Fleming v Advertiser-News Weekend Publishing Co Pty Ltd - [2016] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD & ANOR
[2016] SASCFC 109
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Bampton)
29 September 2016
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
DEFAMATION - DAMAGES
Appeal against dismissal of claim for damages for defamation. Where the publications alleged that the appellant, as an Anglican priest, had been sexually involved with two girls, one underage, and that he had had a homosexual affair. Where the trial Judge found that the imputation conveyed by the publications was one of criminal sexual behaviour with the underage female and that it was substantially true. Where the Judge also found that the appellant had a sexual relationship with the male parishioner as alleged in the publications but was not prepared to make findings in terms of the other female.
Whether the Judge erred in finding the imputation that the appellant had engaged in penile/vaginal sexual intercourse with the underage female was not conveyed by the publications. Whether the Judge erred in his approach to the burden of proof. Whether the allegations were proved in terms of Briginshaw v Briginshaw. Whether the Judge erred in finding criminal sexual behaviour proved. Whether the Judge erred in his assessment of the underage female’s evidence. Whether the Judge erred in his assessment of the appellant’s evidence. Whether the Judge erred in assessment of the expert witness. Whether the Judge erred in failing to bring to account the appellant’s good reputation.
Whether the Judge erred in considering the evidence of the male parishioner prior to considering the evidence of the underage female. Whether the Judge erred in considering the evidence of the male parishioner and other female at all. Whether the Judge erred in finding the defence of contextual truth proved. Whether the Judge erred in his assessment of the male parishioner’s evidence in circumstances where witnesses and documents were absent from the trial. Whether the Judge erred in considering forensic disadvantage arising from the age of the allegations. Whether the Judge erred in finding no causal link between the first publication and the appellant’s loss of employment.
Held: appeal dismissed. The language used in connection with the underage female would not suggest to the ordinary reasonable person any more than that sexual conduct of an undefined character took place. The onus of proof was correctly applied. The Judge correctly directed himself that he should not act on the evidence of witnesses insofar as it raised serious allegations against the appellant unless satisfied of the allegations by clear and cogent evidence. There is no error in the Judge’s findings concerning the credit and reliability of witnesses. It was open to the Judge to find criminal sexual behaviour proved on the evidence. Evidence of reputation can be relevant to justification. However, the Judge’s decision not to have regard to the appellant’s reputation could not have affected his findings. There was no error in the Judge first considering the evidence of the male parishioner. There was no obligation as a matter of principle for the Judge to proceed in any particular order, either in his consideration, or in his reasons for decision.
Criminal Law Consolidation Act 1935 (SA); Defamation Act 2005 (SA) s 23, s 24, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336, discussed.
Aldridge v John Fairfax & Sons Ltd, unreported, Supreme Court of New South Wales Common Law Division, 17 September 1985, Butterworths Cases 8500537; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Cornwall v Richardson (1825) Ry. & M. 305; 171 ER 1029; English & Scottish Co-operative Properties Mortgage & Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440; Fox v Percy (2003) 214 CLR 118; G v H (1994) 181 CLR 387; Machado & Anor v Underwood & Anor [2016] SASCFC 65; Melbourne v The Queen (1999) 198 CLR 1; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170; Rejfek and Another v McElroy and Another (1965) 112 CLR 517; R v Beard [2004] SASC 411; Rubber Improvements Ltd & Anor v Daily Telegraph Ltd & Anor [1964] AC 234; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Sands v South Australia (2015) 122 SASR 195; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46, considered.

FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD & ANOR
[2016] SASCFC 109
Full Court: Vanstone, Nicholson and Bampton JJ
THE COURT.

The appellant took action against the respondent companies, publishers of the “Advertiser” and the “Sunday Mail” and the website “Adelaide Now”, claiming damages for defamation based on a total of nine publications of five separate articles. In essence, the articles alleged that the appellant, as an Anglican priest, was subject to an investigation by police over allegations of criminal sexual conduct in that he had been sexually involved with an under-age girl (“Jane”), that he had been sexually involved with another female parishioner (“Dianne”) and that he had a homosexual affair with a parishioner who sought guidance from him in relation to his sexuality (“Peter”).
The articles used such terms as “serious misconduct allegations”, “sexual liaison”, “sexual encounters”, “sexually involved”, and “sexual relationship” in respect of the under-age female, and “sexual relationship” and “affair” in respect of the male.
The pleadings in the action were the subject of various applications and amendments. Aspects of these will be discussed later in these reasons. However, at the commencement of the trial, the appellant’s principal claim was that the natural and ordinary meaning of the published words was that the appellant had committed a criminal offence with the under-age girl, Jane, by an act of penile/vaginal intercourse, or that there were reasonable grounds to suspect as much.
The respondents denied that the words used in the publication meant that the appellant had had penile/vaginal sexual intercourse with a minor. In the alternative, the respondents pleaded a defence of contextual truth, based on the contextual imputations arising from the allegations of all three persons as reported. These included that the appellant abused his position of trust as an Anglican priest and engaged in immoral behaviour and sexual misconduct by having a lengthy and adulterous homosexual relationship with a young man (Peter) who had sought counselling from him; that the appellant was a sexual predator and engaged in sexual activity with Peter and Dianne, both of whom had sought counselling from him; and that the appellant engaged in criminal sexual behaviour, while a priest, with Jane. The respondents pleaded that, because of the further imputations arising from the publications, even if the articles did allege unlawful sexual intercourse (or carnal knowledge as it was then known) they did not further harm the appellant’s reputation.
The appellant claimed damages for personal injury, alleging that he suffered a major depressive illness as a result of the publications, as well as aggravated damages.
The pleadings were significantly amended towards the end of the trial. The appellant was permitted to widen the suggested meaning of the articles to include “criminal sexual behaviour”. The respondents then amended their defence to admit that meaning and to plead that it was true in substance and fact.
The Judge did not accept that the articles meant or would have been understood to mean that the appellant had carnal knowledge with Jane. He found that the imputation conveyed was one of criminal sexual behaviour only, and that it was substantially true. He also found proved that the appellant had a sexual relationship with the male parishioner as alleged in the articles. The Judge was not prepared to make findings in terms of the respondents’ pleadings on the basis of Dianne’s evidence. The appellant’s claim was dismissed: Fleming v Advertiser News-Weekend Publishing Co Pty Ltd & Anor (No 2) [2016] SASC 26.
The grounds of appeal focus on the Judge’s findings in respect of the meaning of the articles, and on a finding that the assertions with respect to Jane and Peter were substantially true. Most of the grounds concern suggested deficiencies in the evidence led by the respondents in their case on justification and their defence of contextual truth pursuant to s 24 of the Defamation Act 2005 (SA) and suggested flaws in the Judge’s evaluation of the evidence.
The principles applicable to the approach to be taken by an appellate court on an appeal by way of rehearing in reviewing findings of fact are settled: Fox v Percy (2003) 214 CLR 118 at [23], [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
To the extent that issues of law or inferences to be drawn from uncontested evidence are concerned, this Court is in as good a position as was the Judge to determine those issues. We have performed our own review of the evidence and formed our own view in relation to those issues.
However, essential aspects of the case – those relating to the defences of justification and contextual truth pursuant to ss 23 and 24 of the Defamation Act 2005 – turned on the Judge’s credit and reliability findings concerning several important witnesses and the reasons he gave for those findings. We have reviewed the evidence to determine whether those findings are inconsistent with uncontested testimony or incontrovertible facts, glaringly improbable or contrary to compelling inferences and whether there is any reason to disturb the Judge’s findings in this respect.
While adopting the required approach to the Judge’s credit findings, as described in Fox v Percy, we have conducted an independent review of the relevant evidence in order to determine whether there is any reason to disturb any of the Judge’s findings that have been challenged. We are not persuaded that the Judge’s findings concerning the credit and reliability of any of the witnesses should be disturbed.
For the reasons which follow, we find that the appellant’s complaints are not well grounded and that the appeal fails.
The imputations relied on by both parties
In order to understand those grounds which complain of the Judge’s findings about the imputations conveyed by the publications, it is necessary to set out the parties’ positions.
The appellant’s claim proceeded to trial on the basis of the fifth statement of claim which identified five (newspaper) publications four of which were, for all material purposes, replicated in four internet or “web” publications. The fifth and last newspaper publication stood alone in this respect. The Judge reproduced the text of the five publications but excluding graphics, photographs and pictorial representations as appendices A to E to his Honour’s judgment. We have reproduced the same as appendices A to E to this judgment, except that we have found it unnecessary to include a large tract of Dianne’s “story”, as the Judge did not make a finding in terms of the main allegation made by her.
As to the first (in time) publication and the first web publication, the appellant pleaded just two imputations both of which focussed on the conduct alleged with respect to Jane (fifth SOC, paragraph 5A).
In their natural and ordinary meaning, the words in the first publication and the first web publication meant and/or were understood to mean:
(1)That the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor, which minor was a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects; or alternatively
(2)That there were reasonable grounds to suspect that the Plaintiff as an Anglican priest had committed the criminal offence* which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor, which minor was a vulnerable minor in her formative adolescent years who might be as young as 13 thereby resulting in irreversible effects.
* Particulars (for justification purposes): the criminal offence was then constituted by section 55 of the Criminal Law Consolidation Act 1935 (SA) and commonly known as “unlawful carnal knowledge”.
The appellant pleaded that the same two imputations, in materially the same language, were also to be derived from the second publication and the second web publication (paragraph 7A) the third publication and the third web publication (paragraph 9A) the fourth publication and the fourth web publication (paragraph 11A) and the fifth publication (paragraph 12A).
The Judge observed that “it may be noted that, whilst the gravamen of the imputations pleaded in paragraph 5A, 7A, 9A, 11A and 12A of the fifth amended statement of claim is the same, the description of the minor is slightly different in each case”: [59]. According to the Judge, it was likely that the variation came about because of the slightly different use of language throughout the publications with the varying use of “teenage” and “underage” in reference to the subject of the sexual misconduct alleged. The Judge did not regard this variation in language as significant.
At the outset, the respondents pleaded their defence of justification to a broader range of imputations as pleaded by the appellant in earlier versions of the statement of claim. In so doing, they relied upon particulars alleging multiple occasions of oral sexual intercourse between the appellant and the underage Jane. In addition and from the outset, the respondents pleaded that a number of “contextual imputations”, also said to arise from the various publications, the particulars of which related to the appellant’s alleged conduct with Jane and with other persons of age, Dianne and Peter, were substantially true. The contextual imputations, as pleaded, were relied on by way of the defence available pursuant to s 24 of the Defamation Act 2005 (SA) which is in these terms:
It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
However, once the appellant, by the fifth statement of claim, confined the imputations relied upon to the two versions set out above, each of which expressly asserts an act of penile/vaginal intercourse with Jane, the respondents could no longer maintain a defence of justification because that defence had been particularised only by way of allegations of multiple occasions of oral sexual intercourse between the appellant and Jane.
Accordingly, to the extent that the appellant confined his case to imputations based on penile/vaginal intercourse with Jane, the respondents were left to rely, by way of defence, on proving the substantial truth of their extensively pleaded and particularised contextual imputations that the respondents contended arose from each of the publications. Those imputations included criminal sexual behaviour (with Jane), 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.
On the first day of trial, the appellant renewed an application to strike out the defence of contextual truth which application was dismissed by the Judge (at [66]) and there has been no appeal from that decision. The appellant also sought permission on the first day of trial to amend his pleadings to adopt, so as to form part of his claim, the contextual imputations pleaded by the respondents. That application was also refused by the Judge (at [68]) and there has been no appeal from that decision.
During final submissions, the Judge raised the possibility that the publications might not convey the specific imputations of carnal knowledge relied upon by the appellant in the fifth statement of claim. In response, the appellant renewed his application to adopt the contextual truth imputation pleaded by the respondents that:
The plaintiff engaged in criminal sexual behaviour while an Anglican priest.
The Judge allowed the application to amend: [67]-[71].
As a consequence, the appellant filed a sixth statement of claim adding this as a third imputation relied upon and the respondents were permitted to amend their defence to admit that third imputation but to plead justification, that is, that its meaning was true in substance and in fact. The defendants in their eighth defence particularised this plea of justification by resorting to the particulars of oral sexual intercourse that they had already pleaded in support of their pleading of this imputation as a contextual truth imputation insofar as it related to Jane.
