The Law

Some Further Thoughts on Christian Porter’s Tribulations

The Federal Court of Australia has now released the unsigned statement, presumably drafted by the accuser of the former Commonwealth Attorney-General.[1] It is a 31-page document in which Katherine – the woman identified only by her first and middle name, Katherine Jane (her surname is redacted) – alleged Porter raped her three times in the early hours of January 10, 1988, including compelling her to commit fellatio on him. Her statement, written for the purpose of pursuing her rape allegations against the former Attorney-General, was provided to the NSW Police in February 2020.

The Federal Court’s publication of the statement has renewed the debate about the veracity of the rape allegations. But is it feasible to speculate about guilt or innocence when it is impossible to know the unknowable?

In this context, I published an article in Quadrant Online on March 9, 2021.[2] The article, entitled Who Next Will be Accused? discussed these allegations, which were made by a woman, since deceased.  Specifically, I recounted Porter’s now notorious news conference about the alleged rape of the 16-year-old girl in Sydney in January 1988, when both participated in a debating competition at the University of Sydney.  I noted in my article that the former attorney-general strenuously denied the allegations, “contained in a detailed, but anonymous letter”. Porter repeatedly stated that “the alleged event never happened: at the time he was just a teenage boy who participated in a debating competition” and that in the court of public opinion, he would be effectively asked to prove that an alleged event never happened.

Now that the statement of Katherine is available, it becomes possible to revisit this sordid saga. Her statement is organised into three parts:  the first part covers the period 1986 to 1988; the second part deals with the events of January 1988, and the third part deals with her interactions with Porter in 1994. The statement is preceded by a six-page Memorandum, stamped “URGENT, Private & Personal & Confidential”, written by friends of the deceased and addressed to the Prime Minister, the Hon Scott Morrison PM, and senators Penny Wong, and Sarah Hanson-Young, representing the three major political parties in Australia. The document encourages these politicians to work together “to find a path forward in this case that does justice to Katharine’s memory while not unfairly prejudicing the Attorney-General.” A contemporaneous diary supports some photos that are appended to the statement.

In the first part, Katherine recounted that on the afternoon of the debating competition’s Formal Dinner in the first week of January 1988, she ironed Christian Porter’s shirt – she refers to him as “CP” – at his request. She describes the scene as follows:

CP came over … with the blue and white-striped shirt, which he wanted to wear that evening, for me to iron. CP sat on a chair and watched me while I was ironing. He said that I “would make someone a wonderful wife one day”. Not only was I “so smart and so pretty” but I could do all the “good housewife things”.

According to the statement, Porter went on to explain that

he would need a smart pretty wife to help his political career, and then boasted that he would be Prime Minister of Australia one day. By the age of 50, he predicted. I was flattered by his compliments and implicit suggestion that I would be an ideal wife for him.

Katherine described the rapes, which allegedly occurred after they returned from that evening’s dinner, in graphic detail in her statement. Katherine claimed to have strongly objected to performing oral sex, and that, after vomiting on her dress, she was undressed, and bathed by CP in a bathroom. Afterwards, they got into her bed together and she fell asleep in his arms. She woke up when she was allegedly being anally raped by CP.

The third part of the statement describes the events of 1994. When Katherine attended a dinner of the Australian Historians’ Association in Perth in September of that year, she had dinner with Porter. She described the dinner conversation in her statement:

As I recall, he used words along the lines of, “you know you owe me one” (presumably a reference to our not having had vaginal intercourse in 1988). I was revolted … We finished dinner, and CP walked me back to the UWA college where I was staying … I said goodbye to CP at the entrance to college, went up to my room … I felt shaken, but relieved, as if I had broken a spell that had been cast some seven years earlier.

Of course, the detailed graphic nature of the allegations, by itself, does not guarantee that these events took place. Indeed, there are other recent examples of detailed allegations of sexual abuse which were not proven to be reliable. The well-publicised case of Cardinal George Pell comes to mind as an example. Pell was exonerated by the High Court of Australia after spending more than a year in prison for sexual abuse, even though the jury, acting rationally, should have entertained “a doubt as to the applicant’s guilt” and that there was “a significant possibility … that an innocent person” had been convicted.”[3]

In the Porter case, it is possible that the detailed nature of the allegations, as described in Katherine’s statement to the NSW Police, is the result of fertile imagination of a successful novelist when constructing a story. In addition, Katherine had suffered from mental illnesses since 1988, which could have further clouded her memory of events. Her friends, when sending their submission and Katherine’s police statement to the politicians, commented that even her parents were worried that Katherine “may have confected or embellished the allegations due to her mental illness.”

