Readers will no doubt be aware of the recent controversies and debates surrounding the allegations made against Attorney-General Christian Porter. The allegations, which describe a historic sexual assault in 1988, has caused fierce debate among some legal experts who are struggling to agree on the correct application of ‘the rule of law. For our purposes, the ‘rule of law’ can be characterized as an integral function of our justice system which ensures adequate fairness and due process. In a criminal matter, this expands to include principles such as ‘the criminal standard of proof’ and ‘the presumption of innocence’. As vital organs of our justice system, the Prime Minister and Attorney-General have resisted calls for an ‘independent enquiry’ on the basis that such an enquiry would undermine the ‘the rule of law’ by eroding the presumption of innocence. This article will examine the arguments in relation to calls for an independent enquiry. Additionally, this article will also assess how an enquiry would be conducted now that the criminal investigation into the allegations has been closed.
BACKGROUND: THE ALLEGATIONS
The allegations raised by the now deceased complainant describe a sexual assault which occurred in 1988 when Christian Porter 17, and the complainant 16, attended an end-of-school debating tournament at the University of Sydney. The allegations were first brought to the attention of New South Wales Police in 2020. Shortly after making her complaint, the complainant expressed her desire to suspend the investigation and took her own life the following day. Close friends to the complainant penned an anonymous letter to Senator Hanson-Young, Senator Penny Wong and the Prime Minister calling for an independent enquiry. The letter, which its authors say accurately describes the allegations the complainant had conveyed to them, has been the central source of the current allegations.
DUE PROCESS AND THE PRESUMPTION OF INNOCENCE
In any allegation involving criminal conduct, the investigatory body responsible for bringing criminal chargers are State Police of the relevant jurisdiction and/or the Australian Federal Police. After charges are laid as a result of an investigation, the matter is referred to the Director of Public Prosecutions (DPP). Up until this stage, a person is charged with a crime, however they are not guilty. It is only after a guilty plea is entered or a guilty verdict is rendered that a person will be convicted of the charges. In the case of Attorney-General Christian Porter, the criminal conduct alleged by the complainant did not even proceed to charges being laid, let alone any verdict of guilt. In the eyes of the law, he is innocent. It is important to understand that this process of criminal justice is integral to our democracy. The rights and protections afforded to the highest order of citizenry must also apply to those charged with a criminal offence. To deny these protections, especially those relating to the presumption of innocence, would be a forfeiture of our rights as collective citizens in our democratic society.
THE CASE FOR AN INDEPENDENT ENQUIRY: A DOUBLE EGDED SWORD
Some legal experts have argued that the ‘rule of law’ does not disqualify the validity of an independent enquiry. The basic rhetoric behind this argument is that an enquiry is not a criminal investigation and can be conducted without trespassing upon the rights of the person concerned. A popular example advocates have used for an independent enquiry is the investigation into allegations surrounding Justice Dyson Heydon. Whilst this does represent some precedent within the law, the current appeal for an enquiry has not specified any scope by which it would be conducted nor has it outlined any other details which would be crucial in assess what sort of harm may apply. Additionally, the recently closed police investigation has already struck out any availability of evidence. Any further investigation not grounded on meritorious allegations would therefore bring unwarranted harm to the application of future enquiries. There is also an understandable concern that the media would use an independent enquiry as the basis for purporting further allegations which have not been tested by the law. Combined, these factors have led some commentators to suggest that Attorney-General Christian Porter has been found guilty through trial by media and the capitalisation of victim rights for political gain.
Now that we have briefly touched on the concerns presented by an independent enquiry, it would be imprudent not to argue how such an enquiry would impact the criminal justice system. As custodian of Australian law and our first legal officer, Christian Porter embodies a personal and institutional role in his position as Attorney-General. As a private citizen, Mr Porter is afforded with the presumption of innocence. It stands to reason then that any further investigation done by an independent enquiry would otherwise ignore this important principle of our democratic society. As Attorney-General and a senior member of Parliament, accountability is at the forefront of suitability to the role he has been entrusted to embody. However, despite the need to hold our politicians to account, extralegal enquires conducted outside the sacred quorum of the Courtroom invites a culture ruled by a ‘trial by media’. That in essence, is a threat to our criminal justice system and democracy.
THE REALITY
Whether you support an independent enquiry or not, this recent episode of Parliament controversy represents a sad state of affairs for all involved. The reality is, sexual assault, especially one which occurred 40 years ago, is hard to substantiate from a legal standpoint. In Australia, the prosecution bears the onus of proof and must prove the elements of the charge beyond reasonable doubt. It is not the job of the accused to raise a defence or call any evidence to defend the charges. The case involving Attorney-General Christian Porter also presents with further barriers which would be difficult to overcome in a criminal trial. One such barrier is that the accused is deceased and cannot give evidence in Court accounting for the conduct alleged. The second barrier would simply be time. The sexual assault is alleged to have taken place 40 years ago. With the obvious absence of any forensic evidence available, it may be difficult to prove that such conduct even occurred. Lastly, the complainant is said to have suffered from various mental health issues and this would be of substantive focus at any criminal trial involving allegations of sexual assault.
CLOSING REMARKS?
As criminal defence lawyers and officers of the Court, it is our duty to uphold the legal principles by which our society is governed. Whilst allegations of sexual assault should not be dismissed lightly, any such action which threatens the rule of law and more importantly, the presumption of innocence, is a danger to the rights and protections all citizens of Australia are entitled to. With that in mind, consider the following proposition: “all allegations, historical or otherwise, must always be believed without question”. It is our job as criminal defence lawyers to test and scrutinize the probative value of evidence (and indeed to the absence of any) to ensure that a verdict of guilty is only reached after the prosecution has proven their case beyond a reasonable doubt. Should we start to insist that the mere allegation of sexual assault is all that is required to assign guilt, we begin to erode our own protections given under the law. These protections are designed to ensure that no individual should suffer a deprivation of their liberty without justified cause under the law. In that sense, we as citizens of a democratic nation must ask ourselves, “what is the point in having a criminal justice system?” if a person must prove their innocence to the media.
If you or anyone you know has been accused of sexual assault, contact our specialist criminal defence lawyers now. You can be sure that our team of dedicated lawyers will fight to ensure your matter is heard within the parameters and protections of the law.
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