R v Wilson

General Directions

1. Consistent with s.133 (2) and (3) of the Criminal Procedure Act and the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250 I remind myself of the following principles of law.
2. As the appellant has appealed his conviction by Local Court Magistrate Stone it becomes my duty and responsibility to consider whether the appellant is "guilty" or "not guilty" of the charge and to return my verdict according to the evidence that has been placed before me recognizing the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court.
3. Bearing in mind the Magistrate's advantage as I have just set out it is for me to assess the evidence given by the various witnesses and exhibits tendered and to determine the reliability of the various witnesses. I note that the reliability of any witness depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon the Magistrate and upon myself so far as that could be gleaned from the reading of the transcript of the evidence given and the Local Court Magistrate Stone's judgement.
4. I have read the written submissions of both parties as itemised above and I have heard the supplementary oral submissions of Mr. Odgers SC for the appellant and of Ms. Roberts, Crown Prosecutor on behalf of the Director. I will consider the submissions that have been made and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.
5. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
6. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must, as a tribunal of fact, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.
7. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the Appeal.
8. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness's evidence.
9. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question or proposition. I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

Inferences

1. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

Onus of Proof

1. I now direct myself on the onus of proof. This is a very important direction. This is a criminal hearing of a serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
2. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charge.
3. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
4. I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.

Right to Silence

1. The accused has, as we all do, a right to remain silent when questioned by Police and at his trial and no adverse inference can be drawn against an accused who remains silent when questioned by police or at trial or both. In this case there is no evidence before me as to whether the accused was questioned by police and no evidence as to whether he exercised his right to silence.
2. However, in this case the appellant did give sworn evidence in the Local Court. In relation to that evidence if, having considered the accused's evidence and the submissions of both counsel in relation to it, I accept his version, then of course I must acquit the appellant and bring in a verdict of "not guilty", because it would follow that the Crown has not established beyond reasonable doubt the essential elements of the charge that it must prove.
3. Further, if, after having given consideration to the appellant's evidence, any evidence which the Crown asks me to take into consideration and the submissions of both counsel in relation to the appellant's evidence, I do not positively accept the version given by the accused in support of his case, but his version leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then I am bound, in law, to bring in a verdict of "not guilty". In other words, it is not the position that I have to believe that the accused is telling the truth before he is entitled to be acquitted. As I have previously emphasised it remains the position that the Crown must establish beyond reasonable doubt each element of the charge which it brings against the appellant, and it is never for the appellant to prove that he is not guilty.

Murray Warning

1. In this case the Crown must prove beyond reasonable doubt that Mr. Peter Creigh complained to the appellant in 1976 and that Father James Fletcher had indecently assaulted him in 1971. For the purpose of these proceedings it was an agreed fact that Father James Fletcher did in fact indecently assault Mr. Peter Creigh. In order to prove the alleged "complaint" conversation between Mr. Peter Creigh and the appellant the Crown relies solely upon the evidence of Mr. Peter Creigh. There is no other independent evidence to support the evidence of Mr. Peter Creigh in terms of the alleged conversation with the appellant in 1976. Independent evidence in this context is evidence that comes from a source other than Mr. Peter Creigh, for example, evidence of an eyewitness account from another witness about the occurrence of the alleged complaint conversation. There is nothing of that kind here.
2. I warn myself that before I can convict the appellant on the evidence of one witness I must carefully scrutinise and evaluate that evidence in the light of the criticisms made of it by counsel for the appellant. I can convict an accused on the evidence of one witness only, but it is only after careful scrutiny and evaluation and only if I am satisfied that the evidence is truthful, reliable and accurate.
3. I have given myself this direction because the case against the appellant rests on the evidence of Peter Creigh and when that is the position the direction that I have given myself is one that is always given to a jury.
4. I note that I have carefully scrutinised and evaluated the evidence of Mr. Peter Creigh in the light of all the criticisms made by senior counsel for the appellant.
5. I note that nothing I have said means that I cannot find, after considering these warnings that I have given to myself, that the evidence of Mr. Peter Creigh was both truthful and reliable such that I can accept it beyond reasonable doubt.

Expert Witness

1. In this case Professor Richard Kemp was called as an expert witness. I note that an expert witness is a person who has specialised knowledge based on their training, study or experience and that unlike other witnesses, a witness with such specialised knowledge may express an opinion on relevant matters within his or her particular area of expertise.
2. Expert evidence is admitted in this case to provide the Court with expert evidence on the issue of "memory", that is, information and opinion that is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. The Court bears in mind that if, having given the matter careful consideration, the Court does not accept the evidence of Professor Kemp the Court does not have to act upon it. Indeed, the Court does not have to accept even the unchallenged evidence of an expert. However, if the expert evidence is unchallenged the Court would only reject it for good reason, such as, if such evidence was inconsistent with other accepted evidence in the trial. In this case there is no reason to reject the evidence of Professor Kemp and therefore I accept it.
3. In summary I accept the following expert opinions in the evidence given by Professor Kemp in the Local Court (T 20-37 on 12.4.18):

• Delay will reduce the chances of accurately recalling an event and will also increase susceptibility to memory distortion.
• In general, memory declines with time and continues to decline with increasing delay.
• The passage of decades increases the risk of forgetting and memory distortion.
• A person typically forgets details of an event first, leaving what is sometimes referred to as "gist memory" (as regards the memory of a conversation, memory for the fact of the conversation may be more accurate than memory for the content of the conversation).
• One risk of memory distortion is a tendency to have a memory of what was intended to be said in the conversation.
• It is not possible to reliably distinguish between accurate and false or distorted memories.
• Confidence after the passage of time is not a reliable guide to accuracy (even memories held with a high degree of confidence can be inaccurate).
• It is more likely that a person will remember things which are consistent with information or views held to be true than to learn entirely new information which is at odds with the existing views held to be true.

