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Dear shadowminister,

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You wrote :

« Banjo, Foxy,

« It is blindingly clear that your understanding of the principles of law is absolutely zero »
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I can’t speak for Foxy, but I’m sorry if I have given you the wrong impression.

I don’t pretend to be a specialist in law but what you interpret as a misunderstanding of its principles is simply the evidencing of the antagonistic effect our justice has – in its present form – when attempting to resolve sex crimes. Instead of resolving them, it aggravates them and causes additional iatrogenic harm to the victims.

As I indicated in my penultimate post :

The core values of justice are :

1. Fairness

2. Equality before the law

The presumption of innocence is contrary to those two core values. It provides a major advantage to the accused right from the outset and throughout the trial.

To place the litigants on an equal footing, there should be no prior assumptions of any sort for either the accused or the accuser.

This would be a more judicious and effective basis for judging sex crimes which, for obvious reasons, invariably lack a number of indispensable elements such as :

• Material evidence

• Proof of non-consent

• Testimony of a credible eyewitness
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Our common law is not chiseled in stone. It is organic. It evolves with the evolution of society. The presumption of innocence and our judicial procedures are no exception.

The huge and everlasting justice gap for sex crimes that is recorded year after year is completely out of control and totally unacceptable. It’s not justice. It’s a parody of justice.

In “A Treatise on Judicial Evidence” in 1825, Jeremy Bentham wrote :

« At first it was said to be better to save several guilty men than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this ten a hundred, and a fourth made it a thousand … »

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(Continued …)

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(Continued …)

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« … All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused to be condemned, unless the evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished »

Bentham’s premonition has proven to be true beyond all imagination. The scales of justice are so heavily weighted in favour of the guilty that the vast majority of sex offenders are never punished.

Not surprisingly, Bentham clearly takes the opposite position to the reigning doctrine :

« Between Plaintiff and Defendant, the presumption ought to be in favour of the former, to the prejudice of the latter.

« The probability in favour of the former, because he voluntarily submits his right to the decision of justice; but the defendant appears in spite of himself. The case in which it is the interest of the plaintiff to litigate in opposition to his own conviction, must always be rare. »
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Once again,

I advocate that our criminal law and court procedures incorporate the following essential features :

• trial by jury

• no presumption of guilt or innocence of either defendant or complainant – each case to be tried on its individual merits

• no right to silence by either defendant or complainant during the trial. Both to present his/her version of events and be submitted to cross-examination if so required

• complainant and defendant to be treated on an equal footing – neither to be advantaged. The onus of proof to rest equally on both

• onus of proof defined as “beyond a reasonable doubt (at least 95% certainty)

It would probably be prudent to implement these measures progressively. In the first instance, I suggest they apply to sex offences involving only the more vulnerable victims (minors and physically and mentally handicapped people).

It could be extended to all victims later when the general public has concrete evidence that it is a more equitable system and working satisfactorily.

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Foxy,

There is your first huge mistake. The trial is between the state and the accused. Not between the accused and the accuser. To convict a person of rape and destroy his life the court needs evidence.

The problem with rape is that sex itself is not illegal amongst adults, the definition of rape is sex without consent. The determination of lack of consent after the fact is extremely difficult and often comes down to the word of the accuser. And since there is plenty of evidence of false accusations of rape police usually rely on corroborating witnesses or other physical evidence collected during a forensic exam.

Discarding the need for actual evidence will turn these trials into kangaroo courts with plenty of convictions many of them wrongful.

What you and Banjo are suggesting is not only unfair but a travesty against Human rights.

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Dear NathanJ,

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You wrote :

« Your mixed messages here are doing you no credit. For example, you say:

[ It was clearly not the fault of the police investigators. Nor was it the fault of the honourable members of the judiciary. They all did their job properly. They all respected the law and the rules and regulations of the judicial process.]

« You then say in another post:

[ By the way, I see that of the seven justices of the High Court, four are right of centre and three are left ]

« Not only is such a move aiming to discredit the judges in question that are part the High Court, but to further push your own (very limited) view of justice and what it should include »
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1. I come to this forum, Nathan, to exchange my thoughts and opinions on various subjects that interest me because it helps me to formulate them. It also allows me to bounce them off the minds of others to test their validity and fine-tune them.

2. Considering that the performance of our justice regarding sex crimes is a dismal failure, I indicated that it was not the fault of the actors involved but because our laws and judicial procedures are simply not designed to handle sex crimes effectively.

3. As Foxy pointed out recently, the High Court rarely accepts appeals for sex crimes but made an exception for Pell as a high-profile personality in the Catholic Church hierarchy. That raises the question of favouritism. High Court justices are political appointments. Hence the interest in their political allegiances.

As for your final remark, Nathan, all I can say is that while I don’t pretend to be a specialist in law, like most people, I do have a very keen sense of justice.

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Dear Banjo,

You can speak on my behalf at any time!

I agree with your sense of justice totally!

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Dear shadowminister,

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You wrote to Foxy :

« Discarding the need for actual evidence will turn these trials into kangaroo courts with plenty of convictions many of them wrongful. »
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The theory of a "kangaroo court" is that their reduced procedural protections lead to strong likelihoods that they produce unfair legal decisions (Harvard Law Review).

As I indicated in one of my previous posts :

« In the US, 97% of rapists never spend a single day in jail. Indications are that the situation is no better anywhere else in the world »

If that’s not a sign of “unfair legal decisions” I don’t know what is.

Kangaroo courts, maybe ?

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