No presumption of anonymity for this accused

Acabinet minister stands accused of a violent rape in 1988. Tragically, the police investigation ceased when the complainant committed suicide last year.

Now that the nation knows some details about these allegations but not the minister’s identity or his ministry, the government has a legal and political dilemma.

Should the issue be simply left to the police to investigate or should there be some different form of investigation – or should both occur? Should the minister’s identity be revealed?

Since last Friday’s airing of the allegation, the police investigation would have been reignited. They would now have a range of contemporaneous records that the complainant made detailing the very grave allegations. She complained to multiple witnesses.

The fact the complainant has now died does not necessarily mean there cannot be a criminal prosecution. ‘‘Hearsay’’ representations, both documents and oral statements, can be admitted in criminal proceedings if they were made soon after the event and in circumstances that make them highly likely to be reliable.

The decision to prosecute will hang on whether or not the complainant’s statements fall into that category. The historical nature of the allegations is not unusual at all. People are commonly tried for long-past sex offences. Yet, it is extremely unusual, if not entirely unprecedented, for somebody to be prosecuted for a serious crime when the complainant has already died; irregular, but not impossible. Before deciding to prosecute, the Director of Public Prosecutions would consider its guidelines which dictate that prosecutions should only be brought if there are reasonable prospects of succeeding. Most commentators have concluded that a criminal prosecution is unlikely.

But potential criminal proceedings are just one aspect of the government’s dilemma. Not even the minister’s right to silence means a decision not to prosecute would end public interest in the issue. Currently, this minister is sitting in cabinet shaping government policies. The cabinet should be comprised of people about whom there can be no question of grave impropriety. A person’s fitness for public office is not limited to whether criminal allegations can be proved beyond reasonable doubt.

The government needs to be satisfied that the minister is fit for office. The Prime Minister and his cabinet could make this decision in camera based on the minister’s own assurances to them. A completely closed process after a decision not to prosecute may pass public muster.

Or the Prime Minister could choose to ask the minister to stand aside pending an independent investigation into the allegations. In doing so, the minister would identify himself as the man accused. However, while he remains nameless, a shadow hangs over every male member of the cabinet.

The Chief Justice of the High Court initiated such an independent investigation into the alleged improprieties of former High Court judge Dyson Heydon. That inquiry was initially confidential until its report was published by the court.

Any inquiry must provide the minister procedural fairness. He must have the opportunity to see the full extent of the allegations and to give his account. But whether or not the procedure should remain hidden from public view is not normally a factor that is regarded as part of procedural fairness. There is no presumption of anonymity in procedural fairness. That will be a political decision that should be made by the government.

Irrespective of the outcome of an inquiry, the publication of the minister’s identity would make it difficult for him to continue in office. One thing is certain, though. The Prime Minister is unlikely to be able to leave it to police. Any solution will involve political pain for both the government and for this minister.

Phillip Boulten SC is a senior criminal law barrister.