The recent public and legal focus on the George Pell case obscures many other, less publicly known cases of innocent Catholic priests being falsely accused of sex crimes. One relates to Fr John Fleming. His awful story needs to be told and the lessons from it learned.
The recent High Court decision exonerating George Pell has lifted the spirits of his many supporters and has set the Get Pell brigade back on its heels.
The rabid anti-Catholicism of the secular press has been exposed. The manifest deformities of Victoria’s “justice” system have been exposed. The utterly contemptible behaviour of our national broadcaster is patently obvious. Calls for the resignation of Victoria’s Supreme Court justices who ludicrously upheld the conviction of Pell have multiplied since the High Court decision.
Yet there is a danger that all the media attention to the Pell case might have kept other cases of the maladministration of justice off the front pages. Perversely.
Cases of Guilt by Accusation
Other Catholic priests have suffered from the same toxic anti-Catholicism, the “guilt by accusation” referred to by Professor David Flint among others, that felled Pell. Only their stories, not having the star appeal of Pell, have remained under the radar.
Their stories deserve to be told. Not just to accord justice to the wrongly accused, but to bring to the surface in Australia’s public consciousness a vicious campaign to bury the Catholic Church. To consign it to irrelevance in Australia.
The manifest injustices flowing from the perfect storm of Royal Commission led piles on, MeTooism “we believe you” ideology, victim activism weaponised by powerful interest groups like SNAP (Survivors Network of those Abused by Priests) and Broken Rites and their favoured priest chasing lawyers, and residual sectarian impulses are, sadly, not confined to the good and innocent Cardinal.
Two years ago, Archbishop Philip Wilson of South Australia was hounded out of his ecclesial job – with the active support of one Malcolm Turnbull, woke prime minister of Australia. Wilson had been convicted of not reporting historical sexual abuse in a case quite similar to the latest allegations against Pell. His conviction was, mercifully, overturned. The judge in that appeal went out of his way to note the enormous pressure on judges (and juries) to find against Catholic priests in cases of sex abuse.
Then there was the case of the now exonerated Bishop Max Davis, former Chaplain to the Defence Forces, for an allegation of abuse dating back to 1969.
Finally, Brother John Tyrrell had a conviction which saw him spend his eightieth birthday in gaol quashed by the Victorian Court of Appeal – whose judges in this case, mercifully again, included one Mark Weinberg – when it was finally recognised by someone that Br Tyrrell had in fact left the school at which he was alleged to have abused a student, again in 1969, in Geelong.
And isn’t just Catholic priests, though they are a favoured target in these times. Guilt by accusation has been very much in the news. Other recent cases include actors Geoffrey Rush, Craig McLachlan and John Jarrett in Australia and those of celebrated lawyer and writer Alan Dershowitz (the author of Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, 2019) and the finally appointed Supreme Court Justice Brett Kavanaugh, in the USA.
In the minds of some, including some in the media, the presumption, indeed the certainty, of guilt that flows from an accusation by a woman cannot be overcome by evidence or the lack thereof. Though there is not a scintilla of evidence to support the accusation against me—no photographs, no witnesses, no documents, no contemporaneous accusation—and though the accuser has a long history of falsely accusing prominent men, and though she communicated to her friends she did not have sex with me, and though her lawyer admitted she was “wrong,” the media persists in portraying me as possibly guilty. The result of this media portrayal is that I am now presumed guilty—or at least suspect—and at age 81 my life and career are no longer being honoured but dishonoured. An obituary writer for the Washington Post called to tell me that he was drafting my obituary, which would include references to the accusation. All this because of a demonstrably false accusation by a woman with a long history of lying.
Dershowitz is an immensely influential man. He; like Pell, will have many supporters in the face of serious allegation. Rush, McLachlan and Jarrett are very well known and high credentialled actors, again, with great support networks.
Others, like some of those mentioned above, are not so fortunate, either in their resources or support. They are very much on their own, the victims of the coming together of #MeToo culture and the ruthless power of the media.
