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Rape dossier release and private criminal charges haunt Porter

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(Image by Dan Jensen)

As the Morrison Government tries to manage the fallout following the release of a dossier detailing rape allegations against Christian Porter, New Liberals' Victor Kline and Vania Holt intend to launch private criminal prosecution proceedings. Dr Jennifer Wilson reports.

*CONTENT WARNING: This article discusses rape and sexual abuse

ON JUNE 24 2021, a series of documents was released by the Federal Court including the 31-page dossier prepared for the NSW Police by the alleged rape victim, known only as Kate, now deceased.

In her dossier, Kate details three rapes she endured during the course of an horrific night, rapes allegedly perpetrated by former Federal Attorney-General, now Industry Minister, Christian Porter. (Please note before reading that the dossier contains descriptions of rape that are highly disturbing.)

While extracts from Kate’s dossier and, disgracefully, her private diaries, have appeared in various publications over the last few months, this is the first time the full document has been made available to the public without the inevitable bias of journalistic gatekeeping. The reportage thus far by, among others, David Hardaker of Crikey and Peter van Onselen of The Australian, (the latter a long time friend of Porter’s) has focused on Kate's mental health, claiming that her allegations are likely fabrications because she described episodes of disassociation, and read a book related to “recovered memory”.

This armchair analysis of a deceased rape victim proved popular among other media men such as David Crowe and Jonathan Holmes, providing more evidence, if it were needed, that there are still men who default to the "crazy woman" trope when confronted with the knowledge of sexual crimes allegedly perpetrated by their peers.

I deconstruct Hardaker and van Onselen’s commentary on IA here:

Since the Federal Court’s release of Kate’s dossier, along with other relevant documents previously unavailable to the public, Leader of the New Liberals, ex-prosecutor Victor Kline, has announced on social media that he, and fellow ex-prosecutor and New Liberal candidate for the seat of Robertson, Vania Holt, intend to launch a private criminal prosecution against Christian Porter.

A fuller explanation of private criminal prosecution in NSW can be found here, however, these are the initial requirements:

Section 49(1) of the Criminal Procedure Act 1986 (NSW) (‘the Act’) gives individuals the power to commence private prosecutions.

The section states as follows:

'If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.'

Section 14 of the Act is headed ‘Common informer’ and provides that:

'A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.'

Criminal proceedings are commenced by issuing a court attendance notice (CAN) to the defendant that must be signed and issued by a registrar of the court, who must first determine if the CAN meets the required criteria. The matter could be halted at this point, though there is the option for appeal to a magistrate if the CAN is initially refused.

As well, the Department of Public Prosecutions (DPP) can at any time decide to take over a matter that started off as a private criminal prosecution, ostensibly to ensure any evidence is presented fairly. The DPP can also decide to terminate the proceedings, by issuing a "nolle prosequi" or “unwilling to pursue” declaration.

The instigation of this process will undoubtedly cause further emotional upheaval for those closely involved with Kate’s story, as well as for those of us more distant, but nevertheless deeply affected as rape survivors and allies. It’s not known at this point whether the action proposed by Kline and Holt is welcomed by Kate’s circle of family and friends, or opposed. No doubt many will feel a mixture of relief and apprehension.

There’s also the question of Kline and Holt’s motives. This action will bring a great deal of attention to a new political party and could be seen by the cynical as a canny, if potentially exploitative, public relations move. However, if the goal of bringing Porter into court is achieved, the ex-prosecutors will have well earned whatever they gain by taking the risks.

At the very least, they are keeping the matter in the public arena and giving the alleged perpetrator, Porter, additional grief.

The NSW DPP has not thus far been called upon to make any decisions on the validity or otherwise of the case against Porter, given that NSW Police interviewed neither the accused nor the alleged victim and there was no brief of evidence. Any intervention by the DPP in Kline’s private criminal prosecution would be intensely scrutinised for political influence. Indeed, given the story so far, intervention by the DPP would be broadly assumed to be the consequence of political influence.

Kline and Holt are taking on powerful players and can expect considerable blowback, particularly from the Murdoch press, who decided from the start – encouraged by Prime Minister Scott Morrison who declared Porter to be “an innocent man” – that Porter is the victim of the fantasies of a regrettably deranged woman. Expect dirt files on both prosecutors.

The New Liberals will likely gain support if they are successful, if they fail, or if they are persecuted in the attempt. So yes, this is a canny move for them. At the same time, if they achieve some justice for Kate, they’ve done a commendable thing.

At the very least they are keeping this matter alive, as Porter and the Morrison Government do everything in their power to suppress it.

If you would like to speak to someone about sexual violence, please call the 1800 Respect hotline on 1800 737 732 or chat online.

Dr Jennifer Wilson is an IA columnist, a psychotherapist and an academic. You can follow Jennifer on Twitter @NoPlaceForSheep.

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