Experienced trial lawyers will have at least two problems with the suggestion that there should be a judicial inquiry into the fitness of the Commonwealth Attorney-General to hold office.
First, even if the complainant were alive and willing to proceed to a trial before a jury, it is extremely unlikely that any police officer would forward the brief to a prosecutor to consider whether a prosecution could proceed based on the reported admissible evidence available. The reported evidence of the complainant’s mental condition – which apparently led to her being dissociated from reality – would clearly be a factor that all involved in the process of considering any prosecution would need to take into account. That being so, we need not consider whether a magistrate could, or would have committed an accused to stand trial, whether a jury properly instructed as to the law and admissible evidence could convict, and whether such a verdict could stand on appeal. (In the case of George Pell, the prosecution cleared every hurdle except the last.)
Secondly, while the fitness for office of a director of a public company may be the subject of judicial findings premised on legal criteria, the fitness for office of the Attorney-General is not. That issue is political, not legal. It is resolved politically, not legally. The relevant process is an election, not a judicial inquiry. The opinion on this issue of another lawyer is worth no more than mine, or that of my cleaning lady or oncology nurse.
It follows in my view that there is no sensible subject for a judicial inquiry. There is nothing novel about a person in high office being the subject of unresolved issues of rape. It is the case with one cardinal of the Roman Catholic Church and two justices of the American Supreme Court.
Let me tell you how as a trial lawyer for over fifty years I come to those conclusions.
I am appalled at the level of ignorance of how an inquiry into Mr Porter might proceed – and into what. I did a very tricky inquiry about thirty years ago that was politically fraught, and for thirty years I presided on a sessional basis over tribunals where the issues tended to be at large. I am a common lawyer who practised in equity and who has a visceral distrust of the inquisitorial system espoused in Europe – and by any repressive government.
It is a disgusting feeling when as the judicial officer, you have trouble framing the question. It is like driving on black ice. In the Fire Brigade disciplinary tribunal, I was dealing with charges framed by lawyers under a statute – too cautious, and lawyerly, but something to hang on to. In eighteen years hearing tax cases, I was dealing with the decision of a revenue officer to disallow an objection by the taxpayer. Both could use brutally broad language that would not be allowed in a decently run court of pleading – the whole object of which was to reach an issue of fact for the jury or demurrer for the court. Even in a case where Jim Merralls QC instructed by Mallesons with David Batt for AMP – on a scheme that looked headed for the High Court – I had to ask counsel for the Crown: ‘Mr Boaden – do you think at some time you might make some passing reference to the terms of the notice of disallowance that you have been sent here to defend – just for old times’ sake?’
I repeat – being left at large in some form of inquisition is anathema to me as a common lawyer.
In the gaming inquiry that I conducted, the issue was whether a U S entity was a fit person to hold a gaming licence in Victoria. There were statutory criteria, and there was undisputed evidence that the applicant had lied on the record to a U S regulator, but I still had to summon up every day of my twenty one years on the job to crystallize an issue that could allow us to decide the case. Otherwise, the ocean of litigation could have gone on for years.
In the end, we were able to ground our decision in plain terms with no reference to legal authority at all.
On the evidence before us, we have come to the conclusion that VLC should not be on the Roll. In our opinion, the findings of two associations between Mr Lippon and people who have been convicted of criminal offences, and the two acts of dishonesty on his part, are founded on matters of fact that are not substantially in issue. The implications of those findings and the conduct of VLC in the course of the inquiry are such as to demonstrate that VLC does not meet the requirements of honesty, integrity, and repute which the Act contemplates for those who are to be placed on the Roll.
For our part, we do not think this conclusion requires or will benefit from sustained analysis. There can be no scale of the relevant considerations such that the issue of satisfaction of the statutory requirements can be the subject of measurement. In our opinion, the Act contemplates, and this Commission should impose, high standards on those who want to take part in the provision of gaming facilities. This is because the Victorian people are being asked to take these people on faith. If we may adopt a phrase used by a distinguished commentator upon American affairs, it is no part of the function of this Commission to start to play with the faith of the Victorian people. We think that the Victorian people are entitled to expect more, and that the Victorian Parliament has required more, than VLC can offer.
Politicians say that you should not start an inquiry unless you know the answer. Another reason for having an inquiry is that the issue is such that you must have an answer. This case is not one of either of those. People calling for an inquiry acknowledge that there is a significant prospect it will not be able to make a conclusive finding on the allegations of rape. That incapacity is inevitable. Where does the inquirer go from there?
What is certain is that we would get a full rehearsal of the allegations that will appal the family of the dead accuser, sicken the community, and leave the wounded accused maimed for life. And for what?
The one inescapable problem is that the accused will not be faced by his accuser. The Sixth Amendment to the U S Constitution states that ‘in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.’ That merely states a long standing principle of the common law. ‘Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial’ (Lee v R (1998) 19 CLR 94).
We should be very worried if you or I can be deprived of that fundamental human right merely because the proceeding is said to be an administrative inquiry rather than a judicial determination – when as a result your or my life might be ruined in equal measure by either process.
The truth as it seems to me is that the absence of the accused does not just make any inquiry unfair to Mr Porter – it makes any inquiry simply pointless. Indeed, of those few who are competent to deal with such an exercise, I wonder who would want the job or take it.
I cannot believe that all those pursuing Mr Porter for political reasons are ignorant of all these problems. The unfairness hits you full in the face. I do not like Mr Porter; I positively dislike the Prime Minister; I have no time or respect for either the Liberal Party or the Labor Party; but there was a time when I thought that the ALP would stand up for basic legal or human rights. That time has apparently passed and those involved should be deeply ashamed of themselves.