June 30th 2018


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OPINION Why populism has become popular among the populace

MEDIA Ramsay Centre gets all that' left from ABC's Drum

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NATIONAL AFFAIRS Adelaide Archbishop Philip Wilson conviction conundrum

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NATIONAL AFFAIRS
Adelaide Archbishop Philip Wilson conviction conundrum


by Robin Speed

News Weekly, June 30, 2018

Archbishop of Adelaide Philip Wilson is reported to be the most senior Catholic in the world to be charged and convicted with not disclosing information to the police about child sex abuse.

He did not witness or participate in the alleged abuse. It appears that he was simply told by the victim in 1976 what is alleged to have happened in 1971, and was charged 39 years later with not going to the police with what he had been told.

The prosecutor, in calling for a jail sentence of up to two years, said: “For the purposes of sentencing, denunciation and general deterrence are paramount; and for those reasons the prosecution will be submitting a custodial sentence is an appropriate one.”

The matter was scheduled for sentencing on June 19, 2018, just after News Weekly went to press.

Is this part of a witch-hunt against Roman Catholic priests or simply the law in operation? In this article I will attempt to answer some questions about the matter so that the reader is better able to consider the issues.

With what offence was Archbishop Philip Wilson charged?

Archbishop Philip Wilson was charged with an offence under s316(1) of the Crimes Act (NSW) which provides: “If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for two years.”

Was s316(1) law in 1976 when the victim disclosed information to Philip Wilson?

No, s316(1) was not law in 1976 when the victim disclosed information to Philip Wilson, then a young cleric. The section only became law in 2000.

What was the relevant law in 1976?

The relevant law in 1976 can best be described in the words of the NSW Law Reform Commission in its Report 93 “Review of section 316 of the Crimes Act 1900 (NSW)”: “Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony. Misprision of felony consisted of knowing that a felony had been committed, and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time, and having had a reasonable opportunity to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.”

It appears that in theory Archbishop Wilson could have been charged in 1976 with the common law offence of misprision of a felony. But in practice there was uncertainty about the offence and it is doubtful whether he would have been charged.

The NSW Law Reform Commission in the same Report described the situation before s316(1) was introduced in the following words: “Section 316 is part of a package of public justice offences which was inserted into the Crimes Act 1900 (NSW) in 1990. The purpose of the package was to create a comprehensive statement of the law relating to public justice offences which, until the enactment of the amendments, was ‘fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties’.”

It would be informative to know whether anyone was charged in the 1970s or 1980s with misprision of a felony for not disclosing information in circumstances where the person neither saw nor participated in the offence, nor helped the offender to escape nor took steps to conceal the offence.

Was the relevant law in 1976 as wide as s316?

No, the relevant law in 1976 was not as wide as s316(1).

The critical difference was that s316(1) applied if Philip Wilson “knew or believed”, whereas misprision of a felon only applied if he “knew” the relevant matters.

Did s316(1) operate retrospectively?

According to the Court of Criminal Appeal, s316(1) did not operate retrospectively. Philip Wilson was not charged with failing to disclose in 1976. He was charged with failing to disclose in 2005 when he was Archbishop.

Meagher J in the Court of Criminal Appeal said:

“41 A necessary pre-condition for the application of s316(1) is that a person ‘has committed a serious indictable offence’. The use of the present perfect tense describes that a state of affairs which has arisen and is continuing in the sense that it has not been dealt with by the offender being prosecuted to conviction or acquittal. That pre-condition is capable of being satisfied irrespective of when the predicate offence may have been committed; and that remains so whether it was committed before or after the commencement of s316 in November 1990.

“42 The section did not for that reason have any retrospective operation. It did not provide that from an earlier date the law was to be taken to have been that which it was not or have such operation in the extended sense in which that expression is used … Rather s316 imposes a liability by reference to a future event, namely a non-disclosure of information without reasonable excuse that occurs in circumstances in which the person has the requisite knowledge or belief as to the commission of the predicate offence and as to the possession of material information in relation to it. It is correct to observe that the knowledge or belief may have existed before the commencement of the section and continued; however no offence is committed, and accordingly no liability imposed, unless thereafter there is a non-disclosure without reasonable excuse.”

This distinction is not easy to understand.

Philip Wilson was charged with an offence that was not in existence in 1976 and did not come into existence until 2000. The reason given by Meagher J for s316(1) to apply is not an independent reason, but simply a statement that the section does apply because it does apply.

S316(1) could operate retrospectively if that was what was intended by Parliament. Without an express statement of intent (as here), it is a matter of construction whether the section was intended by Parliament to operate retrospectively.

Ponderables

For s316(1) to apply, Philip Wilson must have known or believed that a serious indictable offence had been committed.

Philip Wilson was found to have believed in 2006 that a serious indictable offence had been committed. The prosecution selected this date because by then the alleged offender had been charged with a number of similar offences, but not the offence that the victim spoke about to Philip Wilson in 1976. (The alleged offender was never charged with the alleged offence before he died).

Magistrate Robert Stone found that by reason of what the victim told him in 1976 and other circumstantial evidence that Philip Wilson believed by 2006 that a serious indictable offence had been committed in 1971.

For s316(1) to apply, Philip Wilson must have failed to disclose, without reasonable excuse, information that might have been of material assistance in securing the apprehension or conviction of the offender.

The writer has not had the benefit of Magistrate Stone’s judgement (to obtain a copy will take several weeks) and accordingly does not know how the information known to Philip Wilson by 2006 could have materially assisted the prosecution of the offender. It is assumed that the victim came forward to the police in 2004–2006 or earlier and so did other witnesses who knew similar information to that known by Philip Wilson.

It is also not known why Magistrate Stone found that Philip Wilson did not have reasonable excuse for not coming forward. For example, it would have been reasonable to assume that by 2004–2006 the victim would have come forward and told what had happened in 1971 and, if the police had wanted collaboration, they could easily have picked up the telephone and sought information from Philip Wilson and others.

Conclusion

It is considered that the matters at issue are:

Whether it was right to find that Philip Wilson “believed” in 2006 that a serious indictable offence had been committed in 1971.

Whether it was right to find that Philip Wilson “believed” in 2006 that the information he had might have materially assisted the police in the prosecution of the offender.

Whether it was right to find that Philip Wilson had no reasonable excuse for not disclosing the information to the police.

Robin Speed is president of the Rule of Law Institute of Australia.




























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