The presumption of innocence is as old as law itself. When Lord Blackstone postulated that it is “better that ten guilty persons escape than that one innocent suffer”, his Lordship was drawing on a long and distinguished line of legal jurisprudence including Genesis, the Code of Hammurabi and the Codex Justinianus. To protect against wrongful convictions, the criminal law ordinarily requires proof “beyond reasonable doubt” and that the onus of this proof lies with the accuser. If there is no case to answer for, a defendant’s silence should be sufficient to render them innocent. Only after proof is brought should the defendant need to present some defence to their supposed actions.

In Lee v New South Wales Crime Commission [2013] HCA 39, Kiefel J stated this succinctly:

The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner’s guilt. This is consistent with the presumption of innocence. It finds expression as a fundamental principle of the common law of Australia.

In the October issue of the Criminal Law Journal (Vol 40 Pt 5), Mark Finnane reflects (40 Crim LJ 292) on the writings of Sir William Henry Bundey, a South Australian lawyer and judge at the turn of the 20th century. In his extra-curial pamphlet, Conviction of Innocent Men, privately published by the judge in 1900, one year after his retirement, Judge Bundey reflected on the case of John Holt, who was wrongly convicted of assault and robbery. It was the victim’s eyewitness testimony that identified Holt in a police lineup and, were it not for the subsequent confessions of the actual perpetrators, Holt would have remained in prison for a crime he did not commit. (Demonstrating how fallible witness testimony can sometimes be.)

It is pleasant to think that we live in a society far removed from the realities of wrongful conviction; that justice is done in each and every case. However, we should never forget that it is the presumption of innocence that is our foremost shield against such a wrong, and thus we must be vigilant against attempts to displace it.

In his article, “Presumption of innocence in Australia: A threatened species” (40 Crim LJ 262), Anthony Gray discusses this erosion of the rights of an accused. The presumption of innocence exists for many reasons, for example:

  • to balance out unfairness in courtroom experience between Crown and defence;
  • the permanence of a guilty verdict at a time when capital punishment existed in Australia;
  • the paramount importance placed on liberty in a free society; and
  • to preserve public confidence in the operation of our law.

However, the question to be asked is how applicable these reasons are in the 21st century, and to what degree (if any) the presumption ought to be displaced?

Unlike certain Commonwealth countries (Gray uses Canada and the United Kingdom as examples) which take differing views on legislation seeking to displace the presumption, Australia is unconstrained by a federal Bill of Rights. Australian criminal provisions, particularly those containing drug enforcement offences, increasingly displace the presumption of innocence by reversing the onus of proof: presuming the accused is guilty unless they can prove otherwise. In certain cases these accusations can be brought on the mere “reasonable suspicion” of wrongdoing. While other countries with reverse onus offences only require that the accused present reasonable doubt (reading down or striking out provisions requiring otherwise), some Australian legislative provisions explicitly prescribe that the burden of proof required is an evidentiary, rather than legal, one. This effectively enables the conviction of persons on the balance of probabilities, despite reasonable doubt existing as to their innocence.

Further discussion on a different aspect of the rights of the accused (to a judge alone trial, rather than trial by jury) is contained within Benjamin Tomasi’s commentary on Alqudsi v The Queen [2016] HCA 24  (40 Crim LJ 287), particularly in the dissenting judgment of French CJ, who argued for a functional (rather than textual) reading of s 80 of the Constitution.

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