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