The price the ABC was prepared to pay, to be rid of Christian Porter’s defamation case in which he claimed that it had labelled him a “brutal anal rapist”, had two controversial parts to it: a payment of $100,000, described publicly as the cost of the mediation which had resulted in the settlement, and a consent order that the “redacted” 27 pages of its own defence be kept permanently suppressed.
Controversial, for different reasons. The money part was an agreed sleight of hand, given there was no way the mediation cost that much, and it would have held more integrity for the ABC to admit it was to some extent buying its way out of the litigation. Cheaply, at that, given what the case would have cost to run.
The ABC’s concession to conceal most of its own defence was the more interesting move, given what it said about the public broadcaster’s own commitment to transparency in the public interest. Assuming that it was confident that what it had filed with the court was appropriate and solidly backed by evidence — with a legal team headed by Justin Gleeson SC, that’s a fair assumption — it was quite a radical step to then want to withdraw it and keep it from the public forever.
Porter’s own interest in keeping the material suppressed is not difficult to understand, even without any clue as to what that material is. So it was that his counsel, Bret Walker SC, was the moving force in seeking to convince Justice Jayne Jagot that, so as to prevent prejudice to the proper administration of justice, the redacted parts of the defence (and Porter’s reply to the defence) should be removed from the court’s file.
Jagot had expressed some disquiet when the parties first appeared before her on May 31, asking her to rubber stamp the terms of their settlement, asking some awkward questions about why exactly the defence, which had been the subject of an interim suppression order earlier made by her, should be kept secret. As she said, that was not a matter for the parties to agree, but for the court to decide, guided by the public interest. Key to that is the principle of open justice.
The fight, when it came, was between Porter and the other media, led by Nine and News, with a cameo appearance by the Kangaroo Court guy, Shane Dowling, claiming his rights as a news provider (he lost that point and has been ordered to pay the costs of his intervention which the judge said had been entirely unhelpful).
Porter did not seek a permanent suppression order over the secret material. Instead, he asked the court to invoke a rarely-used provision in its own rules, giving it the power to order that documents be physically removed from a court file, put in an envelope and marked “DO NOT OPEN”. Literally. That’s the order Jagot has made today.
Her Honour’s reasoning is, centrally, this: “For the Court to refuse to make [the removal order], in these circumstances, would be to undermine the lawful contractual bargain which the parties struck to compromise all of their claims.”
That is, Porter and the ABC had agreed on an all-in settlement, with him discontinuing his case, the ABC paying some money and the controversial parts of the pleadings in the court file — which Porter had applied to have struck out by the court — to be buried forever. There was nothing wrong with their striking such a deal. Part of the court’s function, in the public interest, is to encourage and facilitate litigants to settle their disputes.
Jagot justified her decision on two bases: first, to refuse the order would in effect be “rewriting the contract of the parties.” She said that “it may be necessary in the proper administration of justice to give effect to the contractual bargain of the parties.”
Second, “refusing to make [the order] may involve prejudice to the proper administration of justice by potentially discouraging parties from settling all elements of their dispute”. That is, if the removal order hadn’t been possible, then the parties may not have settled the case at all, an outcome in “conflict with the overarching purpose” of the court’s function to facilitate just resolution of disputes, “and thus undermine the proper administration of justice”.
The judge was adamant that Porter and the ABC “are not obtaining ‘special treatment’ or extracting from the Court any protection greater than ‘ordinary parties’”.
Open justice “is also a foundational principle of the common law”, Jagot commented, but in this case not strong enough to overcome what she concluded was an even more important principle: the court not getting in the way of a legitimate and sensible settlement between the parties.
It’s a huge call (really huge), and you’d have to think the media intervenors will appeal. Ordinarily, you’d expect to see the ABC in that camp, on the side of transparency.
On this occasion, however, no. Expediency, for the ABC, appears to have held sway.
If you or someone you know is impacted by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.
“It’s a huge call (really huge), and you’d have to think the media intervenors will appeal. Ordinarily, you’d expect to see the ABC in that camp, on the side of transparency.
On this occasion, however, no. Expediency, for the ABC, appears to have held sway” – or perhaps the ABC was concerned about even further budget cuts?????
Nailed Terry!
