Christian Porter | Populist Opinion v Procedural Fairness & Justice - Conditsis Lawyers

EMERGENCY 0425 391 534 | GOSFORD 02 4324 5688 | NEWCASTLE 02 4058 5844 | SYDNEY 02 9160 4559 | WOLLONGONG 02 4208 0444

Christian Porter | Populist Opinion v Procedural Fairness & Justice

 

Popular Opinion

  1. Where there is smoke there is fire [2020 Four Corners Program as to recent and historical inappropriate behaviour of Christian Porter] as well as the more recent allegations of sexual assault dating back to 1988 [33 years ago].
  2. Irrespective of Police confirmation of its own legal advice that there is insufficient admissible evidence to commence a criminal prosecution for sexual assault against Porter, there should be a Public [Executive] Inquiry, at least as to whether Porter is a fit and proper person to hold the office of the first law officer of Australia.
  3. It would seem most people don’t need an Inquiry as they have already determined Porter is not a fit and proper person to hold the office of Commonwealth A-G.

Procedural Fairness and Justice

  1. I agree with the former Solicitor-General, Justin Gleeson that:
  • There must be credible evidence before the Prime Minister calls for any Inquiry;
  • Whether credible evidence exists should not be determined by the PM or his office but at arms-length, in this case by the second law officer of Australia, the Solicitor General.
  • In the event that the Solicitor General determines there is not or not sufficient credible evidence to hold an Inquiry, that should be the end of the matter and the PM should strongly resist populist calls for an Inquiry;
  • In the event that the Solicitor General determines there is credible evidence to be placed before the Inquiry, not going to the innocence or guilt of Porter relating to the sexual assault allegations, but rather, as to whether he is a fit and proper person to hold office; then the PM should EITHER direct such an Inquiry or give detailed reasons why he will not; and in the event of the latter, people can assess for themselves the PM’s explanation, if any

2. No doubt, in determining whether there was credible evidence, the Solicitor General would consider many areas including:

  • The weight, if any, to be given to any signed statement of the woman to her lawyers;
  • The weight, if any, to be given to the hearsay statements made by the woman to her friends;
  • The mental health issues of the woman, such as her Bi-Polar, suicide attempts and mental health hospitalisations, but only to the extent if at all, any of these things could adversely impact upon the credibility of anything said in any signed statement of the woman;
  • Any other matter that may impact upon the credibility of anything said in any signed statement of the woman.

Are there Precedents for an Inquiry?

Yes, there are. There is a 1904 High Court case that arguably supports those promoting a Public  Inquiry into Christian Porter.

The most recent case being the former Justice of the High Court and controversial former Labor Attorney General Lionel Murphy. Murphy was acquitted in a criminal trial relating to allegations of corruption whilst he was A-G. However, whilst he was still a serving Judge of the High Court, the then A-G directed that an Inquiry be held into his fitness to return to the High Court as a Justice and that Inquiry was to be headed by 3 retired Judges.

As it turned out, the Inquiry into Murphy’s fitness was abandoned due to his terminal illness, from which he shortly thereafter, died.

Conflation of Issues

Unsurprisingly, much of the social platform commentary and mainstream media has conflated important but distinct issues, which has led to poor and at times, illogical reasoning, however, populist.

Just consider these areas:

  • Presumption of innocence
  • Distinction between admissible and ‘other’ evidence – in a criminal trial
  • Fitness to be the first law officer in Australia
  • An Inquiry – into what?
  • Assuming determination by Solicitor General of there being credible evidence going to the fitness of Porter to hold office and that the PM directed an Inquiry – would that be setting a dangerous or other precedent?
  • Workplace sexual harassment and/or inappropriate workplace conduct
  • A. Coronial Inquest

Presumption of innocence

We have all heard even the most experienced media commentators say something like: “Of course there is the presumption of innocence but……….”.

There is no ‘but’. Either there is a presumption or there isn’t. Either those words mean what they mean, or they don’t. The current position is that, in terms of any alleged criminal conduct [by whomever it is alleged], Porter stands innocent, end of story!

Commentators frequently go on to speak about his fitness to hold office in the same breath as discussing the criminal allegations and the presumption of innocence. They must be kept and/or discussed separately, failing which leads to confusion.

So, let’s move away from any concept of criminal guilt in relation to the 1988 sexual assault allegations because as things stand, they will never be tested in a criminal court and non-one will ever know whether there was or wasn’t a sexual assault [except for Porter and the woman].

Why is there no Admissible Evidence & what Does this Mean?

Again, this topic is only relevant to a criminal charge or to the consideration of whether there is or should be a case for Porter to answer in a criminal context.

The common social and media commentary is that Police closed the investigation and determined not to lay any criminal charges against Porter because the unidentified woman is deceased. That is simplistic and misleading.

Before Police lay a charge of sexual assault, there needs to be an allegation by the complainant that is either in writing and signed or recorded in an interview with Police. It is not enough that the complainant may have made a statement to her lawyers or of her own accord at some other time, regardless whether that statement is signed or not. The statement on which Police commonly rely must be taken by Police and contain certain content to make that statement admissible in court.

In the Porter case, as I understand it Police did not take any signed statement from the woman. The woman did not participate in any recorded interview with Police. Clearly, there is no significant admissible evidence from the woman herself [to Police] as against Porter.