Absence of Witnesses

1. I note the absence of the potential witnesses Father Newton and Father Walsh, although in the case of Father Walsh the evidence includes two redacted statements and a transcript of two different days of his evidence before the Special Commission in 2013. Father Newton was the then Father Wilson's superior in 1976 at the time Mr. Peter Creigh states that he complained to the appellant. That these potential witnesses were not available is a matter that is relevant to my determination of this case as it is a factor I take into account in determining whether or not I am satisfied beyond reasonable doubt that the appellant did the acts alleged by the Crown. The question I ask myself is whether, notwithstanding the absence of these potential witnesses, I am satisfied beyond reasonable doubt as to the essential elements of the charge.

Identification/Recognition Issues

1. Evidence that the appellant has been identified or recognized by a witness as doing something must, whenever it is disputed by the accused, be approached with special caution before I accept it as reliable. That caution is necessary even if I was satisfied that the witness AA had given completely honest evidence when saying that he believed he recognised the appellant as the Priest in the confessional. I acknowledge that this warning I give myself relates to the reliability of the identification/recognition evidence given, not to the honesty with which it was given.
2. I note that special caution is necessary before accepting identification/recognition evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification/recognition.
3. I note that the common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification/recognition evidence, however honestly given, may turn out to be unreliable. There have been some notorious cases over the years in which completely honest evidence of identification has been demonstrated to be wrong after innocent people have been convicted.
4. The reliability of an identification/recognition of a person depends upon the circumstances in which the witness observed the person whom he or she has identified/recognised, and any one of those circumstances may possibly lead to error. I acknowledge the usual directions given to juries as set out in the Bench Book. This case cannot be said to be a standard identification case. It is a recognition case as there is no issue that AA knew the appellant, despite the criticism made of him in terms of his claim that the appellant had a booming voice and very red lips which is not supported by Mr. Peter Creigh who was very familiar with the appellant at the relevant time. The issue in this case is whether AA is correct in his allegation that it was the appellant who was the Priest on the other side of the Confessional when he, AA, confessed or complained that Father Fletcher had sexually abused him.
5. It is noted that AA did not give this recognition evidence regarding the appellant until over 30 years after the event. Further, it is noted that the claimed response by the appellant to AA's confession was completely at odds with the evidence given by Mr. Peter Creigh as to the appellant's response at or around the same time period in 1976 to his essentially identical complaint of sexual abuse at the hands of Father Fletcher.
6. I have taken all these warnings, the Crown submissions and the Defence submissions into account on the issue of whether to accept that AA in his evidence correctly identified or recognised the appellant as the Priest in 1976 to whom he "confessed" that Father Fletcher had sexually abused him.

Submissions of the Crown

1. I have taken into account the written submissions and supplementary oral submissions made by Ms Roberts, Crown Prosecutor on behalf of the Director of Public Prosecutions.

Submissions of the Appellant

1. Similarly I have taken into account the written submissions and supplementary oral submissions of Mr. Odgers, Senior Counsel with Mr. Buchen, Senior Counsel for the appellant.

Local Court Evidence

1. I accept that the Crown document headed "Respondent's Summary of Local Court hearing" accurately summarises the evidentiary material placed before Local Court Magistrate Stone and which in turn is the evidentiary material upon which I am to decide this appeal after taking into account all the warnings I have given myself. Notwithstanding this summary I have read all the evidence given by the various witnesses and I have read all the items marked as Exhibits in the Local Court. I have also closely considered the reasons given by Local Court Magistrate Stone in his judgement of the 22 May 2018.

Elements of the Charged Offence

1. The elements of the offence alleged against the appellant are as follows: 1. In 1971 James Patrick Fletcher ("Fletcher") committed a serious indictable offence, namely indecent assault of a male, on Peter Creigh. 2. The appellant believed that Fletcher committed that offence. 3. The appellant knew that he had information which might be of material assistance in securing the prosecution of Fletcher for that offence. 4. The appellant failed to bring that information to the attention of a member of the New South Wales Police Force. 5. The appellant did not have a reasonable excuse for that failure.

Consideration

1. By way of agreed fact it is agreed for the purpose of this appeal that: 1. In 1971 James Patrick Fletcher ("Fletcher") committed a serious indictable offence, namely indecent assault of a male, on Peter Creigh. 2. The appellant failed to bring that information to the attention of a member of the New South Wales Police Force.
2. That leaves the Crown to prove elements 2, 3 and 5 as set out immediately above.

That the appellant believed that in 1971 Fletcher committed an indecent assault against Peter Creigh.

1. This element has two components. The first is that the Crown must prove beyond reasonable doubt that in 1976 Mr. Peter Creigh spoke to the appellant Philip Wilson complaining about the conduct of James Fletcher and that he provided Philip Wilson with details of physical acts perpetrated upon him by Fletcher which amount to an indecent assault, not simply an indecent act. The second is that the Crown must prove beyond reasonable doubt that in 2004-6 the appellant remembered that Mr. Peter Creigh had told him in 1976 that James Fletcher had indecently assaulted him and that the appellant formed the belief that James Fletcher had in fact committed the offence of indecent assault on a male, the male being Mr. Peter Creigh.

That the appellant in the period 2004-06 had a memory of Peter Creigh's 1976 complaint that he had been indecently assaulted by James Fletcher in 1971.