The LNP can not stop trying to bring the Independent media to heel.
They would tear poor dear old Auntie to shreds if their defence case had made the light of day.
I think Justice Jago has played fair..
If Christian Porter ever comes back to court on another matter of a similar nature, those 27 pages can be released/ accessed by another Justice. They have been taken off the public records not expunged or destroyed.
If there is a Judicial Review into Christian Porter’s fitness to be in public office, they may be requested and read by the Judge and or his counsel assisting.
We all know that Smirko will do anything to prevent a judicial review into Christian Porter.
It doesn’t make him look any better. I hope that other media orgs will appeal this. I believe the unredacted version has gone to the SA Coroner. The ABC did not ‘settle’ but the opposing side decided to as it must have been better for it to stay buried and they have pursued that.
It was clear that the reason the case was dropped was that the defence the ABC had assembled would have blown it out of the water.
However, why it sullied its position by paying a zac is beyond understanding – the author claims that otherwise the plaintiff would have continued the case which is absurd.
As when it gave back the legally acquired filing cabinet of government papers – without even copying them – it is just further proof that the ABC is cowed and no longer fit for the purpose of holding the powerful to account.
I want my 8 cents back.
a lot more material, 36 pages, suppressed from the court’s online file than the public know. There was no application or argument in open court to suppress the documents and the only reason given by Justice Jagot for suppressing the documents is “given they contain apparently scandalous and scurrilous material about third parties” which raises the question who said that to Justice Jagot, on what basis and when?
Above link
Agree.
Who told the judge that and what proof was sufficient for the acquiescence.
What’s that tired old saying, “Justice must not only be done but be seen to be done”?
Opaque? Transparent as granite.
Allan is your arguement based on the judges use of the word ‘apparently’ implying someone told her?
I dont think it means ‘someone told me its scandalous and scurrilous’, although CP obviously would have.
I think it means ‘it has the appearance of being
scandalous and scurrilous’. As we havent seen the defence we cant form that opinion for ourselves, but if it was scandalous and scurrilous then that would indicate it
shouldnt be disseminated further.
As Ive said here already, if ABC had anything the contributes to proving his guilt, they would have published it already and given it to the police.
Looking at what ABC has published so far, a lot of it APPEARS to be scandalous and scurrilous.
But as Michael oh so conveniently forgot to mention to his readers, its all been handed to the Coroner for their independent enquiry, who will assess it. Both parties should be satisfied here. So whats your beef?
One media organization has been relentless and fearless
https://kangaroocourtofaustralia.com/2021/08/01/christian-porters-corrupt-judge-jayne-jagot-has-illegally-suppressed-a-lot-more-evidence-than-the-public-realise-why-and-on-whose-orders/
The Judge specifically ruled that site is a blog not a media organization and hence made him pay his own court costs for intervening. It would explain the caustic response that you linked. Im not inclined to treat him as an impartial voice in whether the Judge is corrupt.
“On this occasion, however, no. Expediency, for the ABC, appears to have held sway.” Begs the question why, obviously – but who in the ABC decided on this position? The ABC board? The ABC’s MD?
Crikey published an article where it’s pointed out the Liberals have stacked the board.
https://uat.crikey.com.au/2020/12/04/abc-budget-cuts-bias-government/
Surely this is worth asking, did a quick compromise come around because hat the “left” hand is potentially going to damage the “right” hand of the Liberals and vice versa?
I am one of those who helped to get VCE Legal Studies off the ground, decades ago. I even wrote legal text books AND a key section of study was on the deficiencies in our system of justice. This case has raised soooooo many issues and most deservedly so. The latest being this issue of hiding crucial evidence. Not allowing it to be a part of any Law Report. Not allowing the family of the victim to have full and unfettered access to the evidence given she suicided after NSW Police command and those who run the AFP all FAILED her. BUT if a non LNP MP can get their hands on any of this…
When you wrote the course syllabus, in the cases where people dont get the desired outcome via due process, did you add a section on how to conduct character assassination and trial by media, and failing that how to encourage elected officials to break the law and released protected documents?
