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Opinion: What happened to presumed innocent?

Opinion: What happened to presumed innocent?

By Bill Doogue

Opinions 

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There is nothing to be gained by giving media more freedom to inform the public of a case before a trial.

The state government recently passed the Open Courts and Other Acts Amendment Bill 2019 to amend existing laws with the aim of reinforcing the presumption in favour of “open justice” and the disclosure of information in Victorian courts.

We all need to take a step back and ask what the real need for these changes is. 

Why is there any overriding reason an accused should be identified until a case is finished?

Why is it that jurisdictions such as New Zealand routinely issue suppression orders from the time of first appearance until the end of the trial and that is seen as fair? Why does Victoria see a need to change these laws? Does the public missing out on the first trial of a religious figure really justify these changes?

Criminal defence lawyers often see clients’ names published and their reputations destroyed followed by the charges being withdrawn or a finding of not guilty. Was anything really achieved by the media being able to report on those cases? The only person mentioned is the accused and even when the case is lost or withdrawn the complainant is never named.

As with anyone who deals with sexual assault allegations, I accept that making a true allegation of sexual assault can be incredibly hard for a victim. But making a false allegation is not hard and is certainly not taxing for the false complainant. There are no consequences. 

I struggle with the concept that suppressing people’s names make our judicial system unfair.

Isn’t “open justice” satisfied by a person being able to report on a trial after there has been a finding of guilt?

In part, suppression orders help juries to be impartial. They remove the burden of public expectation and pressure.

The justice system goes to great lengths to preserve the sanctity of the trial and the impartiality of the jury. Jurors are warned against outside influence, even to the point of telling them not to discuss the trial with family members in case someone weighs in with an opinion. Often people will talk to their family. It is clear jurors research on the internet regularly even though asked not to. 

So what does the public gain by knowing the name of the accused? It is not a safety issue as there can be bail conditions imposed prohibiting any unlawful behaviour. It is not a legal educative issue as the public can hear all the information immediately after the trial. It is not so other complainants can come forward as that will be satisfied by the news of a conviction if there is one. 

Should one of the core principles of our justice system, namely that an accused is presumed innocent until proven guilty, not carry weight? 

Criminal defence lawyers have all sat opposite that shattered person who cannot believe they will be named in the newspaper for something they have not done, for charges where they have a cast iron alibi, for offences that could not have occurred, for charges where you have evidence that the complainant made up the allegations before you even arrive in court.

Where is the justice in them being paraded before the media and appearing on the evening news?

It is not only the accused who is unfairly prejudiced by having unproved details of a case presented in the media. People associated with the accused who have nothing to do with the case are also affected. The accused’s children are bullied at school and have their reputations tarnished by an unproven allegation that they have nothing to do with. Partners, friends and colleagues also have reputations compromised. All for nothing when the person is found not guilty.

While it is desirable to have the public attend court and see what is going on we should not support a scheme that further subverts an accused’s right to a fair trial, their right to be innocent until proven guilty and their right to be treated with dignity. These are fundamental pillars of our justice system that should not be compromised. These are rights that protect us all, rights which any member of the public would agree in the strongest terms should be afforded to them were they ever unfortunate enough to go through the court process. 

In my opinion (and I accept I am swimming against the tide with this) the changes to suppression orders should be to increase their availability and not diminish them.

Bill Doogue is director of Doogue and George defence lawyers and a member of the LIV Criminal Law Section.


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