Motions

South Australian Justice System

Adjourned debate on motion of Hon. F. Pangallo:

That this council—

1. Recognises the role the South Australian justice system plays in upholding law and order in this state by providing a system whereby those that break the law are suitably punished by legislation/laws set by this parliament;

2. Acknowledges the South Australian justice system has failings and injustices have, and continue, to occur;

3. Recognises the nature of our justice system enshrines a burden of proof on the prosecution of either beyond reasonable doubt or on the balance of probabilities that has the potential to result in miscarriages of justice;

4. Acknowledges there have been cases where these thresholds were thought to be satisfied, but later found to have been doubtful at best and unsound at worst; and

5. Calls on the establishment of an Independent Criminal Case Commissioner, to be appointed by the state government, where individuals who believe they have been victims of an injustice within the South Australian justice system can request their case be reviewed (or where a miscarriage of justice is demonstrated by a reasonable doubt of a sound verdict being delivered in the case).

(Continued from 14 May 2025.)

The Hon. F. PANGALLO (20:30): I rise to speak on my motion that will cover miscarriages of justice in this state, and there have been many. A miscarriage of justice occurs when a person is wrongfully convicted or treated unfairly by the legal system, resulting in a violation of their legal rights or liberties. It represents a fundamental failure in the administration of justice and undermines public confidence in the legal system. Such miscarriages can stem from a variety of sources, including prosecutorial misconduct; flawed, contaminated or mishandled forensic evidence; false confession; judicial bias or inadequate legal representation; or eyewitness misrepresentation.

When procedural fairness is denied, the risk of wrongful conviction increases significantly and the impact on the innocent individual can be devastating and lifelong. Innocent individuals who fall victim to miscarriages of justice suffer not only the loss of liberty but also the destruction of their reputations, personal relationships, careers and mental health. In many cases, even after exoneration, the stigma of a conviction or an adverse finding can remain. The court of public opinion does not always follow the verdict of a court of law, and the damage to an individual's name may never fully be repaired.

Take Lindy Chamberlain-Creighton, wrongfully convicted in 1982 of murdering her infant daughter, Azaria, at Ayers Rock. This was a case I followed as a journalist from the very day it happened, and it was constantly in the media. Here was a classic case of where the court of public opinion can influence a verdict even when the evidence, compiled by incompetent expert witnesses, biased and prejudiced police and then presented against her in court, was so fundamentally flawed.

There were people who simply refused to believe her story that a dingo snatched the baby from their campsite. Yet she was still convicted, was given a life sentence and her life irrevocably destroyed, even though she was released on an appeal after serving three years in jail. I met with Lindy's now adult children and her late husband, Michael Chamberlain, about 20 years ago when I was working with Channel 7 in Sydney. The pain and ignominy of what this did to them was so evident. It will never go away for them or their mother, who had to flee the country.

Another disturbing case is that of Andrew Mallard, who was wrongfully convicted in 1995 for the murder of Pamela Lawrence in Perth. Mallard, who suffered from a mental illness, was subjected to coercive police interviews, and his so-called confession was inconsistent and contradictory. There was no physical evidence linking him to the crime. Despite this, he was convicted and spent 12 years in prison. The High Court quashed the conviction in 2005. Mallard died in 2019, but his case remains a sobering reminder of the dire consequences of procedural failings.

The case of Cardinal George Pell, while more contentious, also illustrates the profound reputational impact of a wrongful conviction. Following a sustained media witch-hunt led by ABC journalist Louise Milligan, Pell was charged by Victorian police, ultimately convicted in 2018 and jailed for historical child sexual abuse charges. Being a Catholic, no less, did not help his defence. The conviction divided public opinion but was ultimately overturned by the High Court in 2020, which found that there was a significant possibility that an innocent person had been convicted. While the court cleared him, the damage to his reputation was immeasurable. There are those who still believe Pell, who died two years ago, was guilty.

These examples underscore the critical importance of procedural fairness, which includes the right to a fair trial, impartial adjudication, access to competent legal counsel, and the ability to challenge evidence. When these elements are absent or compromised, the consequences can be tragic, not only for the wrongly accused but for the integrity of the justice system itself. Miscarriages of justice demand vigilance, transparency and a commitment to reform to ensure they are as rare as possible and swiftly remedied when they occur.

