"The ABC had been forced by my taking this action to say that they regret the article. I never thought that they would concede that the accusations that were put in the article could never be proven, could not be proven to the criminal/civil standard."
- Christian Porter, 31st May 2021
This week, former Attorney-General Christian Porter dropped his defamation case against the ABC and Louise Milligan but still tried to claim victory despite failing to secure an apology or retraction from the public broadcaster.
His statement indicates that he is trying to claim some kind of moral victory by stating that ABC could not prove guilt to a criminal or civil standard. The problem with this is that because the subject of the article was the allegation of raping a 16-year-old girl in Sydney in 1988 by "a man who was now a member of Cabinet" and that that woman took her own life in June 2020, then proving guilt to a criminal or civil standard was always impossible. Not only could the ABC not prove guilt to a criminal or civil standard, it never sought to do so.
Furthermore, his actions inside the court case itself, in trying to push the ABC off of claiming the truth as defence, appears to have backfired. In forcing the ABC’s defence to be publicly redacted, whatever incriminating evidence that the ABC may have had against Porter, will like be forever hidden from public view. Thus, not only will the public never actually know what the ABC had in its defence that made Porter back down, but the public will also never actually know if Christian Porter is a fit and proper person to be a Cabinet Minister. In that respect, he has won most elegantly because in putting more spin on the case than Nathan Lyon can put onto a cricket ball, his tenure as MP for the Division of Pearce is secure.
Speaking as a member of the general public with no actual ability to look inside the case, then the most likely story which fits the available facts is that Porter's legal team probably hit the wall of lack of evidence, in trying to prosecute the case. As he was the one who got out in front of the media and announced on 3 March 2021 that he was the person named in the allegations, then trying to make the claim that he had been defamed when the original allegation did not name him, that he was "readily identifiable" and that the article was intended to harm him, might have been impossible. As he was the plaintiff who initiated the civil lawsuit against the ABC, then the burden of proof rested upon the him in respect of every element or essential fact that made up the case. Not only does that burden of proof never shifts to the defendant, there is also no obligation whatsoever on the defendant to prove any fact or issue that is in dispute.
I think that likely story is that the whole thing is what is colloquially known as a SLAPP suit. SLAPP is a backronym which stands for Strategic Lawsuit Against Public Participation; which is where plaintiff doesn't actually expect to win the lawsuit but intends to burden and intimidate the defendant with sufficient costs of mounting a legal defense until they abandon their criticism or opposition. This is especially effective against poorer people because they do not have much money and so it is relatively easy to bankrupt them but much harder against an organisation like ABC. Warfare by exhaustion works if the enemy is small; not when it is big. Porter probably had no intention of prosecuting it to an actual trial, it was just an attempt to bully and intimidate the ABC. Unironically, this is a normal course of events where you have knavish plaintiffs in sensitive cases relating to domestic violence and rape.
If his plan was to force the ABC to defend itself on the burden of truth which would have been spun as finding him innocent, then I think he has failed. If his plan was to scare the ABC into a monetary settlement, then I think he has failed. If his plan was to push the ABC in seeing what kind of information that the ABC holds, then he migh have won. If his plan was to wave his magic legal wand and have all obstacles magically disappear from his path, then I would like Mr Porter to explain why he he is not implicated in Kate’s rape, just as as he promised at his press conference, oh so many moons ago.
The one case that Mr Porter will not be able to control is what the South Australian Coroner's Court decides. Given that NSW police detectives met with Kate in Sydney in February 2020 and had contact with her on at least five occasions until June; on June 23 she indicated in an email to NSW Police she did not wish to proceed with the complaint; then on June 25 SA police advised NSW Police that she had died to to suicide, that may yet warrant an inquest. If the SA Coroner does decide to hold an inquest into the circumstances that contributed to the alleged victim's suicide and if Mr Porter is called up, then he must provide evidence, even in circumstances when it may incriminate him or lead to a civil penalty. If the Coroner's Court calls for information, then it won't be asking for Mr Porter to prove guilt or innocence to a criminal or civil standard, it will be asking for the truth.
Also see:
Horse 2818 - https://rollo75.blogspot.com/2021/03/horse-2818-christian-porters-defamation.html
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