The John Fleming Case
The case of Father John Fleming is another, very regrettably not so fortunate, encounter with a faulty legal system that finally – finally – got around to delivering justice in these other cases. John Fleming is an ageing Catholic priest, now living in uneasy and anxious retirement and poor health in South Australia, following his own trip to hell-on-earth.
Fleming has been an eminent Catholic scholar; a “star” convert to Catholicism from the Anglicanism of his upbringing; internationally recognised for his scholarly contributions to life issues and bio-ethics; a well-known and feted radio personality in South Australia; a weekly columnist for – of all things – the Adelaide Advertiser; a Doctor of Philosophy; a delegate to the Constitutional Convention in 1998; a faithful, orthodox priest; a highly respected inaugural President of Campion College in Western Sydney, much loved by his students and colleagues; a considerable presence in Adelaide over several decades; and indeed a public figure in that city. Oh, and highly unusual for the Catholic Church, John Fleming is married with three children, the outcome of a Papal dispensation (from St John Paul II) in 1995.
He indeed has a Wikipedia entry – potentially a mixed blessing in these times. Sadly, what John Fleming seems destined to be most remembered for is entirely another matter. For in 2008, his world fell apart under allegations of historical sexual impropriety and in one case alleged criminal abuse.
A Catholic public figure, he is a defender of traditional morality and so one with enemies as well as friends in a highly secularised city. At a time of virile anti-Catholicism, the subsequent Fleming court case occurring right at the height of the McClelland Royal Commission into child sex abuse and the Pell pile on occurring through the SANO Taskforce and Operation Tethering across the border in Victoria, it was a perfect storm for Father Fleming.
Cancel Culture, Trial by Media and the Destruction of Reputations
John Fleming is a victim of “cancel culture”.
He has been simply “removed” from public life. His case is also an example of the fact that you do not have to be sent to prison to have your reputation and your life shredded. Indeed, George Pell’s imprisonment seemed almost to have been borne by the Cardinal with a sense of relief. Certainly with a sense of calmness. His repeated use of the comparison of prison with an old fashioned “retreat” suggests so. From what we now know of the affection with which he was so clearly held in the two gaols he resided in for those now infamous 405 days, it is likely the case that Pell felt more surrounded by friendly types in prison than outside of it.
No, prison is only one form of life destroying impact on one accused of what today’s generation treats as the most heinous of crimes, often described as worse than murder – though one might well fail to see how any crime could be worse than murder.
On the back of utterly spurious allegations of sexual impropriety, including accusations of criminal abuse many decades ago, the Adelaide Advertiser’s Sunday rag (the Sunday Mail) went after Fleming, starting in August 2008 and continuing into 2009. Absent police charges before or since the journalist outing and on the basis on the thinnest plausibility, the newspaper conducted a campaign of public vilification and career-destroying “journalism”. They published, in a way utterly determined to destroy Fleming and reflecting secularist small town hubris disguised as investigative journalism, allegations of a criminal nature that traduced a family and blighted an entire career. And as is the way of it these days, the complainant in the alleged criminal matter has been allowed to keep her anonymity, her career, her reputation and her life.
John Fleming was interviewed by SA Police in November 2008. No charges were laid. Fleming then sued the newspaper for defamation, and lost. The allegations stood. He then appealed to the South Australian Supreme Court, and lost. Then the High Court refused him permission to lodge an appeal. These decisions do not mean that Fleming is guilty. Far from it. Important matters of law and of evidence were overlooked by the South Australian legal system in similar ways to the appalling treatment meted out to George Pell in Victoria. And in John Fleming’s case, there weren’t even police charges.
A little about Adelaide and how the city played into the Fleming case.
The city on the edge of the desert with a declining economy was once described, perhaps unkindly, by Barry Humphries as “Yass with poofs”. Something for which, if said today, Humphries would surely be castigated for homophobia. Or perhaps Adelaidophobia. Maybe even Yassophobia.