However, such is our society's ambivalence to these matters, once they have traversed the arduous and costly litigation journey there is no recourse available to the innocent to reclaim their ruined reputations, unless of course they have infinite financial resources to try to fight the wrongs through a judicial system which is so often reluctant to judge the mistakes made by their own, no matter how damaging a verdict was to those who stood accused.

It is not in the interests of the police nor of the legal authorities to publicly acknowledge that miscarriages of justice have occurred. Governments will always find ways to avoid responsibility and paying compensation. One of the more recent high-profile cases of a determined miscarriage in South Australia was Edward Charles Splatt, found to have been wrongly convicted of the murder of a pensioner. The detective work of Advertiser investigative journalist Stewart Cockburn led to a royal commission which exposed this travesty, resulting in an acquittal and payment of compensation. I met Ted years later. He was still suffering mentally. Money cannot make the deep scars of injustice disappear.

The list here also includes people I have often raised in this parliament. There is Henry Keogh, Adrian Drummond, Derek Bromley, Chief Superintendent Doug Barr, Trent Rusby, the police from Sturt Mantle, Jurgen Michaelis, John Hanlon, Georgina Vasilevski, and penniless Ian Lawton, now in his last days in a Glen Osmond nursing home, where he is still asking why the police refused to investigate a prima facie case of fraud involving millions of dollars. Once he has gone, who is going to care? This is why I strongly support and believe we need a criminal cases review commission, but I will leave that for another day.

The matters I intend to cover in this motion reveal the dire consequences when the presumption of innocence, procedural fairness and rule of law fail individuals. They are drawn from criminal matters here and overseas, civil cases where the outcomes were unforgivably biased and instances where there was clear evidence of blatant corruption and deliberate cover-up within a government agency which was not thoroughly investigated by South Australian police for reasons you will find disturbing.

I have often said in this place that corruption is the mortar that holds up our walls. Nothing has changed. What is disturbing is that it is tolerated. The more powerful you are, the more you are untouchable, yet the public of South Australia remain clueless. The matter I will elaborate on today bears remarkable similarities to the Pell case, except it was not in a criminal jurisdiction but a civil one surrounding an unsuccessful defamation action brought by a Catholic priest, Father John Fleming, against The Sunday Mail in 2014.

As I am about to reveal, the ongoing destruction of Father Fleming's reputation in the media and then through our biased justice system because of unsubstantiated claims of sexual abuse of a minor is so perverse and malicious that it is beyond comprehension.

First some background about him. He was at one time a married Anglican cleric with a family and later converted to Catholicism, being ordained a Catholic priest in the archdiocese of Adelaide in 1995. John Fleming had a high profile in the community through his qualifications in the field of bioethics, his pastoral work and as a media personality through radio programs he conducted and in newspaper opinion columns.

His CV is very impressive. He has academic degrees, was an adjunct professor of bioethics and held very senior professional positions. His opinions on bioethics were widely sought here and overseas, including at UNESCO. He has had numerous papers and submissions published here and overseas, and he has written three books.

It goes without saying that John Fleming is a highly educated, articulate intellectual, and being a Catholic priest made him the archetypal tall poppy, ripe for the media sickle. By the time of the damning published articles in 2008, the Catholic Church and other religious institutions were being shaken by egregious child sex abuse scandals. It was open season on Catholic priests, and so it seemed in John Fleming's case.

Without going into detail, The Sunday Mail articles centred around historic and uncorroborated accusations of a sexual encounter involving an underage young woman known only as Jane, a young Father Fleming and another young woman, Alison, who he would later marry and who is the mother of their three children.

The marriage has survived the turbulence and hurt which followed the publication and subsequent legal battles and is a credit to the love and support shown by Alison. Father Fleming was labelled a criminal child sex abuser, a paedophile, based on the unsubstantiated and implausible sexual encounter made by his accuser, Jane. South Australian police had investigated and dismissed her claims. However, The Sunday Mail chose to believe Jane's story ahead of the vehement denials by Father Fleming and the other key witness, his wife Alison.

With his career hanging by a thread and his reputation demolished beyond repair, he had no option but to seek justice through a defamation action in 2014. Yet during the proceedings it was the plaintiff, Father Fleming, who found himself on trial for a crime for which there was no evidence but for the word of an accuser.

