Long-running defamation action brought by a former Anglican priest (now Catholic) over sexual misconduct allegations ends in victory for the publishers … The defences of truth and contextual truth are established for five articles in a lengthy judgment redolent with graphic sexual detail.
In the case of Father John Fleming v Advertiser-News Weekend Publishing Company Pty Ltd ( SASC 26) the South Australian Supreme Court has found allegations published by The Sunday Mail and Adelaide Now that a former Anglican priest had sexual relations with an underage girl and engaged a homosexual affair with a young parishioner to be substantially true.
Auxiliary Justice Malcolm Gray concluded the publishers, Advertiser-News Weekend Publishing and Advertiser Newspaper Pty Ltd had made out the substantial truth of one imputation pleaded by Father John Fleming and all the contextual imputations pleaded by the defendants.
The case brought by Father John Fleming (who began as an Anglican priest and was ordained in 1995) commenced in 2009 and featured many interlocutory skirmishes, mostly to do with particulars of truth and the defence of contextual truth.
Fleming (pic) claimed five articles published in 2008 and 2009 in The Sunday Mail, and Adelaide Now, in which his alleged victims used the pseudonyms “Richard”, “Jane” and “Jenny”, defamed him.
The first story reported that:
“Father John Fleming is being investigated by the police Paedophile Task Force over allegations he was sexually involved with a teenage girl in the 1970’s.
Detectives have also taken statements from another woman and a man who were allegedly sexually involved with Father Fleming after seeking counselling from him.”
In late November 2008, the police advised Fleming no charges would be laid.
The priest was stood down shortly after the first article, pending Michael Abbott QC’s inquiry into the diocese’s handling of the allegations against him.
In April 2009, his employment as president of Sydney’s Campion College was terminated.
Fleming pleaded the following imputations:
(a) The plaintiff as an Anglican priest had committed, or there were reasonable grounds to suspect that the plaintiff had committed, the criminal offence which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor.
(b) The plaintiff engaged in criminal sexual behaviour while an Anglican priest.
The defendants pleaded truth and contextual truth in defence.
The contextual imputations alleged that:
“The plaintiff while an Anglican priest engaged in sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral adulterous homosexual affair, hypocrisy, abuse of trust, moral cowardice and a false denial of sexual involvement.”
Justice Gray rejected imputation (a) but found imputation (b) was conveyed for all five publications.
He also found all the defendants’ pleaded contextual imputations were conveyed.
Truth and contextual truth
Justice Gray spent the bulk of his judgment reviewing the justification evidence in detail – some of it sexually explicit – given by three key witnesses, two of whom agreed to testify under their own names.
Dr Peter Kay, currently a senior advisor in the Department of Prime Minister and Cabinet, gave evidence of a number of sexual incidents with Fleming involving mutual masturbation, which took place between 1973 and 1983, before, during and after his marriage.
Kay had first gone to see Fleming when he was a university student concerned about his attraction to men.
Of the detailed evidence given by Dr Kay, and in response to Fleming’s denials, Justice Gray said:
“Overall, I do not regard Dr Kay’s evidence is a fabrication as the plaintiff alleges…
Insofar as the truth of the contextual imputations pleaded by the defendants relate to their being a sexual relationship between the plaintiff and Dr Kay, I find that relationship to be made out.”
His Honour also accepted the testimony given by Kay’s ex-wife, who let Fleming know she knew about the relationship.
The second object of Fleming’s sexual attentions according to the articles, “Jane”, now a retired lecturer in psychology, gave evidence that Fleming’s sexual contact with her and a school friend Alison McNicol (later Fleming’s wife) began when he was an Anglican priest at St Jude’s, Brighton in 1970, and when they were respectively 13 and 14.
She conceded they had “a crush” on the young priest at the time and that incidents of a sexual nature occurred on many occasions – in his flat, in his car and at Alison’s parents’ home.
In 2000 “Jane” complained to the Anglican Church Hotline, and gave a statement to police in 2007.
She also featured in a 2009 interview with journalist Nigel Hunt and was interviewed by Michael Abbott QC (pic) as part of his 2009 inquiry into Catholic Church processes in dealing with complaints.
A lengthy review of “Jane’s” evidence, including transcripts of those interviews, led Justice Gray to conclude that it was true that “the plaintiff engaged in criminal sexual behaviour while an Anglican priest”.
However, his Honour came to a different conclusion with respect to the evidence of Dianne Lynch, a social worker, who described a sexual incident involving Fleming in 1975, when she was 17.
She said she was “infatuated” with him at the time and that he had ejaculated while she was massaging his neck in his church apartment as part of a “counselling session”.
Lynch gave imprecise statements to the Catholic Church’s inquiry about the incident, and to Justice Gray.
On the evidence, his Honour concluded:
“I am not satisfied that I can make a finding as to the plaintiff causing Ms Lynch to do anything.”
However he found the contextual imputations relied upon for both Dr Kay and “Jane” were proven.
In considering the plaintiff’s now irrelevant claim for damages, His Honour noted Fleming’s suit for economic loss due to loss of employment and aggravated damages due to major depression precipitated by the articles.
Justice Gary found Fleming had failed to prove a causative connection between his loss of employment and the first article.
He also failed to find any grounds for aggravated damages.
“The publication was founded on information concerning a police investigation.
The defendants’ journalist conducted interviews with each of the persons making the allegations and a response sought from the plaintiff before the first publication took place.”
Justice Gray rejected another of the plaintiff’s submissions going to aggravation – the reporting of his defamation trial.
“I am not satisfied that the plaintiff makes out his complaints such that the defendants’ reports constitute misconduct on the part of the defendants.”
Justice Gray found for the defendants and dismissed Fleming’s case.
This review originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication