A question of reputation

Black Inc Books, mysteriously undeterred by my negative-reviews-only policy, and the fact that I only review Charter books, has sent me a free copy of A Question of Power by Michelle Schwarz on the allegations that Geoff Clark raped several women in the early 1970s. I’ve followed this story with some interest since the allegations were publicised in 2001. Moreover, I was in Warrnambool recently speaking on the Charter at a Deakin Law School conference and was curious to know why such a scenic and well-located town isn’t better regarded as a holiday destination in Victoria. The Warrnambool tourist agency won’t be a big fan of this book, with its hair-raising claims of rape gangs roaming the streets in the 1970s and racists sipping lattes in the cafes in the 2000s.

But I’m a big fan and will definitely look up Schwarz’s other book, on the death of David Hookes. While the ‘true crime’ genre should be a natural for my interests, I’m no fan of blood-soaked yarns about nasty criminals, screeds against institutionalised racism or a cheap shot dig at the justice system. So, A Question of Power is my kinda crime reporting book, featuring detailed interviews with all parties and careful analysis of transcripts, including letting the subjects and, especially, the transcripts do most of the talking.

Writing about rape allegations is a very tricky thing for rights-oriented folks. Our instinctive reaction in favour of criminal defendants runs hard up against our knowledge of the sexism and nastiness of the criminal justice response to rape. Trying to stay true to both instincts is hard. I did my thesis on the presumption of innocence in rape trials in an attempt to walk the tightrope, and more recently tried to find commonalities in the legal wrongs done to each side in DNA cases. Schwarz, a former lawyer, doesn’t leap for the objectivity of legal analysis and policy arguments. Instead, she delves into the significant credibility issues on both sides. Her account of Carol Stingel’s tale shows clearly how compelling Stingel’s case is. Equally her examination of not just the federal and country town politics involved in Clark’s case but also the politics within Framlingham (home of Clark and a rival family including his other main accuser) is revelatory. She doesn’t reveal her conclusions (though it’s clear that she doubts Jo McGuiness’s tale) but I’d like to think that all the parties she interviewed (which is all of them apart from politicians), and especially Clark and Stingel, would think that her account was fair. That’s no mean feat!

Schwarz’s major opinions are reserved for Andrew Rule, author of ‘Power and Rape’, the newspaper article that aired the revelations, basically ending Clark’s career. I was very unhappy with Rule’s article when it came out, but my views have softened on airing accounts of crimes outside the judicial process. Schwarz’s argument focusses, not on the airing of the allegations, but on the lack of balance in Rule’s article. Most notably, she argues that it omits all of the bitter Framlingham politics that surrounded McGuiness’s claims. Unfortunately, the Walkley-award-winning article doesn’t seem to be available on the net, so I can’t check her account, but if it’s true then the article isn’t an account, but rather an attack. The Charter has something to say about such attacks:

13 A person has the right-… (b) not to have his or her reputation unlawfully attacked.

Of course, Rule isn’t bound by the Charter, although his article might (might!) run into trouble under the ALRC’s privacy proposal. According to Schwarz, Rule was initially happy to talk with her, but cut off contact once she revealed that her book wouldn’t have the same tone as his article. If that’s true, then Rule is a tool.

But what about the other sort of rule that is implicated in this story?: the Victorian laws that facilitated Stingel’s successful civil claim against Clark, which added the state’s imprimatur to the allegations aired by Rule. Schwarz, ‘a former lawyer’, says very little about the High Court’s judgment in Stingel v Clark [2006] HCA 37, which held that Victoria’s then statute of limitations was no bar to a civil action about a 1971 rape claim. Indeed, she only says that Stingel had to ‘go to the High Court to get permission’ to sue Clark. While doubtless non-lawyer readers wouldn’t care, the High Court actually engaged in a very significant exercise in statutory interpretation of a quite baffling provision in the Limitations of Actions Act 1958:

5(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 3 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows- (a) that he has suffered those personal injuries; and (b) that those personal injuries were caused by the act or omission of some person.

This provision was clearly drafted with the situation of someone being negligently exposed to a long latency disease (like asbestosis) in mind. Applied to Stingel’s civil action, the words ‘negligence, nuisance or breach of duty’ don’t easily fit a rape, but ‘disease or disorder’ easily fit the post-traumatic stress disorder. The Court of Appeal, applying a purposive approach, found that the former words should cover a rape (so as not to pointlessly distinguish between different sources of impairment) but that the latter words shouldn’t cover PTSD (as it doesn’t have an insidious cause, like asbestosis; quite the opposite.) The High Court allowed the appeal by opting for a purposive approach to the first question and a statutory interpretation approach to the second, a point noted by Kirby’s inevitable dissent. And to think that the High Court gets shirty when academics make ‘outcome-oriented’ critiques of their decisions! [EDIT: Just this morning, the House of Lords reversed existing authority and followed the High Court.]

The case preceded the Charter’s commencement, but now that we have an interpretation mandate, s5(1A) is ripe for reinterpretation, High Court notwithstanding. I think that there’s a good argument in favour of the Court of Appeal’s original approach, based on these two rights:

8(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

24(1) A person…  party to a civil proceeding has the right to have the…  proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing

The former’s bar against impairment discrimination would seem to favour a reading that covers rape allegations. Ordinarily, a fair hearing right would not affect a limitation clause, but the Limitations of Actions Act has a second provision for late personal injury actions that requires a judge to assess the danger of prejudice to the defendant from a proceeding based on a lengthy action (whereas s5(1A) automatically permits such an action). That consideration surely favours reading s5(1A) narrowly so as to exclude cases that are likely to turn on competing eye-witness accounts raising impossible questions of credibility. So, hopefully the Charter can belatedly right one of the Gleeson High Court’s many wrongs.

Clark’s fate was also determined by the trial itself, where a jury found for Stingel, but curiously awarded only a small amount of damages for a heinous wrong. Clark’s appeal complained that he was denied a slew of protections that he would have had in a criminal case: Jones v Dunkel directions (about the many missing alleged eyewitnesses to the rapes), Longman directions, Palmer directions, bars on comments on defence conduct, etc. I’m ambivalent about many of these protections in criminal rape trials, because I think that the criminal standard of proof does the job better. In Clark v Stingel [2007] VSCA 292, the Court of Appeal was entirely happy for Clark not to have those protections in a case where the civil standard applied, which I think is exactly the wrong way round. However, all of these matters are common law questions, so the Charter’s operative provisions won’t reach them.

There is, though, one issue that the Charter might affect in the future, thanks to Victoria’s new uniform evidence law, which includes a statutory formulation of the civil standard of proof:

140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account- (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

This is, of course, the common law Briginshaw test (as Heerey J recently noted.) In the past, this standard has been regarded as a flexible one, varying according to the gravity of the allegations at issue and, on some views, approaching the criminal standard where grave crimes are alleged, as here. However, recently, in Victoria and elsewhere, this view has gone out of vogue, with courts insisting that the standard doesn’t change and dismissing old views as just dependent on the inherent improbabilities of grave allegations. (The probability argument, if it ever works, certainly is no good in rape cases, where, if anything, it’s a false allegation that is especially improbable.) But once the Evidence Act 2008 commences, the Charter’s interpretation mandate will apply to s140, perhaps requiring a re-evaluation of that re-evaluation: if a case like Stingel’s was brought in 2010, would the jury be expected to dismiss the claim unless it’s proven at a standard close to ‘beyond reasonable doubt’? 

Recent overseas decisions certainly seem to be against that argument. Indeed, just a month ago, the Supreme Court of Canada firmly and unanimously rejected just such an argument in a civil rape case, and the UK and NZ courts have taken similar views of late. (See the detailed accounts in Don Mathias’s blog.) However, Victoria’s Charter is crucially different from Europe’s, Canada’s and NZ’s, as none of those contain the ICCPR’s right against unlawful attacks on reputation, contained in Charter s. 13(b) (set out above.)

Not much is ever said about Charter s. 13(b); indeed, Pound & Evans query whether it requires anything other than an effective law against defamation. (Stingel’s lawyers made much of Clark’s failure to sue Rule for libel.) But I think that word ‘unlawful’, which carries more than its literal meaning under human rights law, may well have more to offer. The thing that’s most disturbing about Stingel’s success against Clark is that the civil case proved to be just as deadly to Clark’s reputation as a criminal charge would have been. Sure, he isn’t in jail (as he would have been.) But, in terms of reputation, Stingel achieved via a civil proceeding what she surely could not have achieved via a criminal one. And that arbitrary variation in procedures strikes me as the essence of unlawfulness, in the human rights rule-of-law sense. So, perhaps s140 should be re-read to allow a variation in the standard of proof after all, in circumstances such as these (i.e. a civil action about criminal conduct, where remedies are a side issue.) Certainly, the terms of s140(2) are apt for that use (although, as I’ve argued elsewhere, the Evidence Act 2008 may be less-than-amenable to the interpretation mandate for other reasons.)

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