have developed “a hostility to all forms of Christian religion but especially the Catholic Church”, he says.[1]
This hostility is neatly illustrated in Supreme Injustice, Guilty Until Proven Not Catholic. This book, authored by Fr John Fleming, a Catholic priest, details his utterly abominable treatment by the Australian court system. The book is an eye-opening, harrowing narrative that illustrates how an innocent person’s reputation could be so entirely and irretrievably trashed by uncorroborated allegations made by persons hiding behind the cloak of anonymity.
John Fleming is a Catholic priest living in retirement in South Australia. He was initially a married Anglican priest, and he has a family. He is an eminent, widely published scholar with an international reputation in the field of bioethics. He was the inaugural President of Campion College, Australia’s highly regarded liberal arts institution located in Western Sydney. However, Fleming’s career, reputation, financial security, and family life were irremediably compromised when, in 2008, the local Adelaide paper, the Sunday Mail, ran a series of unsubstantiated and 
implausible allegations related to the historic sexual abuse of a minor. These allegations had been previously examined and dismissed by the South Australian police, casting extreme doubt on their veracity. Other allegations were made, but the claim by witness “Jane” was the most serious, as it alleged the criminal sexual abuse of a minor.
Fr Fleming subsequently sued the Sunday Mail for defamation, and the case was heard in 2014. The Sunday Mail fought the action on the ground that the allegations it had published were true. However, he lost his defamation case in the first instance, a decision which was upheld by the Full Supreme Court of South Australia, and the High Court twice decided not to intervene. When the first court decision appeared in early 2016, after an inordinate and unexplained delay, Fr Fleming’s defamation case was dismissed, the judge having accepted as truthful the unsubstantiated stories published by the Sunday Mail against Fleming. When he appealed the decision, unsuccessfully, before the South Australian Supreme Court, his special leave to the the High Court of Australia was denied.
These and other relevant events are poignantly described in Supreme Injustice. More specifically, one of the most relevant points in the book’s narrative relates to the onus of proof in defamation cases. As the complainant was assumed to be believed, the onus of proving that a person did not and could not have done the acts accused, was shifted to the plaintiff in the defamation case. Whilst the presumption of innocence prevails in criminal cases, in defamation cases, which are civil cases, the presumption did not appear to be applicable. The full court said:
We would add that, although in Briginshaw Dixon J referred to a person against whom are alleged serious matters enjoying the “presumption of innocence” and the consequent requirement of “exactness of proof”, the later High Court judgments do not import that presumption into the civil arena. Furthermore, from the above it would appear that any references to Briginshaw as establishing an “onus” or a “standard” are incorrect.
This is a misinterpretation of the Briginshaw rule – a rule developed by the Australian High Court 
in 1938 – which is inconsistently applied in Australia’s jurisdictions, and indeed even in the same jurisdiction. For that reason, the High Court should have accepted the appeal to clarify the application of the rule in defamation cases. By denying Fr Fleming (right) the application of Briginshaw, these judges basically admit that if it were applied, then the “presumption of innocence” would be more carefully considered. However, since they state erroneously that Briginshaw no longer applies in civil matters (although all other courts continue to apply Briginshaw) Fr Fleming was deprived of the presumption of innocence and therefore had to prove his own innocence.
Accordingly, both the trial judge and the appeal judges proceeded on the basis that the complainant must be believed, even if her allegations are riddled with uncertainties, discrepancies, inconsistencies, and contradictory statements. The “I hear, I listen, I believe” mantra permeated the judicial proceedings and, inexcusably and irreparably, influenced the court’s decision. The court’s bizarre treatment of the concept of “contextual truth” and its rejuvenation of an ancient and discredited view of a wife’s role in giving evidence are also perplexing. Indeed, the courts’ implication that Fr Fleming’s wife is untrustworthy because she is married to him, constitutes a disturbing throwback to a different era that disrespected the rights of women.
While questions of natural justice and procedural fairness are extremely important, at the end of the day the harm done to John Fleming’s reputation is irreversible and immeasurable. Being labelled with vile accusations due to a bungled court case can result in being permanently labelled this way. As an example of this, following the court’s decision, the Archdiocese of Adelaide denied Fr Fleming the opportunity to re-engage in Catholic ministry. As Quadrant contributor Paul Collits correctly points out,
Sacked from his most important of jobs, Fleming and his family have been put through hell. Fleming’s PhD thesis (Griffith University, 1992), was, ironically, about human rights and natural law. The law, in this case, has let down very badly an innocent man, convicted not by the police but in the court of public opinion, on the back of fanciful allegations of criminal conduct by one (witness Jane) who is clearly a deeply troubled soul. The legal battle to clear his name may not be over yet … but John Fleming will never get back either his job or the lost peace of mind that has ruined his life since 2008.[2]
We hope that Supreme Injustice facilitates a review of the judicial trajectory of Fleming’s case. This book may incentivise Australia’s political and legislative authorities to explore the injustices suffered by Fr Fleming and other innocent victims of unsubstantiated accusations. Unfortunately, however, experience indicates that the chances of success are limited. This is because politicians in this country are typically uninterested and, more importantly, are likely to hide behind the excuse that they cannot interfere with the work of judges in order not to violate the separation of powers doctrine. It is also unlikely that the Briginshaw rule will be embedded in the law of defamation because the relevant law is a creature of the common law – judge-made law.
