Flat White

The presumption of innocence? Bah! says ScoMo

12 February 2022

11:00 AM

12 February 2022

11:00 AM

The presumption of innocence in criminal proceedings, often expressed in the phrase ‘innocent until proven guilty’, is an ancient tenet of our justice system.

Like many legal principles, it has its origins in Christian values of fairness and justice. Perhaps the first iteration of the principle was expressed in the 6th century AD in the Digest of the Byzantine Emperor Justinian: ‘Proof lies on him who asserts, not on him who denies’

In the common law, perhaps the best explanation can be found in this very famous quote of the English jurist Sir William Blackstone in his Commentaries on the Laws of England, published from 1765-70: ‘It is better that ten guilty persons escape than one innocent suffer.’

In Australia, the website of the Federal Attorney General describes the presumption as imposing on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. However, as explained by the Rule of Law Education Centre, the principle has a much wider understood meaning in Australia as applying to any assertion made, and requiring the person, the subject of the assertion, to be presumed innocent unless the maker of the assertion establishes the assertion as correct. In other words, the person the subject of the assertion has the right to a fair trial.

While the media has, by and large, ignored the idea of the presumption of innocence for some time – the Christian Porter saga last year being one recent and troubling example – one would expect persons in government, and above all the prime minister, to do their utmost most to uphold this fundamental principle of our justice system. Not so as far as Scott Morrison is concerned, who has been a serial offender of convicting people on the basis of allegations that have yet to be proved in the courts.

Perhaps the most egregious example was his conduct in relation to Cardinal George Pell. Even while the Cardinal was still awaiting trial, in October 2018 Scott Morrison implied his guilt by making statements about those who ‘abused the shield of faith and religion to hide their crimes shall stand condemned’. Fr Frank Brennan was convinced this had an impact on the (already precarious) chances of Cardinal Pell getting a fair trial. ‘My only conclusion is that the jury must have disregarded many of the criticisms so tellingly made by [Pell’s lawyer Robert Richter QC] of the complainant’s evidence,’ he wrote at the time.

Before the High Court finally (and unanimously) overruled the Cardinal’s conviction, Scott Morrison stated: ‘Our justice system has affirmed no Australia is above the law.’ He also stated that, ‘the courts had done their work well.’ Following this, the Prime Minister vowed to the nation that Pell would lose his Order of Australia after Victoria’s Court of Appeal upheld his guilty verdict. In fact, the Prime Minister’s Office was already preparing to make an urgent application to the Council of the Order of Australia in order to have his appointment revoked.

When informed that Cardinal Pell’s lawyers were appealing to the High Court, Morrison dismissively commented: ‘I respect the fact that this case is under appeal, but it is the victims and their families I am thinking of today’. In sum, Morrison kept indirectly implying that Cardinal Pell was convicted of the crimes that the High Court has now found him to be entirely innocent.

Morrison did it again following the release of the Brereton Report. He announced in November 2020 that he had apologised to the President of Afghanistan on the basis of allegations contained in the report (which he hadn’t even read) that our defence forces serving in Afghanistan murdered prisoners and innocent civilians. Although these are only allegations, the Prime Minister nonetheless declared that they are ‘disturbing and distressing’, at the same time defaming thousands of innocent, courageous and heroic Australians sent to Afghanistan to put their lives on the line in our name.

Then there is the apology delivered in the House of Representatives on Tuesday to women who had been mistreated in parliament, following the first recommendation of the Jenkins review – brought about after Brittany Higgins went public with her allegations she had been raped in Parliament House. Morrison made a point in his speech to apologise to Ms Higgins personally. Yet he again ignored the fact that the allegations made by Higgins are exactly that – allegations. He forgot that Bruce Lehrmann, who has been charged with sexually assaulting Higgins without consent, has vowed to clear his name. Indeed, has pleaded not guilty to the charge. Whatever slim chances he had of a fair trial went out the window with Morrison’s apology.

It goes without saying that the crimes of child abuse and sexual assault must be condemned and their perpetrators face the full force of the law. However, the commission of these crimes must be proved beyond reasonable doubt after a full and proper investigation, since we know that false allegations ruin livelihoods and reputations irreparably. This is why we have the presumption of innocence and the rule of law, as encapsulated in the famous exchange in Robert Bolt’s play A Man for All Seasons:

William Roper: ‘So, now you give the Devil the benefit of law!’

Sir Thomas More: ‘Yes! What would you do? Cut a great road through the law to get after the Devil?’

William Roper: ‘Yes, I’d cut down every law in England to do that!’

Sir Thomas More: ‘Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!’

Furthermore, juries and courts in Australia can and do reach incorrect verdicts. Prior to Cardinal Pell, there are several other notorious cases of wrongful convictions throughout Australia’s court history, including Colin Campbell Ross, the Mickelberg brothers, John Button, Daryl Beamish, Andrew Mallard, and, Lindy Chamberlain, considered arguably to be the greatest miscarriage of justice in Australia’s history, to name only a few.

We all know Morrison is no fan of fundamental freedoms. But when can’t even give a pretence of observing the ancient and basic principles of our justice system, i.e., the rule of law, what hope do we have?

Dr Rocco Loiacono is a Senior Lecturer at Curtin University Law School. The views expressed in this article are those of the author and do not necessarily reflect the views of Curtin University.

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