Inside Story

Christian Porter’s shadow

There’s only one good way to resolve decades-old allegations like the ones made against the attorney-general

Jeremy Gans 19 March 2021 3948 words

Attorney-general Christian Porter. Lukas Coch/AAP Image

Picture a trial that will never happen. In it, Charles Christian Porter faces three counts of sexual assault, alleged to have been committed in a Sydney University dormitory on or about 10 January 1988. Kate, Porter’s alleged victim, doesn’t have to look her alleged rapist in the face, thanks to screens, physical or electronic, but she does have to face his lawyer. She tells the court of the horrors she recalls from the hours after a late-night dance over three decades ago, and then undergoes the horrors of a cross-examination that probes for signs of inconsistency, oddity or delusion.

Kate’s friends, and maybe Porter’s too, testify about what they saw that night and before and after, and perhaps what they were told by Kate or Porter in later days, weeks or even years. There may be further evidence, as yet unknown to the public, that greatly supports the prosecution or defence case. Or maybe not, which means it is largely one word against another. Either way, the question of Porter’s guilt is decided by a jury of twelve, applying the criminal standard of proof, beyond reasonable doubt.

This trial-that-can’t-happen casts a long shadow over the recent debate about how to respond to news that, before her death, Kate told multiple people that Porter raped her when they were both teens. But there are several reasons to doubt that a criminal trial would have settled that debate.

One reason is small but startling: the media couldn’t have reported any part of the prosecution. That isn’t because a judge would temporarily limit any publicity of the evidence and verdict to avoid prejudice, as famously happened with George Pell’s trials in late 2018. Rather, it’s because the law in New South Wales permanently bars the media from naming anyone, including adults, in connection with criminal prosecutions about events that happened when they were children.

Because Porter was seventeen years old at the time of the alleged rapes, the media could only describe him as “a man in his fifties who cannot be named for legal reasons.” For the media to identify his name or even occupation in connection with the charges, either he would have to consent or a judge would have to opt to strip him of his anonymity after a conviction. Of course — as with Pell’s trials in late 2018 and early 2019, and with the allegations against Porter in recent weeks — nothing the court or parliament could say would stop the truth from circulating on social media.

The Pell example points to the second, deeper reason why a criminal trial wouldn’t settle this debate. A guilty verdict would remove Porter’s liberty, just as Pell’s removed his, but it wouldn’t end the discussion about his guilt, both within the legal system and without. The Pell debate and his appeals continued apace over the entire period that Kate was revealing memories of abuse to her friends. She typed a lengthy document summarising those memories a month after Pell lost his first appeal over a furious dissent.

By the time Kate walked into Kings Cross police station, Pell’s fate was in the hands of the High Court of Australia. Its unanimous decision to free him in April last year (turning on unique features of the prosecution’s case against Pell) was said by Kate’s friends to have weighed on her. Pell’s acquittal no more settled the question of his guilt or innocence than his guilty verdict did. Neither would the debate over Porter’s fitness for office stop if he emerged from his prosecution with his presumption of innocence and parliamentary seat intact.

Alas, there is a third reason, the saddest and most telling, why rape charges against Porter would probably never have resolved whether or not Kate’s accusation was true: the prosecution would have put unbearable pressure on her. Every one of the friends, counsellors, journalists and police she spoke with have described Kate’s anguish about whether to pursue Porter’s prosecution. Many have disclosed the burdens of her lifelong experience of mental illness and the division between her friends and family about the reliability of her memories. She would have been told that, had a prosecution proceeded, there was a real possibility that Porter’s team could obtain and read her personal diaries and counselling records.

Devastatingly, we all now know of her twin acts on 23 and 24 June last year. On the Tuesday, she emailed NSW police to say that she would participate no further, citing health and personal reasons. On the Wednesday, she died in circumstances that are presently before a South Australian coroner. These events are and will likely remain unfathomable, but they cast a shadow of their own over both Porter and the criminal justice system.

It is surely one of these factors that NSW police commissioner Mick Fuller had in mind when he told a Sydney radio program last week, “The matter itself, even with the alleged victim, probably would’ve struggled to get before a court. These are challenging matters, particularly when they’re historic.” There is nothing uncommon about this, especially for sexual crimes. The criminal justice system often fails to settle the truth of disputed allegations. Indeed, doing so isn’t even its main purpose, which is to decide if enough evidence and public interest exists to warrant a court’s deciding whether or not to give the accused an official label (such as “convicted” or “acquitted”) and to impose a criminal sanction. The situation currently facing Porter — the system having stopped considering those options at the initial stage — is by far the most common criminal justice outcome for rape allegations.