This led to a pleading complication described by the Judge in the following terms (at [73]):
In amending the defence to plead justification to the imputation that I permitted the plaintiff to adopt, the defendants maintained that same imputation as part of their contextual truth defence. They said that they did so in the event that I found the imputation pleaded by the plaintiff involving an act of penile/vaginal sexual intercourse with a minor to be made out. In the event that I did not find that specific imputation made out but instead found the imputation adopted by the plaintiff as being conveyed by the publication, then the contextual truth imputation that the plaintiff engaged in criminal sexual behaviour as an Anglican priest cannot be an imputation that the defendants can rely upon as part of their contextual truth defence. That follows from the requirement in s 24 of the Defamation Act 2005 that the contextual imputations be in addition to the defamatory imputations of which the plaintiff complains.
[citations omitted]
In due course, the Judge found that only the third imputation, the adopted imputation that the appellant had engaged in criminal sexual behaviour (with Jane) while an Anglican priest, was conveyed by the various publications.
The Judge found, not surprisingly, that this imputation was defamatory of the appellant. However, the Judge accepted Jane’s evidence of oral sexual intercourse and found that this imputation was justified in that it was substantially true. In effect, this served to conclude the proceedings in favour of the respondents. The only imputation relied upon and found to have been established by the Judge was also found to have been justified. However, the Judge went on to consider the respondents’ defence of contextual truth. In so doing, he found that certain of the pleaded contextual truth imputations had been established and had been proved to be substantially true.
Notwithstanding the submission by the appellant to the contrary, the Judge cannot be criticised for doing so. As discussed further below, his Honour’s assessment of the evidence and findings concerning the truth or otherwise of the contextual truth implications were relevant to the Judge’s assessment of the appellant’s credit. Further, if the appellant were to succeed, on appeal, in overturning the Judge’s rejection of the first two imputations relied on by the appellant, his Honour’s findings of fact concerning the contextual truth imputations still might, in large part, determine the matter against the appellant subject to a successful appeal against those findings.

If the Judge’s finding as to the more limited scope, in fact, of the imputation relied on by the appellant were to be overturned, it would be quite unsatisfactory for the appeal court to have to send the matter back for findings of fact, relevant to the contextual truth defence, to be made. It is to the former issue we now turn.
Ground 1 – findings about meaning conveyed by publications – and ground 10
Ground 1 asserts that the Judge was in error in finding the natural and ordinary meaning of the publications was limited to an assertion that the appellant had engaged in criminal sexual behaviour (with Jane) while an Anglican priest and that the Judge ought to have found the actual meaning conveyed to be that the appellant had engaged in penile/vaginal sexual intercourse with Jane. The appellant contended that the Judge incorrectly applied the principles relevant to the question of the imputation or imputations which particular words might bear.
Counsel for the appellant acknowledged that were the appeal to succeed on this ground alone, the outcome would “not dramatically change” because justification of the albeit more limited “criminal sexual behaviour” meaning would have a substantial impact on any damages awarded.
The appeal to this Court is one by way of re-hearing and it is not necessary to form a concluded view as to whether or not the Judge committed any error in his approach. The following propositions are adapted from the joint judgment of Kourakis CJ and Nicholson JJ in Machado & Anor v Underwood & Anor [2016] SASCFC 65 at [90]:
The [Judge] has no special advantage on the question whether the words found to be uttered or published carry the pleaded imputation. Although a question of fact, it is a matter of the construction of the words which [the respondents admit were] published. This Court is free to reach its own conclusion unrestrained by any need to defer to the forensic advantage of the [Judge]. Accordingly, we can move directly to the question of whether the ordinary and natural meaning of the words carried the pleaded imputations [rejected by the Judge] without staying to consider whether the [Judge’s] reasons, on a fair reading, manifest [any] error.
The question before this Court, ultimately, is what is the meaning of the words used in the publications as conveyed to an ordinary reasonable person. In this respect, the Judge had regard to, as do we, the helpful summary provided by Patrick George in Defamation Law in Australia, Butterworths, 2012, 2^nd ed at pp 163-164:
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse not suspicious nor “avid for scandal”. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
[citations omitted]
The same passage was relied on by Kourakis CJ in Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [51] and by the Full Court (Blue, Stanley and Nicholson JJ) in Sands v South Australia (2015) 122 SASR 195 at [175].
The mode or manner of publication is a relevant consideration, English & Scottish Co-operative Properties Mortgage & Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452-453. Further, the articles were not short and whilst it is assumed that an ordinary reasonable person would read the whole of any such article it is not to be assumed that they would exercise the same level of concentration throughout the whole of each article. The articles were not of a transient nature which might attract a greater degree of loose thinking or first (and only) impressions than might usually apply to more permanent forms of publication. Nevertheless, they were of a sensational nature and appeared in a daily newspaper rather than, for example, a book or serious magazine or journal. Sensational articles in a daily newspaper can be expected to attract a degree of loose thinking and less analytical care, see generally, Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166 (Hunt CJ at CL with whom Mason P and Handley JA agreed). These are all considerations to be weighed when identifying the meaning the ordinary reasonable person would give to the published material in issue.
But for the material excluded as referred to in [15], the full text of the articles is set out at appendices A to E. Allegedly defamatory words are to be considered in their context. However, it is helpful to set out the particular language used and relied upon by the appellant as conveying the defamatory imputation that the appellant had committed the criminal offence which at the time attached to conduct involving an act of penile/vaginal sexual intercourse with a minor (Jane). The bulk of the relevant language is found in the first publication, appendix A. Other language of relevance and additional to that found in appendix A, is contained in appendices B to E. In appendix A the appellant was described as one of “SA’s best known priests” and included the following matter.
Matter within a general or non-specific context
·Serious allegations of sexual misconduct
·Serious misconduct allegations
·The disturbing revelations come six weeks after [the Pope] apologised to Australian victims of sexual abuse
·Alleged misconduct with [each of the two females]
Matter within a context referrable to or arguably referrable to Jane
·Sexually involved with a teenage girl in the ‘70s
·Misconduct involving two girls – one underaged
·Allegations involving the underage girl are being investigated by the police
·One female victim [was advised by Cardinal ... in 2004] to contact police herself
·The allegations ... are of a very serious nature
·A sexual liaison with [the appellant]
·Illegal sexual liaison with a Catholic priest
·A very dark cloud over [the appellant]
·[Jane cannot recall] exactly how many sexual encounters
Matter within a context referrable to Peter
·Sexually involved with [another woman] and a man
·Sexual relationship with a man spanned a six year period
·[The appellant] rang me ... and asked me to tell the Archbishop that there was no penetration
·It appeared really important to [the appellant] that I advise the Archbishop that we did not have intercourse
·The exact relationship ... involved no penetration
·A sexual relationship
·The relationship ... included encounters ...
Matter within a context referrable to Dianne
·Sexually involved with another woman [and a man]
·Misconduct including two girls – [one underaged]
·This man ... abused his power over me
·Just one sexual encounter
·A questionable shoulder massage ... ended in a sexual experience
Additional terminology used in the other publications
·Sexual or inappropriate behaviour with a minor (Jane)
·Paedophile taskforce investigation (Jane)
·Investigation of historical sexual offences (Jane)
·An affair (Peter)
·Homosexual affair (Peter)
·Improper conduct (Dianne)
The language used gives rise to a generic description of the conduct alleged against the appellant insofar as Jane is concerned. As such, the conduct alleged is capable of being applied to a broad range of sexual conduct all of which would be regarded as illegal, Jane being underage. The impugned articles were published in 2008 and 2009 and referred to conduct of the appellant with Jane said to have taken place in the 1970s. At those times, as now, a broad range of sexual conduct, including indecent touching, acts of gross indecency performed with the assistance of or in the presence of a minor and conduct involving various forms of penetration, was criminal when engaged in with an underage female.
In short, there always has been a broad range of sexual behaviour quite apart from the act of coitus which, if engaged in with an underage female, would give rise to a criminal offence. It must be the case that an ordinary reasonable person, possessed of ordinary knowledge of human experience and affairs, would be aware of this. A vast majority of such persons would have an awareness or understanding of the different types of sexual conduct, apart from coitus, available to be engaged in with an underage female.
It is no doubt true that some readers of the publications in question, including some who might be described as suspicious or avid for scandal might reach for a meaning in the publications to the effect that penile/vaginal intercourse has been referred to. However, the fact that some might read it in this way is not sufficient for a finding that the fair-minded ordinary reasonable person in the general community would understand the published words in this way. The language used in connection with Jane – “sexually involved”, “allegations ... of a very serious nature”, “sexual liaison” and “sexual [or inappropriate] behaviour” being the stronger expressions used – would not suggest to the ordinary reasonable reader any more than that sexual conduct of an undefined character took place.
The fact that Jane is said to have been underage renders the conduct, whatever its precise nature, illegal and reference to an illegal sexual liaison or to a paedophile taskforce investigation or to investigation of historical sex offences is of limited, if any, assistance in ascertaining what the ordinary reasonable person would infer was the precise nature of the conduct involved.
The sting of the allegations made against the appellant, insofar as Jane is concerned, is that a well known priest in Adelaide has engaged in conduct that: first, is of a sexual nature with a parishioner in circumstances where the priest and the parishioner were not married; second, the other party to the sexual relationship was an underage female thus suggesting an abuse of a relationship of power or influence; and third, is conduct giving rise to a criminal offence. In these circumstances, the fair-minded ordinary reasonable person reading the publications in question would realise that the publisher has been careful with the use of language not to specify the nature of the conduct in question, it being sufficient that there was, as alleged, sexual involvement, sexual misconduct and a sexual liaison.
The appellant relies on a proposition put by Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [134] where his Honour observed:
Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed the ordinary person to draw imputations adverse to the subject.
Counsel also relied upon the following observation of Lord Devlin in Rubber Improvements Ltd & Anor v Daily Telegraph Ltd & Anor (on appeal from Lewis v Daily Telegraph Ltd) [1964] AC 234 at 285:
[I]t is the broad impression conveyed by the libel it has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning of the words conveyed to the ordinary man; you cannot make a rule about that.
The primary ground of appeal in this case was whether the trial Judge had been correct to leave to the jury that the impugned published words were capable of bearing a particular defamatory meaning as pleaded by the plaintiff. Capacity in this context is a question of law for the Judge and one to be distinguished from the question before the trier of fact as to the meaning the ordinary reasonable person would, in fact, attribute to the published words. Lord Devlin’s observations were expressed in the context of his consideration of the former question only.
A similar argument, in reliance on Lord Reid’s comments in the same case and asserting that the “most damaging” meaning available should be adopted as the meaning, in fact, that would be understood by the ordinary reasonable person was rejected, by reference to this same distinction, by the respective Full Courts in Sands v South Australia (2015) 122 SASR 195 at [176]-[177] and Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202 at [99]-[106].
In the present case, the more serious imputations relied on by the plaintiff were available on the pleadings – the publications were, as a matter of law, capable of carrying that meaning. There still remained the question as to what meaning the ordinary reasonable person, in fact, would give to the published words.
In any event, with respect, we do not find the observation by Lord Devlin to be particularly helpful in the present context. The proposition is put at such a general or conceptual level that it is difficult to disagree with it. If anything, the observation assists the respondents’ case. The broad impression conveyed by the publications in this case is that the appellant has engaged in illegal conduct of a sexual nature with an underage female. That is the primary meaning that the words convey to the ordinary person. Indeed, this meaning is explicit.
Insofar as the observation of Kirby J might be of assistance in this case, there is a very real sense in which the words used in the publications are not imprecise or ambiguous. Again, the explicit assertion is that there has been illegal sexual conduct with an underage female. The ordinary reasonable person who sits somewhere towards the middle of the spectrum between those who are suspicious and avid for scandal and those who are unduly naïve would not speculate as to the nature of this conduct but rather, as the respondent contends, regard any such illegal sexual behaviour when engaged in by a priest to be sufficiently heinous such that precisely what might have been involved would be of little moment.
Counsel for the appellant pressed the Court with various dictionary meanings of “sex”, “sexual”, “liaison”, “encounter” and “experience”. In our view, such evidence cannot be relevant to the present question, that is, the meaning that would be understood by the ordinary reasonable person who comes to read the publications in question. In this respect, we agree with the analysis of Hunt J in Aldridge v John Fairfax & Sons Ltd, unreported, Supreme Court of New South Wales Common Law Division, 17 September 1985, Butterworths Cases 8500537:
Dictionaries are of course often referred to during argument upon the preliminary legal question of the capacity of the matter complained of to convey a particular imputation. They are referred to during such arguments simply as reference books from which a judge is entitled to obtain information in order to take judicial notice of the various meanings which can be ascribed to particular works ... . The information gleaned from those dictionaries is not evidence strictly so called ... . If a particular meaning of a word is stated in the dictionary, then clearly enough that word is capable of conveying that meaning but the presence of that meaning in the dictionary is of no relevance to the question which the jury must determine which is not whether such a meaning could have been conveyed, rather, the question which the jury must determine is whether the wording issue in its context in the article as a whole was in fact understood by the ordinary reasonable reader as having conveyed that meaning.