I stated in my Quadrant article that, since Katherine hanged herself on June 24, 2020, “It is fair to say that we will never know whether the alleged rape happened.” This comment precipitated a furious response from Peter Smith, a frequent contributor to Quadrant Online and, usually, a perceptive commentator on illiberal activities which are devouring Western civilisation. In the comments section, he retorted: “No, I don’t think it is fair to say this. Just as I don’t think it is fair to say that the world will never know whether I tripped an old woman up and stole her purse when I was a teenager. It would be a baseless and ridiculous charge, necessarily without a tad of evidence to back it. People of common sense should know that I didn’t do it as equally they should know that Porter didn’t do it.”

Surely, this response trivialises Katherine’s allegations: the example of stealing the purse of an old woman when he was a teenager is not quite in the same league as an allegation of raping a 16-year-old teenager. Smith’s reliance on “common sense” is arguably erroneous, considering that common sense would indicate that, if there is inconclusive evidence of guilt or absence of guilt, the only conclusion that could sensibly be made is that “we will never know whether the rape took place”. While it is not a good idea to subscribe to the “I hear, I listen, I believe” mantra, the opposite view that complainants must never be believed, is equally deficient.

In an upcoming book Mau Mau Whitewash – Britain Slandered about the Mau Mau insurrection in Kenya in the 1950s, Lee Boldeman explains that in circumstances where the direct participants in historical events have died and, therefore, can no longer provide eyewitness accounts of the relevant events, it will be notoriously difficult to ascertain the truth. Ancient historians supported this view of history and considered that history can only be written by those who participated themselves in the narrated events. Hence, the reconstruction of historical rape events is always a challenging and perilous task.

However, Katherine’s friends, in their submission, believe that the claims are true. They state that  Porter stands accused “by someone who is now dead and who took her life because of his actions.” This statement cannot be clearer as it links Porter directly to allegations, which are taken to be substantially, if not completely, true and make him responsible for Katherine’s death.

Katherine’s statement reveals that she had feelings for Christian Porter. It is not fanciful to speculate that non-fulfillment of her expectations may have contributed to her mental illnesses and her eventual death. Indeed, some comments in Katherine’s statement suggest she may have had an expectation of a shared life with Porter. She talks in her statement about her “relationship” with “CP”. Reflecting on her alleged horror night with Porter, Katherine states:

All I could cope with, as I remembered parts of the night before gingerly, was the idea that things had gone “a bit too far” with CP, the previous evening. But it was OK, I reassured myself, because we were going to get married – one day. CP had implied this to me on the previous afternoon, when I was ironing his shirt … I continued to believe that he and I would, ultimately, get married, for several years.

In their submission, Katherine’s friends claim that, on the day of her death she “cut her hair into the style that she has in the photo with Christian Porter in Appendix 1 of her statement (a hairstyle she had not had sine 1988). And then she hung (sic) herself.”

Porter initiated a well-publicised defamation case against the ABC’s Four Corners program that initially aired the rape allegations in early March 2021. In this context, I argued in my Quadrant article that Porter, who was my colleague at Curtin Law School before he moved to Federal Parliament, was entitled to the presumption of innocence, as are all people accused of historical sex crimes. My argument was based on the rule in Briginsham v Briginshaw[4],  decided by the High Court in 1938, which provides for the presumption of innocence in civil matters when a criminal offence is alleged to have happened.

However, it is unlikely that contemporary judges would follow this rule in civil matters such as defamation because it appears that the law has now shifted the onus onto the plaintiff – in this case, Porter – to prove the falsity of the rape allegations in an action for defamation. The Supreme Court of South Australia has ruled that, “High Court judgments do not import that presumption [of innocence] into the civil arena.”[5]

Thus, whilst the presumption of innocence prevails in criminal cases, in defamation cases, which are civil cases, the presumption may not apply. That may well be a reason why the defamation action was discontinued, and a settlement reached between Porter and the ABC: it would have been difficult for Porter to prove that the allegations were untrue.

