One of the most important legal judgments this year was that handed down by Judge Roy Ellis in the NSW District Court in Newcastle on December 6.
In Regina v Philip Edward Wilson, the judge upheld an appeal and quashed the conviction of Wilson, the former Catholic archbishop of Adelaide. Wilson had been convicted in the NSW Local Court in May by Magistrate Robert Stone for failing to report a child sexual assault to NSW Police.
The Crown’s case was that in 1976 Wilson had been told of a case of clerical child abuse and failed to report it between 2004 and 2006 when the priest was charged with the offence.
Wilson’s conviction attained international coverage as well as in the local media, particularly the ABC and Fairfax. However, his subsequent acquittal last week received scant coverage, especially for what had been termed a case of international significance.
Ellis found that the Crown had not proved its case beyond reasonable doubt. He found that Wilson was an honest witness and that the complainant was also honest but had given evidence that was at times inconsistent and unreliable.
The importance of R v Wilson turns on the judge’s comments with respect to the media, the concept of collective guilt and memory. Ellis said what few judicial officers have been prepared to say concerning the media’s interest in “the prosecution of institutional child sexual abuse or its cover-up”. While understanding the media’s interest in these matters, he said, “the potential for media pressure to impact judicial independence may be subtle or indeed subversive in the sense that it is the elephant in the room that no one sees or acknowledges or wants to see or acknowledge”.
The judge expressed his concern that large numbers of national and international media “may amount to perceived pressure for a court to reach a conclusion which seems to be consistent with the direction of public opinion rather than consistent with the rule of law that requires a court to hand down individual justice in its decision-making process”.
This is an important legal point. The role of journalists in advocating for what they perceive to be the public interest has been enhanced by the increasing prevalence of social media.
Ellis also drew an emphatic division between the defendant and the institution for which he worked. He said: “It is fair to say that the Catholic Church as an institution has had a lot to answer for in terms of its historical self-protective approach to children complaining of sexual abuse at the hands of some of its priests.” But he made the point that when a defendant appears before a court they are “an individual who has the same legal rights as every other person in the community”. The judge went on to say that it was not for him “to punish the Catholic Church for its institutional moral deficits or to punish Philip Wilson for the sins of the now deceased (offender) James Fletcher by finding Philip Wilson guilty simply on the basis that he is a Catholic priest”.
This is a particularly timely warning in view of the apparent increase of anti-Catholic sectarianism in recent years. This has been accompanied by increased verbal attacks on Christianity.
Writing in John Menadue’s blog Pearls and Irritations last December, historian and former Catholic priest Paul Collins said the Royal Commission into Institutional Responses to Child Sexual Abuse had not been an “unequivocal blessing” since it “focused unduly on Catholicism and…can’t be entirely absolved of unconscious elements of anti-Catholicism that has been the default position of Anglo-Australian culture since the 19th century”.
ABC television’s The Drum provides an example of the animosity towards the Catholic Church among journalists and commentators. On July 3, following Wilson’s sentencing, The Drum panellists “piled on” the Catholic Church in general and Wilson in particular, so much so that presenter Julia Baird declared “there seems to be a consensus on the panel here”. On July 3, no one mentioned Wilson had a right of appeal. The Drum has not subsequently covered the fact Wilson’s conviction was overturned. This despite the fact Frank Brennan, who has written on the Wilson case in Eureka Street, was a guest on the program on Tuesday.
And then there is the issue of memory. In this case, psychology professor Richard Kemp was called as an expert witness. His evidence was unchallenged and accepted by the court.
Kemp made the following points among others: delay will reduce the chances of accurate recall; a person typically forgets details of a conversation rather than that it took place; there is a tendency to have a memory of what was intended to be said but not said; and it is not possible to reliably distinguish between accurate, false or distorted memories in the absence of evidence.
Ellis also warned of making assumptions. It was the Crown’s case in R v Wilson that the defendant “must have” remembered speaking with the complainant in 1976. The judge made the valid point that “a statement or conclusion to the effect that ‘He must have!’ does not and can never equate to proof beyond reasonable doubt”. This is a serious critique of a Crown prosecution by a judge. The Drum was interested in Wilson’s conviction but not his acquittal. Yet Ellis’s judgment is replete with findings that warrant study and discussion.