In defence of the presumption of innocence

Once charged the processes of sanctions and punishments commence without regard to any right of the accused to have those charges tested before the courts.

Australia has no Bill of Rights and the Australian Constitution provides very little protection of what we might describe as our civil rights. Our protections (such as they are) stem from common law and date back to the Justinian Codes of the sixth century.

Among the most basic of those rights is the expectation that if we are accused by the state of a crime then the onus is on the state to prove the claim. The Latin phrase ‘incumbit probation qui dicit, non qui negat’ (the burden of proof is on the one who declares, not the one who denies) expresses the essence of this.

Proof beyond reasonable doubt, trial by a jury of peers and the presumption of innocence are some of those things that are supposed to set our judicial system apart from totalitarian regimes or earlier systems like trialby ordeal.

In the United Nations Universal Declaration of Human Rights (to which Australia contributed and is a signatory) Article 11 states “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

Recently Cardinal George Pell returned to Australia to face charges relating to child sexual abuse. The crimes of which he is accused are repulsive yet the integrity of our legal system requires the jury which will hear those charges to begin their deliberations with the presumption that he is innocent and to only convict him if the evidence they are presented satisfies them beyond reasonable doubt of his guilt.

Whether high profile personalities and cases made sensational by media reporting and speculation can ever be truly fair is not my point. My point is simply that George Pell is entitled to the presumption of innocence.

Although this presumption of innocence is a guarantee under common law and Australia’s obligations to the UN Declaration of Human Rights, International Covenant on Civil and Political Rights and related treaties, it seldom really manifests itself in society at large. In fact, for some in society other laws are designed to ensure that it cannot operate.

Consider if George Pell was a teacher in a school within his own Archdiocese of Sydney operated by Sydney Catholic Schools. If this were the case and he was charged with a relevant offence under the Child Protection (Working with Children) Act 2012 how would his employer and the NSW Government exhibit their commitment to the presumption of innocence?

Sydney Catholic Schools would immediately terminate his employment. He would be sacked. They would then exercise every legal angle to deny him access to relief from unfair dismissal. They have recent and repeated form in doing these things.

The Office of the Children’s Guardian would remove his Working with Children Check Clearance so he would be barred from working with children but to “make assurance double sure” NESA would at least suspend, but more likely revoke, his accreditation to teach.

This is how the presumption of innocence really plays out in this state and with at least some Catholic employers. Once charged the processes of sanctions and punishments commence without regard to any right of the accused to have those charges tested before the courts.

John Quessy