What is uncommon in this case is that the complainant’s allegation against Porter has nevertheless been aired publicly, widely and in some detail by the media. What is even less common is that the accused rapist is not only a well-known public figure but a senior member of the national government. And what is perhaps unique in this case is that the revelation of the allegations coincided with a call from Kate’s supporters to find another official way to settle the ensuing debate.

Picture an inquiry that may well happen. An assigned decision-maker reviews all the available evidence gathered to accuse a public figure of serious misconduct. That figure offers the decision-maker his blanket denial of the accusations, and points out that his lawyer can’t cross-examine their source. After mulling over the conflicting accounts, the decision-maker issues her finding about whether the evidence satisfies the civil standard of proof: the balance of probabilities.

When Kate’s typed statement was forwarded to several MPs last month, an anonymous covering letter pointed out that an inquiry of this kind had happened in the first half of last year. (Indeed, in an odd coincidence, both the inquiry and its findings were revealed the day before Kate informed police that she would no longer be part of the investigation of Porter.) On Monday 22 June 2020, chief justice Susan Kiefel announced that an “independent investigation” she had commissioned had found that six of the High Court’s associates had been harassed by former justice Dyson Heydon, adding that she and her fellow judges were “ashamed that this could have happened at the High Court of Australia.” Journalists and Kate’s supporters say that a similar inquiry should be held into the allegations against Porter, arguing that the model was backed not only by the national court but also by the Australian public, who accepted the inquiry’s judgement on the judge.

I think that those commentators have seriously misunderstood that landmark event. The chief justice didn’t endorse, much less devise, the procedure she commissioned to investigate alleged harassment inside the national courthouse; instead, she did what every employer is legally obliged to do in the face of such allegations, lest they fail in their legal duties to their employees (and risk being sued for doing so). No matter how heartfelt, the same is true of her court’s public admission of judicial shame.

More importantly, Vivienne Thom’s inquiry — one that Heydon refused to participate in, claiming it was unfair in various ways — isn’t what convinced the public of his guilt. Rather, they were persuaded by the simple fact that Heydon faced six similar allegations of harassment, a classic result of the #MeToo movement. Had there been only one allegation against him, it is far from clear that Thom’s findings would have settled the issue of whether Heydon was a menace.

Indeed, it is unlikely that she would have made any finding at all. To see why, consider how, in 1938, a much earlier High Court dealt with a dispute about what happened after a late-night dance when a man accompanied a woman to her dormitory. In that case, a Victorian judge received secondhand evidence that one of them had later said the two had sex, but also heard the other’s furious in-court denials of any such thing. The judge declared that, while he “might well consider that the probabilities were in favour of” Clarice Briginshaw’s having committed adultery that night, he was “certainly not satisfied beyond reasonable doubt.”

That case proceeded to the High Court, which unanimously found that the judge had applied the wrong standard of proof, because this wasn’t a criminal case but rather a civil one (a divorce petition by Clarice’s estranged husband). Nevertheless, although Justice Owen Dixon said that the couple’s reported statements and circumstances “filled me with much misgiving,” neither he nor any of the other justices were willing to declare, merely because of the “probabilities,” that sex had occurred.

Much has changed since Frederick Briginshaw’s divorce petition in terms of attitudes and suppositions about sex, but the High Court’s judgement in Briginshaw v Briginshaw remains the uncontested authority on how Australia’s civil courts, workplace inquiries and professional discipline hearings must handle disputes about serious misconduct. Those tribunals cannot approach such claims the way they would resolve disputes about a customer’s fall in a supermarket, or how someone caught a dust disease, or what a contract said, simply by working out which of two options was the most likely.

To find a serious wrong, said Justice George Rich, “the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” “[T]he importance and gravity of the question make it impossible,” added Justice Dixon, “to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact.”

The judges didn’t say what would suffice, noting the myriad ways serious wrongs can be proved. But they did say what wouldn’t be enough on its own: two contrasting, plausible accounts of what happened where the decision-maker could not see or hear the accuser’s response to questioning about the accusation.

The upshot is that the most ballyhooed option to resolve the allegations against Porter would most likely produce no findings either way about what happened in 1988, at least if all the decision-maker had to go on were Kate’s various statements about the rape, in writing or to others. (Ominously for the ABC, the same is true for Porter’s just-announced suit, where, depending on the complexities of defamation law, the broadcaster may have to prove Porter was a rapist or face a significant cost.) Unsurprisingly, some commentators have since canvassed very different ways to respond to Kate’s accusation.