Had there been a signed statement to police or a recorded interview by the woman, then, notwithstanding her death, it is possible and I put it no higher than that, possible that her statement to police or recorded interview could have been used as a basis to lay criminal charges against Porter. That said, a prima facie case against Porter may have been established but the prospects of a conviction at trial would in my view, have been remote.

It doesn’t stop there because a day or so prior to the woman taking her own life she communicated with Police that she did not want to proceed with her complaint. Of course, that is the prerogative of each and every alleged complainant. That is not to say that the woman withdrew the allegations and she did not tell Police that the allegations were false or incorrect.

So, not only is there not any admissible evidence against Porter [from the woman at least], she told Police she didn’t want to proceed with her complaint. The woman’s reasons as to not wanting to proceed are unknown and all the commentary in that regard is hugely speculative. Such speculation adds nothing and detracts from the debate.

However, the Police didn’t make the call themselves and sought legal advice from the DPP, who I interpolate, advised Police there were no reasonable prospects of success, in the event that any criminal charges were laid against Porter.

Fitness to be the First Law Officer

It is a given that the first law officer, the Commonwealth A-G should be a fit and proper person to hold that office.

If credible evidence exists that Porter is not a fit and proper person then in my view, that evidence can and should be placed before any Inquiry to determine his fitness.

As I have said, in that event, the PM should direct an Inquiry, however, if there is no credible evidence [to be determined by the Solicitor General], that should put an end to the calls for an Inquiry.

An Inquiry – into what?

Again, there has been much confusion as to what sought of Inquiry, if any should be called by the PM.

Let’s understand that, as to criminal proceedings for sexual assault, as things stand, there is just no basis for any such Inquiry. Police have carefully considered the position and obtained advise from the DPP and that should be the end of the matter.

So there is no basis in law, to hold a Public [or executive] Inquiry as to whether there was or was not a sexual assault or whether criminal charges should be laid against Porter.

However, as I have already said, there is established principle to hold an Inquiry as to the fitness of Porter to continue to be the first law officer of Australia, provided that, there is credible evidence to support such an Inquiry.

Would an Inquiry set a Dangerous Precedent?

I have already explained that there are precedents for an Inquiry in the fitness of Porter to continue to hold his office.

I would add that, in professional life it is not only the A-G and Ministers and Parliamentarians who are required to be fit and proper persons to hold their jobs. Many other professionals, doctors and lawyers for example, are required to be fit and proper persons to practise their respective professions.

Just as I am advocating here, if there is credible evidence that an person in any profession is not fit and proper to practise their profession, then I would have no difficulty with that evidence being put before the regulatory body [in respect of doctors and lawyers for example] to determine the issue.

In that sense, if there was an Executive Inquiry into Porter’s fitness to hold office, Porter would not be treated any differently to anyone else who has the onus to demonstrate that he or she is a fit and proper person to practise their profession.

It follows that, in my view, no dangerous precedent would be set by holding the Inquiry, in the event that there was credible evidence to support it.

Workplace Sexual Harassment or other Alleged Breaches

Many social and media commentators refer to last years Four Corners program relating to alleged inappropriate behaviour on the part of Porter and either expressly or inferentially, suggest that [alleged] behaviour either by itself or in combination with the sexual assault allegations should justify an Inquiry into Porter’s fitness to hold office.

However, workplace legislation already enables an investigation into such inappropriate behaviour on the part of Porter. So, if any former staffers of Porter have made or do make complaint, there is a readymade process by which that/those complaints can be investigated. Indeed, any adverse findings could directly impact upon Porter’s fitness to hold office.

One would think that any finding that Porter sexually harassed or behaved sexually inappropriately toward a former staffer or staffers would strongly suggest he was not a fit and proper person to hold the office of A-G.

That said, I am not aware of any actual complaint by any former staffer of Porter.

S.A. Coronial Inquest

The S.A. Inquest is for one purpose and one purpose only. That is, to determine the cause of death of the woman. Put another way, to determine whether her death was by suicide or some nefarious or innocent cause.

The outcome of that Inquest may lead to there being credible evidence that does not now exist or that is not now known, which evidence may [or may not] lend sufficient weight to calls for an Inquiry into Porter’s fitness to hold office. We will all have to wait and see.

To briefly hypothesise, if the Coroner found that the woman took her own life, it is likely that would put an end to endless speculation and conspiracy theories as to the woman having met her death by nefarious means. On the other hand, if the Coroner found that the woman’s death was not by suicide but by person or person’s unknown, such a finding would likely feed the speculation and conspiracy theories.

Where that would then lead us is too speculative as it would entirely depend on the actual evidence given in the Inquest.

Defamation Action

It has been widely reported that Porter has commenced proceedings for defamation against an ABC journalist and the ABC relating to the Four Corners program containing the allegations that he had sexually assaulted the woman in 1988 and particularly, that he was named in that program.

Although, there are suggestions in social media that the defamation proceedings are a tactic to ‘gag’ the media, the fact of the matter remains that Porter is entitled to follow whatever legal advice he has been given. It should also be noted that reportedly, Porter has said he will give evidence as to his denials relating to the allegations in the defamation proceedings.

We will all have to wait and see the outcome of the defamation proceedings.

conditsis logo