Adelaide is a one-newspaper, oversized country town, an isolated and consequently a well-networked place, where many who wish to get on in the world leave. Adelaide has the feel of a small town and the population of a city. A town where everyone knows everyone else, at least among the elites of the city.
John Fleming was very well known in Adelaide, perhaps not a household name but not far off it. And as noted, those who publicly defend traditional morals in a secular, and especially in a gay-friendly culture like Adelaide, make enemies as well as friends. The loudest voices that persistently champion traditional values and conservative sexual ethics are asking for trouble. Bigger secular cities will still have a plethora of conservative religious voices, and those who champion the Church will have far more support than in smaller and more isolated places.
There is a singular joy that attaches to bringing down tall poppies in such a context, especially if the accused can be seen to have been a hypocrite.
The Media’s Allegations against Fleming
I am not going to repeat the details of the allegations here. The Fleming family has been through pain enough over this.
The alleged events occurred around half a century ago, and involved three allegations – from “Jane” (anonymous), “Jenny” (Diane Lynch) and “Richard” (Peter Kay). Only the matter relating to Jane involved alleged criminal behaviour. The allegations were only brought to the surface much later – four decades on, in fact. The Church ran an inquiry which was run by Michael Abbott QC, South Australia’s most illustrious criminal lawyer. There were no findings against Fleming. In 2008, the South Australian police, equally correctly, also dismissed the allegations, such was their flimsiness.
Suffice it to say that there a material eye witness to the most serious and only criminal allegation made in the newspaper – Fr Fleming’s wife! She was said to be there when it is said to have happened. She denied it happened, and she should know. But she wasn’t believed by the Judge. Another Fleming reputation trashed. Bizarrely, the Judge refused to allow character testimony for Mrs Fleming – from a retired South Australian judge!
More on the court cases and the judgements anon.
The Advertiser’s Campaign
The campaign by the Advertiser (Sunday Mail) to destroy John Fleming tapped into two contemporary powerful beliefs in society – #MeTooism, aka always believe the accuser; and get the Catholic priests, and punish them for the many past sins of the Church in relation to sex abuse.
Sadly, the travesty of justice masquerading as a legal system in South Australia allowed the defamations of August 2008 to stand. The whole saga started with a single journalist. In an act of defamatory bastardry of Lucy Morris Marr or Louise Milligan proportions, the journalist Nigel Hunt came to hear of the allegations against John Fleming and he went a trawling. He tracked down the complainants – they didn’t come to him – and hence initiated a Fleming pile on. It was all about Nigel Hunt, who like Louise Milligan, was feted with awards for his journalism.
Hunt was even able to get in a swipe at Pell, following the judgement in the Fleming defamation case. “Pell knew!”
The Court’s decision meant that Hunt and colleagues could engage in further gloating and that words like “disgraced”, “predator”, “moral coward”, “victim” and “liar” could continue to be bandied about without fear of reprisal from the one real victim in this case.
One such case occurred in February 2017, with Hunt’s colleague Sean Fewster continuing the calumnies, falsely insisting that “some” of Fleming’s “victims” were “mere children”. Someone with the slightest chance of winning a defamation case in Adelaide might be inclined to think that implying several cases of child abuse when there was ever only one such allegation might be grounds for suing the newspaper that told such a lie. Oh, wait a minute …
In Fewster’s view, the journalist who started the whole witch hunt was also a victim – of an eight- year-long legal battle. (As if Fleming was to blame for the utter tardiness of the South Australian legal system). Fewster also propagated the widely and mistakenly held view among victim group spokespersons, priest chasing lawyers, and priest hunting journalists, that those who seek to defend their innocence and reputations are merely engaging in the heinous act of “revictimisation”. Putting the complainants through it all over again. This is absurd and a further attack on the falsely accused. The real victims.
This was Fewster’s very odd take on the right of an accused person to defend himself or herself:
Fleming not only refused to speak [to Hunt, in Sydney], he doubled down – as cowards and bullies do – by filing a million-dollar lawsuit against the paper.
