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Dear Shadow Minister,

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You Wrote :

1. « If you ditch the fundamental concept of innocent until proven guilty you are essentially assuming that everyone is partially guilty until proven innocent. »
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Not at all, Shadow Minister. There should be no assumptions of either innocence or guilt.
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2. « Secondly, even in civil courts the laws of evidence still apply, and an accusation by one person without any corroborating evidence seldom wins a case. »
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In civil cases, the level of proof required is “on the balance of probabilities (more than 50% certainty). In criminal cases its “beyond a reasonable doubt ”(at least 95% certainty).

There is no “presumption of innocence” in civil trials. Hundreds of thousands of civil cases are tried annually in the Australian courts.

The lack of presumption of innocence or guilt does not pose any problem in the civil jurisdiction. It would not pose any problem in criminal trials either. It would still be necessary to prove guilt on the basis of the highest standard of proof, i.e., “beyond a reasonable doubt” (at least 95% certainty) as at present.

The difference with the present criminal trial procedure would be that both parties, plaintiff and defendant, would be placed on an equal footing, which is not the case at present.

For this to happen, the right of the accused to remain silent (as Cardinal Pell did) should be abolished. The accused should be required to relate his version of events and submit himself to cross-examination by the prosecution.

Naturally, I share your concern about the risk of innocent people being condemned for crimes they did not commit.

While there are no published statistics on the number of innocent people in jail in Australia, by extrapolation based on the statistics of the UK system (which we have largely inherited), it is estimated to be in the region of 7% of the total jail population.

Whatever it is, I expect it to remain constant. There is no reason why the reforms I advocate should have any impact on it, whether positive or negative.

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Banjo,

In a civil case the stakes are much lower. The perpetrator is never at risk of jail or of serious reputational damage, and the penalties are linked to actual proven damage. This is why the bar is set substantially lower. Also if the complainant loses the case he has to pay for the court costs and the legal fees for both sides.

If in a civil case a person sued another for say trespassing and he was the sole witness with no photos, and it was his word against the other mans the case would not even get to court or would be dismissed with costs if it did. While the balance of probability exists, the court needs positive proof that the act causing the complaint actually happened.

In Pell's case and in many sexual cases with one person's word against another, there is no proof that an offense even occurred.

There are limits to how far you can pervert the law.

Banjo,

Now you also want to dispose of an accused's right not to incriminate himself? This is a an incident that supposedly occurred 20 yrs ago.

Assume that a civil case occurs, Pell testifies that the event never occurred and the plaintiff says it did, but cannot provide a single witness or physical evidence.

There is no proof the incident even occurred and the judge has no choice but to dismiss the case.

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Dear Shadow Minister,

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You wrote :

« There are limits to how far you can pervert the law. »
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As I am sure you are aware, Shadow Minister, we inherited our criminal law from English common law, which continues to evolve in Australian courts. The laws of our states and territories are not chiselled in stone – even though in some states they have been codified. They are all closely intertwined with the development of society and subject to organic evolution by judicial interpretation and parliamentary legislation.

In all modern democracies such as we have in Australia, it is we, the people (demos) who have the power (kratos) to make the laws to which we accept to submit ourselves.

Our justice system is not effective in handling sex crimes and, as you observe, “there are limits to how far you can pervert the law”. It needs to be put back on the drawing board and redesigned.

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 plaintiff – each case to be tried on its individual merits

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

• plaintiff 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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Banjo,

It is clear that you have no concept whatsoever of the legal system.

1 In criminal cases it is the State vs the defendant, there is no plaintiff.
2 The state has massive resources and powers that the defendant does not have to investigate and obtain information.
3 Generally if the state loses it faces no consequences and the defendant gets no redress for the money spend defending himself unless there was a clear failure in the process.
4 The consequences for the defendant in the event of a guilty verdict are huge, and far greater than any civil case.

Your 50% probability vs 95% probability are completely fictitious. The sole onus put on the state is that it produces evidence that is credible and to the point where there is no reasonable alternative to guilt.

In the case of Pell, the possibility that the witness was lying given his stated intent to sue the church was not only possible, but credible.

In sexual trials there is ample examples of prosecution witnesses have lied, so a single witness that stands to gain from a guilty verdict is not sufficient in the complete absence of any corroborating evidence.

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Dear Shadow Minister,

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You wrote :

1. « In criminal cases, it is the State vs the defendant, there is no plaintiff. »

That’s correct, Shadow Minister. I mistakenly wrote “plaintiff” in my previous post. I should have written “complainant”. Here is the correction :

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)

Sorry about that.
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2. « Generally, if the state loses it faces no consequences and the defendant gets no redress for the money spend defending himself unless there was a clear failure in the process »

That’s a good point, Shadow Minister. Thanks for raising it.

Equality before the law is a principle at the heart of the rule of law and the administration of justice. The federal, state and territory governments are each responsible for the provision of legal aid for matters arising under their criminal laws. Access to government-funded legal aid should be facilitated for anybody who needs and requests it – including in respect of all means of recourse available to defendants within the judicial process.

Government legal aid services need to be completely overhauled, simplified, adequately funded and their mission clearly defined.
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3. « In the case of Pell, the possibility that the witness was lying given his stated intent to sue the church was not only possible, but credible »

No, Shadow Minister, it was the lawyer of the father of the deceased “choir boy B” who announced that intention on behalf of her client :

http://www.youtube.com/watch?reload=9&v=ZkwpZsQHcMY

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