Justin Gleeson, the federal solicitor-general until 2016, initially proposed that his successor be asked: “Is the material sufficiently credible to justify an executive inquiry?” He added, improbably, that this “circuit-breaker” question could be answered in forty-eight hours. Just forty-eight hours later, Gleeson himself dropped that idea without explanation, presumably partly because assessing a rape accuser’s credibility is a strange task to give to a government lawyer (whose main roles are to advise and advocate for the government on constitutional and administrative law). The greater problem is that lowering the standard of proof cuts both ways. Any inquiry would surely find that both Kate’s and Porter’s accounts of events in 1988 were entirely credible ones, settling nothing at all.

Gleeson and others have since argued that an inquiry, rather than considering what happened in 1988, should solely examine what should happen now, given Porter’s simultaneous status as accused rapist and senior member of the government. Criminal law barrister Greg Barns proposes that an inquiry “headed by a retired Federal or High Court judge, conducted in private, with findings released in public, should examine the question of whether the nature of the allegations made against Mr Porter is such that, despite the presumption of innocence… the real possibility of an erosion of trust and confidence” means he should not remain in his current position. I suspect that — like most people proposing bespoke solutions to the Porter dilemma — Barns already knows which way this circuit would break. No former judge would ever declare that any single, untested allegation, no matter how serious, renders someone unsuitable for any public office, no matter how senior.

That is why, from the outset, the recent debate has partly centred on claims that unproven criminal allegations can have real consequences for some people’s employment: for example, in professional sports, in the legal profession, and in unsupervised work with others’ children. But these comparisons demonstrate the opposite of what their proponents intend, because throughout Australia a person is only stopped from working in each of these contexts if allegations are current or quite recent (typically indicating a serious risk to others) or a criminal charge has been filed (indicating the serious concerns of police and prosecutors). No precedent exists in Australia for an accusation of even the most serious juvenile conduct being enough, on its own, to trigger any sort of official action, decades later, by anyone. Anyone, that is, apart from the police.

Now, picture an investigation that never happened. After receiving Kate’s written complaint, police officers who are highly experienced with allegations of historical sexual crimes work through her statement, identifying potential angles for further inquiry. Then they systematically contact potential witnesses, notably the many people who were present at the intervarsity debating tournament in Sydney. They look for those who may have seen key events she recalls, including Porter and her together entering the Women’s College, her room and a shared bathroom, as well as other events in the days and months before and after that may cast light on the accuracy of her memories.

At the same time, the officers speak to the pair’s acquaintances over the decades to determine if either has said anything about those events and to collect other relevant details. They also gather whatever relevant written documents still exist, including records of the tournament and college, and other writing by or about Porter and Kate, the latter likely including highly sensitive diaries and medical records. Eventually, the police speak to Porter himself, giving him the opportunity to give his account and respond to Kate’s, but also uncovering new lines of inquiry his account suggests, wittingly or otherwise.

Or not. No one should fault the NSW police for doing little or none of this in the period between Kate’s visit to Kings Cross police station on 27 February 2020 and her death four months later. The police would have been all too aware of the risk Kate took in initiating an investigation and the dangers such inquiries posed to her health. Although it is not their sole concern, modern police rightly treat a complainant’s wellbeing as the paramount consideration, at least where the allegations raise no present risk of future offending by the accused.

The police also faced understandable difficulties during the pandemic that coincided with the investigation’s commencement, compounded by Kate’s own health problems (which she explained would complicate any communication she had with them). They had every reason to move slowly to maximise Kate’s agency and health, and little reason to hurry, so long as the accusations remained unknown to Porter.

Multiple politicians and journalists took exactly that approach when Kate told them of her memories, focusing on her wellbeing and decision-making rather than contacting the authorities or inquiring further themselves. Alas, such an approach is less likely in future, at least for accusations against federal politicians, thanks to an unfortunate recent intervention by the Australian Federal Police commissioner, Reece Kershaw. After he received a copy of Kate’s complaint in February this year, Kershaw wrote to all federal MPs emphasising their duty to report allegations or complaints they receive of sexual assault or other criminal conduct, including ones made by victims themselves, “without delay” and “irrespective of jurisdiction.” Although Kershaw advises that MPs should take “account of the rights and privacy of the victim,” it also states that “alternative actions by individuals” may amount to obstructing or perverting justice. This places any future politician who is contacted in confidence by a future Kate in an agonising (and, in my view, wholly inappropriate) quandary.

Tragically, that quandary became moot in Kate’s case nine months ago. The death of Porter’s accuser meant that the NSW police were no longer able to protect her welfare or agency, including by refraining from investigative steps that could have endangered her health. At the same time, it meant they could no longer contemplate a prosecution that rested largely or exclusively on her testimony, the usual and most likely way to obtain a conviction for such an allegation.