1. In relation to the first component of this element of the offence the Crown relies on the evidence of Mr. Peter Creigh that he did complain to the appellant in 1976 that James Fletcher had indecently assaulted him in 1971. Further, the Crown relies on the drawing of the inference that it is inherently unlikely that Philip Wilson, having received a complaint that James Fletcher, a fellow priest, had indecently assaulted Mr. Peter Creigh, would ever forget the content or details of such a complaint by Mr. Peter Creigh. Therefore, it is said by the Crown that as at the charge timeframe of 2004 to 2006 Philip Wilson must have remembered the complaint conversation with Mr. Peter Creigh in 1976.
2. The appellant gave evidence that he has no memory now and that he had no memory during the indictment period 22 April 2004 to 7 January 2006 of any such conversation with Mr. Peter Creigh in 1976.
3. Without intending to be critical of Mr. Peter Creigh, I note that the first time Mr. Peter Creigh recounted the conversation he alleges he had with the appellant in 1976, was in 2013 some 37 years after the event. Further, between 1971 and 2013 Mr. Peter Creigh did not report that he had been indecently assaulted by James Fletcher to the Police notwithstanding that in 2004 James Fletcher was convicted of indecently assaulting Daniel Feenan and notwithstanding that in 2006 James Fletcher died in custody. Further, Mr. Peter Creigh did not tell his own family until 2009. I note that there is nothing unusual in Mr. Peter Creigh's approach as many victims of sexual abuse do not complain to the authorities and there are, quite understandably, many valid reasons for that.
4. The appellant Philip Wilson was arrested and charged with the current offence on 17.3.2015. That arrest meant that essentially after 38 or 39 years the appellant had to ask himself whether he recalled a conversation with Mr. Peter Creigh in 1976 and if he did whether he had remembered it in 2004-6.
5. Mr. Peter Creigh made a statement to police, gave evidence at the Special Commission and gave evidence during the Local Court hearing. It was accepted that during his evidence in the Local Court he was doing his best to tell the truth. Hence the issue in regard to his evidence is not whether he was honest but rather whether his evidence was accurate. Given an acceptance of honesty the Local Court's advantage in seeing and hearing a witness is of limited assistance as the assessment of accuracy depends not on his demeanour, tone or presentation before the Magistrate but rather upon an assessment of what Mr. Creigh said in the Local Court and what he had said on two earlier occasions, namely to police during his interview and in his evidence before the Special Commission. The assessment of accuracy also called for a consideration of the problematic factors associated with memory set out in the expert testimony of Professor Kemp.
6. The defence position in terms of the accuracy of the evidence of Mr. Peter Creigh is that given the problems associated with long term memory as evidenced by Professor Kemp, that Philip Wilson honestly has no recollection of a conversation that if it took place even he agrees he would be unlikely to forget and that bearing in mind the not insignificant inconsistencies in the statements made by Mr. Peter Creigh on the three occasions he has recounted the alleged 1976 conversation, this Court could not be satisfied beyond reasonable doubt that the conversation took place at all. The defence fall-back position is that even if the Court was satisfied beyond reasonable doubt that a conversation of some type took place that the Court could not be satisfied beyond reasonable doubt that it included allegations against James Fletcher that amounted to an allegation of indecent assault as distinct from an act of indecency.
7. In my view, acceptance of Mr. Peter Creigh as an honest witness does not automatically mean I would be satisfied beyond reasonable doubt that he complained to Philip Wilson in 1976 that James Fletcher had indecently assaulted him. The issue of whether an honest witness is accurate and therefore reliable is of equal importance as the question of the honesty of such a witness. I note that the following factors are relevant to the question of whether the evidence of Mr. Peter Creigh is reliable: 1. Professor Kemp's expert evidence in relation to the possibilities associated with the potential for false memories to be formed by entirely "honest" individuals who then present those memories confidently; 2. That the first time Mr. Peter Creigh spoke to police and the first time he alleged a conversation with Philip Wilson in 1976 was in 2015 approximately 39 years later. 3. Given that Mr. Peter Creigh's sexual abuse at the hands of James Fletcher in 1971 would undoubtedly have been very traumatic and that it would not be unusual for him to have over the years revisited in his own mind that experience rather than dwelling on the question of whether he spoke to Philip Wilson about it in 1976, the actual offending is far more likely to have been to the forefront of his mind and memory; 4. That it is not inconceivable that in looking back Mr. Peter Creigh convinced himself that he had complained rather than asking himself why he didn't complain, which might especially be so if he had wanted to complain but never actually did; 5. That after 1976 he made no complaint to anyone until he told his family 33 years later in 2009; 6. That Mr. Peter Creigh made no notes of the conversation with Philip Wilson either at the time of or shortly after the alleged conversation nor at any time during the ensuing 39 years; 7. That over the intervening years Mr. Peter Creigh had issues with alcohol abuse, blackouts and seizures; 8. That when first asked by police to recount the conversation he alleges he had with Philip Wilson, Mr. Peter Creigh acknowledged that he was unable to recall the words he used; 9. That thereafter in his evidence he frequently lapsed into describing what had been done to him by James Fletcher rather than focusing on what he believed he had actually said to Philip Wilson of which at times it seemed as if he was treating those two separate things as one in the same; 10. That Mr. Peter Creigh conceded that he had given inconsistent versions of the alleged conversations during his evidence and statement to police; 11. That it is clear that in relation to at least one of these versions what he said he said to