ERODING OF THE PRESUMPTION OF INNOCENCE – PEOPLE PAYING THE PRICE FOR A FLAWED SYSTEM
The eroding of the presumption of innocence in sexual assault cases is a great flaw in our criminal justice system and society. It is to the detriment of not just those who have been falsely accused of sexual assault, but also to victims of crime and wider society as a whole.
Whilst allegations of a sexual assault and the pending and subsequent criminal trials will naturally capture the attention of society and involve a level of commentary, the response to the allegations by individuals, organisations and authorities is of a nature that pre-empts the accused’s right to a presumption of innocence and a fair trial for sexual assault offences. Many of those who are contributing to this erosion have their own vested interests and don’t necessarily have a role in the administration of justice, whilst some should not be responding with commentary at all.
POLITICIANS GETTING INVOLVED
Politicians have often contributed to the public commentary surrounding high-profile sexual assault cases prior to the resolution of the cases in ways that have been perceived to pre-empt the guilt of the accused. In such circumstances, the politicians have political and self-interest in doing so. It is the role of the jury to determine whether an accused is guilty, and commentary from high profile figures may interfere with this process and jeopardise the accused’s right to a presumption of innocence.
Former Australian Prime Minister Scott Morrison was criticised for a speech he made in Parliament in which he apologised to Brittany Higgins, who had accused Bruce Lehrmann of having sexually assaulted her in an office in Parliament House. Whilst Brittany’s allegations were later accepted by a civil court as having occurred on the balance of probabilities, Bruce Lehrmann’s pending criminal trial had not yet commenced and the then-Prime Minister was heavily criticised for the comments. Mr Lehrmann’s lawyer expressed concerns that the Prime Minister’s comments could impact Mr Lehrmann’s right to a fair trial and stated “In light of the complexity, difficulty and importance of the task before any jury already, the behaviour of our prime minister and others in this past 24 hours truly beggars belief.”
JOURNALISTS REPORTING AN ALLEGATION OF SEXUAL ASSAULT AS TRUTH
Journalists conduct an important role in reporting the facts and it is accepted that it is generally in the interests of open justice that criminal matters be reported on. However, journalists too are motivated by self-interest. The prospect of self-promotion, book sales and so forth has led journalist to go beyond reporting the existence of an allegation of sexual assault to advocating for an alleged victim and declaring their version to be the truth.
WHO SUFFERS FROM THE EROSION OF THE PRESUMPTION OF INNOCENCE IN SEXUAL ASSAULT CASES?
The Courts are inclined to intervene when a defendant’s right to a presumption of innocence and a fair trial are breached, as was the case when Chief Justice Lucy McCallum adjourned Bruce Lehrmann’s trial for three months. In such an instance, all parties have what is already a stressful and costly process prolonged even further. Mr Lehrmann’s barrister, Steven Whybrow SC, was in fact quoted as stating “Frankly, if it wasn’t for Lisa Wilkinson’s speech at the Logies, Bruce would probably be in jail. Thank God for that speech.” He had attributed the delay as having allowed the defence to come into possession of further material. The trial was ultimately aborted when it was discovered that a jury member had obtained information outside of the evidence that was presented.
The impact of a breach of the defendant’s rights, in sexual assault cases, on the outcome of a criminal case is mitigated by the fact that the Courts, such as in the Lehrmann case, have proven themselves willing to defend the fundamental rights of the defendant and respond accordingly when such rights are breached. Nevertheless, this is generally at the expense of increased costs and mental toll on the defendant.
GOING TO COURT?
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