The presumption of innocence has recently been in the dock. Most notably in the curious affair of the three Federal Ministers and the Victorian Court of Appeal.
The judges hearing a case had reserved their decision on an appeal on sentencing. The three musketeers laid heavily into the judges. The Victorian court of appeal in turn summoned the ministers to appear before it on the grounds that the comments appeared intended to bring the court into disrepute and to influence the judges' decision.
The ministers had arguably questioned the independence of the courts in evaluating the factors involved in sentencing, so implying that the Commonwealth Government and public opinion should decide on what punishment is appropriate and the judges should accept that judgment.
Other cases have raised the larger question whether in our society the presumption that those accused of crimes are to be adjudged innocent until found guilty is now yielding to the assumption that those accused of crime are guilty till they are found to be innocent. Is it now the case that people who have been found guilty in the court of public opinion have to prove their innocence, and that courts will be judged to have failed unless they ratify the guilty verdict already reached?
A straw in the wind that suggested this new doctrine was the dissemination of photographs of suspects in the concurrent Sydney taxation fraud case, and public discussion of how, as well as whether, those later accused were involved in fraud. It seemed that public judgment had been pronounced, with the result that it is difficult to imagine any of the accused being seen as innocent, regardless of the verdict.
Another indication is to be found in the proposals made around Australia by politicians for dealing with terrorism suspects. These would allow children and adults to be detained on suspicion and continue to be detained after having served sentences. Judicial decisions to free people after their sentence is served might also be countermanded by the minister.
The tenor of these events and proposals supposes that politicians and perhaps the media, as representatives of the people, are best placed to decide on guilt and punishment. As a result they can second-guess or override judicial decisions and deprive people of legal protections. The de facto presumption is that people accused of terrorism are guilty until they are proved innocent.
If this significant cultural shift from the presumption of innocence is indeed taking place, one factor may paradoxically be the commendable focus of our society on the victims of crime and on their rights. This welcome development is demonstrated in changing attitudes to domestic violence, to discrimination on the basis of gender or race, and to big corporations' treatment of their clients.
"To lose this bias towards acquittal of the innocent without reflecting on the wisdom gained over centuries of reform of penal law opens the way to popular or elitist tyranny."
It may also be reflected in the public recognition of the evil of terrorist crimes and of the horrible consequences for the victims. The harm done to people by unethical behaviour and their right to demand redress now receive wider support and are given fuller weight.
The focus on the experience of people who have suffered unjustly and the fresh recognition of the harm that they have suffered leads naturally to the demand that perpetrators who have long escaped being held to account will be brought to justice. The difficulty of the law to respond to this demand, evident perhaps in the response to the Bill Cosby trial in the United States and in widespread dissatisfaction about the difficulty of securing convictions for rape, creates pressure to take short cuts by reducing the legal protection of the accused and by trying people informally in the media. Presumption of innocence changes into a presumption of guilt.
All this is an understandable response to the slow process by which refinements of public moral judgments are translated into the judicial system. But it is worth reflecting on what will be lost if as a society we reverse the presumption of innocence. We shall be reversing a cultural shift that has taken painful centuries to build and weakening all the protections that flow from it. Our legal system is built on the premise that courts should judge fairly questions of guilt and innocence, on the commonsense observation that they often get it wrong, and on the generous assumption that in the case of serious doubt it is better for society to acquit a guilty person than to convict and punish the innocent.
To lose this bias towards acquittal of the innocent without reflecting on the wisdom gained over centuries of reform of penal law opens the way to popular or elitist tyranny. That is why it is particularly important to support the justice system in a time when the winds of brutality blow.
Andrew Hamilton is consulting editor of Eureka Street.