the appellant may not have amounted to an indecent assault; 12. That whether or not AA, during a confessional session with Philip Wilson complained of sexual abuse at the hands of James Fletcher does not of itself provide support for Mr. Peter Creigh's alleged conversation with Philip Wilson; 13. That in fact the opposite is the case as the reaction of Philip Wilson, as evidenced by AA, to his allegation of sexual abuse at the hands of James Fletcher is completely contradictory to the evidence given by Mr. Peter Creigh as to Philip Wilson's reaction to an identical complaint of sexual abuse in relation to the same perpetrator made by Mr. Peter Creigh at around the same time. If AA is correct in his claim that it was Philip Wilson who took his confession, angrily called him a liar and imposed a punishment on him for a false allegation against James Fletcher, it seems unlikely that Mr. Peter Creigh's alleged conversation took place at all as Philip Wilson having reacted as he supposedly did with AA is not likely to have reacted in the manner alleged by Mr. Peter Creigh to his identical allegation against the same Priest and in the same year of 1976; 14. That Mr. Peter Creigh claims that Philip Wilson was shocked, concerned and said it was not right and that he would report it to his superiors and yet it would seem that if that is so then Philip Wilson lied to Mr. Peter Creigh because he did not report it and that he lied to various people in 2004 when he denied that he had any information in relation to sexual abuse allegations against James Fletcher. It also means that he did not attend to the pastoral care of Mr. Peter Creigh and did not challenge James Fletcher about the allegations or warn him off in terms of James Fletcher's future conduct toward Altar boys. This appears on its face to be inconsistent with Mr. Peter Creigh's opinion of and trust in Philip Wilson and the claimed positive response by Philip Wilson.
8. These points neither individually nor in combination prove that the alleged conversation did not take place but they are certainly capable of raising a reasonable doubt as to whether the Crown has proved beyond reasonable doubt that the conversation with Philip Wilson in 1976 as variously alleged actually took place.
9. In terms of inconsistencies Mr. Peter Creigh made inconsistent statements in relation to the following topics: 1. Timing of the conversation - before or after Easter; 2. Length of the conversation - 15-20 minutes or 30-40 minutes; 3. Frequency of abuse - twice only, 6-8 times, numerous times; 4. Duration of abuse - 6 months or 9 months; 5. Use of words or phrases such as "masturbating", "masturbation", "ejaculation", "concerns", "acts of punishment", "pressured into performing oral sex", "penis in mouth"; 6. Use of the name of the appellant - "Philip" or "Father Wilson"; 7. The location of the room in which the conversation was said to have taken place; 8. Words used by the Appellant; 9. Whether the Appellant was asked about the complaint process - "never asked Wilson what the appropriate process was" or "I asked who I should talk to"; 10. Whether he told the Appellant that Fletcher had grabbed him by the neck; 11. Whether said detained in room behind Altar or presbytery - said he was so detained to Detective Little but did not make such a claim during his evidence in the Local Court; 12. Re-construction of conversation - Mr. Peter Creigh denied he was re-constructing the conversation but admitted he could not recall the words used but on other occasions he claimed that certain words were used.
10. I repeat that these inconsistencies neither individually nor in combination prove that the alleged conversation did not take place but they are capable of raising a reasonable doubt as to whether the Crown has proved that the conversation as variously alleged actually took place.
11. If the conversation did take place, acceptance of Mr. Peter Creigh in terms of his alleged conversation with Philip Wilson does not necessarily mean the rejection of the evidence of the appellant. Professor Kemp makes it clear that issues relating to memory, actual or absent, is a very complex area of study with no definitive answers available to many questions and only generalisations available for the balance. If a person has no memory of an event or occasion, such a person is also unable to say why they have no memory. Logically they can only say that for whatever reason they have no memory. There are a number of factors which may have contributed to a lack of memory of the alleged conversation. Without being exhaustive they may be: 1. That there was no such conversation; 2. That the allegations contained in the conversation may have been disbelieved and dismissed, which is not an unlikely outcome in 1976, with there being no reason thereafter to remember the conversation; 3. That there was no reminder of the conversation over a period in excess of 30 years - in this case after 1976 and that Mr. Peter Creigh never reminded Philip Wilson of such a conversation; 4. That Mr. Peter Creigh never complained to police about James Fletcher so there was never a reminder of that type; 5. That Professor Kemp opined that a person was less likely to remember something that was disbelieved or contrary to the views held by such a person; 6. That a person may not want to believe an allegation, that is, they may simply wish or want to put such an allegation out their mind virtually treating it as if it had never been said; 7. Professor Kemp's expert evidence in relation to the vagaries associated with maintenance of or loss of memory: 8. The simple effect of the effluxion of time - 28-30 years later in 2004-6 and 38-9 years in 2015;
12. Acceptance of Mr. Peter Creigh that a conversation took place with Philip Wilson regarding Father Fletcher is not necessarily an acceptance that Mr. Peter Creigh was able to recall the detail of such a conversation with any accuracy. An ability to recall that a complaint was made to Philip Wilson in regard to the conduct of James Fletcher being the "gist" or fact of such a conversation does not necessarily mean that Mr. Peter Creigh also had the ability to accurately recall the words used. Further, even if Mr. Peter Creigh was able to recall speaking of sexual abuse it's likely but not necessarily the case that he would have conveyed to Wilson a description of acts amounting to an indecent assault given that is accepted as being what James Fletcher did to him.

