Banjo,

it's too bad the "system" didn't put it's "morals where it's mouth is", when it came up with this unconscionable law.
I, for one was in dis-belief over this new and moronic form of justice to actually consider, "historic" cases.
It has confirmed humanity's already flawed direction as being the norm, and the way forward for a very sick society and mentality.
There has never been justification for charging, let alone convicting, anyone with out proof or even reasonable doubt.
Based purely on common sense, where is the reasonable doubt when there is nothing to even begin to form the basis of a case on.
Too much subjectivity and PC are beginning to show their ugly head and not enough pragmatism and objectivity.
Society has shown it has lost it's way when people carry out lynching mob mentality and Kangaroo courts.
The recent convictions of these old men for allegedly having wronged decades ago, should never have been considered in the first place, let alone gone to trial, and certainly not convicted.
Another blight on society.

Banjo Paterson,
Since the precedent of the Pell case, any male person in Victoria that has had consensual sex with another person, could now be convicted of rape purely on the accusations of the other party. All that is required is for the other party to change their mind and claim consent was not given.

Before 29-6-2015 proof of the accusations was required to convict, not so now, The Pell case has shown that accusations are enough to obtain conviction. Under the 'old' system protection was given to persons falsely accused,by insisting on proof.

What makes you think that the new laws, with the presumption of guilt, will be restricted only to sex crimes. 'Go get em' lawyers, with money in mind will soon have the laws applied to all types of criminal law. A simple amendment changed our whole concept of proof being required, it is easy to embrace 'guilt by accusation' into other aspects of criminal law.

Glad I do not reside in Victoria or intend to visit

Dear Mr Opinion and Paul,

Isn't it wonderful - we don't need another Trump
when we have our own "Chosen One," on this
Forum.

Hi there LOUDMOUTH...

Joe, I admire the way you can tease out the facts on most topics that appear here, on The Forum. And on this occasion, generally speaking, you're correct.

Just a couple of points if I may; You're correct, under our system of criminal jurisprudence, there's a general presumption of innocence. Notwithstanding you've got this boofhead with a dripping axe in his hand, the presence of an eviscerated body, with the accused standing by, dripping in blood. Oddly, that individual enters the Dock, presumed innocent. Sounds crazy, but that's our system, as inherited from Great Britain. Still, not a bad system, in my opinion.

The Crown (R v Bloggs) must 'prove' it's case, 'to a point beyond a reasonable doubt.'

When police recruits, go through their academy, they analyse and define each word of that important statement. As an example, to explain the word 'reasonable' goes something like this (from memory) -

"an ordinary man who travels to and from his normal place of employment, atop of a Clapham Common omnibus, if he were told the exact same facts of a case, he would come to the same conclusion" or very similar words. This is the 'test' of a reasonable man, and by extension, used in our criminal law.

In conclusion, Joe - it's the Crown, that has to prove its case, 'beyond that of a reasonable doubt.' NOT the accused. Without creating any confusion here, there are some exceptions. When the accused mounts a defence of Insanity. The burden of proof then shifts to the accused, to prove at the time he committed the crime:-

* he was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong*

Joe, this is known in common law, as 'The McNaghten Rule' (1853) 8 ER 718 at 722. The NSW test, for a defence of Insanity, to the charge of Murder.

Thanks Joe.

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Dear Loudmouth,

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You wrote :

1. « Pretty clearly, a presumption of innocence is a technicality of the justice system, and certainly does not mean some sort of immunity for an accused »

“In doctrina”, no it doesn’t, Joe, but, “de facto”, yes it does. The stats are there to prove it : in the US, 97% of rapists never spend a single day in jail. In Italy, 91.6% of rapes are not reported to the police. In Australia, 81.1% of all sex crimes, including rape, are not reported to the police.

Why are the majority of sex crimes not reported ? Because justice is not tailored to deal with the intimate nature of sex crimes and the intricacies of conflicting narratives of “my word against yours” :

• no witnesses,
• often no material evidence
• quasi-impossibility to prove non-consent
• justice presumes the accused is innocent and the accuser is lying
• the accused is usually judged innocent (and considered by society to be the victim)
• the accuser is usually condemned by society as a criminal and must bear that stigma for the rest of her (or his) life – in addition to the mental anguish and humiliation of the crime itself

In contexts like this, justice needs to be impartial. Unfortunately, it’s not. It’s biased.

It should not make any à priori presumptions of innocence or guilt. Nor should it impose the onus of proof on the plaintiff alone. Both parties should be required to participate actively in the revelation of the truth and treated on an equal basis.

Under the present system, injustice has reached dramatic proportions. It is most regrettable paradox that such a noble ideology as the presumption of innocence has produced such an immoral result of protecting a huge majority of criminals and denying justice to so many innocent victims.
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2. « … 99 % of cases in Chinese courts, so I've heard, result in a guilty verdict »

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(Continued …)

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(Continued …)

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Yes, something like that, Joe. That’s because the system is different in China. Guilt or innocence is determined before the trial. If the person apprehended is found innocent, he does not go on trial and is released. If he is found guilty, he is presented to the court where he has the choice of either admitting his guilt and presenting his excuses in a meek and humble manner (knowing full well that he is on trial because he has already been found guilty), or claiming his innocence and adopting a defiant attitude.

The court then officially declares him guilty (with a few rare exceptions) and fixes his sentence, depending on his attitude.

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Dear Yuyutsu, ALTRAV and HenryL,

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You all have legitimate objections and I appreciate your comments.

Justice is complex, difficult and highly controversial. It’s a bit of a lottery. The chances of winning are pretty slim.

Unlike the natural sciences, where the proof of a theory must satisfy strict tests of falsification, in the criminal law, guilt or non-guilt is a matter of probability, tested to the standard of ‘beyond reasonable doubt’.

According to Michael Naughton of the University of Bristol, under the adversarial system of justice:

« Criminal trials are not a consideration of factual innocence or factual guilt. They determine if defendants are ‘guilty’ or ‘not guilty’ according to the evidence before the Court, governed by the prevailing principles of due process »

As I indicated in a previous post, life is full of risk. We just have to do our best to manage them as best we can and hopefully produce a profit at the end of the exercise.

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