In criminal cases the presumption of innocence beyond reasonable doubt applies, but not in civil cases where the burden of proof is of a lower standard and based on the balance of probabilities. But what happens when criminal accusations are levelled at someone in a civil jurisdiction, as they were against Father Fleming? This is where a rule or principle developed by the High Court in 1938, known as the Briginshaw rule, should be applied by the courts. Briginshaw sets a much higher bar in civil matters where exactness of proof for criminal offending was required.

Trial Judge Gray took an inexcusable one year to deliver his judgement in favour of the publisher. Father Fleming also lost an appeal to the Full Court of Appeal and failed to get leave to appeal to the High Court on two occasions. For reasons only known to all those judges involved, the Briginshaw rule was not applied, and it was wrongly stated that Briginshaw no longer applies in civil matters, although all other courts continue to apply Briginshaw.

A recent example in South Australia is Poniatowska v Channel 7, where the very same court which ruled against it in Fleming's actions then applied Briginshaw, restoring it to the status of being a principle. The principle was also applied in the Geoffrey Rush v Nationwide News case in which Mr Rush had been accused of sexual abuse, and he won. The High Court could have easily cleared up the confusion over Briginshaw that now exists in South Australia had it not twice rejected a review of the Fleming case.

Two of Australia's most eminent criminal law academics, Emeritus Professor Gabriel Moens AM from Queensland University and Professor Augusto Zimmermann, a former law reform commissioner in Western Australia, wrote a blistering article in Quadrant last year headed 'The judicial railroading of Father Fleming', and I will quote from it:

By denying Fr Fleming the application of Briginshaw, these judges basically admit that if it were applied then the presumption of innocence would be more carefully considered. However since they state erroneously that Briginshaw no longer applies in civil matters (although all other courts continue to apply Briginshaw) Fr Fleming was deprived of the presumption of innocence and therefore had to prove his own innocence. Accordingly, both the trial judge and the appeal judges proceeded on the basis that the complainant must be believed, even if her allegations are riddled with uncertainties, discrepancies, inconsistencies and contradictory statements. The 'I hear, I listen, I believe' mantra permeated the judicial proceedings and, inexcusably and irreparably, influenced the court's decision. The court's bizarre treatment of the concept of 'contextual truth' and its rejuvenation of an ancient and discredited view of a wife's role in giving evidence are also perplexing.

I seek leave to table that Quadrant article.

Leave granted.

The Hon. F. PANGALLO: The legal and financial setbacks have left Father Fleming's life, career, financial status and reputation in irreversible ruins. The Catholic Church also took away his right to re-engage his ministry. The Archdiocese of Adelaide is too timid to review his status, fearing a media backlash no doubt. Father Fleming is retired but, nearing the age of 82, he has lost none of his scholarly drive and intellect, nor his steely pursuit to clear his name. As Ernest Hemingway once wrote: 'The world breaks everyone, and afterward, some are strong at the broken places.'

With no other avenue left for him to turn, Father Fleming has written an excoriating indictment about his unconscionable experience at the hands of the South Australian justice system and the media. Titled Supreme Injustice: Guilty Until Proven Not Catholic?, Father Fleming maintains that the presumption of innocence in his case was turned on its head because he was a Catholic priest, and his accuser was a female who had to be believed despite the absence of evidence. The book took him five years to write. It is a fascinating and intricate analysis and dissection of the legal process and the media hostility which brought him down. He only decided to publish it recently when the unrelenting attacks on his character resurfaced in the media.

I had not thought much of the case or about Father Fleming until I met him and his barrister, the respected King's Counsel Paul Heywood-Smith. On reading the book, I can now appreciate where he is coming from, and I felt he deserved to have his account told in proper context, which he was not afforded at the time—indeed, even now. I have now formed the view that Father Fleming is a good man wrongly smeared as a criminal and our justice system in this state can discriminate with bias and impunity. Father Fleming's harrowing story could happen to any of us.