That Philip Wilson believed that what he had been told by Peter Creigh in 1976 that he had been indecently assaulted by James Fletcher in 1971 was in fact true.

1. If the Crown fails to satisfy me beyond reasonable doubt that Mr. Peter Creigh told Philip Wilson in 1976 that James Fletcher had indecently assaulted him that would mean that the Crown was unable to prove the charge. However, even if this is my conclusion, it is nevertheless appropriate for me to consider the second aspect in relation to this alleged conversation, namely, whether the Crown has proved beyond reasonable doubt that Philip Wilson in 2004-2006 believed that James Fletcher indecently assaulted Peter Creigh in 1971.
2. In relation to this aspect of the charge, the Crown relies upon the combination of the evidence of Mr. Peter Creigh, the evidence of AA, that by the time of the charge timeframe 2004-6 the appellant knew that James Fletcher was initially awaiting his trial on a complaint from Mr. Daniel Feenan and that shortly thereafter James Fletcher had been convicted following trial and that BB had, to the knowledge of Philip Wilson, made a complaint to police against James Fletcher. The Crown's submission is that Philip Wilson must therefore have believed that Mr. Peter Creigh had been indecently assaulted by James Fletcher given that he was then aware that three individuals were making the same allegation against Fletcher as Mr. Peter Creigh had made to him in 1976. This submission relies on a type of "lay" tendency reasoning, that is, that if three or four individuals make the same allegation against the same person then that makes it more likely that the average lay person would form a belief that the allegations are true. While it is undoubtedly correct to conclude that a person hearing the same type of allegation against the same person by three or four individuals would be more likely to believe the allegation it does not necessarily follow that that would in fact be the case, or that any particular individual, such as Philip Wilson, did in fact form a belief as to the guilt of the alleged perpetrator.
3. This line of Crown reasoning relies on an inference being drawn. The Crown submits that the Court should infer that because of this available lay tendency reasoning that Philip Wilson must have formed the belief that James Fletcher indecently assaulted Mr. Peter Creigh in 1971. The fallacy of this argument is that such an inference is not the only reasonable inference available. A reasonable inference consistent with innocence is that an individual who insists on keeping an open mind when an allegation of serious sexual abuse is made is just as likely to want to keep an "open mind" when the same allegation is made by multiple individuals for the same reason that existed when only one individual made the allegation. That is, that the information or allegation still only represents one side of the story and none of the allegations have been tested in a court of law which is the appropriate arena for contested allegations. This is still likely to be the case notwithstanding acceptance of the fact that a person will undoubtedly be even more suspicious where multiple allegations are made.
4. Lay tendency reasoning may well make it more likely that any belief actually reached or formed will be a belief that the allegation is true. However, such reasoning does not make it more likely that an individual will actually form a belief as to the truth of the allegation. Lay tendency reasoning is unlikely to change the approach of a person who believes in keeping an open mind and allowing the appropriate legal process to take its course.
5. Of course if Mr. Peter Creigh never spoke to Philip Wilson regarding James Fletcher then Philip Wilson would have had no memory to be jogged by becoming aware of the complaints of BB and Mr. Daniel Feenan. If such a conversation did take place but Philip Wilson had no memory of such a conversation, information regarding complaints made by these two men may have but not necessarily would have jogged his memory of a forgotten conversation. The evidence of the appellant was that even after becoming aware of the conviction and complaint by BB he had no memory of Mr. Peter Creigh telling him in 1976 that he had been indecently assaulted by James Fletcher in 1971.
6. Of course even if the alleged conversation took place the Crown must still prove beyond reasonable doubt that Philip Wilson believed the complaint made by Peter Creigh, that is, that he believed that James Fletcher had indecently assaulted Peter Creigh in 1971.
7. I note that the requirement of belief cannot be satisfied by suspicion, even strong suspicion. Being suspicious that an allegation may be true is a state of mind that falls well short of actually believing that the allegation is in fact true. Similarly being suspicious that an allegation may NOT be true is a state of mind that falls well short of an actual belief that the allegation is false.
8. In my view a person who believes that a particular event actually occurred can reach such a positive state of mind as a result of personally witnessing an event, by acquiring knowledge from a source or sources that they trust, by suspicion and inference, by being motivated by bias or prejudice, by uncritical acceptance of untested media, public or private opinion and/or by a combination of some or all of these factors. Believing something to be true and accurate does not mean that it is true and accurate but it does mean that the individual has formed a clear opinion that is belief, that the something is in fact true and accurate.
9. The reality is that people demonstrate a wide range of readiness or preparedness to form beliefs, from those who quickly form beliefs to those who are far more reticent to do so. For example, some individuals form beliefs very quickly and at times on scant or one sided information. On the other hand some individuals are far more reluctant to form beliefs and then only do so if they consider they have all the necessary information or at least have heard both sides of the story. That an individual reserves their opinion or belief as they have insufficient information or only one side of the story is not unusual at all. Where an individual falls on this continuum can depend on personality, decisiveness, prejudices, circumstances, issues relating to potential consequences, life experiences and the significance of the belief.
10. Therefore, keeping an open mind on receiving allegations from a one sided perspective should not be seen as an unlikely or unusual approach for intelligent individuals with experience in conflict as between friends, work friends or indeed in this case parishioners.
11. I note that a rejection of the appellant's denials, in terms of lack of memory of a conversation with Mr. Peter Creigh in 1976, does not of itself provide positive evidence that the appellant in fact believed in 2004-2006 that Mr. Peter Creigh had been indecently assaulted by James Fletcher.
12. A failure on the part of the Crown to prove beyond reasonable doubt that the appellant believed Mr. Peter Creigh is not dependent on the Court accepting the evidence of Philip Wilson, it would be sufficient for his evidence to raise a reasonable doubt.