A strange view, indeed, of justice and the rights of individuals to proper use of the legal system.
Fewster’s lionisation of Hunt merely reinforces the power of media outlets, either mainstream or new media, utterly to destroy reputations by publishing the accusations of fantasists. Like the publication of Milligan’s disgusting book on Pell, the Adelaide Advertiser got away with it. Milligan had the power of the Victorian police on her side, not to mention the #MeToo justice system in Victoria . The Adelaide Advertiser had a rickety legal system of its own on side. To suggest that it is newspapers and their priest hunting journalists who speak “truth to power” is ironic, to say the least.
Fewster also claimed that, in the end, no one believed Fleming. This is self-serving rubbish. The SA police believed Fleming, or at any rate, did not believe his accuser. Renowned legal scholars believe Fleming. His family, friends and supporters believe him, even if jumped up, provincial hacks don’t. A lie detector also believed Fleming.
Oh, and the Sunday Mail never even bothered to report the fact, that back in 2008, the police were not going to charge Fleming with any offences. So much for rigorous journalism by Nigel Hunt.
Because John Fleming is not a famous prelate like Cardinal Pell, despite his public persona, and because the Fleming case was very much an Adelaide only affair not subject to East Coast, let alone international media interest, it all occurred under the radar and hence Fleming’s supporters have been fewer and less vocal. Ultimately it was all down to John Fleming to seek justice for himself, at the cost of all his savings. (Even Pell, of course, was virtually disowned by the Australian bishops who, almost to a man, took to fence sitting on the very odd occasions on which they actually ventured an opinion on Pell’s guilt or innocence).
The Fleming Defamation Case
As noted above, John Fleming decided to defend his reputation in the face of these accusations. He sued the Sunday Mail for defamation in 2008 on the basis that the paper’s claims were materially false. In 2014 the resultant court case finally began, a case that was to last until the judgement in February 2016.
While Fr Fleming’s supporters might have had mixed feelings at the time about the decision to pursue the Mail legally, with the risk that he would fail in his case, no one other than one falsely accused of child sex abuse can know the fatal harm done to the reputation of one so accused. No one should be denied the opportunity to clear one’s name, nor should Father Fleming be criticised for so doing.
The judge in Fleming’s initial defamation case was Justice Malcolm Gray. Those who have argued for judge-only trials involving historical abuse allegations because of the poisoning of the public mind and therefore the difficulties in finding an unbiased jury, might want to think again post the Fleming saga. Judges get it palpably wrong too.
Gray’s performance in the Fleming case makes Victorian Justices Ferguson and Maxwell look like some combination of William Rehnquist and Lord Denning. It seems that, when it comes to judges in Australia, you just can’t get good help anymore. Gray took over a year to deliver his verdict and judgement, a “deplorable” delay and a matter where the High Court had earlier confirmed that Gray “had form”.
Whether more motivated by incompetence – and there is plenty, as John Fleming’s book will reveal – or latter day anti-Catholicism is a question without a definite answer. Either way, the judge involved here can only be described as failing to deliver justice, both in relation to the law and to his treatment of the evidence.
On 24 February 2016, the Supreme Court of South Australia found in favour of the Sunday Mail, ruling that:
'the articles truthfully conveyed imputations that Fr Fleming was engaged in "sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral, adulterous, homosexual affair, hypocrisy, abuse of trust, moral cowardice and false denial of sexual involvement", with costs awarded against him.
The judgement by Justice Malcolm Gray was especially vicious, as well as being beyond incompetent. After Fleming had to wait over a year even to get this judgement!
The errors in the Fleming judgement are many and significant.
First, as noted above, the judge’s refusal to accept as evidence a character reference for Mrs Fleming was an egregious error, important as she was a very important witness to at least one of the alleged events and it was, in effect, her word 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.
Second, the Judge also 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. Not only that but the Judge seemed to accept the suggestion that the expert was a “hired gun”. Clearly 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, nor that this expertise can easily be set aside along the lines of the Mandy Rice Davies principle – well, s/he would say that!