Katherine’s statement appears to be compelling and many of her allegations are supported by contemporaneous diary entries which were attached to the statements. However, in ultimate analysis, it is fair to say that people will never know whether the alleged rapes happened.[6] But Porter’s case certainly illustrates how a person’s reputation can be thoroughly and irretrievably trashed when events such as these unfold.

Hence, in a story like this, there is always a need to exercise caution. Recognising that the truth in this matter is unknowable is common sense!

 

Gabriël A. Moens is Emeritus Professor of Law, The University of Queensland. He served as Pro Vice Chancellor, Dean of Law and Professor of Law at Murdoch University. He has taught extensively across Europe, the United States, Asia, and Australia. He writes short stories, and he has published a novel about the origins of the Covid-19 virus, A Twisted Choice (Boolarong Press, 2020).

 

 

[1] See: https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/dyer-v-chrysanthou. See also Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 64.

[2] Gabriël Moens, “Who Next Will be Accused?”, Quadrant Online, March 9, 2021.

[3] Pell v The Queen [2020] HCA 12, 7 April 2020 at [119].

[4] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J.

[5] Full Court of the Supreme Court of South Australia, Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2016] SASCFC 109, 29 September 2016 at [108].

[6] See Paul Karp, ‘Statement given to NSW police raises questions over Christian Porter’s denial of sex with accuser’, The Guardian, June 30, 2021 at https://www.theguardian.com/australia-news/2021/jun/30/statement-nsw-police-raises-questions-christian-porter-denial-sex-with-accuser.

21 comments
  • ianl

    >” … it would have been difficult for Porter to prove that the allegations were untrue”

    So civil cases may require proving a negative. It is high-handed positions such as this that engenders deep dislike and distrust in high-end lawyers, cavil as they may.

  • Peter Smith

    To quote Prof. Moens: “Katherine’s statement appears to be compelling and many of her allegations are supported by contemporaneous diary entries which were attached to the statements. However, in ultimate analysis, it is fair to say that people will never know whether the alleged rapes happened.”
    What to say again about what I regard as a calumny against an innocent man. Let me just say this. I am sick of the word ‘compelling’. Apparently, the ex-choir boy’s evidence against Pell was compelling. The result an innocent man sent to jail. Christine Blasey Ford’s evidence was compelling. The result an honourable man and his family put through hell. Those with invented memories are compelling because they believe such memories are true. Grifters are compelling otherwise they wouldn’t be grifters. Chronic and habitual liars are compelling otherwise they wouldn’t get away with it for very long. There is no substitute for corroboration; for hard irrefutable evidence. A professor of law should know that. And, by the way, this isn’t me being “furious,” it’s me being indignant on behalf of a man put in an invidious position for which, by definition, he has no remedy. A man’s or woman’s reputation should not be torn down or even sullied by untestable accusations. Currency should not be given to such accusations. It’s unsafe and unfair to do so.
    .

  • Harry Lee

    Just as certain Aborigines have extraordinary fantasies (tell big lies) about historical Aboriginal accomplishment, so do certain women, of all colours, have extraordinary fantasies (tell big lies) about how they were sexually assaulted.
    The dynamics of psychological dysfunction have different inflections across the two fantasizing/lying groups, but there are many overlaps and similarities.
    And this kind of fantasizing/lying is being encouraged, endorsed and rewarded by the marxist-inspired Left which dominates the media, the universities and school systems, the public services generally (incl the AHRC), and the legal system.

  • call it out

    My own experience has been that if “compelling ” refers to the gravity given by a judge to an unsubstantiated allegation, with no corroborating evidence, which then results in a conviction, then it says more about the desire and willingness of the judge to believe than anything else.