I recently hosted the launch of the book by the Hon. Tony Abbott here at Parliament House—apt, as this is the home of our democracy, free speech and the rule of law. Mr Abbott spoke passionately about the right for justice and procedural fairness to be seen to be done to persons wrongly accused, and praised Father Fleming's resilience in the face of such adversity. Other guest speakers were Professor Gabriel Moens and Professor Augusto Zimmermann, who I mentioned earlier and who are amongst the most eminent legal academics and observers in this country. Allow me to read excerpts from their compelling and convincing arguments. This from Professor Moens:

His book documents the misdeeds of the depraved enemies of justice and decency. These misdeeds have smeared a person who, throughout his life, has served God, society, and his family. However, I should also like to say that the book is an uplifting story that celebrates the values of hard work, persistence, dedication, and a determination to succeed in unfamiliar, even hostile, environments. In this sense, it is a book about faith, freedom, and hope.

Hostility towards Christianity is now pervasive in every single aspect of our Australian society. Australia is now a majority non-Christian nation, and openly antagonistic to orthodox Christianity. The so-called progressive secular forces have converted Australia into a woke-infested politically correct society.

These zealots have developed a hostility to all forms of Christian religion but especially the Catholic Church. Fr Fleming's journey, described in Supreme Injustice provides convincing evidence of this regrettable societal development. Indeed, Supreme Injustice details Fr Fleming's abominable treatment by the Australian court system. The book is an eye-opening harrowing narrative that illustrates how uncorroborated allegations could so entirely and irretrievably trash an innocent person's reputation.

As the courts assumed that the allegations of alleged victims of sexual abuse must always be believed, the onus of proving that a person did not and could not have done the acts they are accused of was shifted to the plaintiff in the defamation case, namely Fr Fleming. Whilst the presumption of innocence prevails in criminal cases, in defamation cases, which are civil cases, the presumption did not appear to be applicable.

The shifting of the onus of proof to the plaintiff in a defamation case violates the Briginshaw rule—a rule developed by the High Court in 1938—which is applied inconsistently in Australia's jurisdictions, and indeed even in South Australia.

Fr Fleming was deprived of the presumption of innocence and therefore had to prove his innocence. His account of the litigation is riveting and reveals the extent to which the law may occasionally be commandeered to achieve a partisan outcome.

Accordingly, both the trial judge and the appeal judges proceeded on the basis that the complainant must always be believed, even if her allegations are riddled with uncertainties, discrepancies, inconsistencies, and contradictory statements. The 'I hear, I listen, I believe' mantra permeated the judicial proceedings, and inexcusably and irreparably influenced the courts' decision.

The harm done to Fr Fleming's reputation is irreversible and immeasurable. Being labelled with vile accusations due to a bungled court case results in permanent injury to a person's reputation and even societal ostracism.

Fr Fleming's detailed treatment of his brutal battle with a seriously biased media and politicised judiciary is a ubiquitous reminder of the brittleness of life.

Considering this insight, a reading of Supreme Injustice would benefit all those who are interested in the nurturing of the rule of law. It will especially appeal to people who still believe in the existence of common sense.

This book should become a classic in the literature that describes the perceptible deterioration in Australia of even the most elementary standards of justice and procedural fairness.

As the book provides evidence of a spectacular miscarriage of justice, it assists in the judicial and political review of his case that has compromised the life and reputation of an innocent individual.

To conclude, Supreme Injustice is about the disturbing treatment by the Australian justice system of an upstanding Australian.

This book provides a sober reminder of what might happen to any person living in this country when the system fails to uphold elementary principles of fairness and natural justice.

As such, I recommend the book to people of goodwill who believe in the power of truth, decency, and determination.

I seek leave to table the full speech by Professor Moens.

Leave granted.

The Hon. F. PANGALLO: Professor Zimmerman stated, and again I quote:

The Fleming case reveals that there is something rotten with the state of South Australian justice, and, indeed, with Australian justice more broadly. There are three aspects to the Fleming case:

The anti-Catholic bias of the justice system exhibited in the Fleming trial and the fact that priests are now 'fair game' in the era of moral panic about sex abuse against minors, the 'we believe you' of the #MeToo ideology embedded in the justice system and the legal and popular acceptance of 'guilt by accusation';

The lack of procedural fairness in the trial and subsequent appeals; and

The fatal shortcomings in legal reasoning of the judgement in the defamation trial and of subsequent appeals.

The errors in the Fleming judgement are many and significant, and a failure to address them has broader and continuing implications for the fairness of Australia's justice system. The legal errors to which John Fleming was exposed also remind us that it is not only juries that sometimes get it wrong.