[citations omitted]
In any event, we have not found the various dictionary definitions provided to be of any assistance.
The appellant also contends that assistance with respect to the meaning for which he contends is to be gleaned by the use of the terms “intercourse” and “penetration” in the first publication. However, these terms where they appear in appendix A occur in a context specific to Peter. They occur in a context of Peter asserting that the appellant was anxious for Peter to make it clear to church officials that there had been no intercourse or penetration involved in the homosexual affair Peter alleges he had with the appellant. In our view, the ordinary reasonable person would not light upon these terms in the context of Peter’s story, note their absence in the context of Jane’s story and infer that there would have been penile/vaginal intercourse between the appellant and Jane. This is a process of reasoning that lacks logic and would attribute to the ordinary reasonable person an overly studied (or “over-engineered” as the respondents used the term) approach to reading and understanding the publications.
We have had regard to the reasons provided by the Judge for rejecting the first two imputations relied upon by the appellant and adopting the third (criminal sexual behaviour) imputation relied on by both parties with reference to the appellant’s alleged conduct concerning Jane ([79]-[109]). We can see no error in the Judge’s approach nor, of more significance, has his Honour erred in the conclusion reached ([109]). We agree with that conclusion.
We are satisfied that the third (criminal sexual behaviour) imputation has been established. We are also satisfied that the first two imputations, relied upon by the appellant, have not been established. As such, it is not necessary for us to consider whether or not the “single meaning rule” remains the law in this state, Ten Group Pty Ltd and Others v Cornes (2012) 114 SASR 46 at [47] (Kourakis CJ) and, if so, whether it necessarily applies to exclude the latter two meanings once the former (criminal sexual behaviour) meaning is adopted.
Ground 1 of the appeal is not made out.
It is convenient to consider ground 10 of the appeal at this stage. It was not dealt with during oral submissions and the appellant’s written submission is short and elliptical. Ground 10 refers to the defence of contextual truth provided for by section 24 of the Defamation Act 2005 and would seem to assume that the appellant will succeed with ground 1 of the appeal such that the arguably more serious imputation involving the allegation that the appellant had penile/vaginal intercourse with the underage Jane will be established.
Ground 10 asserts that the trial Judge erred in that he should have found that the contextual truth imputations were not such as to activate the defence in section 24. The appellant contends that it is incorrect to say that the suggestion that a young Anglican priest had unlawful sexual intercourse with a minor would not further injure that priest’s reputation given the truth (if established) of the allegation that he had consensual sex with an adult member of his congregation.

Given that the appellant has failed with respect to ground 1, this issue does not arise. In any event, even if the appellant were to succeed with ground 1, unless he were also to succeed on the grounds dealing with the contextual truth allegations, any damages award would be severely limited thereby.
Evidence relating to justification
Before extracting the appellant’s specific complaints about the Judge’s evaluation of the evidence on the principal issue in the appeal, justification, we shall briefly summarise the evidence of the main witnesses.
Jane
Jane was born in November 1956. From the age of about 12, she was friendly with Alison McNicol, who later married the appellant. Jane and Alison both went to Brighton High School and sang in the St Jude’s Anglican Church choir together, and Jane spent time at Alison’s house after school and during weekends and holidays.
The appellant worked as the assistant curate at St Jude’s at Brighton in 1969 and as a priest from his ordination in February 1970. He left at the end of that year to take up an appointment as Chaplain of the University of Adelaide. He then resided at St Mark’s College at North Adelaide. In addition, he became parish priest of St Paul’s Church, Pulteney Street, Adelaide.
In early 1969 the appellant lived in a flat at the rear of the McNicol house at Seacliff. Jane had contact with the appellant while he lived there. She gave evidence that she and Alison would frequently find occasion to speak to and spend time with the appellant. Over time the behaviour became “flirty”, for example dancing to music in the flat and affectionate “smacks on the cheeks”. Both Jane and Alison gave evidence that they had a “crush” on the appellant in 1970.
Jane gave evidence of an incident involving the appellant occurring when she was 14 years old. She accompanied Alison and her family on a holiday to a town which she said was on the Coorong. The appellant had invited the McNicol family to stay with him while he provided locum relief in a country parish. Church records indicated that the appellant was at Meningie in December 1970 and January 1971 and in his evidence the appellant confirmed the McNicol family visited him there.
Jane said that at this location she and Alison slept in sleeping bags or on camp beds and the appellant slept on a single divan style bed in the same room. Jane described sexual contact with the appellant as follows, at t/s 1375-1376:
AI - Alison and I went up to the bed. Alison sat on the bed with her body turned towards the pillow and began passionately kissing John so she had herself angled so that I couldn't see her. I was about halfway – halfway down the bed, and I either also sat - I sat on the – on the side of the bed and at some point following I held his erect penis
QAre you able to remember now how you came to be holding the plaintiff's penis.
AI don't remember exactly. I remember that his hand was along the wall - wall side and close to his erect penis but I don't - I don't remember the action of actually him holding my hand onto his penis. I do remember feeling that I had been directed to do so.
The next morning, Jane asked to go home and was driven back to Adelaide that day. Jane said that after this event, she felt that she was an “important confidante” but “had the business end” in terms of fulfilling the appellant’s sexual needs.
Jane gave evidence, without any detail, of other occasions when she and the appellant had sexual contact in the form of “masturbation and oral sex”.
Jane also gave evidence of an incident a couple of months after Meningie in the appellant’s car on the Brighton beach esplanade. During this incident, Jane said the appellant told her he was going to marry Alison. She described it as follows, at t/s 1384-1385:
AI remember masturbating him and being assisted to do that. I - I remember that I think there was a car that came - that came, you know, past, it was a relatively - not secluded, but there wasn't a lot of traffic and I remember hiding - hiding down, which meant that my head was in - in John's lap and I think that was the first time that I put my mouth on his penis. After that was concluded, we went - walked down the ramp, the stairs to the beach and we were walking hand in hand. I was feeling extremely special and he didn't ejaculate. I think I - I think it was - I think I felt like it was my idea to do this extra special thing of, you know, putting my mouth on his penis, because it was in the vicinity when my head was in his lap, so I felt like we were, you know, that this was a huge step in our relationship and that I was therefore his, you know, girlfriend or something and he was holding my hand as he walked, as you would a girlfriend and boyfriend and he was -
QSorry, you keep going.
A- and he was holding my hand walking and he said - turned to me and said 'I'm going to marry Alison' and it was dark enough that he couldn't see my face and I guess in that instant I understood that my role was not, you know, Alison was pure and religious and I was engaged to be of service to him until he could marry Alison and so I remember, you know, saying something like 'That's nice' or, you know, congratulating him or something and so I took on the role as taking care of his needs until such time as he could have a marriage relationship.
QHow did that make you feel at the time.
AProbably pretty much fitted into my - I took it on because I was still special, I might not be his betrothed, but I was special. In fact, I was even closer than Alison really, so I was, in fact, you know, closer and would be closer to him than any wife could, because I would be holding a secret from Alison, from everybody and it would just be his - this relationship was - it was - the intimacy.
Jane remembered the last occasion of sexual contact between her and the appellant as taking place in the appellant’s flat in Hawker House at St Mark’s College before mid-1972. She described having her hand and mouth on the appellant’s penis and the appellant ejaculating. Jane said she visited the appellant at St Mark’s College on at least one other occasion, when she washed, massaged and put hand cream on the appellant’s feet.
In her evidence Jane could recall the location of two other incidents of sexual contact between her and the appellant: another on the Brighton beach esplanade and one on Oleander Street in Brighton. Both took place in the appellant’s car. Jane could not recall the nature of the sexual contact on either occasion.
Jane was extensively cross-examined on prior statements, and the appellant sought to challenge her evidence on particular details and also criticised her evidence more generally, including alleging that she demonstrated exaggeration and paranoia towards the appellant and his wife.
The appellant gave evidence that his contact with Jane while living in the McNicol flat was minimal. He only returned home to the flat after 6 pm on most evenings and the occasions he saw Jane at the McNicol house were “very few”: t/s 285. He denied any inappropriate behaviour and any incident of sexual contact with Jane. Regarding the Meningie incident, the appellant said he did not recall that Jane accompanied the McNicol family. His evidence was that he did not really get to know Jane until after he married Alison in January 1975 and even after the first publication he did not see how the “underage female” referred to could be Jane: t/s 2318-2319.
Mrs Alison Fleming also gave evidence. She recalled first meeting the appellant in 1969 and recounted generally her involvement with the appellant during and after the time he resided at a flat at her parents’ house, and their relationship and marriage. Her evidence was that Jane would come to the McNicol house on weekends several times a month, and the two girls would listen to records in the appellant’s flat not as often as once a month. She agreed that she and Jane would have sung and danced to the music and the appellant probably would have danced as well. She denied that she or Jane flirted with the appellant.
Regarding the Meningie incident, Mrs Fleming recalled that the trip occurred after Christmas at the end of 1970 or the beginning of 1971, and that Jane came with her family. She denied that she and Jane slept in the appellant’s room, that she kissed the appellant, was on or in the appellant’s bed with Jane present, or that she or Jane flirted with the appellant on the trip.
Alison Fleming and the appellant began dating towards the end of her Year 12, which was 1973, and married on 4 January 1975, when she was 18 years and 8 months of age.
David Richardson was a resident student at St Barnabas College in 1969‑1970, where he met and became friendly with the appellant. Mr Richardson also knew Jane and Alison through the St Jude’s youth group. Mr Richardson gave evidence of a conversation he had with the appellant between August and December 1971, when he told the appellant he was to marry. His evidence was as follows, at t/s 1999-2000:
AI have a memory that he said words to the effect that he had hoped that I might end up with [Jane] as he hoped to end up with Alison.
QWas the topic of marriage mentioned in respect of [Jane] or Alison.
ANot that I can recall particularly. I can't remember - I can't - I can't recall the details of the conversation that closely.
…
QWhen the plaintiff said what he said to you in relation to hoping that you'd end up with [Jane] and he'd end up with Alison, what impact did that statement have on you at the time.
AIt's hard for me to answer that because clearly in that I remembered it had some sort of impact but I don’t think I took it very seriously. I think I thought it was a romantic reflection.
QBut taking it as a romantic reflection, it stuck in your mind.
AYes.
The Judge found Jane’s evidence of the Meningie incident to be “inherently credible and compelling”: [392]. He also found compelling Jane’s evidence of the St Mark’s incident, referring to the “clear and explicit details of the nature of the sexual contact” she gave: [424]. The Judge was satisfied on the balance of probabilities that both incidents took place and amounted to offences of gross indecency: [426].
The Judge accepted that a conversation along the lines described by Mr Richardson took place: [405]. He treated that as some confirmation that there was also a conversation between the appellant and Jane about his intention to marry Alison. However, in the face of Jane’s uncertainty, the Judge was not satisfied of the nature of sexual contact that occurred on that occasion prior to the conversation: [411].
The Judge considered that the appellant “very much minimised” the contact he had with Jane while at the McNicol’s flat, and that it was clear to him “that both girls felt that they had a special relationship with the [appellant] in the time that he was at the McNicol’s flat and that the [appellant] encouraged that.” [340]
Peter
Peter first met the appellant in 1973 at the beginning of his second year at the University of Adelaide. He turned 18 in February of that year. Peter joined the University’s Anglican Society, of which the appellant was Chaplain, and also became a member of the St Paul’s, Pulteney Street, congregation. Peter socialised with a group after church services, sometimes at the appellant’s flat at St Mark’s College.
In the latter part of 1973, or early in 1974, Peter approached the appellant to meet with him privately as he was distressed about his developing attraction to men. It was Peter’s evidence that the appellant suggested he could benefit from counselling and Peter subsequently met with the appellant for counselling three or four times.
During his evidence Peter recounted an occasion after May 1974, when Peter was leaving the appellant’s Hawker House flat at St Mark’s College, having socialised there with others. He said the appellant kicked him from behind in such a way that the appellant’s big toe connected with Peter’s anus. Peter interpreted this as the appellant teasing him about his homosexuality and drawing attention to what the appellant had learned about Peter.
Peter told the appellant during one counselling session that he found the appellant attractive.
Another incident Peter described followed another counselling session. After it had finished, the appellant asked Peter to wait before leaving and then changed out of his clerical garb into his pyjamas in front of Peter.