I would also love to read the sections where you explain how to find an accused guilty without a trial or even a charge, with the simple subjudicial use of unexamined declarative nouns like ‘victim’ and ‘crucial evidence’, and unsubstantiated claims about police ‘failing’ because they didn’t produce a guilty verdict.
It’s frightening to think that you very probably don’t even know why your comment is so judicially flawed, in so many ways. But such are the fruits of shabby, contrived episodes like this one, with their hysterically raised but wholly unrealistic, populist expectations.
I despair, and I also fear. For every Christian Porter who can at least afford quality representation in these attempted fit-ups….there are 50000 of us who can’t.
The NSW Police were reluctant to take the statement by video link and then couldn’t get Police Commissioner Mick Fuller’s permission to fly to Adelaide and take a statement in person.
So, yes the NSW police commissioner failed Kate.
The chance of a case of rape being successfully tried is very rare, and, a historical rape even less likely.
The prosecution of an allegation of historical rape, is nearly impossible.
I personally don’t care if Christian Porter did or did not commit these vile acts when he was 17 and the whole thing is nothing can be proven because the alleged victim is dead and Christian Porter strenuously denies the whole thing.
I do on the other hand want to see a judicial review into Christian Porter’s fitness to hold public office, because if you ignore all the the accusations which can’t be explored or tested in a court of law.
There are some significant issue surrounding the “secret trials” he has a penchant for initiating without making the case that these prosecutions or in the public interest, rather than persecutions of decent and honorable men who have served their country well.
Im no expert on coronial process, but i understand that the police and medical conduct is exactly the sort of thing the coroner would be looking at, as opposed to the guilt of CP. The coroner exists to find faults in processes and recommend they are resolved, not to find guilt in the way criminal court does.
As for your motivation for wanting CPs suitability assessed, at least you are honest. The vast majority arent. On those other issues you mention, I agree with you and dislike this guys actions intensely.
The net result of all this is that those who politically hate the LNP will simply continue to presume that Porter raped ‘Kate’, and those who politically hate those who politically hate the LNP will continue to presume he did not.
And judicial due process – especially for those of us without deep pockets – is just that little bit weaker and more cynically battered than it was a year ago.
So. Well done, everyone in the privileged legal, political and media fraternities. Terrific stuff all round. Superb resolution. Fantastic effort, counsel, lawyers, LNP, ABC, Kate’s ‘friends’, Porter’s ‘colleagues’, commentariat in general, and – naturally – especially all the wonderful, wonderful, profoundly acute internet commentary. Such lucid insights. Such fine-grained analysis. Truly a value-adding Enlightenment experience.
Brilliant. Simply brilliant.
Now – on to the next lucrative extra-judicial witch hunt, all! Tally-ho!
No Jack, presumption of Porter’s guilt is not necessarily motivated by an emotional response to the ugliness of the liars, thieves, misogynists and sexual harassers of the LNP side of the spectrum. Retrospective probability simply determines his guilt.
We don’t need any juicy rubish of his denials, what we have seen already paints the picture of something unworthy.
I would be more concerned about judges who lean towards coverups
The conspiracy theory tally so far: CP, the national government, NSW police right up to the Commissioner, SA police, a few ER doctors, Murdoch press, Judge Jagot. All that remains is for the SA coroner to investigate and issue their findings and we will see if they are conspiring as well.
Somehow I dont think the Coroner is going to be too critical of the decision to not allow the detectives to travel. A global pandemic was brewing and these allegations were 35 years old with no known evidence. Kate said she would struggle to make a formal statement and advised she needed a lot of time to work to that goal, hence the various meeting she DID have with the police did not result in a formal statements.
So there was no apparent urgency, but tragically for Kate, actually there was.
I expect there will be some analysis of her medical care wrt the handover from NSW ER team to her carers in SA/NSW.
Not sure how to interpret your reply Curious. Any chance of fleshing out the list a bit? Interesting read, Shane Dowling’s take on Judge Jagot though.https://kangaroocourtofaustralia.com/2021/08/01/christian-porters-corrupt-judge-jayne-jagot-has-illegally-suppressed-a-lot-more-evidence-than-the-public-realise-why-and-on-whose-orders/
Usually the simple explanation is the one that has the best footing in reality. Conspiracy? Meh!
School boy bullies never growing up, simple. Pigs snorting at the trough? Simple.