  • pgang

    If the ‘truth in the matter is unknowable’, then the matter should not be brought to light in the fist place for the public or the courts to judge. But this is the ABC at work of course.
    This ‘unknowability’ seems like equivalent grounds for defamation as in the case for an outright lie. ‘I have a claim against you, but there is no way of knowing whether it is true or not’. Common sense tells me that such a claim would be defamatory if it was publicly pursued.
    ‘…it would have been difficult for Porter to prove that the allegations were untrue.’ Difficult? How about impossible? If the event never happened, then how is it even possible to make a case against it? How do you prove that something doesn’t exist? You would first have to demonstrate its existence.
    Apparently judges are swirling into the same socialist drain as the rest of our institutional leaders. The human spirit can only be crushed by a legal system that requires the impossible from a defenceless individual.

  • Stephen Due

    I’m concerned about the following:
    “Katherine’s friends, in their submission, believe that the claims are true. They state that Porter stands accused “by someone who is now dead and who took her life because of his actions.” This statement cannot be clearer as it links Porter directly to allegations, which are taken to be substantially, if not completely, true and make him responsible for Katherine’s death”.
    It cannot be clearer – or more tenuous.
    I’m wary of arguments that attempt to inflate the currency of dubious assertions by exaggerating the supposed consequences of what is asserted. We’ve seen a lot of that lately. For example: “If this virus is as bad as we think it might be, then there could be millions of deaths, therefore extreme measures are necessary”. The exaggerated assertions about the possible effects of the virus artificially inflate the importance of what is essentially a weak argument. It is not generally true that the greater the potential adverse effects of an event, the more you should be inclined to believe the event will happen.
    Secondly I am wary of psychological chains of causality of this type. The alleged link between this person being subjected to a sexual assault and her suicide some decades later is tenuous in my view. People respond to bad experiences, even rape, in different ways, very few by suicide.
    In my view the statement by the friends is deliberately inflammatory, cannot be proven, is not relevant and should not be repeated in a serious discussion of evidence for the offence under consideration.

  • Peter OBrien

    Not to be indelicate, but I have great difficulty believing that a woman could ‘wake up’ to find herself being anally raped. Did she sleep through the necessary physical contortions required to get the process under way?

  • Peter Marriott

    Professor Moens has a well written piece, with precise reasoning but it all seems to hinge on the girl Katherine’s friends pushing this whole thing, based on their belief in her story. Based on everything I’ve read I would believe Christian Porter, not the girl Katherine’s friends, and I subscribe to Peter Smith’s thinking on the matter. In my view it is the only reasonable verdict a disinterested observer could come to…Not Guilty Your Honour, and it would definitely not be fair to speculate on ‘not knowing’ otherwise.

  • Doubting Thomas

    What has always fascinated me about this case is that so much credibility has been given to the ABC cabal pursuing this matter. Unless I am seriously mistaken, apart from evidence of the fact that they were, or had been friends of Katherine, not one other word of their evidence, all hearsay, would have been admissible in any court of law except, perhaps, in that judicial sewer in Victoria.

    And now we see the process starting again courtesy of Julia Banks and her claim that she was inappropriately touched on the thigh by a Cabinet Minister. The horror!

  • Alice Thermopolis

    Exhibit A: Russell’s tea-pot

    Lord Bertrand Russell, could you explain to the Court the precise meaning of your cosmic tea-pot analogy and its relevance to this case?

    Russell: Certainly. It seemed – and still seems – to me an excellent way to enlighten people as to why the philosophic burden of proof should be on the person making unfalsifiable claims, rather than shifting the burden of disproof to others.

    If I told you that a celestial teapot was orbiting the Sun somewhere in space between the Earth and Mars but that you could not see it, nobody would be able to disprove me; but if I were to go on to say that, since my assertion cannot be disproved, it is intolerable presumption on the part of human reason to doubt it, I should rightly be thought to be talking nonsense.

  • Harry Lee

    As the sage John Cleese once noted:
    The West has granted to people of weak intellectual-emotional constitution the power to have society re-designed to pander to the needs of those of weak intellectual-emotional constitution.
    I would add that this phenomenon is just as we would expect when neo-marxism is accepted as a legitimate component of Western societies, incl Australia.
    Marxist Big Statist politicians and their allies in the education, legal, and the news/opinion media systems, see their own interests as well-served when they promise parasites that their lives can be fixed -at no costs to themselves- if only they vote ALP.
    And of course, in this context, the Libs and Nats have had to lurch left to save votes.