On a later occasion, when Peter was about to leave the appellant’s flat, the appellant began to undress and told Peter to “get [his] gear off”: t/s 760. Peter undressed and got into bed with the appellant. The appellant masturbated Peter and encouraged Peter to stimulate him by placing Peter’s hand on his penis. Peter asked the appellant what they were doing and the appellant responded that it was “just a couple of blokes mucking around” and also referenced biblical figures: t/s 761. At the end of this incident the appellant told Peter than he should not tell anyone, and that they had “got this out of [their] system”: t/s 762.
On another occasion, prior to the appellant’s marriage, the appellant went to Peter’s parents’ home at Woodville West. Peter described the appellant lying on the living room floor with his trousers pulled down at which time Peter masturbated the appellant. Peter’s evidence was that during every sexual encounter the appellant would say words to the effect that it would be the last time.
Peter described sharing a dormitory alone with the appellant at an Anglican Society camp at Mylor. The appellant insisted that Peter sleep in the bed next to his and during the night masturbated Peter and took Peter’s hand and put it on his penis. He said this occasion was before the appellant was married, but possibly after he became engaged to Alison.
Peter said that, although he continued to see the appellant after the appellant’s marriage to Alison in 1975, there was no sexual contact until mid-1976.
In early to mid-1976 Peter moved into St Mark’s College. The appellant still resided there. Peter described an incident when the appellant came to his room and they engaged in mutual masturbation. Peter clearly remembered that occasion because it was the first time he ejaculated when engaging in sexual activity with the appellant. This was the last occasion of sexual contact Peter remembered before the appellant moved to England in late 1976.
Peter and the appellant continued to see each other again when the appellant returned to Australia in August 1978. The appellant acted as celebrant at Peter’s wedding in 1980. Peter and his wife became members of the appellant’s congregation. Peter would regularly see the appellant when they shared rides to monthly Diocesan Council meetings. Peter gave evidence that on some occasions when he was driving, the appellant would masturbate through his clothing. Sometimes he would place Peter’s hand on his penis as well.
Peter described a specific incident at about this time when he drove the appellant to the airport. They pulled over and parked and the appellant undid his pants and placed Peter’s hand and his own hand on his penis.
The last occasion Peter related was on 11 May 1983, which date could be pinpointed by the minutes of a Diocesan Council meeting. On that day Peter said he drove the appellant home and placed his hand between the appellant’s legs. The appellant remarked that Peter was at last initiating sexual contact between them. They went into the appellant’s house. In the study the appellant put his arms around Peter and they felt each other’s genitals and kissed. Peter said he felt uncomfortable with kissing the appellant and they stopped and Peter left.
The appellant said he did not recall an incident in which he kicked Peter’s bottom. He said he could not imagine that it occurred. He denied that the subsequent incidents occurred at all. Regarding the final incident, the appellant’s evidence was that he was stressed and that Peter comforted him in the car by putting an arm around him. He said Peter then placed his hand on the appellant’s genitals through his clothes. The appellant responded by telling Peter that “[T]his has got to stop.” Peter agreed and they went home.
Through his counsel the appellant made a number of general and specific criticisms of Peter’s evidence and asserted that Peter had fabricated it.
The Judge found that although some criticisms of Peter’s evidence were justified, it was neither fabricated nor unreliable. Peter’s account was supported by the evidence of Peter’s former wife and Father Alan Courtney, from whom Peter sought advice and guidance about his relationship with the appellant and the sexual contact that had taken place between them. Both persons later confronted the appellant about it. The Judge accepted that the appellant told Father Courtney, “We weren’t having intercourse, it was only mutual masturbation”. The Judge found that this reference was incompatible with the appellant’s account in evidence of that conversation: [270].
The Judge accepted Peter as a witness of truth and was satisfied that there was a sexual relationship between Peter and the appellant and that the incidents took place. He rejected the appellant’s denials of sexual contact.
Dianne
Dianne was born in February 1957. In late 1971 or early 1972 she became involved with St Paul’s Church, where the appellant was then the priest in charge. After 1973 Dianne sought support from the appellant and visited his flat at St Mark’s College on at least three or four occasions for counselling.
In her evidence Dianne described herself as feeling “adulation” and “infatuation” (t/s 1805) for the appellant, having a crush on him and being emotionally immature. Other church parishioners gave evidence that Dianne would monopolise the appellant’s time after services, and was very interested in the appellant. The appellant gave evidence that he considered her a “nuisance”: t/s 300.
Dianne alleged one incident of sexual contact with the appellant occurred when she was 17 years old, just before the appellant’s marriage in January 1975. She said she went to the appellant’s St Mark’s College residence on Kermode Street and into his room, where the appellant sat in a wing chair. The appellant asked her to massage his neck and she went to the back of his chair and did so. Her evidence was he exposed his penis and ejaculated. She said at t/s 1809‑1810:
QDid you remain in position behind the chair or did you move anywhere else.
ADuring the - during - I shifted from the back of the chair to the side of the chair, to the - to my right-hand side of the chair, towards - I'm not sure of the timing in it but during the massage.
…
QAre you able to remember what happened when you were in the position on the side of the chair, having previously been at the back of the chair.
AYes.
QWhat happened.
AI remember - I remember seeing John ejaculating, I remember seeing his penis and then him getting up off the chair after that.
QDid you touch his penis.
AI'm not sure. I'm not sure.
QWhat do you remember about seeing his penis in terms of seeing it.
AI remember it - the look of it being wide, I remember it having a smaller head and white fluid coming out of it.
She was not aware of having any other meetings with the appellant after this incident.
Dianne was cross-examined thoroughly about the incident and elaborated that while she kept the “snapshots” and could “recollect parts” of the incident, she was unable to say with any certainty whether she stimulated the appellant: t/s 1863.
The appellant agreed that he had a number of counselling sessions with Dianne, but that they took place at his St Mark’s flat, not the Kermode Street residence, and that he asked his good friend, Arlene McDonald, to wait outside the room while he had counselling sessions with Dianne, in case he felt “at risk”. Ms McDonald gave evidence confirming that she did so: t/s 2208.

The Judge expressed reservations about aspects of Dianne’s evidence, observing that it was unlikely that the appellant was living on Kermode Street at the stated time. In addition, Dianne said she contacted the appellant only once after the incident, while the appellant and Mrs Fleming gave evidence of numerous phone calls from Dianne before they moved to England. The Judge said there was no reason to reject the appellant and Mrs Fleming’s evidence on this point.
The Judge noted that there was no unequivocal statement by Dianne which supported the particularised allegation that the appellant caused Dianne to masturbate him: [458]. In those circumstances, having regard to Dianne’s evidence and also prior statements she had made, the Judge was not satisfied that the appellant caused Dianne to do anything, and the allegation of sexual contact at Kermode Street was not made out.
We shall now turn to the balance of the grounds of appeal. The order of addressing them is chosen for our convenience.
Grounds 2, 3, 7, 8 and 11 – complaint about the Judge’s approach to proof
It can be seen from the foregoing that the allegations against the appellant made in the various publications and supported by the evidence of Jane, Peter and Dianne in the respondents’ case were serious. The most serious was the allegation of offences against the Criminal Law Consolidation Act 1935 (SA) committed upon Jane. However, the evidence of Peter and Dianne of sexual conduct, including in the case of Peter of an adulterous nature, committed by an Anglican priest to whom those persons had come for counselling were also serious.
Each of the grounds enumerated above complain of a number of findings of fact being made by the Judge in circumstances where he failed to apply Briginshaw v Briginshaw (1938) 60 CLR 336. Those findings were made in respect of the claims of Jane and Peter. The grounds refer variously to “the Briginshaw principle”, “the Briginshaw onus”, and “the Briginshaw standard”. The complaint was put in this way in [13] of the appellant’s written submissions:
The Briginshaw principles enable the Court to say to a defendant in the circumstances of a case such as this: you will be held to at least a burden approaching the criminal burden. For it to be otherwise would undermine the rule of law and Constitutional protections upon which every member of society relies.
Mr Heywood-Smith QC, counsel for the appellant, argued that where the allegations in a civil trial are of a criminal nature “the balance of probabilities moves closer to the criminal burden”; the more heinous the allegation, the more nearly the standard approaches the criminal standard: appeal t/s 24-25.Counsel referred to passages in Briginshaw’s Case, namely, Rich J, at 350:
[In serious matters the] nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
And Starke J, at 353:
If the proof brings no strength of conviction to the mind of the tribunal or, what is much the same thing, does not satisfy the tribunal beyond reasonable doubt of the truth of the fact alleged, especially in the case of serious allegations such as adultery or fraud or crime, then the allegation remains unproved…
And Dixon J, at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
To these might be added this statement of Latham CJ at 347, (a dissentient in the result) which clearly reflects the position of the more recent High Court cases. Having referred to the use of the word “satisfy” in the Marriage Act 1928 (Cth) s 86, His Honour said:
The result is that the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
In Rejfek and Another v McElroy and Another (1965) 112 CLR 517, the High Court overruled a line of Queensland cases which insisted that allegations of criminal conduct made in civil actions had to be proved to the criminal standard. The Court warned against confusion as between the applicable standard of proof on the one hand, and the “relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise” of the allegations on the other. What was required was, on the balance of probabilities, “an actual persuasion of the mind as to the existence of the fraud”, at 521. The Court went on to say:
The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge ...
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170, the plurality judgment of Mason CJ, Brennan, Deane and Gaudron JJ drew the same distinction between the onus of proof in civil proceedings – which remained on the balance of probabilities – and the strength of the evidence which might be necessary to discharge the onus. The Court said that statements to the effect that clear, cogent or strict proof was necessary where allegations were serious went, not to the standard of proof, but to the quality of evidence. Their Honours went on to say at 171:
Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct.
This approach was again affirmed in G v H (1994) 181 CLR 387. There, proceedings taken in the Family Court against the alleged father for maintenance of a child were held not to be so grave as to attract the Briginshaw considerations: 397.
In the present matter, the trial Judge made particular reference to Neat Holdings. The resolution of that case turned on competing evidence as to the accuracy of two inconsistent sets of weekly takings books. Each side claimed that the other had falsified the figures. In those circumstances, the Court said that references to clear and cogent proof were unlikely to be helpful. In his written submissions, the appellant claims that the Judge fell into error by likening the present case to Neat Holdings and, accordingly, casting aside any need for cogent proof. The appellant argues that the trial Judge directed himself that he had to make a choice between mutually inconsistent allegations of criminal conduct, that is, Jane’s evidence of criminal conduct and the appellant’s evidence denying it.
A fair reading of the Judge’s reasons refutes that contention. His Honour referred to the factual matrix in Neat Holdings in the context of his (correct) rejection of the respondents’ argument that Briginshaw provided for a flexible standard of proof: [181-182]. However, his Honour went on to say that the present case was not comparable to Neat Holdings in the sense that this was one concerning “acceptance or otherwise of the direct evidence of particular witnesses”: [184]. Consequently, his Honour considered that he should look for clear and cogent evidence before finding the allegations made by Jane, Peter and Dianne to be proved to his reasonable satisfaction. Having so directed himself, there was no need for the Judge to discuss the matter further.
Therefore, we find that the appellant’s complaints that the Judge incorrectly approached the question of proof of the serious allegations made against the appellant are not made out. First, there is no shifting onus; the onus of proof remains on the balance of probabilities. Secondly, the Judge correctly directed himself that he should not act on the evidence of Jane, Peter and Dianne insofar as it raised serious allegations against the appellant, unless satisfied of the allegations by clear and cogent evidence.
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. Additionally, in the several High Court cases referred to, there is no reference to Briginshaw establishing a “principle”. Rather, reference is made to, for example, grave allegations being determined by reference to Briginshaw considerations: G v H at 400.
Grounds 11 and 12 – complaints in respect of evaluation of Peter’s evidence
These grounds were not addressed orally by the appellant’s counsel. The arguments in support of them were set out at length in the appellant’s written submissions.
The appellant argues that the trial Judge erred in finding Peter’s allegations to be proved. This argument is put both as a general proposition and in the light of the absence from the trial of a number of witnesses and documents. It is convenient to first deal with those specific matters.