Jan thats a pretty ‘interesting’ page you linked. I’m struggling to follow his arguement. All I got from it is he feels persecuted by shadowy and corrupt authority figures.
If you want to decipher and summarize it ill try to respond.
Ill reiterate what is blatantly obvious.
The ABC are not a law enforcement authority. The evidence they collected was not supported by special powers. If evidence collected by a law enforcement authority was suppressed then that’s an entirely different matter, as others cant simply go and discover that evidence themselves. These witnesses can offer their evidence to Nine, Newscorp etc, just like they offered it to ABC.
Fair enough, it is confusing jumping into it. It helps to look at his work over time. It is a bit like he is moving chess pieces on a legal game board. After all justice only exists for the litigatiously potent and then at that stage it isn’t the justice per se but what they can get away with. Pigs at the trough, imagine the private school boys pissing it up in the pub with their stories about how they are going to “make it”, helping themselves to some skirt while they are at it. Hobnobbing with future judges and business executives. Back scratching each other to the top. So now they look after each other. The beauty of Shane’s work is that it is there for all to see, naked and un-sequestered. But what he seems to have right is due to his understanding of the legal process. He shines a light on the legal profession and their incessant cronyism. Not merely “feeling” persecuted, he is actually fighting the battles. We, who respect an open and fair society, owe him some gratitude. As to summarizing his work, that is for more than the Tally-ho! here. Imagine you and I ascending Dunning_Kruger’s Mt Stupid, or at least me, having realized that there is a lot more to it than meets the eye. All those envelopes never to be opened.
The envelope has already ‘been opened’ by the coroner.
What a scary prospect – “Retrospective probability simply determines his guilt.We don’t need any juicy rubish of his denials..”.
Probability determines SFA.
But hey, we don’t need denials – to quote Mandy Rice-Davies, “Well, he would say that, wouldn’t he”.
In my circle of friends, far more women are sceptical about the accusations than the men.
I wonder why that would be? Woman’s intuition?
Hi Selkie, you are correct, statistics do not determine truth, but neither do the courts e.g. Pell.
In a dispassionate way, I use statistics to help make sense of things in an unfair world, viz. type “a” and type “b” errors. A man rapes a woman and gets away with it vs a woman accuses a man of such an act being ignored. Retrospective probability shows that the odds are in favor of “he got away with it”. The damage of error “a” is a rapist continuing on his merry way and on the other side a life ruined. I prefer to NOT make the mistake that ruins a life. Of course here we are being denied the opportunity to assess the detail because a judge is arrogant enough to withhold that from me. No matter, the damage is minimal, his reputation is as is and he can try and get on his merry way, she is dead. I need not hear his excuses, it changes naught.
Our society on the other hand is diminished by the type “a” error.
“Dispassionate” is the last way anyone would describe your diatribe – “Porter’s guilt… his guilt…rubish of his denials…” – and then you try to claim “I prefer to NOT make the mistake that ruins a life.”?
Pull the other one.
Sorry Selkie, you seem wound up. What have I to go on? If I cannot see what Porter wishes to suppress, I am left with that which we all can access. All I state is that that tips the probability scale. His reputation is as is. His choice to leave it under that cloud. I am satisfied with what I have been able to learn about the sordid affair, I do not need any more of his denials. She is dead, I am genuinely upset by that, not pulling any legs here. He lives another day in reflection, preferably out of my sight. Diatribe, perhaps?
If there was anything of substance that helps prove his guilt, the ABC would be obliged to refer it to the police, and they have my full support in doing that. So far I havent heard thats happened, hence as far as Im concerned the ABC (and Judge Jagot) is sitting on a pile of bad character references SPECIFICALLY SELECTED by ABC…..and nothing else. A copy of which has been sent to the SA Coroner, who Im sure could make a claim that it should be unsealed if it was warranted.
Everyone seems to forget that while ABC was reporting on CP, they had a journalistic duty to be unbiased (or at least pretend to be) but when ABC was in court as a defendant, it had no obligation to do anything but defend its self. It had no obligation to mention any evidence that counteracted the narrative that he was a rapist or of general bad character. Such counter acting evidence would be the prosecutions duty to find.