The Fleming case is about the reliability of judges, and perhaps even more worrying than the understandable lapses of juries.

Here are five of the most significant legal errors of the Fleming judgement, delivered only after a lengthy and unjustified delay, and uncorrected by the higher courts. They relate to:

Overturning the presumption of innocence, the standard of proof in civil cases and the application of the so-called Briginshaw principle.

Faulty consideration of evidence.

The treatment of the testimony of expert witnesses.

The favouring of particular witnesses over others without reasons given.

Reflexively believing complainants to be 'compelling' if they put on a good show in the witness box, irrespective of exculpatory evidence.

Justice Gray's wrongful interpretation of Briginshaw, indeed his dismissal of it, and the non-correction of this by higher courts, left the whole justice system hanging. Even though it was Fleming initiating the civil action here, it turned out that he was the one really in the dock.

Arguing the Briginshaw principle, but losing in the lower court, he appealed and lost again in the South Australian Supreme Court in 2016. The court surprisingly played down Briginshaw, claiming later High Court judgments do not import that presumption into the civil arena and that it was incorrect to raise it to an 'onus', 'standard' or 'principle'.

Other recent cases, including that involving published allegations of criminal behaviour demonstrate a very different interpretation of Briginshaw and the burden of proof. Not so in the case of John Fleming.

As it stands, it would seem that it is simply the luck of the draw that determines the burden of proof in civil cases involving allegations of criminal conduct.

In yet another Briginshaw type case, in South Australia no less, the same Supreme Court that found against John Fleming upheld the principle.

Such blatant inconsistencies in the application of the law require rectification as a matter of urgency. The complainant's contradictory and uncorroborated testimony was anything but compelling, as the trial transcript demonstrates.

There emerged no reason whatsoever during the trial for finding the complainant either reliable or compelling. The police hadn't believed her, at least to the extent that they didn't think her complaint could become the basis of a criminal prosecution.

These were all failures in relation to the evidence of the allegations, and strong suggestions of bias against one who was a Catholic priest. And there were many other problems during the trial and errors in the subsequent court decision. The judge had a preferred narrative, and nothing by way of evidence was going to budge him from this narrative.

It is alarming when judges who should know the law and dispense justice competently and wisely also get it wrong.

The judge overseeing the Fleming case made monumental blunders of legal reasoning. These were not reversed by two higher courts. There are two possible explanations for this outcome—bias or incompetence—to which might be added a third explanation, bias and incompetence.

Whichever explanation one chooses, the answer is grim news for Australian justice. While these questions remain unaddressed, a shadow will continue to be cast over John Fleming's reputation. His life remains in ruins. The harm done does not go away. Having vile accusations stick as a result of a bungled court case means that they stick forever.

Critics and enemies may continue to utter calumnies, knowing they have the protection of a legal judgement. There has been no final vindication. No reversal of the calumnies nor of the pain. There is also a shadow that has been cast over the whole justice system.

Professor Zimmerman then goes on to say that the question of the credibility of witnesses—that we believe you—needs to be addressed, that there should be support from this parliament for a fresh appeal by Father Fleming to the Supreme Court and a parliamentary inquiry into the application of the Briginshaw principle. I seek leave to table in full Professor Zimmerman's address.

Leave granted.

The Hon. F. PANGALLO: Any reasonable person cannot help but come to the same conclusions of those learned and highly credentialed legal academics after reading this book: how a good, decent and innocent family man of social and religious conviction was crucified and then failed by a justice system, which demonstrated unhealthy bias and then was reluctant to admit they got it horribly wrong in order to protect reputations. A total embarrassment was averted. The hanging party got what it wanted. A Catholic priest became the symbolic scapegoat for the sins of others.

I will rate this as one of the most shameful miscarriages of justice in a state that seems to be riddled with them. Father Fleming is here tonight. He is not out to make money from the book; in fact, he has relinquished copyright restrictions by allowing me to table the book so others can disseminate it. I seek leave to table that book.

Leave granted.

The Hon. F. PANGALLO: I would recommend the book to members, my media colleagues, law students, practitioners and the judiciary. There are other important matters I intend to cover in our next sitting week. I seek leave to continue my remarks.

Leave granted; debate adjourned.

At 21:06 the council adjourned until Thursday 5 June 2025 at 11:00.