Last week, an alleged historical rape by a current federal cabinet minister hit the headlines. In the following days, Attorney-General, Christian Porter, held a press conference to confirm he was the minister at the centre of these allegations and to deny the alleged criminal conduct.
Before I go further, I want to disclose that I am a member of the Western Australian Liberals and sit on state council. I don’t know Christian Porter and I don’t write this in any party related capacity. My views are, as per usual, my own.
Back to the Minister.
Porter fronted the media only after NSW Police closed their investigation and confirmed there was insufficient admissible evidence to progress the matter. Tragically, last year, the alleged victim withdrew her police complaint – without making a sworn statement – and then passed by suicide.
This is all one big sad mess.
And while emotions are rightly stirred, I, once again, feel compelled to defend only the rule of law. The rule of law comprises a delicate set of protocols and standards which ultimately act to protect citizens from the power of the state. As Justice Antonin Scalia said ‘The rule of law is the law of rules’. This week, the very concept of due process – a key rule – has been pilloried as archaic, acting to silence victims, or as being a convenient curtain for offenders to hide behind. Actually, archaic would be returning to witch-hunts on the basis of untested allegations.
And here we are.
In 2019, regarding the prosecution of Cardinal George Pell, I wrote ‘Our objective impression of the justice system can become weakened when society sees a heinous crime has been committed and it wants to see someone responsible for it, or where society perceives someone as a criminal and is determined to see them held responsible for something. Anything. Being human means that emotional reactions can cloud our otherwise dispassionate view of accountability. But as Robert Bolt’s play A Man for All Seasons taught us – if we cut down man’s law to chase the devil then there will be nothing to protect us when the devil turns around and comes for us.’
And while the catch-cries of #metoo and #believeallwomen intend to bring justice to female victims of sexual abuse, the events of the last fortnight show that unchecked accusations can result in injustice all round. The immutable basis of our system necessitates that an accused person is presumed innocent until proven guilty beyond reasonable doubt. In 1935, the House of Lords in Woolmington v DPP held that the presumption of innocence and the steadfast requirement of the prosecution bearing the onus of proof were part of “the golden thread” of criminal law.
To discharge the onus of proof, evidence is poked and prodded to determine whether it can be admitted. Some evidence, such as hearsay, is inadmissible because it is notoriously unreliable and can prejudice the accused. It is not accidental that the New South Wales Police said there was a lack of ‘admissible’ evidence – the admissibility of evidence informs its credibility and veracity. On the basis of that high and vigorous standard, the NSW Police concluded there was no scope to progress the complaint.
It must then follow that, in circumstances where the burden of proof cannot be discharged, the Attorney General retains the presumption of innocence and remains fit to serve as a Minister of the Crown.
Concerningly, there have been calls for an independent inquiry to investigate whether Porter is fit to remain a Minister. Almost no detail has been proffered as to what that investigation should look like and who is going to run it. Apparently, we are just meant to rustle up a retired judge and let them go for gold. The fact is, a police investigation, replete with full investigative powers, has failed to gather the necessary admissible evidence to charge Porter. So, what could an independent investigation hope to achieve? What power will this ‘inquiry’ have to compel evidence? Which rules will it adopt to determine the admissibility and weight of evidence? What standard of proof will apply to determine the likelihood of the alleged conduct having occurred?
And, who is the real trier of fact?
The reality is an independent inquiry is unlikely to have greater investigative powers than the police. The calls for an inquiry appear to be made solely to open the door, lower the bar, and rake as much muck as possible in the desperate hope that some semblance of a convenient ‘truth’ will be produced.
Understandably, people are angry at the very idea of a minister of the Crown potentially having engaged in this conduct. And let’s be clear – sexual assault isn’t acceptable. No one is suggesting that sexual assault should be excused or shouldn’t be prosecuted. But there are reasons these matters are left to the police and are not subject to trial by media in the court of public opinion. And an independent inquiry has the potential to damage all involved without reaching any clear outcome. The alleged victim is unable to give first-hand evidence to prosecute the complaint and there is no premise to expect the Attorney General to prove the alleged conduct didn’t happen.
An independent inquiry of this nature would sever ‘the golden thread’.
The fact is, those politicizing this issue will only be satisfied when Porter is politically hanged, drawn and quartered in full view of the public. If he is exonerated – whatever that means – they will attack the scope and structure of the inquiry so as to cast doubt on that finding.
It’s a lamentable ‘egg’ which cannot now be unscrambled.
In the rush to claim a prize scalp, the media has been totally inconsiderate of anything other than their own vanity. It has ventilated these allegations with vengeance and without regard to legal convention or the lives of those directly affected. And they fail to appreciate the potentially significant and adverse consequences that trial by media and guilt by allegation will likely have on the everyday interactions between men and women.
It will, unfortunately, encourage distrust.
And so, to protect the very fabric of our society, this attack on the rule of law must be repelled.
Caroline Di Russo is a lawyer, businesswomen and unrepentant nerd.
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