Like I said, enough with this rubbish about evidence being with held. Its nothing more than sensationalism to feed conspiracy theories to keep the story alive.
Not so much a diatribe as a load of tedious hot air, Jan. You’re perfectly entitled to believe Porter did it on no evidence, if you want to – he may well have – but your posts bear no useful relationship to anything that might advance the discussion on this. And your crocodile tears for Kate are the usual offensive posturing, since like most other self-appointed posthumous mouthpieces for her who have weighed in on this affair uninvited, clearly you view her tragic life and death mostly as a narcissistic canvas on which to paint your boring partisan obsessions. Our last reliable knowledge of her wishes in this is that she elected not to proceed. The legions who’ve subsequently exploited her agonies to grind various personal axes ought to be deeply ashamed.
As to the Kangaroo Court website you’re so enamoured with, I think the guy’s a f*ckwitted crank. So not a lot of common ground there either, alas! Cheers.
Wow Jack, that’s telling me. You do understand the nature of the Tally-Ho here don’t you? I am actually invited to weigh in. Sorry to note that it offends you. You show a level of arrogance to assume that you know what I believe and that there is no “evidence” for that presumed belief. Diatribe, tedious hot air, no useful relationship to advance the discussion, perhaps. Tears for Kate, yes. “self-appointed posthumous mouthpiece” OK that’s rough. I would like you to reflect on that and look into the mirror and repeat “last reliable knowledge of her wishes in this is that she elected not to proceed”. Have you been appointed by Kate? It matters not what we write here, Porter’s reputation is as is. It could be different with the suppressed information out in the open, I suspect a lot worse, it matters not. I have first hand account of abuse very similar to what is described to have occurred in Kate’s case, the difference in that case is, she was believed and that allowed the medical evidence to be documented in time. In that case the perpetrator was held to account. What we hold to be true is essentially irrelevant, are your mythologies more worthy than mine? I prefer to believe Kate, at least posthumously. I think it is important to take abuse allegations seriously and without prejudice and it is a shocking indictment the way police responded in Kate’s case. But I also think it is absolutely correct to be informed by the established statistics that men rape and lie about it. The odds are that he got away with it.
Start from first principles – an unsubstantiated accusation, frankly weird replete with all the tropes of cheap fiction, was made 3 three decades after an alleged event, by a person whose behaviour had been moving further & further off the rails since her teen years, such that her family was distraught.
The person told friends shortly before her suicide that, as it seemed there was no longer (?) any prospect of marriage to the object of her obsession that at least she hoped to destroy his career.
If a novelist tried to sell that story, even as faction, no reputable published would touch it.
Hi Selkie, I am aware of the jilted lover hypothesis, it is not one I am fond of. I do however think that the description of Kate’s diary notes give us more than just recollections of what happened 30 years ago. I also have first hand exposure to the torment abuse victims go through when they try to rationalize what just happened to them. Those thoughts and agonies may not concatenate in a way them makes immediate sense to us. There is no doubt in my mind that if Kate did suffer the alleged abuse, her soul searching would have been turbulent. Discounting her would not be fair.
Why is “There is no doubt in my mind that if Kate did suffer the alleged abuse“?
What evidence have you that provides your certainty?
Have you withheld it from the relevant authorities?
There is no “jilted lover hypothesis“.
One of the last statements allegedly – again that word – made to her “friends” was that she no longer had hope of marrying the target of her obsession.
There has been no suggestion that there was any relationship or that the other person was even aware that she thought there was.
Again, if you have evidence to the contrary, you know more than most people venting on this sorry tale.
Selkie, You wrote “there was no longer (?) any prospect of marriage to the object of her obsession”, my interpretation “jilted lover”, apologies for misunderstanding the intent of that sentence. Ok at the risk of another diatribe accusation; let us assume that if a brutal rape occurred the victim would not generally be in a state of Zen. I have sat by a rape victim, a person very close to me, as she recounted her experience, it has left an indelible impression on me. Hence “There is no doubt in my mind that if Kate did suffer the alleged abuse, her soul searching would have been turbulent.”
Found it, this may help when trying to understand the use of statistical probability in determining guilt in law https://www.themonthly.com.au/issue/2021/april/1617195600/bri-lee-and-kieran-pender/dangerous-precedents
Scared?