Ground 11(c) complains of the respondents’ failure to call a case worker, Ms Downey, of the Catholic Church Marriage Tribunal, and her superior, Monsignor Tiggeman. Their evidence could have been relevant in the following way. Peter’s wife said in evidence that a few months after she separated from Peter in July 1994, she sought an annulment of the marriage through the Marriage Tribunal. She was counselled by a Ms Downey.She conveyed to Ms Downey that Peter had told her that, over a number of years, he and the appellant had been in a relationship which included mutual masturbation. Peter’s wife thought that information would remain confidential, but was told by Ms Downey that she had an obligation to inform her senior person, Monsignor Tiggeman. The Monsignor later advised Peter’s wife that Ms Downey had told him of the situation and that he had spoken to Archbishop Faulkner about it. The Monsignor also said that the Archbishop had spoken to the appellant and the appellant had discussed the matter with his wife.
The appellant argues that evidence from Ms Downey would have settled the question of what she was told and what she passed on. That, presumably, would have borne on what the Monsignor and the Archbishop discussed. The appellant further argues that the Marriage Tribunal file, or at least relevant parts of it, should have been tendered by the respondents. It was said that parts of it were in the possession of the respondents, apparently via the agency of Peter or his wife. The appellant argues that, in circumstances where Peter’s wife was seeking an annulment of their marriage, it might have suited her to claim that a relationship between Peter and the appellant pre-dated that marriage. Apparently, the appellant’s efforts to obtain the documents by subpoena failed because a Master of this Court held they were not directly relevant and, even had they been, only went to the credit of non-parties to the action: Reasons of Judge Dart, delivered 13 January 2014, (unpublished).
Ground 11(b) asserts that the absence from the trial of Archbishop Faulkner caused prejudice to the appellant. Monsignor Cappo gave evidence that the Archbishop was “in a very frail state of health” and that his mental capacities were diminishing: t/s 582. In cross-examination, the appellant acknowledged the Archbishop was approaching 90 years of age and might be suffering dementia: t/s 682. The Archbishop’s evidence might have borne on steps he took after being told of the matters disclosed to the Marriage Tribunal by Peter’s wife, such as discussing the matter with the appellant and his decision to allow the ordination of the appellant to proceed.
The appellant gave evidence that in November 1994 he was contacted by the Archbishop, who put to him that an allegation had been made by Peter’s wife in the Marriage Tribunal to the effect that the appellant had engaged in homosexual contact with Peter. The appellant was asked what he had to say about it. The appellant said he related what had occurred on 11 May 1983 between himself and Peter. He told the Archbishop that he believed this incident was his own fault; that something he had said or done must have led Peter to think that a homosexual advance to him was appropriate. The Archbishop then told him that he was going to investigate the matter further. It may be noted that the Archbishop’s absence from the trial left uncontradicted this account of the limited admission by the appellant.
Peter gave evidence of three conversations he had at about this time with Archbishop Faulkner. He said that, upon being told by his wife that the Archbishop had been informed of his relationship with the appellant, he organised a meeting with the Archbishop. He said that, at that point, he did not go into any detail about the nature of the relationship, because he thought the Archbishop knew what he was talking about. The second meeting was between Peter, his wife and the Archbishop at the Archbishop’s residence. Peter said that there, the Archbishop expressed concern for Peter and his wife. Peter said that after that meeting the appellant contacted him and expressed his concern for what had come out of the Marriage Tribunal. The appellant asked him to tell the Archbishop that there had been no anal intercourse or penetration. Peter said that, as a result, he met again with the Archbishop and made clear to him that there was no anal intercourse or penetration. Peter said that during one of those meetings the Archbishop asked if he had any feelings about whether the appellant should be ordained. In response, Peter said that he did not consider it was a matter for him; rather, it was a matter for the church and the Archbishop.
The appellant further argues that it should be inferred that Peter only ever discussed the 11 May 1983 incident with the Archbishop, because that is consistent with the appellant’s subsequent ordination. He argues it is implausible that the appellant would have been ordained had the Archbishop been told of a “long‑running, adulterous, homosexual relationship”: written submissions [132]. Therefore, it should have been inferred that the Archbishop’s evidence would not have assisted the respondents.
In ground 11(a) the appellant argues that the Judge failed to draw an adverse inference against the respondents in circumstances where they could have, and failed to, subpoena the Catholic Church file on the appellant. As we understand this argument, it is that the onus of proving Peter’s allegations rested on the respondents, the Archbishop was not available, and, in the absence of the church file – which might have contained documents assisting the appellant – Peter should not have been believed.
In our view, these several complaints embody two fundamental misapprehensions. The first is the notion that a party may complain about his opponent’s failure to subpoena documents when he himself could have done so. Ultimately, any comment must flow from a failure to present evidence rather than a failure to obtain access to it.
The second relates to the admissibility of much of the material, the absence of which is the subject of complaint. As the Master rightly noted after a pre-trial skirmish, documents which might disclose assertions by non-parties such as Peter’s wife – but this also applies to assertions by the Archbishop, the Monsignor and Ms Downey – have no apparent relevance. On the face of it, they are not admissible. If some of the evidence called in the trial went to conversations between persons who were neither parties nor the three complainants, that should not be used to justify the call for further inadmissible evidence. That documentary material in files could conceivably contain someone’s notes of what a person was told by someone who had spoken to, for example Peter, is not a justification for use of the Court’s coercive powers to obtain that material for the use of a party, let alone to allow its admission into evidence.
Furthermore, that the Archbishop allowed the appellant’s ordination to proceed in the face of Peter’s allegations is, for two reasons, colourless. First, the response of church officials to complaints of sexual misconduct by church functionaries is, now notoriously, problematic. Secondly, whatever its flavour, the Archbishop’s opinion of the situation regarding the appellant and his forthcoming ordination is plainly irrelevant.
Ground 11(d) is a complaint that the respondents, having called Father Courtney, failed to lead certain evidence from him. This argument appears to relate to evidence given by Peter concerning an incident at an Anglican camp at Mylor in 1975. Peter told the Court that, at this camp, the appellant had insisted that he sleep in the bed next to the appellant’s in a room allocated to him. During the night, sexual activity occurred between them. Peter said that, before that occurred, he had tried to get Father Courtney to stay in the room with them. He said that Father Courtney initially did so but then, having found accommodation elsewhere, left.
The respondents called Father Courtney in relation to another topic, but led no evidence from him about the camp at Mylor. However, in cross-examination, the appellant’s counsel asked Father Courtney whether he had been asked to share a room with either Peter or the appellant, or both, at one of the camps he had attended, and he denied it. The appellant also called evidence from several female church stalwarts, who were involved in the organisation of the camp, to the effect that, at such camps, the appellant invariably slept alone in separate accommodation.
The Judge referred to this topic at [243]–[246]. He noted that Father Courtney had given “a bare denial” of being invited to share a room with Peter or the appellant on any occasion. However, the Judge added that Father Courtney had not been fully cross-examined about that.
The appellant argues that here was an occasion when the evidence of a third party might have given independent support to Peter’s account of events, but fell short of doing so. The appellant complains that the Judge should have, but did not find that Father Courtney’s denial of any such invitation undermined Peter’s credibility. And it is put that, by referring to the limited cross-examination of Father Courtney, the Judge was effectively throwing the onus on the appellant to disprove the underlying allegation.
We find no force in these arguments. Indeed, the ground, as it stands, suggests that there was some obligation upon the respondents to cover this topic when leading the evidence of Father Courtney. That is a misconception. In any event, Father Courtney’s denial of there being such an occasion might or might not have any significance. He was looking back over events which occurred some 40 years ago. He could hardly be expected to recall a suggestion or invitation that he sleep at a particular place where it meant nothing to him. The Judge was entitled to the view that his denial added nothing. We do not apprehend any issue in relation to the onus of proof. That other witnesses confirmed that the usual accommodation arrangements at such camps were that the appellant would have his own room could hardly determine the issue. Those witnesses faced the same difficulties as Father Courtney. In any event, even if that were the usual practice, those persons would hardly be in a position to know that it was followed invariably.

In our view, it was open to the Judge to make the findings he did.
Ground 8 – use of findings in respect of Peter in relation to Jane
The appellant argues that, having allowed him to amend his pleadings on the last day of the trial to enlarge the meanings imputed to the articles to include “criminal sexual behaviour” – which meaning was acknowledged by the respondents – the Judge should have approached his consideration by first dealing with justification so far as it concerned Jane. If he accepted Jane’s evidence then, strictly, there was no need to go to the evidence of Peter and Dianne.
Counsel put that the vice of approaching the evidence as a whole – or dealing with the evidence relevant to Peter first in his reasons as the Judge did – was that his Honour was then in a position to import findings made in respect of Peter’s allegations into his consideration of the allegations made by Jane. Counsel ultimately abandoned a submission that this “had the effect of allowing propensity evidence in under guard”: appeal t/s 33. Instead, he contended that this allowed the Judge to impermissibly use adverse credit findings in relation to the appellant and his wife in evaluating the issues raised by Jane’s evidence. Counsel was unable to cite any authority or to formulate any principle which dictated that the allegations arising from Jane’s evidence had to be dealt with first.
There are several points to be made. We do not agree that the late amendment of the pleadings had any impact on this situation. Either, as the pleadings stood at the beginning of the trial, or after the late amendment, the defendants had made a plea of justification and a plea of contextual imputations. In those circumstances, at either point in the trial, the evidence of Peter and Dianne was admissible. There was no objection to it.
Secondly, there was no obligation as a matter of principle for the Judge to proceed in any particular order, either in his consideration, or in his reasons for decision. It was only natural that the Judge’s impressions of all the witnesses, and especially of the appellant and his wife, would be based on the totality of the evidence. It is implicit in that statement that there was no obligation upon him to effectively “silo” the evidence bearing on each complainant.
Thirdly, the Judge’s obligation was to deal with all the issues arising in the trial. No matter what he found in respect of Jane, he was required to continue on to make findings with respect to Peter and Dianne. That point underlines how futile any attempt to require the Judge to first consider Jane would be. Even if it were assumed that the Judge made decisions as he progressed in the writing of his reasons, a later finding could have caused him to re-visit an earlier one.
Ground 7 – assessment of Dr Arnold’s evidence
Michelle Arnold has a Doctorate in Cognitive Psychology and is a lecturer and teacher in the field of human cognition and memory. She provided a report to the appellant’s legal advisors (Exhibit P84) and was cross-examined upon it. She also provided an addendum report (Exhibit P85). The appellant complains that the Judge erred in his assessment of Dr Arnold’s evidence and failed to properly consider it in the process of evaluating Jane’s allegations.
Dr Arnold gave evidence about the way in which memory can be distorted and, in some cases, can be entirely false. She did not assert that Jane’s memories were false, but identified what she called “red flags” in the material she had seen: t/s 2650.
Dr Arnold discussed the impact that counsellors could have on a person’s memory, especially where they were not “neutral”. She expressed the opinion that, in the sympathetic interactions Jane had had with Father John Stephenson, he could have influenced her. In addition, he might have imparted knowledge to her of the location of the house in which the Meningie incident occurred and she might have incorporated that knowledge into her account. In her initial statements, Jane did not identify the town in which that incident occurred, but said it was in a country town, or on the Coorong. However, at a later time, she nominated Meningie. In her evidence she claimed that police officers had told her at some point that the appellant had told them of his time as a locum at Meningie and that this information came from them and not from Father Stephenson. By the time of the trial, Father Stephenson was dead, but he had provided a statement which was tendered Exhibit P71. That statement addressed a lunch which he and Jane had, the purpose of which was to help her remember where an incident might have occurred. The appellant argues that it is a fair inference that Father Stephenson told Jane that the incident must have occurred at Meningie.
Dr Arnold was critical of a statement of Jane’s to the effect that she had selectively blocked out some parts of an event, instancing the Brighton beach episode. Dr Arnold said that humans do not have that ability.
At trial, the respondents suggested that much of Dr Arnold’s opinion was based on contradicted assumptions and unfounded evidence. In addition, they suggested she was biased. That last assertion rested on the production of a document prepared by her during the course of Jane’s cross-examination and headed “Potential Questions for Jane”. Dr Arnold agreed that she had discussed the content of that document with the appellant’s solicitors. The Judge found that this compromised Dr Arnold’s independence and it led him to be “cautious about accepting Dr Arnold’s views”. In any event, he said that he did not think that he was assisted by them: [380].
We do not consider that one could sit as a Judge for more than a decade and yet be ignorant of the dangers of reconstructed memory, memory influenced by counsellors and other confidantes, selective memory and exaggeration. The sorts of matters highlighted by Dr Arnold were the very things which the Judge would have been alive to in any event. Expert witnesses such as Dr Arnold are called, not to assume the function of a judge, but to assist the judge in his or her decision. Particularly in circumstances where, perhaps through inexperience, Dr Arnold had seemingly taken a partisan view to the matter, we consider that no criticism can attach to the Judge in his finding that the expert evidence was not of assistance.
