{"id":9075,"date":"2016-10-18T12:57:21","date_gmt":"2016-10-18T01:57:21","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=9075"},"modified":"2024-07-10T06:59:59","modified_gmt":"2024-07-10T06:59:59","slug":"presumption-innocence-wrongful-conviction-australia","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2016\/10\/18\/presumption-innocence-wrongful-conviction-australia\/","title":{"rendered":"Presumption of Innocence and Wrongful Conviction in Australia"},"content":{"rendered":"

The\u00c2\u00a0presumption of innocence is as old as law itself. When Lord Blackstone postulated that it is \u00e2\u20ac\u0153better that ten guilty\u00c2\u00a0persons escape than that one innocent suffer\u00e2\u20ac\u009d, his Lordship\u00c2\u00a0was drawing on a long and distinguished line of legal jurisprudence including Genesis<\/em>, the Code of Hammurabi<\/em> and the Codex Justinianus<\/em>. To protect against wrongful convictions, the criminal law ordinarily requires proof \u00e2\u20ac\u0153beyond reasonable doubt\u00e2\u20ac\u009d and that the onus of this proof lies with\u00c2\u00a0the accuser. If there is no case to answer for, a defendant’s silence should be sufficient to render them\u00c2\u00a0innocent. Only after proof is brought should the defendant need to present some defence to their supposed actions.<\/p>\n

In Lee v New South Wales Crime Commission<\/em> [2013] HCA 39, Kiefel J stated this succinctly:<\/p>\n

The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner\u00e2\u20ac\u2122s guilt. This is consistent with the presumption of innocence. It finds expression as a fundamental principle of the common law of Australia.<\/p><\/blockquote>\n

In the October\u00c2\u00a0issue of the Criminal Law Journal<\/em> (Vol 40\u00c2\u00a0Pt\u00c2\u00a05)<\/a>, Mark Finnane reflects (40 Crim LJ 292<\/a>) on the writings of\u00c2\u00a0Sir William Henry Bundey, a South Australian lawyer and judge at the turn of the 20th century. In his extra-curial pamphlet,\u00c2\u00a0Conviction of Innocent Men<\/em>,\u00c2\u00a0privately published by the judge in 1900, one year after his retirement, Judge Bundey\u00c2\u00a0reflected on the case of John Holt, who was wrongly convicted of assault and robbery. It was the victim’s\u00c2\u00a0eyewitness 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.)<\/p>\n

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\u00c2\u00a0that is our foremost shield against such a wrong, and thus we must be vigilant against attempts to displace it.<\/p>\n

In his article, \u00e2\u20ac\u0153Presumption of innocence in Australia: A threatened species\u00e2\u20ac\u009d (40 Crim LJ 262<\/a>), Anthony Gray discusses this erosion of\u00c2\u00a0the rights of an accused. The presumption of innocence exists for many reasons, for example:<\/p>\n