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 involved here. Judges need to do much better in keeping up with the latest scientific knowledge about issues that impact their own capacity to have an informed view of the reliability of complainant witnesses.
This is a problem well acknowledged by eminent legal practitioners, including the NSW Judge and expert on memory, Penelope Wass. Was has stated:
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’ 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, can be distorted. This is widely acknowledge by non-legal experts, and should be accounted for by the courts. This truth escaped Judge Gray, alas.
Wass 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. Flemings’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.
Third, 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 approach amounted to a bias against John Fleming.
Fourth, a very strange attack by the Advertiser’s lawyer on John Fleming’s alleged propensity to lie under oath, and to justify this, bespoke irrelevant anti-Catholic bias and arcane references to speculative theological opinions of three centuries ago. This was utter rubbish, a huge distraction and seemingly accepted by the Judge.
Fifth, the Judge simply “believed” the “compelling” complainants, despite considerable exculpatory evidence that suggested that Fleming could not have committed the alleged offences. Stories changed over time, there was long delays in the reporting of the alleged offences, there were significant gaps in memory on the part of the principal complainant, Jane. There emerged no reason whatsoever during the trial for finding Jane either reliable or compelling. The police didn’t believe her.
Sixth, Justice Gray employed circular arguments that do not stand up to the test of logic. Here is but one example:
1. If Jane had experienced sexual abuse at the hands of Fleming then one would expect Jane “to feel wounded, vulnerable, and resentful”.
2. Jane appears “to feel wounded, vulnerable, and resentful”.
3. Therefore, Jane was sexually abused by Fleming.
These lapses in logic on the Judge’s part were not merely incidental to the case but rather at its very heart. That they were not picked up on appeal by the Full Court and recognised for their significance reflects poorly on the grasp of the case achieved by Justice Vanstone et al. Sadly, they are also reminiscent of the Pell case and the inferences that it was Pell’s acts of abuse that caused the mental decline in at least one of the “victims”, who died young. Being “wounded” means that the abuse must have occurred!
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 from this narrative.
The Full Court of the Supreme Court, with Justice Ann Vanstone presiding, did no better and failed to provide justice in the case on appeal, dismissing the appeal in September 2016. Vanstone and the full Court simply asserted, without establishing their argument, that Gray was entitled to find as he did. The parallels with the treatment of Pell’s conviction by the majority of judges in the Victorian Court of Appeal are obvious. The Full Court also misrepresented the core of Fleming’s case for appeal, a legal howler.
Vanstone also let some anti-Catholicism slip in delivering her judgement.
In addition to the above failings of the judgements, an important legal principle in Australia was also parked in the Fleming case, by the South Australian Supreme Court, and by the High Court, in its refusal to hear Fleming’s case. And this is related to something called the “Briginshaw principle”.
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”, 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, 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 vs 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, a highly respected legal scholar, 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.
So this isn’t just about justice for John Fleming, important though this is. There is an important matter of law to be decided, following its inadequate treatment in a State court. In this, it is much like the Pell case. This was never only about whether George Pell did it. It was about Australia’s reputation for justice AND the overturning of the principle of innocent till proven guilty that had so clearly occurred in the initial Pell trial and in his subsequent unsuccessful appeal in Victoria.
Following the High Court’s decision, the Archdiocese of Adelaide proceeded to deny John Fleming the opportunity to engage in any Catholic ministry. Sacked from his most important of jobs, Fleming and his family have been put through hell.
John 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, with discussions ongoing in relation to one last (re-)appeal to the High Court, but John Fleming will never get back either his job or the lost peace of mind that has ruined his life since 2008.
Supreme Injustice seems an extremely apt title for a book on the Fleming Case that is in the wind. There should be more than a few denizens of the ironically named City of Churches, motivated in their actions over the past fifteen years by malice or ignorance or some mixture of both, looking forward to the book’s publication with decidedly mixed feelings.