Contrary to some journalists’ assumptions, though, an accuser’s death doesn’t bar a future prosecution, which could still be founded on other, rarer, sorts of evidence, such as admissions from the accused, a pattern of similar behaviour or a strong circumstantial case from surrounding events and evidence that imply a rape occurred. (The Pell case itself is a unique example, as he was convicted in relation to two alleged victims, one of whom died years before the trial without speaking to the police, based on the eyewitness testimony of the other alleged victim.) Modern evidence law facilitates such prosecutions by relaxing the hearsay rule in the case of deceased witnesses, so long as a court is satisfied that the witness’s out-of-court statements (said or written in the presence of others) were highly likely to be reliable.

In short, Kate’s death made a comprehensive police investigation, previously a vital way to test her allegations before any charges were laid, the sole remaining path to deciding whether charges could be laid in relation to her accusations. And yet, the NSW police have made it clear that they have not investigated the case since her death. In response to questions from journalists (and, indirectly, the accused himself) as to why they never spoke to Porter about the allegations, they explained: “From a legal and investigative standpoint, due diligence is required, particularly in historical sexual assault allegations, to ensure that the matter is comprehensively investigated and all available evidence is obtained, reviewed, and corroborated where possible. Investigative strategies need to be considered as part of this best practice model. Providing a version to a suspect prior to obtaining a formal statement would have an impact on any future investigative strategies.”

This staged approach is a sensible one. One strategy police sometimes use to investigate historical allegations is to have the complainant phone the accused to attempt to elicit admissions of what happened, which is then recorded for later use. (Such a “pretext call” is unlikely to have been useful or appropriate to investigate Porter.)

The police then explained that Porter was never approached in Kate’s case, because she had never made a formal statement to them. “It is current standard practice in sexual assault investigative training,” they said, “that upon all of the available information being obtained (in statement form) that the formal allegation can and should be provided to the person of interest as per the procedural fairness principles for investigators, to be able to determine prima facie and whether charging of the person is appropriate.”

Again, this practice made perfect sense when Kate first approached police, particularly as it seemed she had not yet decided to go further. But the police have never cogently explained why this “current standard practice” should continue to apply even after such a statement is no longer possible, indeed to the point of barring the police from carrying out what they describe as the “best practice model” of a comprehensive investigation.

While much discussed, the lack of a “sworn” statement — what Commissioner Fuller has called an “admissible statement in court with a jurat” — from Kate is a red herring. The only relevant sworn oath Kate could have made was in a court. The statement she typed last September — which police say they only received after her death — doesn’t become more or less significant or admissible because it wasn’t sworn by her. Indeed, nothing she wrote in recent years could plausibly be admissible in a criminal prosecution of Porter.

Rather, the significance of Kate’s statement is in the investigative leads it provides. The anonymous person who forwarded that statement to federal MPs understood this, and included a covering letter pointing out other investigative avenues that could be pursued in addition to the statement. Strangely, the AFP’s Commissioner Kershaw opted not to pass that letter on to NSW police. The NSW police commissioner has since acknowledged that a media report by Kate’s ex-boyfriend, indicating that he recalled relevant conversations with both Kate and Porter, was something his officers could potentially follow up.

Ideally, the police would have obtained Kate’s written statement, if possible, in the aftermath of her death and conducted a full investigation then. Any concerns they had during that period — about the family’s welfare, the coronial inquiry to come and the unlikelihood of any prosecution ensuing — would have been rendered largely moot on 26 February 2021, the first anniversary of Kate’s initial call to the police, when Louise Milligan revealed Kate’s accusations to the public and to Porter.

While a police investigation carried out in the public eye would inevitably be very different from (and perhaps inferior to) a regular investigation, it would be far superior to the media investigation we have all recently been witnessing. It would also, in my view, be much more effective and apt than the ad hoc executive inquiry Kate’s supporters have called for, one whose powers and processes would always be contentious. If the police nevertheless fail to investigate, the best of the remaining alternatives would be the main process that governments use to fully investigate serious matters that the police can’t or won’t: a royal commission.

Christian Porter will most likely forever remain an accused rapist, no more or less, thanks to Kate’s tragic death and Milligan’s revelation of her accusation. Proceedings are currently on foot examining both of these things, but neither will necessarily examine what happened in 1988, much less do so effectively or appropriately. Rather, the best way to dispel the shadows cast by the trial-that-can’t-happen based on Kate’s testimony and the inquiry-that-probably-won’t-happen into Kate’s statement is an investigation-that-should-have-happened into all of the other evidence that could cast light, either way, on Kate’s accusation. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.