Im not following the statistical tangent you are referring to, but this article is a great contribution to the current debate. Its balanced for a start. Thanks for sharing.
Hi Curious, the statistical angle is captured by the concept of “on the balance of probabilities”.
The system assigns a handful of people the task of balancing probabilities to make a ruling on guilt. In Pell’s case such a group thought it beyond reasonable doubt that he was guilty. But the system rolled that back because another set or arbiters decided in retrospect that there would always be “reasonable” doubt and therefore we should never have given that group of people the task of weighing probabilities.
It is fundamentally about setting the limits to acceptable type “a” vs type “b” errors. i.e. balancing the risk of finding an innocent person guilty vs letting a guilty person walk free. It is the very topic of the article.
In the Porter rape case that weighing of guilt will never happen in that forum. His reputation is as is.
What we are Talley-Hoing here is the question whether we are entitled to have a better view of the deliberations of the defamation case. And that is a very important public interest question.
What is in fact defamatory? When a woman says she has been raped and that accusation is reported, is that defamatory? Or is it only defamatory if she can’t tender proof? Proof to what standard? The proof beyond reasonable doubt (whatever that is) like that of the Pell jurors? Or satisfaction of the obscure legal entities that rolled back the Pell conviction?
Turns out Porter was ok with cash for his damaged reputation and to protect that financial agreement the judge was happy for the never to be opened letter. But how do we, the less resourceful members of the public make sense of the administration of fairness in our courts?
Well at least one judge did not weigh public interest high enough.
I get you now. We still disagree on the application, but its so refreshing to have a civil debate with with someone on this topic. Seems everyone has a barrow to push on this topic, and I feel many dont have alleged victim in mind as they attack CP or those attacking CP.
My summary is that ultimately society needs to come up with an agreed process that ALL future investigations are held to, regardless of a persons status or political party. Personally I think there needs to be pre-hearings behind closed doors so that allegations can be assessed as scurrilous or plausible, before ‘the process’ is used as a platform to try defendants in the court of public opinion, which Michael Bradley is so blatantly doing. There also needs to be consequences for anyone caught (not easy to do) simply trying to smear someone – its a small percentage, but it does happen.
I’m very much against processes being made on the fly to suit the CP situation, as that’s a slippery slope in a democracy. Unless the Coroner comes out with some recommendations for further investigations, I suspect society will need to let CP walk and start focusing on the future. Laws cant be made retrospectively. Thats how our legal system works. The Law Society has made clear (in your linked article) they have grave concerns about whats happened in this saga.
I think the silent majority is concerned that the rights of alleged victims still need to be balanced against those of the alleged perpetrator. Assuming you and I crossed paths at some point in our life, and we were alone at the time, there is nothing stopping either of us now accusing the other of sexual assault, and there is no evidence to prove that one of us did or didnt. So unless courts find some way of forcing the truth out of people (lie detectors and sodium pentothal are both unreliable), I cant see any easy way forward. I know what you are saying that the odds need to be tipped because of the staggeringly poor conviction rate, but his then begs more questions… Do we then assess other crimes this way? How does gender fit into the equation?
In my mind we need to attack this problem from many angles. Better court processes, meditation options, better training for both boys and girls to prevent assault in the first place, more support services to encourage victims to come forward immediately, more female judges, less aggressive court room tactics etc. I’ve posted a long discussion on these topics in Crikey if you are interested.
As for Porter being happy with the cash, I dont think thats true. I think he needed to extract something he could portray as an settlement so he could claim he was defamed.
As for Judge Jagots actions, I think they are what required. Both Kangaroo Court and ABC have been trying to damage CPs reputation in the absence of actual evidence, and Jagot said the material is [allegedly] scurrilous. I dont think Kangaroo court helped here. Its even possible that he has derailed the release of the material, given Jagot said his contribution was ‘unhelpful’. If thats true, that would be pretty ironic for someone how is fighting for the release of the info.
…and to cut to the chase, the Coroner has a copy of the material and we as a society need to trust our independent adjudicators in a delicate situation such as this where the first adjudicator said its scurrilous and now a second will review that, and then possibly others.