  • GaryR

    Prof Moens writes: “Of course, the detailed nature of the allegations, by itself, does not guarantee that these events took place.”
    What a generous concession! I’d suggest that, on the contrary, the very detail by itself guarantees that the events did not take place.

  • yofus

    In the Pell appeal case two of the three judges took the view that the supposed victim was compelling enough to be believed to have been telling the truth, so without being able to be proven, made what could only be described as purely subjective personal opinion, a disgraceful verdict that should have had the judges concerned struck off the register.

    The facts of this judges purely subjective opinion in believing the friends were compelling enough to be believed, that the woman’s suicide was the result of Porters’ long ago alleged sexual impropriety could just as easily be seen as…the taking of her own life could be directly attributed to the so-called friends pushing her to pursue matters to which as her folks mentioned, may have been made up, and consequently became too much for the sensitivities of her mental state to handle.

  • Doubting Thomas

    Yofus, even more easily, I think.

  • Harry Lee

    The marxist-wokeist alliance is using the passivity of non-marxist non-wokeists to ensure that marxist-wokeist ideology is implemented throughout the land.
    I’m thinking that secure methods be devised to inform the ordinary people of the identities of members of the legal system -including judges- whose marxist-wokeist judgements result in the deaths, rapes, and other violence and molestations of innocent people, in addition to property losses suffered by such victims.
    Ditto ALP politicians, past and present, whose actions have dumped upon proper Australians the massive costs, tangible and intangible, due to the disproportionally high violence and other criminality conducted by imported black Africans, PIs and Muslims from everywhere.
    Note that multiculturalism has become a tool of anti-Westernism/anti-Europeanism, and is a marxist-wokeist enterprise.
    Ditto ALP and Green people who have saddled us with the highly destructive consequences of anti-nuke legislation and the anti-factual anti-fossil fuel sham/scam/hysteria.

  • Peter Marriott

    Good point Harry.

  • Tezza

    I’m with Peter Smith. It would be generally impossible to prove something didn’t happen 30 years ago, unless (for example) by good fortune the alleged victim could be shown to have been in one city and the alleged perpetrator in another. In this particular case, there are several implausible aspects to the allegations, but none that could ever definitively prove that nothing untoward happened.
    If in a civil case there is indeed no presumption of innocence as Professor Moens argues, we are in a very worrisome time.

  • Lewis P Buckingham

    ‘..it appears that the law has now shifted the onus onto the plaintiff…
    the presumption [ of innocence],may not apply. That may well be a reason why the defamation action was discontinued,’
    However it was settled.
    There may be other reasons to change tack and settle.
    At the time of this case there was an imperative for it to be cleared up so Christian Porter could be back in parliament in a new role, which allowed him to pursue his detractors.
    That was achieved.
    Also its possible that new lines of enquiry were found in the redacted email trail, that was published as part of another case involved.
    Were these to involve malice of forethought as well as denial of any bias by a commentator in a public broadcast, by the ABC, there could be a whole can of worms opened on this one.
    One of the inane comments made about this case was along the lines that Porter did not examine the evidence before denying the rape claim.
    This was not an oversight on his behalf.
    He acts innocent.
    He came out straight away and said it never happened.
    That’s because he, of all people, knew he did not do it.
    If he had done the act, he would have lawyered up and demanded to see the evidence.
    Just on the surface of it, he must have been an Errol Flynn on steroids to anally rape not once, not twice but three times.
    This has a biblical ring. aka ‘You have thrice denied Me.’
    A rich mixture for the mentally afflicted.
    Understandable, grief may have motivated the friends of the deceased in laying accusations on her behalf.
    When the police said the evidence was insufficient, friends went to the ABC.
    Those of us left to gape and watch, wonder why we have to finance this yet again through our ‘own’ ABC.
    They are still in denial over Pell.
    They still act as if no one will sue them, but defend with our money and their incompetence.
    Vale ‘common sense’.

  • Peter Marriott

    Even better points of the whole sorry business Lewis, including the even worse one of Cardinal Pell.

  • Harry Lee

    Lewis P B -all good points you make, very well expressed.

  • STD

    And in the end ,she got her man.

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