Flat White

Hoist with their own petards

3 March 2021

3:49 PM

3 March 2021

3:49 PM

Let me be clear.  One either believes in basic natural justice and procedural fairness protections or one does not.  If you do, it is plain that no one can protect himself against decades-old rape allegations from someone who had over a quarter of a century to pursue having charges brought and chose not to do so. 

In the absence of physical evidence of any kind and no third party verifications no such allegations can ever meet the ‘proof beyond reasonable doubt’ standard.  And remember, that standard of proof – as every law student around the Anglosphere is taught in his or her criminal law class – is the ‘golden thread that runs through the [anglosphere’s common law system of] criminal law’.  (That was Viscount Sankey writing in a 1935 House of Lords case that law students in India, Jamaica, Singapore, Canada, New Zealand, Britain, the rest of the red bits on the atlas and, one hopes, here have to read.) 

The golden thread relates to the burden of proof needed before you criminally punish someone.  It recognises that humans are limited biological creatures who can never have God-like insight into eternal truths.  It’s tied to Blackstone’s insight that it’s better to have ten or twenty guilty go free than to have an innocent person go to jail.  That in a nutshell, dear readers, is the foundations of the presumption of innocence. 

Now not everyone buys it.  Some who buy it in one sphere (say, when it comes to suspected terrorists) hypocritically don’t buy it in others (think rape accusations).  And it can seem a tough hurdle at times.  But given all we know about humans I think these sort of procedures matter.  They really matter.   You swallow the downsides to ensure the upsides.  In fact, this emphasis on procedural fairness, along with cross-examination as a tool to get at the truth and along with jury trials, are the three most important things that the common law legal system has given the world. 

And if you agree with me about this – to repeat myself, many do not – then you will see immediately (as I said) that on the facts of these allegations no legal system with any commitment to fair procedures would ever consider Christian Porter as anything other than wholly innocent.  End of story.  That’s how it should be.  Let me be unequivocally clear about that. 

Of course there is a different angle to this story, one related to this Coalition government more generally.  Let me call this the Shakespearean or the schadenfreude angle.  Remember your Hamlet?  Remember Hamlet deciding to let the plotter be ‘hoist with his own petard’ (or blown up by his own bomb)?  I ask because there is a clear element of this Coalition government being hoist with its own petard about not having insisted on proper procedural justice for others in the past and now reaping what they sowed. 

Take Dyson Heydon.  Last year I complained in print about his treatment by the High Court and by others as regards allegations that never once amounted to criminal allegations and so were far, far, far less serious than those levelled against Mr Porter.  But in my view, the procedures used to make determinations against Mr Heydon were pathetically deficient.  No procedural fairness, as I said at the time in print (when many others seemed to duck for cover).  Be clear.  Mr Heydon never had any chance to cross-examine any of those making sexual harassment claims against him.  And yet Mr Porter as Attorney-General, and the whole of the Morrison government, spoke not a word about the need for procedural fairness protections.  Not a word.  Not a syllable.   

I’d extend those protections to everyone.  It’s what helps make us civilised.  But when you don’t extend them to others you make your own appeal to them for your own benefit smack of hypocrisy.  That is this Morrison government in a nutshell I’m afraid. 

Or take the whole Cardinal Pell episode.  It was obvious to this atheist descendant of Calvinist Scots-Presbyterians (so no one could say my defence of Pell flowed from ‘it’s only because he’s a devout Catholic’ sentiments) that the whole Pell prosecution was a disgrace.  I said so from the start.  There wasn’t close to enough evidence ever to think it would suffice to meet a ‘proof beyond reasonable doubt’ threshold, whatever two Victorian Court of Appeal justices might think.  In fact, and as our High Court of Australia unanimously implied, there wasn’t even enough evidence to come close to the civil standard of proof on the balance of probabilities. (Namely, was it more likely than not?  Well, it was basically virtually impossible and incredibly unlikely.)  

Barely a single Coalition MP said a word on Pell’s behalf.  And don’t give me the sub judice excuse.  The problem in Pell was the lack of a fair investigation and trial, not people commenting on that.  And once the jury trial was over no one thinks court of appeal justices would be influenced by anything said. So why not then? And yet I don’t recall the Prime Minister or Mr Porter saying a single thing about how shonky and deficient the Pell prosecution was.  Cardinal Pell is no doubt too nice to be feeling any schadenfreude were he to be reading about this over in Rome right now.  But I bet a good few others who’d gone through what he did would be less forgiving. 

We can even extend our analogies out further.  This Morrison government is one where the Prime Minister castigates the incredibly successful former Australia Post CEO Christine Holgate based on what?  Does he take a couple of days to learn all the facts?  Does he extend her basic procedural tools to defend herself?  Or does he throw her under a bus saying (without knowing what he’s talking about) that he was ‘so appalled and shocked by that behaviour’ – meaning that Holgate had earned taxpayers record profits and had limited management rewards to expensive watches, a fraction of a soupcon of what an increased bonus would have cost taxpayers.  (If Holgate had tripled their bonuses the PM wouldn’t have said a word.) 

It’s all part of what seems like an inability by Team Morrison to withstand the social media mob and ABC attacks and to demand basic procedural fairness protections.  For everyone!  It’s a form of cowardice in a way.  And now this Team Morrison is reaping what it helped to sow.  It’s being hoist with its own petard.  

James Allan is Garrick Professor of Law at the University of Queensland.

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