This ground of appeal is not made out.
Grounds 5 and 6 – evaluation of the appellant’s credibility
Ground 5 complains of the Judge’s evaluation and use of evidence relating to a topic involving the use of the term “ménage à trois”.
The term was first used by the respondents’ counsel in cross-examining the appellant early in the trial. A more detailed account of the way in which this became relevant is set out in the Judge’s reasons at [196] – [203]. For present purposes, it is enough to relate that when the appellant was asked in cross‑examination whether he told Monsignor Cappo that many years ago he had been accused of engaging in a ménage à trois, he denied it, said Monsignor Cappo was absolutely wrong, said that he was amazed and said, “I have no idea where Monsignor Cappo got that from and I can assure you absolutely that I never said any such thing”: t/s 308. He also asserted that Monsignor Cappo took no notes during the interview and that his report to Archbishop Faulkner attributing the use of that term to the appellant was “written after a non-notetaking event” and was “creative”: t/s 321.
It turned out that when Monsignor Cappo came to give evidence he produced hand-written notes of the interview which contained that very expression and which notes apparently evoked a memory in the appellant of having used that expression to Monsignor Cappo in quite another context. The Judge observed that, having regard to Jane’s allegation of the event at Meningie, one would expect the appellant to be defensive about this topic. Such a sensitivity might have been heightened by the same expression having been put to him by a Constable Warden in November 2008, in reference to the Meningie incident.
Having summarised all the relevant evidence, the Judge expressed concern about the emphatic nature of the appellant’s denials of using the term to Monsignor Cappo. He said that this would “strongly tell against any confidence that I might have in accepting or giving weight to his emphatic and positive denials in other aspects of his evidence”: [203]. The appellant complains that, in so saying and in using that finding in relation to other evidentiary contests involving the appellant, the Judge erred.
In ground 6 it is argued that, having made this adverse credit finding against the appellant, the Judge erred in then “discounting” the balance of the appellant’s evidence. No particulars are given in support of this ground.
In our view, the Judge was entitled to take a dim view of the appellant’s evidence on the topic of the ménage à trois. Plainly, the appellant saw the appearance of the expression in Monsignor Cappo’s report to Archbishop Faulkner as an embarrassment to him. He was prepared to pit his credibility against that of Monsignor Cappo and to assert that Monsignor Cappo had engaged in “creative” writing, plainly not recalling that Monsignor Cappo had been taking notes at the time of the interview. When the notes were produced and the evidence of Monsignor Cappo given, the appellant appeared to recall his use of that term to Monsignor Cappo in a different context. However, the Judge was entitled to the view that the damage was done.
There can be no question that all aspects of the appellant’s presentation as a witness were available to the Judge as a basis to assess credibility. The appellant gave evidence which was in conflict with that of a number of other witnesses. The Judge had a good deal of material on the basis of which to assess the appellant’s honesty and reliability. His reasons demonstrate that he did so in a dispassionate and measured way.
There is no force in these complaints.
Ground 9 – failure to bring to account evidence of good reputation
The appellant claims that the Judge “erred in law at [472] in failing to bring to account on the issue of justification the plaintiff’s good reputation”.
At trial, the appellant called what the Judge described as “impressive evidence of his general good reputation”: [469]. The Judge accepted that this was relevant to damages: [473]. However, it was a matter of dispute between the parties whether the evidence was also relevant to the issue of proof of justification. The Judge referred to a discussion of this issue in Gatley on Libel and Slander, 12^th ed, Thomson Reuters (Professional) UK Limited 2013 at [32.62] to [32.65]. It is necessary to explain that discussion.
In earlier editions of Gatley – and for this purpose we refer to the 8^th edition – a general principle had been expressed to the effect that evidence of the plaintiff’s good character was, as a rule, irrelevant or unnecessary in an action for defamation, because the law presumed that his character was good and he could rest on that presumption. It was said to make no difference that justification was pleaded. The authors admitted some limited exceptions to that rule.
In Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474 at 482, Hunt J criticised that passage of Gatley. That was a defamation suit taken by an author after a review of his latest book published in the National Times. The defendants pleaded comment. The plaintiff tendered evidence of his reputation as a writer and as a person. Hunt J was critical of the statement of principle in Gatley, observing that it was based on “old and unsatisfactory” authorities: 482. His Honour went on to say that the basis and purport of the presumption of good reputation remained uncertain. He said at 483:
But whether the presumption be that the plaintiff’s reputation was good or merely that it received some injury, there is, in my opinion, neither logic nor principle to support the further step which the defendants take, that evidence of good reputation is not only unnecessary but also “irrelevant” (as Gatley puts it) or inadmissible, as the defendants argue. Whichever presumption it is, it clearly is not an irrebuttable one. All that it does is to relieve a plaintiff of proof of an element of his cause of action, so that if no evidence is led on that issue, he has nevertheless discharged his burden of proof and the jury must conclude that his reputation is good (or has been injured) unless the contrary is proved. Wigmore on Evidence (1940) 3rd ed, after stating that the matter has been the subject of much difference of opinion, concludes vol 1, par 76, at p 506:
“The better rule seems to be that (the plaintiff’s) reputation is assumed to be good, and that he has therefore no need to sustain it until it has been attacked.”
So far as I have been able to discover, a party is never prevented from leading evidence to establish an issue upon which he has a rebuttable presumption in his favour. In Ratcliffe v Evans [1892] 2 QB 524, Bowen LJ, in dealing with slander actionable per se, said (at p 530): “The law in such a case, as in the case of libel, presumes, and in theory allows, proof of general damage.”
In response, Gatley acknowledged Hunt J’s criticism and altered the relevant section of his work to refer to Bickel, and then stated in the 9^th ed at [32.52]:
32.52Whether such evidence necessary or relevant. ... It is submitted that an accurate statement of the law is that evidence of the plaintiff’s good character or reputation is generally unnecessary, but not irrelevant. However, unless rebutting a plea of justification, its relevance would relate to damages, and the evidence should be directed at the plaintiff’s general character or reputation, and should not include particular instances of good conduct. In the absence of a plea of justification the plaintiff cannot lead evidence as to his enhanced or undiminished reputation at the time of trial.
[citations omitted]
That statement survives in the 12^th ed at [32.62]. The Judge referred to it.
However, common to both the 8^th and 12^th editions is this statement, which the Judge relied on in ruling as he did:
32.65 Evidence must disprove specific charge. The evidence tendered in rebuttal of a plea of justification must go to disprove the specific charge made by the defendant. If the charge, whether in the words complained of or in the particulars of justification, imputes a particular act of misconduct, evidence of the claimant’s general good character in that respect is not admissible in rebuttal of the plea. ...
In support of that statement is cited (among others) Cornwall v Richardson (1825) Ry. & M. 305; 171 ER 1029. However, that authority, which relevantly concerned a plea of justification in respect of an allegation of theft against the plaintiff, appears to be contrary to the decision in Bickel and contrary to the earlier paragraph of Gatley. That last quoted paragraph of Gatley is directed at the question of relevance: that the evidence led by the plaintiff in reply to the plea of justification must go to disprove the specific allegation made by the defendant. As mentioned, it was this passage upon which the Judge relied in ruling that the evidence of reputation was not relevant to the plea of justification.
With great respect to the Judge, we do not agree. In the criminal court, evidence of good character and good reputation is always permitted in answer to the charges. It is seen to be logically relevant: see Heydon AC QC, J.D. Cross on Evidence, 8^th ed LexisNexis at [19100] ff: Melbourne v The Queen (1999) 198 CLR 1. In our view, consistent with Bickel’s Case, the evidence called was available for that purpose as well.
For the following reasons, we consider that the Judge’s decision not to have regard to it in relation to justification could not have affected his decision. First, the Judge directed himself in accordance with Neat Holdings that he should not find any of the allegations proved in the absence of clear and cogent evidence. The policy reasons underlying the need for evidence of that calibre are that members of the community do not ordinarily engage in criminal conduct and courts should not lightly make findings in the course of civil litigation that they have been guilty of such conduct: Neat Holdings at 171. Consequently, the Judge approached the issue of justification with appropriate caution. Secondly, quite apart from the evidence of good reputation, the plaintiff/appellant plainly came to the Court as a person of some standing in the community. That could hardly be divorced from the assessment of his evidence. Thirdly, this was not a single allegation of misconduct. These were allegations made independently by three separate persons. In the case of Peter, there was substantial independent support for his account in the form of Father Courtney’s evidence. Evidence of good reputation was effectively swamped by the nature of the allegations themselves.
Although we consider the Judge erred in his ruling, we do not accept that it could have made any difference to his findings.
Ground 3.2 – prejudice arising from the age of the allegations
The appellant argues that the “prejudice/forensic disadvantage” arising from the fact that the claims of Jane and Peter were made many years after the events they describe should be visited upon the respondents, rather than upon him. He argues that the situation is analogous to that occurring in the criminal courts where charges are laid and prosecuted many years after the alleged offences. At trial, counsel for the appellant referred the Judge to several decisions of the South Australian Court of Criminal Appeal dealing with forensic disadvantage in the context of historical sexual charges.
The Judge dealt with the issue of the age of the allegations at [189] – [193]. He said he took into account the absence of certain witnesses and the absence of diaries which were apparently kept by the respondent. No specific complaint is made about his approach.
We would make several points in relation to this ground.
It is hard to see how, apart from through a correct application of the onus and standard of proof, any resulting prejudice could be visited upon the respondents. The Judge said he would not find the respondents’ allegations proved in the absence of clear and cogent evidence and he said he found such evidence. As was observed in relation to grounds 11 and 12, the admissibility of the evidence of some of the witnesses who were unable to give evidence was, to say the least, doubtful.
Furthermore, the analogy with the criminal courts is imperfect. There, persons have been brought before the courts many years after alleged offences to answer charges for sexual offences. Their liberty is at stake. On many occasions, the allegations have been made to police or prosecuting authorities earlier and not then proceeded with. A critical difference between those situations and the present is that the appellant has voluntarily initiated this litigation. Any forensic difficulties facing him due to the age of the respondents’ allegations must have been apparent to him before he undertook that course.
We consider that the Judge correctly approached the issue of proof of the respondents’ case of justification. No error is shown.
There is another topic relating to the matter of delay which, although not figuring in any ground of appeal, was mentioned in the appellant’s written submissions. It is the delay in delivery of the Judge’s decision and reasons. Exactly one year elapsed between the day upon which judgment was reserved and the day of delivery.
A delay of this length is rarely acceptable. We do not wish to appear to condone such a delay, but there are some countervailing aspects which are relevant to the question whether the delivery of justice has been affected and which should be mentioned.

This trial occupied 37 sitting days. The transcript runs to 2970 pages. A long list of exhibits were tendered, many of them inadmissible. As has already been outlined, a good deal of inadmissible evidence was admitted, almost entirely without objection. Ultimately, the Judge’s consideration of the matter was thereby made more difficult. Without wishing to detract from the complexity of the pleadings and the fact that the respondents’ defence involved three principal witnesses, in our view the trial was simply not adequately contained. Counsel for both sides must bear some responsibility for that. The scope of the issues to be examined in the trial did not justify a trial of this length. While trial judges in this jurisdiction do not as a rule impose time limits upon counsel – particularly senior counsel – the time seems to be approaching when that will become necessary and appellate courts will be asked to respect the right of trial judges to do so where counsels’ judgment appears to be lacking.
As has already been observed, the reasons for decision in this case are lengthy. They are also detailed. They demonstrate a sure understanding of the issues and of the appellant’s arguments and an ample grasp of the fine detail of the evidence. In our view, it cannot be said that the delay in delivering judgment has had any impact on the ability of the Judge to do justice to the parties.
Ground 13 – damages
The appellant has failed at the first hurdle. The imputation proved has been justified. Any subsequent appeal, should there be one, might fail in which case that would be the end of the matter. However, even if a subsequent appeal were to succeed there would be a number of conceivable outcomes, including the following.
(i)The appellant might succeed in establishing the arguably more serious imputation (ground 1) but fail in all other respects such that the section 24 defence might still be made out. In any event, while justification would not be made out, the proved substantial truth of the imputation that the appellant had engaged in criminal sexual conduct with Jane while an Anglican priest and the many other highly damaging contextual truth imputations (as earlier summarised) established upon an acceptance of Jane’s and Peter’s evidence would have a significant impact on any damages including for loss of reputation and economic loss.
