Presumed innocent - once, briefly

If the proponents of an Australian Bill of Rights are content to entrench the rights that Australians already enjoy, their opponents will claim that the Bill is superfluous; "If it ain't broke, don't fix it." To overcome this argument, a Bill of Rights must protect at least some rights that are violated under present law. I have nominated several such rights in an earlier contribution to the Forum. In this article I expand on just one of them: the presumption of innocence.

In a criminal trial, the jury is famously instructed to presume that the defendant is innocent and to acquit unless the prosecution proves its case beyond reasonable doubt. It should be noted in passing that the jury is given no guidance as to how much doubt is "reasonable'", and that there is nothing to stop the jury from making other presumptions that in practice may nullify the presumption of innocence. For example, the jury is free to presume that certain classes of witnesses can be trusted, or that certain kinds of evidence are foolproof and tamper-proof, or that certain forms of official malpractice, although theoretically possible, do not actually happen (well, not here anyway). Assuming, however, that the presumption of innocence actually works as intended, its effect is to prevent an innocent person from being convicted and formally sentenced in a criminal trial. Unfortunately, the criminal process does not begin and end with the trial. Conviction and formal sentencing are not the only unpleasant fates that can befall the accused in consequence of that process.

PRE-TRIAL INCARCERATION

If you are charged with an offence and brought before a magistrate, you are presumed guilty for the purpose of deciding whether you will be granted bail. This presumption can be defended in the name of public safety, provided of course that you are compensated for time spent in custody in the event of an acquittal. But you are not. Even if the magistrate at the committal hearing rules that you should not face trial, you still have no automatic right to compensation.

Thus pre-trial incarceration is a punishment that can be imposed without a conviction or even a committal.

If anyone suggests that being remanded in custody is not really a punishment, suffice it to note that if the accused is convicted, pre-trial custody can be taken into account in sentencing. (Thus the guilty receive compensation for pre-trial custody while the innocent do not!) Either pre-trial custody is a punishment or it isn't. If it is, the presumption of innocence demands that it be compensated in the event of an acquittal or discharge. If it isn't, neither should it be credited towards any subsequent sentence (and accused persons don't really want bail, but only pretend to want it!).

COSTS

If you are acquitted by a jury, you are not thereby entitled to reimbursement of the costs incurred in clearing your name. If you are discharged at a committal hearing, you can ask the magistrate for costs, but costs will not be awarded except in the rare event that you prove malice or negligence on the part of the prosecution. In other words, the Crown can claim good faith and due diligence as a defence. The same defence applies if you try to sue for compensation or costs after being acquitted by a jury.

Thus, financial ruin is also a punishment that can be imposed without a conviction or even a committal.

If you are acquitted, the requirement that you pay your own costs expresses contempt for the jury's verdict, and is inconsistent with the "loser pays'" principle that prevails in civil cases. It is also inconsistent with the "user pays" principle. If you are an innocent defendant you cannot fairly be described as a "user"' of legal services, because you have no reasonable discretion on whether to engage counsel and absolutely no interest in being brought before a court. The Crown is the real user because it is the Crown that wants the trial to proceed.

APPEALS

If your conviction is overturned on appeal or re-trial, you get no reimbursement of costs incurred in the appeal or re-trial, let alone in the original trial or committal hearing, and you get no compensation for the time served in prison after your conviction, let alone before. The total period of uncompensated imprisonment could be several years. Indeed, in many cases you would already have been paroled if you had not displayed such an appalling lack of remorse by maintaining your innocence.

Under the International Covenant on Civil and Political Rights, if you are convicted of an offence and have exhausted all avenues of appeal and are subsequently proven innocent by new evidence, you are entitled to compensation.

NO EXCUSES

If you have been falsely accused by the Crown and duly discharged or acquitted, the mere fact that you have been locked up and/or financially ruined for something that you didn't do does not constitute a legal wrong and does not render the Crown liable for compensation. The weakest legal entity is the individual. The strongest is the State. If the doctrine of absolute liability does not apply when an individual is harmed by the State, it should not apply under any circumstances.

The fact that an acquitted defendant might be guilty is a red herring. If you are guilty, you should take the due punishment and pay the cost of trying to avoid it. If you are innocent, you should escape the penalty and be recompensed for your losses. Any intermediate outcome is guaranteed to be unjust. If you are acquitted and recompensed, justice may be done because you may actually be innocent; but if you are acquitted and left to pay the bills, justice cannot be done, because you are treated as innocent for one purpose and as guilty for another, and you cannot be both at once.

Indeed, there are cases in which the possible guilt of an acquitted defendant actually strengthens the case for reimbursement of costs. If an offender is acquitted in a criminal trial, and if the victim subsequently wins a civil action against the offender, the capacity of the offender to pay damages is reduced by the costs incurred in the criminal trial. Thus the Crown, by failing to reimburse these costs, penalizes the victim rather than the offender!

Any suggestion that the Crown cannot afford to pay costs or compensation to defendants is ridiculous. If you are acquitted by a jury, the Crown saves the cost of imprisoning you. The Crown is willing and able to meet this cost if you are convicted. If you are discharged at a committal hearing, the Crown also saves the cost of prosecuting you at a trial. The Crown is willing and able to meet this cost (and more!) if you are committed for trial. Why is the cupboard suddenly bare if the magistrate discharges you? Concerning legal costs, the Crown already funds all prosecutions and (through legal aid) most defences, including most defences of guilty defendants. Moreover most defendants, whether covered by legal aid or not, are found guilty. Hence the costs in dispute here – the costs of acquitted or discharged defendants who are not fully covered by legal aid – are a small fraction of the costs that the Crown already meets. Besides, if the former costs cannot be borne by all taxpayers together, even less can they be borne by the tiny fraction of taxpayers who bear them at present, namely the defendants and their creditors.

SUMMARY

Bail applications, appeals and parole applications are processed using a presumption of guilt. In the case of bail applications it is immaterial that the applicants have not yet been convicted or even committed. The apportionment of costs in criminal cases and the lack of compensation for pre-trial or pre-appeal incarceration are consistent with the assumption that it is better to punish the innocent than allow the guilty to escape punishment. Only the trial proper is conducted on the assumption that it is better to acquit the guilty than to punish the innocent. Only during the trial proper is there any attempt at a presumption of innocence, and then only for the purposes of conviction and formal sentencing. In all other respects, the presumption of innocence is a myth and a sham.