Mr Porter’s accuser is regrettably dead, and that fact is usually, but not always, the end of criminal proceeding into the accusation.
Porter has, however, initiated a defamation case against the ABC and its journalist Louise Milligan. Coupled with this fact there is the potential for a South Australian coroner’s inquest into the circumstances surrounding her death.
Coalition MPs believe a coronial inquest into the suicide by the accuser of Christian Porter, 33 years ago, might ward off demands for an independent inquiry into whether he is ‘a fit and proper person’ to remain the nation’s first law officer.
However, those two cases may lead to an uncovering of additional evidence relevant to another party. This new evidence, if uncovered and followed up may reveal facts which any one of the parties would have preferred not to have been brought to light. Equally nothing that is not now known may be turned up.
All these matters are, as the Ancient Greeks would say, ‘in the hands of the God of Justice, Themis.’
So, the accused, the former Attorney-General of the Commonwealth of Australia, Mr.Christian Porter, has found it necessary to resort to the law of defamation in Australia. This is intended to give him some means of redressing the alleged damage to his reputation from the ABC’s programs that were partly about him. He has also included the ABC reporter Louise Milligan who was involved in the production and presentation of the programs.
Another motivation, though by no means the main focus of the writ, may have been to provide a form of distraction for the Government from the outrage of the many women’s voices chorused in protest against Scomo and the government’s lack of real concern about their issues. But I must say this suggested motivation is pure conjecture on my part and is not based on any hard or soft evidence of Porter’s motives.
So now with Porter’s legal proceedings as his first serve, the ball has landed very squarely and indeed ominously in the ABC/ Milligan’s service box. Now, if we put to one side the S.A. coroner’s inquest, consider that Porter’s case is likely to last years and that will jog the public memory continually over that time. The public interest in this case will inevitably cause the Prime Minister and his trusted advisers a bit more to worry about, at least politically. And we do know for certain that whenever that ‘political’ button is pressed, it does get the PM’s as well as his trusted advisers’ fullest and most immediate attention.
However, consider the situation if investigations happen to uncover some admissible evidence that is not on Porter’s or his legal team’s radar screen; or for that matter is not on the ABC’s, Milligan’s, or their respective legal teams’ radars. In any such hypothetical situation just sit back and watch the actors who perceive they are adversely affected by these eventualities, dive for the cover of an out of court settlement complete of course with confidentiality agreement with huge monetary consequence for violation.Every lawyer knows how the ‘unanticipated’ can rear its head when least expected, particularly in complex defamation cases.
We should also not lose sight of the fact that the police will not be pursuing Porter in a criminal prosecution with its criminal standards of proof ‘beyond a reasonable doubt’. Rather, in the defamation case, the lower civil standard of ‘on the balance of probabilities’ will apply. Also consider the unintended consequences of these proceedings eg, evidence may be able to be admitted that would not normally be admissible because the accuser is deceased, as was the case in George Pell’s first hearing at least for one of the accusers. This includes evidence from persons such as those who were privy to certain information or certain previous discussions or persons who observed certain events or behaviours.
And further, had the accuser’s case of alleged rape continued, highly private things such as counselling notes, may, with the permission of the Court, have come to light during the case and those may have intruded on the accuser’s privacy in such a way that her family may have preferred that they had not been accessed.
These examples highlight what an almighty pandora’s box of unknowns may be opened once the trial begins.
But one more thing to consider, certainly from Porter’s position is that, as George Pell experienced, the court of public opinion has very few rules and it can be far removed from legally derived “justice”. Indeed, such opinion can inflict a very harsh, perhaps unjust verdict of ‘guilty’ even against a ‘legal’ victor, in many people’s minds.
So, hold onto your seat’s ladies and gentlemen for this ride is very, very far from over with ‘edge of seats stuff ‘a distinct possibility.There is even the possibility that Porter’s proceedings may end up being the de facto ‘inquiry,’ that neither he nor the PM wanted.We await the decisions with avid interest!
Thomas Nulty LLB.
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