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Vale the presumption of innocence?

“ei incumbit probatio qui dicit, non qui negat” (Latin for “the burden of proof is on the one who asserts, not on the one who denies.”)

The presumption of innocence is one of the non-negotiable pillars – along with the right to be heard and the rule that everyone should be equal before the law – of our system of justice, and something for which all officers of the court should be prepared to fight.  

It has been with us for a long time, as the above quote shows; those words would have been well known, for example, to Julius Caesar, who was a lawyer early in his career.1 He may even have said them while advocating for a client.

In September, the Queensland Government passed laws which allow the reporting of the names of accused rapists and defendants charged (but not yet committed for trial) with other prescribed sexual offences.

Some potential problems spring to mind with these changes – will police be reluctant to charge if they think it might lead to a media circus? Will naming the accused make it easier to identify the victim?

These are just a couple of the many issues raised by Queensland Law Society when arguing against the bill at the public hearing. The Society’s full submission can be found here.

The over-arching issue is the threat to the presumption of innocence. While we can hope that mainstream media and serious journalists will show professional restraint and avoid salacious commentary, it is beyond fanciful to expect the same from the wild west of social media.

Recent experience shows that once a defendant is identified, the on-line landscape becomes awash in speculation, conspiracy theories and amateur analysis of evidence, motivation and guilt. In a world in which almost everybody is connected to social media and the 24/7 media cycle, it is difficult to imagine finding a pool of jurors who would not already have a view on the guilt or innocence of an accused in a high profile matter.

Being charged with an offence is an allegation, nothing more; in and of itself is no proof of guilt. Those accused should be afforded the presumption of innocence since at the point of accusation, no evidence has been tested by the court.

By releasing the names of those accused, the presumption of innocence is inevitably compromised. Speculation, especially if the matter is high profile, of the accused’s guilt will run wild and there will be some who will lose objectivity as a result.

The justification offered up for this change includes the fact this will bring Queensland into line with other jurisdictions. So might a young child justify a foolish act by pointing out their best friend also did it; the standard parent’s riposte about jumping off a cliff on that basis remains wonderfully instructive in this case.

It also obfuscates the main point: that the presumption of innocence must be afforded regardless of the type of offence. Rather than singling out sexual offences as the ones that need to have defendant’s names suppressed, all offences should be anonymous until the point of committal.

Once a court has found a defendant has a case to answer – for any offence – then the naming of the defendant has some justification. Until that point, there is no societal benefit or principle of justice which vindicates the naming of the defendant.

The problems here have always arisen from treating sexual offences, at the point of charging, as somehow different from other offences. It is this that has led to the scurrilous speculation around the motives of complainants.

If all defendants (regardless of the offence of which they are accused) were entitled to anonymity until committal (or indeed, plea), this issue goes away and the presumption of innocence is maintained. It is towards that end that we must advocate; as it stands, the odds of injustice should give all officers of the court pause.

Footnotes
1 See Caesar, Goldsworthy, A. K. (2006) 2007 paperback edition, Weidenfeld & Nicolson at p85

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