Supreme Injustice is about the outrageous treatment meted by the Australian justice system to an innocent man. This book is a sober reminder of what might happen to any person living when the system fails to uphold elementary principles of fairness and natural justice. Although a reading of Supreme Injustice would benefit all those who are interested in nurturing of the rule of law, it will especially appeal to lawyers working in the field of defamation. This book should become a classic in the literature that describes the perceptible deterioration in Australia of even the most elementary standards of justice and procedural fairness. As the book focuses on the subject of miscarriage of justice in Australia, it may assist in the review of a judicial outcome that has compromised the life and reputation of an innocent individual.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.
Moens and Zimmermann are the authors of The Unlucky Country (Locke Press, 2024). To order your copy, click at https://lockepress.com/product/the-unlucky-country/
A copy of John Fleming’s Supreme Injustice: Guilty Until Proven Not Catholic can be ordered here: https://www.amazon.com.au/Supreme-Injustice-Guilty-proven-Catholic/dp/0646889354 (520 pages, ISBN: 978-0646889351)
[1] M. Sexton, “Revisionists Drive Old Dixie Down Again”, The Australian, 21 August 2018, https://www.theaustralian.com.au/commentary/opinion/revisionists-drive-old-dixie-down-again/news-story/8972a2300f26a645672503deefc91eff
[2] Paul Collits, ‘The Crucifixion of John Fleming’, The Freedoms Project, 18 May 2020, at https://thefreedomsproject.com/item/522-the-crucifixion-of-john-fleming
Much of these issues will reappear in the judgement in Lehrmanns defamation action against Wilkinson and Channel 10. These issues are about evidentiary onus. To give an example has Wilkinson discharged the evidentiary onus in her defence of truth, by Higgins giving eveidence that she awoke to find Lehrman in the act of intercourse. If she has then Lehrman must establish on the balance that Higgins evidence is a lie, ie the onus moves to him. Or should the court regard Higgns allegation as something requiring something more to discharge that initial onus than merely averment.
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In other words should it be neccesary that in claiming she was raped she provide something in her evidence which makes her allegation believable (really corroboration). It is one thing to allege that a person had consenual sex which is an act which occurs daily in every home in Australia, but seems an entirely different one to allege an assault which is regarded as a major criminal act. Hence should the evidentiary bar be higher?
Why wouldn’t the Adelaide Archdiocese be gun shy about employing Fr Fleming?Recall the absurd conviction of its Archbishop Wilson for failing to report another priest for child sexual abuse. Wilson was fortunate in having an appeal court judge who both understood the law and withstood the anti-Catholic hysteria now so prevalent.
The great risk the wokists face, but possibly disregard, is their view of ‘truth’ redounding on themselves at some time in the future. They face the ‘Stalin’s friend’ problem: it didn’t make them bullet-proof.
“This is because politicians in this country are typically uninterested and, more importantly, are likely to hide behind the excuse that they cannot interfere with the work of judges in order not to violate the separation of powers doctrine.”
That is a polite way of saying it. I would go with lazy, stupid, etc.
There is at least an even chance that Christians in Australia, and in other democracies, will be facing real persecution in the not too distant future, initially the form of disqualifications and civil disabilities imposed by law. The process has already started outside the strictly legal arena, where (for example) merely being a member of a church that at some time in the past illiberal views have been expressed makes you unemployable. It’s likely to get worse. As the late Cardinal Francis George of Chicago said in 2010 “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.” He was speaking a little rhetorically as to timing, but he meant it. I suspect the mindset was at work at various stages in the Pell proceedings.
Having said that, I take issue with the authors’ legal analysis. In the age of media pile-ons, there may well need to be a wholesale rejigging of the standard of proof to be applied when abhorrent criminal behaviour is in issue in civil proceedings – though the Pell case sadly shows that ramping it up to the criminal standard would not necessarily prevent injustice. But the Briginshaw decision has never been applied so as to impose a presumption of innocence in civil cases. Not in Briginshaw itself or subsequently. Mr Justice Dixon made a remark about weight being given to the presumption of innocence, which is not the same as saying that it applied as if in a criminal case, and he immediately qualified his remark by saying that “in civil cases, it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain”. Neither does Briginshaw impose some intermediate standard of proof between the balance of probablities and beyond reasonable doubt. That proposition has been slapped down repeatedly.
Also, where did the trial judge or the appeal judges say that Briginshaw does not apply in civil proceedings? They said the reverse, as far as I can see. I’m not aware of any High Court decision to that effect.
But most puzzling is the authors’ statement that the trial judge and the appeal judges in SA “proceded on the basis that the complainant must be believed”. That’s simply wrong. As far as I can see the trial judge assessed the complainant’s evidence in accordance with the legal principles that were binding on him. Perhaps his conclusions were wrong, I don’t know. If Father Fleming didn’t do it, he’s suffered an appalling injustice. I simply take issue with the suggestion, perhaps not intended by the authors, that there was some sort of assumption or presumption of the truth of the complainant’s evidence. There’s enough to be critical of in the trajectory of the law without muddying the waters.