(ii)The appellant might fail with respect to ground 1 but succeed in overturning the finding arising from Jane’s evidence that he had engaged in criminal sexual behaviour. In this case, this arguably less serious imputation (as, in fact, found by the Judge and this Court) would not be justified. However, the proved substantial truth of the many other highly damaging contextual truth imputations established upon an acceptance of Peter’s evidence still would have a significant impact on any damages to be awarded.
(iii)The appellant might succeed in having all of the findings based on Jane’s evidence and Peter’s evidence overturned in which case, no matter what form of the imputation was adopted, the defences of justification and contextual truth under section 24 would fail. On any analysis, substantial damages would follow.
The Judge did not proceed to a final assessment of damages; there would have been no utility in doing so. However, his Honour did make some findings of intermediate fact relevant, in particular, to the appellant’s claimed economic loss. By appeal ground 13 the appellant contends that the Judge erred in failing to find a causal link between the first publication and the appellant’s loss of employment. The appellant also, in his written and oral submissions, pressed this Court to proceed to assess damages, presumably on the basis that the appeal would, in all other respects, succeed.
An assessment of damages and any review of the causation issue referred to in ground 13 would lack utility. Even if the subsequent appeal were to succeed, absent a complete vindication, the reasoning and findings of the appeal court would inevitably have a material impact on the assessment of any damages.
Conclusion
In all but one instance we have found no merit in the grounds of appeal. As earlier stated, we do not consider that the decision that reputation evidence could not bear on proof of justification could have made any difference in the Judge’s findings.
The appeal is dismissed.
Appendix A
Father John Fleming involved in sexual misconduct claims
EXCLUSIVE: ONE of SA’s best-known priests was appointed to a prestigious Catholic teaching position despite the church being aware of serious allegations of sexual misconduct against him.
Father John Fleming is being investigated by the police Paedophile Task Force over allegations he was sexually involved with a teenage girl in the 1970’s.
Detectives have also taken statements from another woman and a man who were allegedly sexually involved with father Fleming after seeking counselling from him.
A five-week Sunday Mail investigation has revealed Australia’s highest-ranking Catholic, Cardinal George Pell, was aware of the allegations concerning at least one victim prior to Father Fleming being appointed to head Sydney’s Campion College, a Catholic liberal arts facility, in 2005.
The Sunday Mail investigation has also revealed that former Catholic Archbishop of Adelaide Leonard Faulkner and one of his officials knew Father Fleming was the subject of serious misconduct allegations prior to ordaining him a Catholic priest in 1995.
On Friday, current Archbishop of Adelaide Philip Wilson engaged prominent lawyer Michael Abbott, QC, to conduct an independent inquiry into the diocese’s handling of the allegations against Father Fleming.
Archbishop Wilson has also “requested that the priest return to the archdiocese to assist” with the investigation.
“Mr Abbott has been retained to conduct an inquiry into the process and procedures regarding this matter,” Archbishop Wilson said yesterday.
“We will place no limits on the extent of the inquiry or where Mr Abbott wants to go with this to address this issue. In the interests of due process, the Archdiocese of Adelaide cannot comment further.”
The move came after the Sunday Mail posed questions to Archbishop Wilson’s office on Wednesday over the diocese’s handing of the allegations surrounding Father Fleming and also informed it of the police investigation.
The misconduct involving the two girls – one underaged – occurred in the 1970’s, while his sexual relationship with the man spanned a six-year period ending in 1981.
Police yesterday declined to comment, but it is known the file will be sent to the Director of Public Prosecutions, Stephen Pallaras, QC, when completed.
Only the allegations involving the underage girl are being investigated by police. The other two cases are being examined as part of that inquiry.
The Sunday Mail has obtained the police statements of the three people and has also interviewed them at length.
The disturbing revelations come six weeks after Pope Benedict XVI apologised to Australian victims of sexual abuse and promised that the church would treat them with care and compassion.
The Sunday Mail investigation has revealed the Anglican and Catholic churches have been aware of allegations surrounding Father Fleming for many years.
In the case of the male, the Catholic Church was made aware in 1995. It was also made aware of the alleged misconduct with one of the females in late 1994 and the second female in 2000. After a distinguished career as an Anglican priest, Father Fleming controversially left in 1987 to join the Catholic Church, which ordained him in 1995.
He left Adelaide in 2005 after being appointed president of Campion College, Australia’s first Catholic liberal arts teaching facility, in Sydney.
In 2003, he was appointed by then Prime Minister John Howard to the board of the Australian museum.
In an April 2004 letter obtained by the Sunday Mail, Cardinal George Pell acknowledges the complaint against Father John Fleming from one female victim. Cardinal Pell wrote back the next day and advised the victim to contact police herself.
“The allegations you make against Fr Fleming are of a very serious nature. They should be investigated by the police and I would encourage you strongly to pursue your complaint with them,” Cardinal Pell wrote in his response.
Despite Cardinal Pell and the Adelaide Diocese being aware of allegations, Father Fleming’s Campion College appointment went ahead.
His three victims all want his position reviewed and a thorough internal investigation into his conduct. One of his victims, Dianne, told the Sunday Mail.
“I was so angry that this man who had abused his power over me and had such a huge impact on my life, an immediate impact, had been put in a position of power again over young people.
“I cannot imagine how a person who has questions about their integrity can be put into such a position.”
The Sunday Mail investigation has also revealed the Catholic Church proceeded with Father Fleming’s 1995 ordination despite then Archbishop Leonard Faulkner being told about, and meeting with the man who had a sexual relationship with Fleming.
The man was aged 20 when he sought counselling from Father Fleming over his sexuality. Archbishop Faulkner had several meetings with the man in 1995, during which he was told of the relationship spanning six years.
The man’s police statement reveals Father Fleming had contacted him in an agitated state after he was first spoken to by church officials.
“I believe the Catholic Church must have been in contact with him because he rang me distressed about it and asked me to tell the archbishop that there was no penetration,” he told police.
“It appeared really important to John that I advised the archbishop that we did not have intercourse. I did tell the archbishop the exact relationship I had with John, which involved no penetration, but I didn’t think it mitigated anything. I recall the archbishop asking me whether he should ordain John. I told him that it wasn’t up to me to make that decision.”
The man, who asked to be known only as [Peter], said he was surprised Father Fleming was ordained months later. The Sunday Mail sought a response from Father Fleming at his Sydney home on Thursday.
He provided a written statement via his wife, Alison. “The proper course is for these allegations to be investigated by the police or the church in the ordinary way,” he said.
When the Sunday Mail contacted his lawyer, Michael Sykes, on Friday and asked if Father Fleming was denying the allegations, he would not directly respond.
“This is not the appropriate forum for him to come out with any response to the allegations,” Mr Sykes said. “The appropriate forum is the courts or the ecclesiastical disciplinary tribunal mechanism.”
Late on Friday, Cardinal Pell’s office provided the Sunday Mail with a written response to questions posed to it on Thursday. “As Archbishop of Sydney, Cardinal Pell has no jurisdiction over other dioceses or priests belonging to them,” it said.
“When allegations are received about priests in other dioceses, complainants are encouraged to go to the police or the Professional Standards Office in the relevant state.
“A copy of the complaint is also provided to the appropriate Professional Standards Office to follow up. Responsibility for the selection and appointment of staff at Campion College is a matter for the college, which is a private institution, not an official church agency, and outside the Sydney archdiocese.”
Campion College chairman Mr John de Bruyn refused to comment on Friday. It is not known if the college was aware of any of the allegations surrounding Father Fleming at the time of his appointment.
While Father Fleming is president, he answers to a board of trustees, headed by Mr de Bruyn. One trustee is Cardinal Pell’s private secretary, Dr Michael Casey.
·Victim’s statement: Jane’s story/Cardinal Pell’s reply
·Victim’s statement: [Dianne’s] story/Cardinal Pell’s reply
·Victim’s statement: Read [Peter’s] story
Read Jane’s story
JANE kept her secret for more than 25 years. A sexual liaison with Father John Fleming irreversibly affected not just her formative adolescent years, but also her adulthood.
When she finally took the step in 2000 to tell the Anglican Church what had happened, she had no idea what lay ahead.
Although she said it affirmed what had occurred was illegal, she was advised to contact the Catholic Church because Father Fleming was no longer employed by them.
Her interview with the Catholic Church was a body blow.
“Wasn’t he just being inappropriate?” she was asked by a church official.
“When I got this reaction, I thought: ‘How could they say that? They heard what happened’,” she told the Sunday Mail.
Later, in June 2002, she wrote about her complaint in detail and sent a letter to the Anglican Professional Standards Office, asking for consideration in the way her complaint was handled.
She was told that her complaint needed to be official – although what this meant was never explained.
Those initial responses shattered her self-confidence and led her to both question and continue to blame herself for what had occurred – a reaction common to many abuse victims.
But believing she was the only victim, she relapsed into silence, until, unexpectedly and devastatingly, John Whitham from the 2003 Anglican Board of Inquiry told her about other possible victims.
This moved her to try again with the Catholic Church, and she wrote to Australia’s highest-ranking Catholic, Cardinal George Pell, in March 2003, advising him of an illegal sexual liaison with a Catholic priest.
She knew Cardinal Pell could get access to a statement prepared after the initial interview in 2000 and her unsigned written complaint in 2002.
Again, there were demands made to report her complaint in a particular way by the Adelaide office, when this was impossible for her.
Jane’s dismay at the Catholic Church’s apparent ambivalence towards her complaints turned to anger and concern when Father Fleming was appointed president of Campion College in Sydney in 2005 – 18 months after she advised Cardinal Pell of the allegations and over four years after she first advised the Adelaide Diocese of the situation.
“As far as I am aware, they did nothing about following up what I had told them. Presumably that would have been an important thing to do,” Jane said.
“I would still be on their books. They have never followed me up. They just don’t want to know about it, even though they know there is a very dark cloud over one of their highest profile figures.
“He is in charge of a college where there are vulnerable people. They will not be underage, but they are vulnerable.”
Jane said that although she remembers the first occasion vividly, she does not have an accurate memory of exactly how many sexual encounters she had with Father Fleming.
Although dates and locations are detailed in her police statement, Jane has asked the Sunday Mail not to reveal them because she fears this will identify her.
Jane said that once she knew she was not the only person who had made a complaint about Father Fleming, she believed it was her moral responsibility to speak out.
She has completed and signed her formal statement after being interviewed by the Paedophile Task Force several times since last October.
“I don’t want revenge here, what I want is for people to be living cleanly and to take responsibility for their actions,” she said.
“I don’t want to have to hide any more, I don’t want to have to protect people anymore.”
Read [Dianne’s] story
This part of appendix A is omitted as foreshadowed in [15] of these reasons.
Read [Peter’s] story
VULNERABLE and confused about his sexuality, [Peter] confided in Father John Fleming.
He expected guidance from a man he held “in awe”, but instead ended up in a sexual relationship with the popular priest.
The relationship, which included encounters in Father Fleming’s St Mark’s College flat, on Anglican camps and later in the carpark of Father Fleming’s then parish at Plympton, spanned six years.
While it started in 1975 prior to Father Fleming’s marriage and continued after it, the relationship ceased while Father Fleming went overseas for several years in the late 1970s.
After [Peter] and his wife were married by Father Fleming in 1980, his relationship with him resumed – ending when [Peter] confided in another Anglican priest.
In 1994, [Peter] and his wife separated after he came out.
His wife then sought annulment of their marriage, citing his sexuality and relationship with Father Fleming.
At the time, both were switching from the Anglican to the Catholic Church – at the same time Father Fleming was also switching denominations.
During a marriage tribunal meeting, [Peter’s] relationship with Father Fleming was revealed – a confidence that was broken when then Catholic Archbishop Leonard Faulkner was advised.
[Peter] told the Sunday Mail Father Fleming had rung him shortly afterwards in a distressed state.
It was because of the disclosure of confidential information that [Peter] sought, and held, at least three meetings with Archbishop Faulkner.
While [Peter] was primarily concerned at the breach of confidence by the tribunal, he also told Archbishop Faulkner of his relationship with Father Fleming.
He remembers one meeting in Archbishop Faulkner’s Wakefield St office and another at his home in the western suburbs.
“I asked for the meetings because I wanted to make it clear what had happened to me with John and the details of that,” [Peter] said.
“He particularly asked me did I think that he should ordain John and I said that was not a decision I was comfortable making.
“I wanted him to know what had happened and that decision was up to him.”
[Peter] said the meetings were also about how he felt, his own involvement with the church and his role in what had occurred.
“We talked about homosexuality in the church a bit and I talked about the effect of what had happened on me,” he said.
[Peter] said that during his discussions with Archbishop Faulkner he “got the impression” that Father Fleming’s ordination may have been in question.