Evidence of the Appellant

1. Philip Wilson gave evidence and I acknowledge the advantage that Local Court Magistrate Stone had in watching and listening to the appellant give evidence. However, the reasons given by Magistrate Stone for rejecting the evidence of the appellant did not include any adverse assessment of the appellant's demeanour, presentation or credibility as a witness. The Magistrate appears for instance to have accepted the appellant's evidence that if he had been told by Mr. Peter Creigh that he had been indecently assaulted by James Fletcher he "would expect" that he would "never forget that". The Magistrate's finding that the reasoning of the appellant was "flawed" appears to have been based on his opinion that Philip Wilson's stated approach when allegations were made to him was implausible, rather than anything noted in the area of advantage enjoyed by the Magistrate.
2. This conclusion of implausibility or "flawed" evidence appears to have been based on the rejection of the proposition that a person can readily and quickly believe mundane information provided to him/her (for instance "Q. How are you? A. I am feeling very unwell") and yet keep an open mind pending a confession or Court determination when given information that would, if true, constitute a serious criminal offence. To the contrary of the views expressed on this topic by Magistrate Stone I am of the view that the seriousness of the allegation is particularly relevant to any preparedness to form a belief especially if only one side of the story has been provided. Further, on receiving a complaint of this nature it is not necessary to believe or disbelieve it, it is only necessary to act appropriately on the complaint.
3. It is very important to understand that reporting responsibilities are entirely separate from the question raised here which is, in lay terms, that it is a criminal offence to knowingly withhold information which would materially assist a prosecution of a serious indictable offence. Section 316(1) has predominately, if not exclusively, been used in situations where the Crown allegation is that a sex offender has made admissions regarding a serious sexual offence to a person who has then covered up the offending or at the very least failed, without reasonable excuse, to inform police of the admission made to that person.
4. The appellant gave evidence that if anything so graphic had been said to him that he didn't think he could have forgotten it. This evidence was relied on by the Magistrate because it was clearly very honest and forthright. The appellant did not attempt to prevaricate on this point at all. The appellant did not attempt to blacken the name of Mr. Peter Creigh alleging he was a liar. In fact, he said he had always had a good relationship with Mr. Peter Creigh and that nothing had changed. In summary he did not think that Mr. Peter Creigh would give evidence knowing it to be false. Honesty of this type is generally regarded as an indication of overall honesty.
5. Philip Wilson while suffering from early Alzheimer's was clearly still an intelligent and reasonably articulate witness. It seems unlikely that such a person might not have considered, before giving evidence and against a background of not previously having said anything and therefore not being committed to maintaining a particular story or version, that if they were prepared to lie that the easiest approach would be to either deny the alleged 1976 conversation or to simply say " well like most adults in the mid-1970s I didn't believe that a priest would sexually molest a young boy as alleged". Claiming disbelief would have been just about impossible to realistically challenge, would have been easy to say and maintain in cross-examination.
6. Given that the Crown has to prove that the appellant believed that Mr. Peter Creigh had been indecently assaulted by James Fletcher, a very believable claim of disbelief given community attitudes in 1976 and even to some degree in 2004, if accepted, would have provided a defence meaning the Crown would not be able to prove an essential element of a Section 316(1) offence. It is clear from his evidence that the appellant did, quite reasonably, understand the nature of the charge he was facing and the fact that he did not avail himself of a potential "disbelief" escape clause is once again supportive of his honesty as a witness.
7. In essence the appellant maintained during repeated questioning on the point that he, to summarise, kept an "open mind". He said that he held the view that serious allegations of this type had to be admitted or tested in Court before he would form a belief as to whether the allegation was true. The criticism of this evidence by the Crown appears to have been a criticism that Philip Wilson on hearing an allegation did not then form a belief that the allegation was true. What was not emphasised was that his stated practice relating to forming a belief meant Philip Wilson neither accepted nor rejected the allegation when it was made.
8. The appellant acknowledged that having heard such a complaint most people including himself would undoubtedly have been suspicious of James Fletcher and even more suspicious after hearing of similar allegations made by two other individuals. Further, he made it clear that he was prepared to believe an allegation to be true, if the alleged offender made an admission that it was true or if the allegation was tested and proved in a Court. For instance, after the conviction of James Fletcher for indecently assaulting Mr. Daniel Feenan the appellant agreed during cross-examination that he did then form a belief and that the belief he formed was that it was true that James Fletcher had indecently assaulted Mr. Daniel Feenan as alleged by Mr. Daniel Feenan. However, inherent in this approach was that he was also prepared to disbelieve an allegation, if for instance the allegation was recanted or withdrawn or not accepted by a Court after testing.
9. The Crown has to prove that not only did the appellant form a belief BUT that the belief he formed was that he believed the allegation that James Fletcher had indecently assaulted Mr. Peter Creigh in 1971. Therefore, even if the Crown proved that the appellant formed a belief in 2004-6 it would have to prove that the appellant, not only did not disbelieve the allegation, but that he positively accepted that the allegation was true. There is no direct evidence or even evidence of conduct of the appellant that assists in determining what belief was actually formed if in fact the appellant did form a belief in relation to Mr. Peter Creigh's allegation.
10. In my view, the idea of "keeping an open mind" on hearing an allegation of sexual abuse is the appropriate response from any intelligent, reasonable and thoughtful individual. As I do not accept that such an approach is "flawed" and as this was the stated basis upon which Magistrate Stone rejected the appellant rather than factors based on his advantage in seeing and hearing the appellant give evidence, I have concluded that there is no basis for rejecting the evidence of Mr. Wilson. On the contrary the very honest features of his evidence that I have just outlined provide a strong platform for accepting him as an honest witness.
11. This conclusion is also strongly supported by a number of independent pieces of evidence: 1. CB gave evidence about the appellant's response to the allegation of her brother BB that was consistent with the appellant's evidence that his approach was neither to believe nor disbelieve the allegation. In her statement she said the appellant spoke like a politician. In evidence, when it was suggested that the appellant was "sitting on the fence and not expressing a view about the allegations", she said "….I suppose we weren't getting the answers that I suppose we thought we'd get from him". 2. DB agreed that the appellant did not say that he believed the allegations made by her son BB. 3. EB in his statement marked Exhibit 6, in relation to the appellant's response to his son BB allegation, said "I remember Wilson 'sitting on the fence' with his answers…he just wouldn't give a definite answer". 4. Father Glen Walsh in his evidence to the Special Commission and in his statements, made it clear that Bishop Malone told him to "bury" the allegation of BB whereas Archbishop Wilson essentially told him to report it and to apply the "Towards Healing" programme. Further Father Walsh indicated that Philip Wilson after being appointed Bishop of Wollongong in 1996 set up one of the first protocols to guide Priests who had received allegations or admissions of sexual abuse and together with his approachability, were the reasons he spoke to an Archbishop in Adelaide rather than Sydney. 5. The background to this evidence from the family of BB is important. Their evidence is that the appellant was a family friend in 2004 even though he had been gone from the Maitland area for many years and was then living in Adelaide. The appellant was contacted independently by the family and Father Walsh. Given this relationship with BB and his family and the advice he gave Father Walsh, if ever a situation was to exist where Philip Wilson would not keep an open mind and would get off the fence and form a positive belief about an allegation of this type against James Fletcher, this should have been that occasion. That he did not and that he appears to have maintained an open mind, much to the annoyance of some members of the family it would seem, provides significant support for his evidence that that was his approach and would have been his approach had he any memory of the alleged conversation with Mr. Peter Creigh in 1976. 6. There is no direct evidence that Philip Wilson did not hold to the view of maintaining an "open mind" when faced with allegations of sexual abuse. 7. There is no direct evidence that Philip Wilson in 2004-6 actually believed that Mr. Creigh had been indecently assaulted by James Fletcher. 8. There is no evidence of any conduct of the appellant in 2004-6 from which it could be inferred that he had a memory of Mr. Creigh complaining to him in 1976 or that in 2004-6 he believed that Mr. Creigh had been indecently assaulted by James Fletcher.
12. It does not appear to me that Local Court Magistrate Stone was relying on tone, demeanour or manner of speech in reaching his conclusion that Philip Wilson was dissembling. His conclusion appears to be based on the content of the responses given by Philip Wilson during cross-examination. Those responses are equally available to me to consider by my reading of the transcript.
13. There is one other relevant factor in terms of whether Philip Wilson had a memory of Mr. Peter Creigh complaining to him about James Fletcher in 1976. That factor is the response of Philip Wilson to Father Walsh's request for help in relation to his receipt of the allegation of BB. The advice given by Philip Wilson to Father Walsh was appropriate in that it included that Father Walsh should encourage BB to speak to Police but that in any event Father Walsh should report it to the authorities. Further, he advised that the pastoral care needs of BB had to be addressed. It seems inconceivable that Philip Wilson would give this correct and appropriate advice to Father Walsh, being advice which was completely contradictory to the direction of Bishop Malone to hide the allegation, in relation to a complainant boy, now man, alleging sexual abuse at the hands of James Fletcher when he Philip Wilson was knowingly refusing to follow the same advice in relation to another boy who had made the same complaint against James Fletcher to him personally in 1976.
14. The Crown argues that Philip Wilson "must have" remembered speaking with Mr. Peter Creigh in 1976. A statement or conclusion to the effect that "He must have!" does not and can never equate to "proof beyond reasonable doubt ". In areas involving states of mind such as "intent" or "belief" the issue is never what the average person might think, it is not even what a reasonable person might think, it is what the "intent" or "belief" of the accused person is proved to be at the relevant time.
15. Having carefully read and re-read the transcript of the evidence of Philip Wilson I have reached a different conclusion than Magistrate Stone. A close consideration of the appellant's evidence in chief and cross examination leads me to conclude that Philip Wilson maintained during extensive and at times repetitive cross-examination that he maintained an "open mind" without forming a belief or disbelief in relation to the allegations or to use the words of EB he "sat on the fence" or the words of CB "he answered like a politician". In this case the only independent evidence of Wilson's approach when allegations of sexual abuse by a priest were raised with him was that of the B family which strongly supported the evidence given by the appellant as to his approach in such situations.
16. Having regard to these factors I am of the view that there is no proper basis upon which I can rely to reject the evidence of the appellant. As I have previously indicated the appellant's evidence can raise a reasonable doubt regarding the Crown case without it being necessary for me to positively accept the appellant's evidence.

