Day: May 28, 2018

The media cannot reasonably be expected to report every piece of evidence. This means that any assessment based on media reports is necessarily tentative. It is entirely possible that any one media outlet may have omitted some critical point. But it is unlikely that every major outlet should fail to report the same argument or piece of evidence which was essential to the court’s findings. So it is possible to have a reasonable and careful discussion of any court finding, provided some care is taken.

The SMH report quoted in my earlier article is a fair summary of what was required to be proven by the prosecution before the defendant could be found guilty as charged. A reasonable doubt at any step should have resulted in a finding of not guilty. The finding of guilty is an assertion that each step is proven. A key step is the magistrate’s acceptance of the accuracy of the boys’ reports of conversations they allege took place over forty years ago.

One of my concerns about this is that the magistrate seemed to have no awareness of research conducted over the last half century into the construction, development and malleability of memory. Given that this is the single most important factor in his arriving at a guilty verdict, he had a responsibility to familiarise himself with this now substantial body of knowledge. It might be suggested that it was up to the defence team to draw this material to the magistrate’s attention, and it is surprising and disappointing they did not.

Trial histories are full of examples of witnesses, often multiple witnesses, swearing that x was what was said, y was what happened, and z was the person who did it, with guilty verdicts being delivered on this evidence, and sometimes, in the US, death sentences being imposed, only to find later through audio or video recorded evidence, or DNA or other scientific evidence, or other witnesses, that x was not what was said, y was not what happened, and z was out of the country at the time.

However, even if there were conversations and they took place substantially as the boys remember, it is possible that then Fr Wilson did not understand what was being said to him. Even in everyday conversation there is often a substantial gulf between what the sender intends, and what the receiver hears and understands.

To give an example, I have a close friend who is a teacher. An autistic girl at the school at which she works developed an attachment to her, and became her intermittent shadow. She would often chatter as the teacher was at work, on yard duty, marking, preparing lessons. Often the teacher listened attentively, but just as often, her attention was necessarily elsewhere. On one occasion the child’s parents withdrew her from the school, claiming (quite reasonably as it turned out) that she was being bullied. School authorities said they had not been aware of this, but the parents’ response was that her daughter had told them she had reported it to the teacher, my friend. My friend was horrified. She had no memory of this at all. Was it possible she had simply tuned the child out, or had been so distracted by other things that she did not hear or absorb what was said?

This was reported only a few weeks after the conversation was supposed to have taken place. Conversations allegedly involving Fr Wilson were reported between thirty and forty years after they were supposed to have taken place. This length of time is another confounding factor. Statutes of limitations are not a technicality. The more time goes by, the harder it is for an accused person to remember where he was and what was said and done, harder to find diaries or other documents or witnesses who would be able to show he was elsewhere. The more time goes by, the more cautious a court needs to be, and the more it needs explicitly to recognise the additional difficulties faced by an accused person in finding and presenting exculpatory evidence. If anything, this obligation becomes greater rather than less, the more odious the alleged crime.

On the information so far publicly available, Magistrate Robert Stone attended to the preceding factors in a cursory if not frivolous fashion, and proceeded directly to considering the credibility of Archbishop Wilson. Even if he was entirely justified in accepting the boys’ accounts as accurate in every detail, and in putting aside the difficulties faced by Archbishop Wilson in responding to events alleged to have occurred so long before, he made two sets of comments which suggest this assessment was not entirely objective.

Firstly, as noted above, his reprimand to Archbishop Wilson for what Stone described as a “technical” objection, that is Wilson’s comment, when asked, that he would not make any judgement about the guilt or otherwise of any person before that guilt had been proven. This was reported in the media, and seems to have been taken by Stone, to mean that Wilson would not have taken allegations of abuse seriously, and would not have acted on them, because he would not have believed them anyway. But that is a very long way from what Wilson actually said. A sensible process is to listen carefully and respectfully to allegations of abuse, to follow up and investigate carefully, to report to police or other authorities if appropriate, but to withhold final judgement until all the facts have been thoroughly and fairly considered. That has been the practice of Catholic authorities for many years. It ought to be the practice of any investigating body, and of the courts.

Secondly, and equally disturbingly, is Stone’s dismissal of Archbishop Wilson’s claim that he had never heard, directly and to him as the first point of contact, any complaint of sexual abuse. Stone’s disbelief of this claim is not based on any evidence, but on Stone’s prejudices. I was a clergyman for thirty years. I never in that time had made to me personally, any complaint of sexual abuse by another minister. I knew complaints were made, and over the period of my ministry three of these involved people I knew; I know hundreds of clergy. I had one complaint made to me about sexual abuse by a family member (something vastly more common than abuse by clergy) which I reported, and later in my ministry I had multiple complaints of emotional and verbal abuse by a senior clergyman, which I acted upon to the best of my ability so as to be fair both the complainants and to him. But not once a direct complaint of sexual abuse by a priest or minister. It seems odd to me that Stone should have been so adamant that this was impossible or even unusual.

It is accepted in criminal law that if there is a reasonable explanation of the evidence that is consistent with the innocence of the accused, then a verdict of “Not guilty” must be returned. Those responsible for delivering that verdict, whether a jury or a judge or magistrate, have a duty to keep this consciously in mind at every stage of proceedings. Magistrate Stone did not do so. There are reasonable alternatives to his conclusions at every link in the chain of reasoning. On the available evidence, this case should not even have been brought to trial. If Archbishop Wilson were not a high profile Catholic leader, it almost certainly would not have been.

To summarise, I would not find Archbishop Wilson guilty even on the balance of probabilities, and Stone’s finding of “proven,” that is, guilty beyond a reasonable doubt, goes so far beyond the available facts as to seem absurd.

There is no justice for victims in sending the wrong people to jail.