March 27, 2024
Also, since the priest brought the case, doesn’t that make the newspaper the defendant? As such, shouldn’t the presumption of innocence lie with it? This principle may lead to some horribly unfair consequences, but it seems to be correct. However, that may or may not mean that the finding in this case was anywhere close to correct.
I think the authors’ point is that the newspaper had the onus of proof of Fr Fleming’s wrongdoing; it was trying to prove the commission of criminal acts by Fr Fleming. I think the authors would argue that there is an analogy with the bringing of criminal charges by prosecuting authorities, and that a person in a civil trial against whom a grave criminal accusation is made should have the benefit of the presumption of innocence. I think they are also saying that the standard of proof in that circumstance should be beyond reasonable doubt.
To debate that issue wasn’t the point of my post, though it’s an arguable proposition. I doubt that the ordinary civil standard of proof, even overlaid with the Briginshaw guidance, is sufficient in the age of ignorant and vicious media and social media pile-ons. I was really just taking issue with some of the legal analysis. And speculating about the possible future consequences of the fact that a substantial segment of society regards Christianity as a discreditable superstition that is backward and socially damaging.
In a civil trial the initial onus lies with the plaintiff, in this case Fr Fleming. His onus is to prove prima facie, a defamatory statement by the defendants. The onus then shifts to the defendant to establish prima facie, a defense of truth.
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The evidential onus, once there is some evidence of the crime, then shifts back to Fr Fleming to provide evidence to effectively establish his innocence. If the defamation was about common assault or unethical behaviour one would usually be content with proof of all these issues to a balance of probabilities. The question which Brigginshaw averts to is what happens when the accusation is a serious criminal offense. Why should a defendant’s life be destroyed by a finding of heinous criminal behaviour on a balance of probabilities test.
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What the article doesn’t mention because it is a different issue all together is that every young lawyer is told by his master, or mentor, be very careful launching defamation proceedings, rarely do you get the justice, you believe you deserve. The case all are taught is Oscar Wild v The Marquess of Queensberry.
“Alludes too” not “averts to” – getting old.
A point of order regarding Paul Collits’ assertion about witness Jane…” who is clearly a deeply troubled soul.”
This is a case of the kettle calling the pot black, as there is no evidence to support this claim.
Perhaps his use of the word ‘clearly’ should have been ‘possibly’ or ‘perhaps’.
How do conservatives justify their sanctity of independence of the courts with the above screaming of an unsubstantiated bias against the church? An adverse decision arrived at in every level of a court system that rightly allows no favours to creed or credentials. You can’t have it both ways!
Because the system of justice, with the true acknowledgment of the value of the ‘golden thread’ of the presumption of innocence, is integral to our whole society. Unfortunately , its genuine application relies upon a Christian mindset (or at least adherence to these values at a genuine level). If there is corrosion, -either by dishonest judges performing Stalinist show-trials, while mouthing principles from situations that have no application in the case before them, or by witnesses who lie under oath because they do not value a sworn oath but do value the money/and/ or publicity, or juries who are cowed or naively bow to stories that are factually implausible-then the whole foundation of our society is compromised. The operation of due justice relies on scrutiny and rational examination. Once hysteria and emotion are validated as operative in the court arena then gossip, propaganda and other irrelevancies are justified. This erosion of the importance of the rational examination of evidence has been facilitated by, as always, nice-sounding sentiments – sexual assault and ‘trauma’ entails not adhering to rules of evidence that have been developed over hundreds of years to protect against exactly this situation. You denigrate ‘conservatives’ but the erosion of the rational examination of evidence has direct consequences to you and your immediate family members. You should be grateful (dare I say, ‘thank God), that the Pell case was unanimously dismissed by the high Court and that the High Court courageously applied the rule of law in the face of a poisonous and vindictive mass media and general culture. That is the ‘sanctity of the independence of the courts’ (as opposed to the political charade of the courts below). If they had not done so, you and your sons would be vulnerable to anybody with an animus against you. The Briginshaw point is one that should be properly examined and the mouthing of legal principle while facilitating a desired result should be scrutinised by the High Court. Its random application, as opposed to the honest consideration by the courts of the Dixon era dates from the days of personal injury compensation and the feminist inroads into legal protections. Perhaps it needs to await more obvious injustices before action will be necessitated but the use of ‘victim’ and ‘survivor’ terms is an example of the erosion in the general public of the presumption of innocence. In this case, the evolution of Briginshaw into an amorphous, oleaginous non-principle, justified the higher courts from interfering in a complex and unpopular case, when it is quite apparent that strict liability is the real principle applied by the courts to any priest charged with anything- an outcome made possible by the Royal Commission’s distortion of the statistical probabilities of such an eventuality.
One reason many people have turned away from religion is the disgraceful way child sexual abuse was managed as revealed in great detail by the Royal Commission into institutional responses to child sexual abuse. The case of John Flannery is a separate issue which goes to the way our system of justice operates.
I give up; who is John Flannery?