That the appellant KNEW that he had information that would be of material assistance to the prosecution of James Fletcher

1. The Crown proffered a construction of s 316(1) that there was no link between the subjective belief requirement and the question of the materiality of the information held. It is difficult to imagine that Parliament intended to make it a criminal offence to withhold information even if the individual did not know or believe that s/he had information which might be of material assistance to a prosecution. Clearly, the mens rea involved in this offence is that the individual both knows or believes a serious indictable offence has been committed and knows or believes that s/he has information that might be of material assistance to a prosecution.
2. In my view the construction that the defence submit should be given to s316(1) is clearly correct. I note that this construction is consistent with the construction given in R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820 by his Honour Justice Rothman. As Mr. Odgers of Senior Counsel submitted "The knowledge or belief extends to the nature of the information". Accordingly, that the appellant knew (as alleged in this case) that the complaint information given to him by Mr. Peter Creigh might be of material assistance to a prosecution of James Fletcher is an element of the offence that the Crown has to prove beyond reasonable doubt.
3. In this case this is another hypothetical issue given the appellant's evidence that he had no memory of Mr. Peter Creigh complaining to him in 1976 that he had been indecently assaulted by James Fletcher. As I have already indicated an understanding of a duty to report is different than having an understanding that particular information possessed by an individual might be of material assistance to a prosecution. In any event the evidence here is that in 2004-6 when giving advice to Father Glen Walsh the appellant was focusing on Father Walsh's duty to report, being contrary to the advice of Bishop Malone, rather than any assessment that Father Walsh had information which might be of material assistance to a prosecution of James Fletcher. Further, the advice given to Father Walsh included advice to encourage BB to himself report the matter to police and to arrange some type of pastoral care for BB. Acknowledgement of a duty, moral or legal, to report an allegation does not convey that there has been an assessment of the value of the information only that there is an understanding of a particular duty.
4. In terms of whether the Crown is able to prove beyond reasonable doubt that the appellant knew he had information which might be of material assistance in the securing of the prosecution of James Fletcher it is informative to note that in February 2004 Professor Patrick Parkinson prepared a report for the information of the Catholic Church entitled "Concealing an offence - the obligation to report criminal offences to the Police". Professor Parkinson stated at paragraph 7.2: "If an adult complainant of sexual abuse tells an interviewer details of an offence which she alleges was committed against her, the knowledge that the interviewer has of that in itself will not be of material assistance to the police in securing the apprehension of the offender or the prosecution or conviction of the offender. It is nothing more than knowledge of the complaint. The police can do little unless she herself makes the complaint to them and is prepared to make a statement. All the interviewer can do is encourage her to go to the police, as Towards Healing already provides."
5. I do not accept the Crown submission that the evidence given by the appellant in relation to the duty of Father Walsh to report the allegation of BB to police is "..itself capable of negativing the reasonable possibility that he did not believe that the information he had might be of material assistance to a police investigation.". Relevantly the Crown has not charged "belief" in relation to this element but rather that the appellant "knew" that the information held might be of material assistance. Further, it is for the Crown to prove that the only reasonable inference available from the evidence is that the appellant knew that the information held might be of material assistance to a prosecution.
6. Bearing this onus and burden of proof in mind I note that the appellant gave evidence that he received, read and accepted the legal advice provided by Professor Parkinson (T9 on 11.4.18). This evidence establishes that the most likely state of knowledge of the appellant at the relevant time was that information that an allegation of indecent assault had been made did not of itself amount to information that might be of material assistance to a prosecution. This legal advice was contained in a document that also dealt with, at some length, the question of the duty to report such allegations. Thus the legal advice itself distinguished the two concepts and there is little merit in the submission that an understanding of a duty to report also meant, contrary to the legal advice, an understanding that such information might be of material assistance.
7. There is no evidence to the contrary of the appellant's position that he read, understood and accepted Professor Parkinson's legal advising. Further, there is no conduct of the appellant from which anything to the contrary could be inferred. The appellant was not challenged as to his knowledge of and acceptance of Professor Parkinson's legal advice.
8. Having regard to this legal advice and the appellant's knowledge and acceptance of it, it is unnecessary for me to definitively determine the meaning of the term "material assistance in securing the prosecution".

