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February 1, 2023

The presumption of innocence dilemma

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So, there’ll be no birthday party for me this year.

That’s because half of my friends are defence lawyers, and the other half seek to heal trauma in one way or another.

And after my comments on the Lehrmann trial fiasco, the former will just not let go – they decry the Director of Public Prosecutions (DPP) saying he believed there were reasonable prospects of conviction, they are aghast at people who publicly say they think the complainant was brave, or honest or apologise to her.

‘What about the presumption of innocence!?’ they proclaim. 

When someone is charged with an offence, and for whatever reason the trial does not proceed, the shout from every defence lawyer in the country is that they are ‘innocent’ as they have not been found guilty.  

This is the logical corollary of the so-called ‘golden rule’ – the prosecution bears the burden of satisfying the court that the case has been proven beyond a reasonable doubt.

If they don’t, then the defendant is acquitted. And thus, as far as the law is concerned, the charged person is innocent.

On a technical legal basis, that is correct, but it is in essence a meaningless statement in every other way. The dilemma arises because there are two meanings of the word ‘innocent’.

The most common everyday meaning of the word is free from moral wrong or sin. The second, legal-specific use means unconvicted of a criminal offence by a court of law.

The issue between my two groups of friends lies in trying to apply the technical meaning to the everyday. Let’s test the theory with some well-known historical cases.

Was Hitler innocent? Well, on the golden rule legal-meaning basis the answer is ‘yes’. He was not convicted of any crime. But such a statement is both ludicrous and offensive.

Of course he is not innocent to anyone except dwellers in some academic lawyer’s ivory tower or defence lawyer gowning room. And what about our friend Vladimir Putin – well he is officially legally innocent too, despite the bombs raining down under his order on those poor frozen people in Ukraine. 

And what about those who are successfully sued civilly for sexual assaults by the children or adult victims?

In civil courts, the standard of proof is ‘on the balance of probabilities’, but to be found guilty in a criminal court, a higher standard applies – it’s called ‘beyond a reasonable doubt’.

A civil court may find on the balance of probabilities that they did the actions, and did so intentionally, however they are ‘innocent’ on at least the fine points of the criminal law. But seriously, who cares for such pedantry? 

And what of those found whose wrongdoing is established in merely civil, not criminal, proceedings such as those to have been found corrupt by the ICAC, or determined in defamation proceedings to be a paedophile or a war criminal? This does not mean they are free from any moral wrong or untainted by sin as far as the real world is concerned.

The same applies to the term ‘victim’. This does not only mean a person who has suffered at the hands of a person convicted of a criminal offence crime in a court of law.

What if the perpetrator is dead, or has left the country, or is mentally ill?

I was the victim of a person who threatened me and my family with bombs and death threats, but they were found to be mentally unfit to stand trial. Fair enough, he suffered from a mental illness. However, I refuse to put the word victim in inverted commas or add ‘alleged’ – why should I?

So, let’s not get too sucked in by literalism in the wash-up of aborted or abandoned trials.

Let’s speak English, not legalese, and call it as we see fit.

Let’s tell victims we believe them when we do, and not be shackled in our apologies by finer points of law. The legal principle that someone is innocent until proven guilty must never be used to silence victims or threaten them with contempt proceedings. This is their story, their life, and just like Grace Tame, they should be able to tell it as they wish. That’s the least we can offer them. 

The legal presumption of innocence is of course an important principle worthy of protection.

A society that jails people without proof beyond reasonable doubt in a fair trial is not a society any of us want to live in. And pre-trial publicity should be minimised so as not to taint juries (if we have to have them).

But the golden rule is not, and should never be, a method of muzzling debate, stifling expressions of comfort, confronting trauma with open-hearted compassion or telling victims they cannot publicly describe their own pain. 

Remember when actor Craig McLachlan was charged with a series of crimes wherin he assaulted and indecently assaulted his Rocky Horror Show co-stars?

All thirteen charges were dismissed by Melbourne magistrate Belinda Wallington, because she could not be satisfied beyond a reasonable doubt about his intentions.

But when acquitting McLachlan, the magistrate said that the four complainants were brave and honest witnesses, and rejected the defence barrister’s suggestions that the women had colluded or fabricated their evidence.

Those comments served justice.

One of the hardest aspects of being a magistrate was dismissing charges when I believed the victims, but did not disbelieve the defendants. There was a reasonable doubt. They haunt me, some of those cases, and I wish I could have eased the pain of all concerned. 

So, I think I’ll have a quiet birthday this year. And mull over the murky waters of justice, guilt, innocence and rights. And as Mandy Nolan suggests – ditch the word ‘alleged’ from my vocabulary for good.

♦ David Heilpern is a former magistrate and is now Dean of Law at SCCU.

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  1. “The presumption of innocence is a golden thread running through criminal law and is crucial to the operation of a fair trial and subsequently a fair outcome.”

    Golden Thread.

  2. (Quote)…’and pre-trial publicity should be minimised so as not to taint juries (if we have to have them).’
    Yes David, that would be nice – an ivory-tower academical Utopian viewpoint perhaps.
    If only Judges would do something about this other than collecting their huge salaries, being weak & cosseted while protected by armed guards.
    Given LIndy Chamberlain, Archbishop Pell and Lehrmann trials [et al] all going so wrong, with no penalties given to the rapacious do-gooders, moralists, Media, ABC and Twiter-archy in regard of ‘contempt of court’, our legal system will remain in tatters over ‘presumption of innocence’.
    The common “Vibe’ seems to be allowed to be “judge and jury” these days.
    Until we can get some (mainly lower court) judges and PPS who will grow sharper teeth and more confidence – this dangerous legal rot will continue.

  3. Lingua franca is a tool for controlling peoples ability to think by changing the definitions and taboo terms. And it’s interesting the number of times persons known to be guilty, but all are found to have never been in a position to have committed the offence, yet the belief of guilt persists in the public perception as a punishment regardless.

  4. Very scary that an ex magistrate would think such things. However one could determine that David is not thinking clearly on this issue.
    Let us consider a possible extreme but theoretically possible example of a near future Dystopia as a result of David’s thinking on this topic.
    You are accused of a crime.
    Before you can get to trial to prove it wasn’t you…your photo, your family’s photos are smeared all over the internet with claims of your ( alleged) wrongdoing.
    You are harassed at work, friends leave you.
    Your name and image are forever tainted in many people’s minds.
    Just like climate change…..when scientific methods for gathering facts to assess for truth ( including a fair trial ) are replaced by hearsay or conjecture as a replacement source of truth gathering because it feels good to us …..then we are descending into a version of the same sort of ‘ legal system ‘ that precipitated the Salam Witch Trials.

    • So true Sujay.
      Do-gooders who always believe the complainant in a case are a real worry, especially when they get into positions of power, legal, politically or academically.
      Perhaps the answer is quicker and fairer justice by a single judge or Tribunal of magistrates to help prevent our current Tame-Wilkinson, internet-media-personalities ‘trial” scenarios.
      More use of the ‘contempt of court’ rulings would also help here.
      Nowadays weak judges fail to make them when they should, often at great taxpayers’ expense.
      Not doing so also denigrates the principle of fairness to an accused.


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