He was “surprised” when Father Fleming was then ordained by Archbishop Faulkner.
“I thought it was surprising, but I didn’t do anything about it,” he said.
“I thought I had taken on the church as much as I could.”
[Peter] said he believed there was “a question mark” over Father Fleming’s ordination and his suitability to hold such a position of trust.
“MY view is that he was my priest, I went to him for help and he had a duty of care to me,” he said.
“The sense in which I think there is a question mark over his suitability is that I was a vulnerable young man who was confused.
“He took advantage of that.
“I think there is a question mark over whether a person like that, who is in a counselling role and position of power over people, whether it is suitable for them to be in that role.”
[Peter] said that in 2005, when he heard Father Fleming had been appointed to head Campion College, he was again surprised at the actions of the Catholic Church.
[Peter] said he was contacted by the Paedophile Task Force three months ago as part of their investigation into Father Fleming.
“I have been trying to get on with my life,” he said.
“But here it is, it has come up again, so I have to deal with it.
“It is stressful.”
Appendix B
Priest ‘told me to deny affair’
THE former wife of the man who had an affair with Father John Fleming was pressured by the high-profile priest to deny knowledge of the relationship, it has been revealed.
The woman has told the Sunday Mail of a meeting she had with Father Fleming and his wife Alison, in which she was urged to “deny it” and asked who else she had told.
The revelation follows Father Fleming’s denial of the homosexual affair and two other sexual encounters with teenage girls in the 1970s – one of which is the focus of a Paedophile Task Force investigation. The inquiry and the improper conduct by Father Fleming involving a teenager, “[Dianne]”, and a young man, “[Peter]”, were revealed in last week’s Sunday Mail.
The teenage girls and the young man were not known to each other.
The Sunday Mail also revealed Catholic Church authorities – including, in one instance, Cardinal George Pell – were aware Father Fleming was the subject of allegations of sexual misconduct prior to him being appointed to head Campion College, a Catholic arts facility, in Sydney in 2005.
After being advised by the Sunday Mail of the police investigation and the apparent mishandling of the allegations, Catholic Archbishop Philip Wilson announced an independent inquiry by lawyer Michael Abbott, QC.
Following the Sunday Mail report, Father Fleming – who was ordained a Catholic priest in 1995 after defecting from the Anglican church – stood down from duties as a priest and Campion College until the two inquiries are completed. He released a statement denying he had “ever engaged in sexual or inappropriate behaviour with a minor” and rejected the allegations he had been sexually involved with either [Dianne] or [Peter].
However, [Peter’s] former wife Wendy said yesterday she was invited to Father Fleming’s house after she had disclosed the affair to a case worker during marriage annulment proceedings.
She said it occurred in late 1994, shortly after the marriage tribunal chairperson had told then Catholic Archbishop Leonard Faulkner of the homosexual affair.
“John was wanting to clarify with me my motivations for disclosing to the marriage tribunal,” Wendy said this week.
“I think they (John and Alison) were also trying to do a risk assessment because, basically, what they asked me to do was detail anybody I had spoken to and exactly what I had told them”.
“They said if it got out to the media was I prepared to deny it”.
“My response to that was I am happy to say I am not aware of it. John said, ‘No, that is not good enough, are you prepared to say no it didn’t happen, you need to be prepared to say it didn’t happen’”.
“He said if I wasn’t prepared to do that then he and Alison would move to England. I guess I felt a lot of pressure to make that commitment and I did make that commitment”.
Wendy said she had decided to speak out following Father Fleming’s denial of the affair.
“Basically, he was calling us liars and I guess that’s what made me angry,” she said. “My feeling before was if he took this on the chin or just said it was not appropriate to comment, then I didn’t need to add fuel to the fire. But the statement was a personal attack on [Peter] for something John did and he is not prepared to apologise and say, ‘I did the wrong thing’.”
Wendy said the 1994 meeting was the second time she had discussed her husband’s affair with Father Fleming – the first was in 1986 when [Peter] told her about it.
She said in the 1986 meeting “John became quiet and apologised and was visibly shaken”.
The woman at the centre of the PTF investigation, Jane, said Father Fleming’s denial “was no surprise”. “I didn’t think he’d have the courage to confess,” she said.
“Instead, he exhorts me to go to the police, even though it was made clear that I had made a police statement. I read this as code for ‘it will be your word against mine’.
“He must believe that his reputation will be proven superior to mine. But this isn’t about reputation; it is about the truth and I am telling it.”
Jane said Father Fleming’s denial of their sexual liaison had “hit me hard”. “I understand this pain is labelled re-victimisation,” she said. “He has stirred up in me again those feelings of worthlessness and desperation. I could have coped with silence, but his denial feels like a threat.”
[Dianne] said yesterday she was also upset at Father Fleming’s response, particularly that her allegations were “unsubstantiated”.
“The Catholic Church never investigated them, so how could he say they were unsubstantiated?” she said.
Father Fleming declined to comment when contacted through his lawyer Michael Sykes on Friday.
Appendix C
Father John Fleming sex claim report next year
AN internal investigation into the handling of sexual misconduct allegations against a senior priest by the Adelaide diocese of the Catholic Church will not be completed until next year.
The inquiry, being conducted by prominent lawyer Michael Abbott, QC, was launched in August, after the Sunday Mail revealed that the diocese was aware of the allegations surrounding Father John Fleming, but that it had not taken any action.
The allegations, one of which is the subject of a Paedophile Task Force investigation, involve activity which occurred when Father Fleming was an Anglican priest. They include allegations he was sexually involved with two girls – one underage – and that he had a homosexual affair before he was ordained as a Catholic priest.
The Sunday Mail revealed that church authorities – including, in one instance Sydney Cardinal George Pell – were also aware that Father Fleming was the subject of allegations of sexual misconduct before he was appointed to head Campion College, a Catholic arts facility in Sydney, in 2005.
The diocese was also aware of Father Fleming’s homosexual relationship prior to ordaining him in 1995, but proceeded.
When he announced the inquiry on August 29, Archbishop Philip Wilson said the diocese would “place no limits on the extent” of Mr Abbott’s investigations.
Mr Abbott said the inquiry was “progressing well” with all necessary documentation now obtained from the diocese.
“It will be a thorough and wide-ranging inquiry and I am now in the process of interviewing the relevant witnesses,” he said.
“Some have been approached and others are being notified regarding their interview.”
Mr Abbott said the scope of the inquiry would result in it being concluded early next year.
Appendix D
Church investigates Father John Fleming over homosexual claim
THE Anglican Church has launched an investigation into high-profile priest Father John Fleming’s alleged homosexual relationship with a former parishioner.
The inquiry, by the Professional Standards Office of the Anglican Diocese of Adelaide, was launched last month after a former parishioner agreed to co-operate with investigators.
The new investigation will run parallel with an inquiry already under way into Father Fleming’s conduct with an under-age girl and another woman while he was an Anglican priest in the 1970s.
The Anglican inquiries are not connected to the inquiry launched in August by the Catholic Church, after the Sunday Mail revealed police were investigating Father Fleming’s conduct with the under-age girl.
The Catholic Church inquiry, being conducted by prominent criminal lawyer Michael Abbott QC, is examining the Church’s handling of the same allegations against Father Fleming after it was notified of them. Mr Abbott has already interviewed the male parishioner, “[Peter]”, at length and will interview the two females “Jane” and “[Dianne]” soon.
Anglican Professional Standards Director Peter Caporaso yesterday confirmed the new investigation, but declined to comment further.
The Sunday Mail revealed last August that “[Peter]” had advised former Catholic Archbishop Leonard Faulkner that he had a homosexual affair with Father Fleming – prior to Father Fleming being ordained a Catholic priest in 1995.
While the Anglican Church does not have the power to take any action against Father Fleming because he is no longer an Anglican priest, it is likely the findings of its inquiries will be provided to the Catholic Church.
“[Peter]” yesterday told the Sunday Mail he welcomed the Anglican inquiry because he believed the matter needed to be investigated “fully and properly”.
“While the Abbott inquiry is examining the Catholic Church’s handling of the allegations after it was advised, the Anglican inquiry will examine what took place between John Fleming and myself,” he said.
A spokesman for Catholic Archbishop Philip Wilson yesterday said he had been formally advised by the Anglican Church of its inquiry into “[Peter’s]” complaint. The spokesman said the Church had not been advised of a finish date for Mr Abbott’s inquiry and there were still “no limits” on its extent.
The Sunday Mail revealed last August that Father Fleming was the subject of a Paedophile Task Force investigation into his conduct with an under-age girl.
“Jane” told the Sunday Mail she had a sexual relationship with Father Fleming when she was a teenager and detailed her attempts to have both the Catholic and Anglican churches take action for the past eight years.
Father Fleming was formally interviewed by detectives in December last year, but at this stage the police have chosen to keep an open file rather than lay criminal charges because of the evidentiary difficulties involving the investigation of historical sex offences.
“Jane” said yesterday although she was “intensely disappointed Father Fleming would not be held accountable in a court of law”, she still wanted him “to take responsibility for his actions”.
“I know what happened and he knows what happened,” she said.
“His continual denial is simply re-victimisation of me, which is making this process even more of an ordeal.”
As part of the police inquiry detectives took statements from “[Peter]” detailing his relationship with Father Fleming and from another woman, “[Dianne]” who was also allegedly sexually involved with him when she was 17.
Father Fleming was suspended from his position Campion College, Sydney, last August pending the results of the police and Catholic Church inquiry.
Appendix E
Priest sacked from college - Sexual misconduct investigation
HIGH-PROFILE priest Father John Fleming has been sacked from his prestigious teaching position as a top-level investigation into the Catholic Church’s handling of sexual misconduct allegations against him is finalised.
Sources have revealed Father Fleming’s contract as president of Campion College, a Catholic liberal arts tertiary school in Sydney, was terminated last month following a board meeting of the foundation that oversees the operations of the college.
The move, which is understood to have sparked a legal fight between Father Fleming and the college, comes almost a year after he was suspended when the Sunday Mail revealed he was the subject of allegations of sexual misconduct by three people and the target in a police investigation.
It comes just weeks before an independent inquiry report by prominent lawyer Michael Abbott, QC, is handed to the Catholic Archbishop of Adelaide Philip Wilson.
Archbishop Wilson commissioned the inquiry, which is examining the church’s handling of the allegations, on August 29 last year, after the Sunday Mail revealed the church was aware of some of the sexual misconduct allegations when Father Fleming was ordained as a catholic priest in 1995.
The Sunday Mail also revealed Father Fleming was the subject of a Paedophile Task Force investigation over alleged sexual misconduct with an underaged girl.
The police inquiry did not result in any charges because of insufficient evidence, but the file has been kept open.
The Sunday Mail understands Mr Abbott has just completed the final witness interview in his inquiry and he is now in the final stages of writing his report.
The chairman of the Campion foundation, union leader Joe De Bruyn, refused to comment on the move when contacted on Friday.
Archbishop Wilson’s office also declined to comment when asked if moves were now being made to have Father Fleming return to Adelaide. His licence is held by the Adelaide Diocese.
In a series of interviews last August, the three victims, Jane, [Dianne] and [Peter], detailed their sexual involvement with Father Fleming while he was an Anglican priest.
Jane, who was underaged at the time of her involvement with Father Fleming, yesterday told the Sunday Mail she was “relieved” that he was no longer working at Campion.
“I’m also very angry. High ranking church officials knew of the allegations of illegal, immoral, and unprofessional behaviour, yet Fleming was appointed to an elevated position of trust,” she said.
“It seems like … the Catholic Church is more concerned about adverse publicity than about victims of abuse. His sacking gives me no joy, knowing that his wife and children will be suffering.”
The Anglican Church earlier this year launched its own inquiry into Father Fleming’s conduct with [Peter], which is examining what took place between the pair while Father Fleming was an Anglican priest. While the Anglican Church cannot take any action, it is likely its findings will be provided to the Catholic Church.
[Peter], who had a relationship with Father Fleming in the late 1970s, said he took “no joy at all” from Father Fleming’s situation.
“It is very sad that is has come to this and if these issues had been dealt with properly when they first arose, we may not all have found ourselves in this mess. I am not looking for retribution in this matter,” he said.
“Since this matter re-entered my life about 18 months ago I have received no offer of any support at all from the Catholic Church.
“I hope the report of the Abbott inquiry is available soon and that something creative and positive comes from it for all the relevant parties and it is not left to gather dust on the collective bookshelves of archbishops and monsignors.”
Father Fleming could not be contacted for comment yesterday.