(AUSTRALIA)
Quadrant [North Melbourne, Australia]
March 26, 2024
By Augusto Zimmermann & Gabriël Moens
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