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District Court 6 December 2018

R v Wilson

[2018] NSWDC 487

Public order & justice offences

Citation: R v Wilson [2018] NSWDC 487
Court: District Court of New South Wales
Date: 6 December 2018
Judge(s): Ellis DCJ

Background

The appellant, a Catholic priest, was convicted in the Local Court on 22 May 2018 of one count under section 316(1) of the Crimes Act, which makes it an offence to conceal a serious indictable offence by failing to bring information that might materially assist a prosecution to the attention of police. He was sentenced to twelve months imprisonment, with a six-month non-parole period served by home detention. He appealed his conviction; the Crown separately appealed the sentence as inadequate.

The Crown's case rested on the allegation that in 1976, the appellant had been told by a complainant, Peter Creigh, that Father James Fletcher had indecently assaulted him, and that during the period 2004 to 2006 the appellant remembered that conversation and believed the assault had occurred, yet did not inform police. It was agreed as a fact that Fletcher did indecently assault Creigh. The disputed questions were whether the appellant was ever told about it, whether he remembered it, and whether he formed the relevant belief during the charge period.

The appeal proceeded by way of rehearing on the Local Court evidence, without additional evidence being adduced. The District Court considered the transcript, exhibits, and the Magistrate's reasons, while giving weight to the Magistrate's advantage of having seen and heard witnesses directly.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt that Peter Creigh told the appellant in 1976 that Fletcher had indecently assaulted him
  • Whether the Crown proved beyond reasonable doubt that the appellant, in the period 2004 to 2006, remembered that conversation and believed that Fletcher had indecently assaulted Creigh
  • Whether the Crown proved beyond reasonable doubt that the appellant knew, in 2004 to 2006, that the information he held might be of material assistance to a prosecution of Fletcher
  • Whether the Magistrate erred in rejecting the appellant's evidence that he kept an open mind on receiving unproven allegations of sexual abuse
  • How section 316(1) should be construed, particularly whether the knowledge or belief requirement extends to the materiality of the information held

Decision

Issue 1: Whether Creigh complained to the appellant in 1976

The court accepted that Creigh was an honest witness doing his best to tell the truth, but honesty and accuracy are distinct considerations (at [63]). Creigh first recounted the alleged conversation in 2013, some 37 years after the event, and made inconsistent statements across three separate accounts: to police, before the Special Commission, and in the Local Court (at [59], [65]-[66]). Professor Kemp's unchallenged expert evidence on the complexities and unreliability of long-term memory reinforced those concerns (at [41]-[42]). The court concluded it was not satisfied beyond reasonable doubt that Creigh told the appellant in 1976 that Fletcher had indecently assaulted him (at [107]).

Issue 2: Whether the appellant believed Fletcher had assaulted Creigh during 2004 to 2006

The Magistrate rejected the appellant's evidence as "flawed" on the basis that his stated approach of keeping an open mind was implausible. Ellis DCJ disagreed, finding that reserving judgment on a serious unproven allegation heard from one side only is neither unusual nor irrational, particularly for an intelligent person in a position of responsibility (at [82], [90]). The court found no legitimate basis to reject the appellant's evidence, noting it contained features consistent with overall honesty, including that he did not attempt to claim disbelief of Creigh, and that he gave appropriate advice to Father Walsh to report a similar allegation to police (at [84]-[93]). The appellant's evidence raised a reasonable doubt that he formed any belief, positive or negative, about the truth of Creigh's allegation in 2004 to 2006 (at [96], [107]).

Issue 3: Whether the appellant knew the information might materially assist a prosecution

The court accepted the defence construction of section 316(1): the knowledge or belief requirement extends to the materiality of the information, so the Crown must also prove the accused knew or believed the information might be of material assistance to a prosecution (at [97]-[98]). The only relevant evidence on this point was that the appellant had received and accepted legal advice from Professor Parkinson, prepared for the Catholic Church, that complaint information of this type would not necessarily be of material assistance to police (at [102]-[103]). No evidence contradicted the appellant's acceptance of that advice. The court was therefore not satisfied beyond reasonable doubt that this element was established (at [108]).

Issue 4: Reasonable excuse

Having found the Crown failed to prove the essential elements of the offence, the court did not need to, and did not, determine whether the defences of risk of self-incrimination or confidentiality to a complainant were capable of constituting a reasonable excuse (at [109]).

Orders Made

  • The appeal is upheld.
  • The conviction and consequential orders of the Local Court are quashed and the appellant is discharged.

Key Takeaways

  • A conviction under section 316(1) requires the Crown to prove beyond reasonable doubt that the accused both knew or believed a serious indictable offence had been committed and knew or believed the information held might be of material assistance to a prosecution; the knowledge or belief requirement extends to the materiality of the information (at [97]-[98]).

  • Accepting a witness as honest does not automatically satisfy the court that their evidence is accurate; where evidence of a single witness is the foundation of a Crown case, the court must carefully scrutinise both honesty and accuracy, particularly when the account was first given decades after the alleged events and contains internal inconsistencies (at [36], [63]).

  • Expert evidence on the limitations of long-term memory is a relevant consideration in assessing the reliability of a witness recounting events occurring many years before the proceedings, and where such evidence is unchallenged it will ordinarily be accepted (at [41]-[42]).

  • The District Court held that an accused's stated practice of keeping an open mind on hearing a one-sided allegation of serious criminal conduct, pending admission or judicial determination, is not implausible and does not demonstrate the formation of a belief that the allegation is true (at [82], [90]).

  • Legal advice received by an accused that complaint information of a particular type would not be of material assistance to police is capable of raising a reasonable doubt that the accused knew such information might materially assist a prosecution, particularly where that advice went unchallenged and no contrary conduct was established (at [102]-[103], [108]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act

Cases
- Charara v The Queen (2006) 164 A Crim R 39
- Dyason v Butterworth [2015] NSWCA 52
- Fleming v The Queen (1998) 197 CLR 250
- R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820