CONCLUSION

1. In relation to the issue of whether Mr. Peter Creigh complained to Philip Wilson that James Fletcher had indecently assaulted him I have outlined the various concerns and relevant factors in terms of whether such a conversation took place at all. I have also outlined the concerns and various relevant factors, assuming there was such a conversation, regarding the ability of Mr. Peter Creigh to accurately recall and recount such a conversation with any reasonable degree of accuracy more particularly in relation to the question of indecent assault as distinct from act of indecency. While the fact of and content of a conversation between Mr. Peter Creigh and Philip Wilson in 1976 is not an element of the charge, the proof of such a conversation, its contents and Philip Wilson's memory of it in 2004-6 are essential in order for the Crown to prove the element of the charge that alleges that Philip Wilson believed that James Fletcher had indecently assaulted Mr. Peter Creigh in 1971.
2. I have closely considered the evidence of the Appellant and concluded that there is no legitimate basis to reject his evidence. In conjunction with the other evidence in the case the evidence of the appellant raises a reasonable doubt in my mind that in 2004-6 the appellant had a memory of a conversation in 1976 in which Mr. Peter Creigh told him that James Fletcher had indecently assaulted him. Further I have a reasonable doubt that in 2004-6 Philip Wilson believed that Mr. Peter Creigh had been indecently assaulted by James Fletcher in 1971.
3. As a consequence of my close consideration of all these factors and conclusions in relation to the evidence of the appellant, and notwithstanding my conclusion that Mr. Peter Creigh was an honest witness doing his best to recall events in 1976, I am not satisfied beyond reasonable doubt that Mr. Peter Creigh told the appellant in 1976 that he had been indecently assaulted by James Fletcher in 1971. If such a conversation did take place I am not satisfied beyond reasonable doubt that Philip Wilson had a memory of it in 2004-6. If such a conversation did take place and the appellant had a memory of it in 2004-6 I have a reasonable doubt as to whether the appellant formed any belief, be it belief or disbelief, as to the truth or otherwise of the allegation. Accordingly, I am not satisfied beyond reasonable doubt that Philip Wilson in the time period 2004-2006 believed that Mr. Peter Creigh had been indecently assaulted by James Fletcher in 1971.
4. Further, in relation to the hypothetical question of whether the appellant knew in 2004-6 that complaint of the typed alleged to have been made to him by Mr. Peter Creigh in 1976 was information that might be of material assistance in securing the prosecution of James Fletcher, the only evidence, which is in fact independent evidence is that the appellant had legal advice that information involving complaints of this type would not be of material assistance in the prosecution of a person. It is the case that no evidence was adduced by the prosecution to suggest that the appellant had not received or accepted the legal advice of Professor Parkinson. The Crown here alleges that the appellant "knew", rather than "believed", that he had information that might be of material assistance in the prosecution of James Fletcher. Given that Philip Wilson is not a lawyer and that the only advice that he had on this topic was the legal opinion of Professor Parkinson that such information would not be of material assistance to police, I am not satisfied beyond reasonable doubt that the Crown has proved this particular element of the charge.
5. Having regard to the reasonable doubt that I have expressed in relation to the two elements of the charge being "belief" that James Fletcher had indecently assaulted Mr. Peter Creigh in 1971 and that the appellant "knew" that complaint information of that type might be of material assistance to a prosecution, there is no need to deal with the issue of reasonable excuse as the Crown has failed to prove the essential elements of the charged offence. Accordingly, I do not propose to deal with the question of whether the two matters put forward hypothetically by the defence, namely, issues of risk of self-incrimination and respect for and confidentiality of a complainant, are capable of amounting to a reasonable excuse for any failure to bring material information to the attention of police.

Decision

1. Having regard to the Crown's failure to prove all the essential elements of the s316(1) charged offence the Court makes the following orders: 1. The appeal is upheld. 2. The conviction and consequential orders of the Local Court are quashed and the appellant is discharged.

Amendments 18 March 2019 - paragraph [95] removed name. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2019