Dear Banjo,

I admire your patience in your continuing to reply
to shadowminister.

Mine is running out

Banjo,

The presumption of innocence is the bedrock of criminal law. It cannot simply be repealed it is intrinsic to the law in all democratic countries and the human rights documents. To repeal it would place Aus alongside China, Iran etc where trials are perfunctory with pre-determined outcomes.

I seriously doubt that it can be repealed without rewriting the constitution.

Foxy,

As your flotilla of faux outrage has smashed on the rocks of reason, I can see why you have nothing further of worth to add.

shadowminister,

For you to see anything of any worth in the discussions
on this forum - you would need ...

No, I'll stop here. My husband tells
me to be polite and ignore you as you've got such a small
screen - so of course you can't see the full picture.

SM,

Will you be going along to St Mary's Cathedral to pay your respects to the Old Fella? The Mad Monk and Little Johnny Howard will most likely be there, how about you? You might even get the chance to poke your head into Archy's coffin for one last hurrah! How about that!

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Dear shadowminister,

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You wrote :

« The presumption of innocence is the bedrock of criminal law. It cannot simply be repealed it is intrinsic to the law in all democratic countries and the human rights documents. To repeal it would place Aus alongside China, Iran etc where trials are perfunctory with pre-determined outcomes.

I seriously doubt that it can be repealed without rewriting the constitution. »
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I wouldn’t count on our old colonial constitution if I were you, shadowminister. It doesn’t offer much protection for anything. It’s old, worn-out, full of holes, completely outdated, and has proven impossible to repair. It’s moribund and just a historic museum piece and has been for many years now.

Though, as I have often said on this forum, I don’t pretend to be a specialist in law, my understanding is that the presumption of innocence is not a legal right in Australia enforceable at law.

What I think is meant by that is that a person cannot sue upon the presumption in our courts.

Whilst the Magna Carta is often cited as establishing the presumption into our law it does not create an enforceable legal right in Australia, nor do any of the Human Rights Acts of the States of Australia or the Australian Capital Territory, and nor does the International Covenant on Civil and Political Rights and neither does our poor old colonial Federal Constitution.

The presumption only exists in the Australian legal system as a presumption in our common law. It can be excluded or modified at any time by a Federal or State Act of Parliament, which I understand has increasingly happened over the past 10 years or so.

The presumption is usually expressed in relation to a charge of a criminal offence. For instance, the website of the Federal Attorney General describes the presumption as imposing on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

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In fact, the expression has a much wider understood meaning in Australia as applying to any assertion made, and requiring the person, the subject of the assertion, to be presumed innocent unless the maker of the assertion establishes the assertion as correct.

I see no reason why the presumption of innocence can’t be repealed or rescinded from our laws and judiciary procedures in respect of sex crimes – particularly since it would only be a partial repeal so far as the whole of our criminal law is concerned.

As for your concerns that the repeal would render trials “perfunctory with pre-determined outcomes”, that is precisely the problem under the existing system (97% of rapists never spend a single day in jail).

Compared to the latest statistics for criminal trials in Australia (including sex crimes), the result is exactly the opposite : 97% of defendants adjudicated had a guilty outcome :

http://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/2020-21
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That clearly highlights and confirms (if need be) the ignominious incapacity of our current justice system to deal effectively with sex crimes.

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