R v Wilson [2018] NSWDC 487

District Court New South Wales

Medium Neutral Citation: R v Wilson [2018] NSWDC 487 Hearing dates: 27 and 28 November 2018, 6 December 2018 Decision date: 06 December 2018 Jurisdiction: Criminal Before: Ellis DCJ Decision: (1) The appeal is upheld.

(2) The conviction and consequential orders of the Local Court are quashed and the appellant is discharged. Legislation Cited: Crimes (Appeal and Review) Act Cases Cited: 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 Category: Principal judgment Parties: Regina (Crown) Philip Edward Wilson (Appellant) Representation: Counsel: H Roberts (Crown) S Odgers SC with S Buchen SC (Appellant)

Solicitors: Solicitor for Public Prosecutions Iles Selley Lawyers File Number(s): 2015/80438 Publication restriction: Pseudonyms replace the names of some witnesses and family members.

Judgment

Background 1. The accused Philip Edward Wilson was convicted in the Local Court by Local Court Magistrate Stone on 22 May 2018 on one count of "Whereas James Patrick Fletcher in 1971 committed a serious indictable offence, namely indecent assault of a male, on Peter Aiden Creigh aged 10 years old, Philip Edward Wilson between 22 April 2004 and 7 January 2006 at Maitland and elsewhere in the State of New South Wales, believing that James Patrick Fletcher committed that offence and knowing that he had information which might be of material assistance in securing the prosecution of James Patrick Fletcher for that offence, without reasonable excuse, failed to bring that information to the attention of a member of the New South Wales Police Force." 1. On the 14 August 2018 Philip Edward Wilson was sentenced to twelve months imprisonment with a non-parole period of six months which Magistrate Stone directed be served by means of Home Detention. That same day Philip Edward Wilson lodged an appeal against his conviction. The appellant did not appeal the severity of the sentence and he commenced to serve that sentence and continues to do so up to the date of this judgement. 2. On the 6 September 2018 the Deputy Director of Public Prosecutions lodged an inadequacy appeal. 3. On the 30 August 2018 the conviction appeal was mentioned and a timetable fixed for the filing of written submissions. 4. On the 9 November 2018 defence submissions dated 8 November 2018 were filed at the Newcastle Registry. 5. On the 19 November 2018 Crown submissions were filed. The Crown also filed a summary of the evidence led at the Local Court hearing. 6. On the 26 November 2018 defence submissions in reply to the Crown submissions were filed. 7. The hearing of this matter commenced on Tuesday 27 November 2018. Mr. Stephen Odgers SC with Mr. Simon Buchen SC appeared as Counsel for the appellant. Ms. Helen Roberts, Crown Prosecutor, appear as Counsel for the Director of Public Prosecutions. The hearing commenced by the filing of the various transcripts of the evidence led in the Local Court, the various items marked as exhibits in the Local Court and the Judgement and Reasons of Local Court Magistrate Stone dated 22 May 2018. Submissions continued into Wednesday 28 November 2018 and the matter was then stood over for Judgement to Thursday 6 December, 2018 at 2pm. 8. Adopting the terminology of the Crown with which the defence agree "The nature of the appeal against conviction is to be "by way of rehearing on the basis of evidence given in the original Local Court proceedings": s 18(1) Crimes (Appeal and Review) Act. The District Court Judge hearing the appeal is permitted to have regard to the magistrate's reasons for judgment in addition to the transcript of the proceedings: Charara v The Queen (2006) 164 A Crim R 39 at [23]. The judge is to form his or her own judgment of the facts, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses give evidence in the Local Court: Dyason v Butterworth [2015] NSWCA 52 per McColl JA at [26]." I note that the appellant did not seek leave to adduce additional evidence. 9. It is important at this stage of these reasons to clarify precisely what these proceedings are and even more importantly what they are not. As a preliminary matter it is clear following the Royal Commission into Institutional Responses to Child Sexual Abuse that it is fair to say that the Catholic Church as an institution has a lot to answer for in terms of its historical self-protective approach to children complaining of sexual abuse at the hands of some of its priests. However, Philip Wilson when he appears before this court is simply an individual who has the same legal rights as every other person in our community. It is not for me to punish the Catholic Church for its institutional moral deficits or to punish Philip Wilson for the sins of the now deceased James Fletcher by finding Philip Wilson guilty simply on the basis that he is a catholic priest. 10. Sexual abuse of children is a blight on our community and a heinous crime against innocent victims. Arguably institutional sexual abuse of innocent and dependent children is even worse. My experience with victims over many years as a Crown Prosecutor and in hearing victims read their victim impact statements as a Judicial Officer over the last fifteen years has indelibly imprinted on my mind the huge psychological consequences for victims. The psychological consequences for victims of child sexual abuse has been confirmed over the last decade or so by many independent studies and reports. The impact is both immediate and long term and worse if appropriate psychological treatment and counselling is not rendered or not available. However, this prosecution of Philip Wilson must be put into its proper context as it has never been alleged that Philip Wilson sexually abused children. Indeed, it has never been alleged that he used his position to protect paedophile priests. In relation to Peter Creigh it has never been alleged that in 1976 or any time thereafter in the ensuing 30 years that Philip Wilson convinced or attempted to convince Mr Creigh not to report the matter to the authorities. It has never been alleged that James Fletcher admitted sexually abusing young boys to Philip Wilson and that Philip Wilson protected him by not reporting the admission to police. 11. Accordingly, I acknowledge that it is important that I deal with this appeal completely impartially by not allowing anger toward the Catholic Church or sympathy for Philip Wilson because the matter dates back to 1976 when he was a young inexperienced assistant Priest, to interfere with my role in this defence appeal against conviction. 12. There can be no doubt that generalisations about individuals or institutions are fraught with danger especially in the field of criminal law as the criminal law is and must always be individual. Justice must be individual if it is truly to bear the label "justice". 13. It is also clear that following the Royal Commission into Institutional Responses to Child Sexual Abuse, our community is far more informed in terms of the morally deficient practices previously adopted by some religious institutions on some occasions to deal with sexual abuse allegations. There is no doubt that sexual abuse of children by members of the clergy and attempts to prevent publication of such abuse either on an individual or institutional basis is not only morally reprehensible but it is also contrary to the basic principles of Christianity. Clearly the public is now far better informed on these issues because of the publicity the media has given, and rightly given, to these issues. 14. However, it is important to appreciate that the media's interest in the prosecution of institutional sexual abuse or its cover up should not be permitted to undermine judicial independence and the rule of law. The potential for media pressure to impact judicial independence may be subtle or indeed subversive in the sense that it is the elephant in the room that no one sees or acknowledges or wants to see or acknowledge. This is not a criticism of the media but rather a recognition that intended or not, the mere presence of large numbers of members of the media from all around Australia and indeed potentially the western world carries with it an undoubted pressure on the Court. 15. This may amount to perceived pressure for a Court to reach a conclusion which seems to be consistent with the direction of public opinion, rather than being consistent with the rule of law that requires a court to hand down individual justice in its decision making process. In practice complying with legal principles may well result in a verdict that is perhaps inconsistent with media or community expectations given more recent trends in public and media opinions. But if the verdict is a true representation of justice in the individual case then it is community or media expectations that must be dashed not the hopes of an individual that he or she will receive a fair trial and that the verdict will provide justice in their case in accordance with legal principles that operate in Australia. 16. Returning to this particular appeal I note that in considering whether the Crown has established the guilt of the appellant the Court gives itself the following directions.