Restoring the presumption of innocence

Hosted by Australians for Science and Freedom and sponsored by Mothers of Sons, the recent conference on Restoring the Presumption of Innocence underscored the far-reaching consequences when due process is compromised and insinuation replaces evidence in determining guilt.

Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR) make clear that the presumption of innocence is a core human rights principle. Article 14 of the ICCPR guarantees that ‘everyone charged with a criminal offense shall have the right to be presumed innocent until proven guilty according to law’. This obligation requires Australia to ensure that its domestic laws and practices align with this principle, with the burden of proof resting on the prosecution, and no one treated as guilty before a fair trial has concluded.

This principle is entrenched in Australian common law and supported by statutes like the Evidence Act 1995, which codifies the right to a fair trial and reinforces procedural safeguards that protect the accused.

Upholding the presumption of innocence is crucial to maintaining judicial impartiality, fair legal proceedings, and ensuring that every individual, regardless of their background or the nature of their alleged crime, is treated with fairness. Key elements include the right to legal representation, judicial neutrality, and equal access to evidence. Any deviation from these norms risks undermining the credibility of the entire judicial process.

In practice, Australia’s commitment to the ICCPR carries additional responsibilities, especially in managing the influence of the media and political commentary on legal proceedings. Media coverage, particularly in high-profile cases, can often act as a form of trial by media, where public perception prejudges an individual’s guilt before the legal system has had the opportunity to fairly assess the facts. The role of public figures and media outlets in reporting criminal allegations is critical. They must balance the public’s right to know with the responsibility to avoid creating bias that could undermine the integrity of the judicial process.

An area of significant concern raised during the conference was the use of pretrial detention. The presumption of innocence implies that individuals should not be detained before their guilt is proven, except in cases where specific justifications, such as risk of flight or danger to the community, exist. Yet in Australia, an alarming proportion of the prison population – almost half of all prisoners – are held on remand, awaiting trial. Many are subjected to long periods of incarceration without a conviction, facing immense pressure to accept plea bargains simply to escape the harsh conditions of detention. This system not only deprives individuals of their freedom but also risks wrongful convictions, as desperation often drives individuals to plead guilty, even when the evidence is lacking.

The conference heard troubling accounts of how prosecutors routinely push weak cases through to trial, despite insufficient evidence, increasing the risk of wrongful convictions. This undermines the principle of the presumption of innocence, as innocent individuals are forced into lengthy legal battles, often leading to unnecessary pretrial detention and significant reputational damage. When cases are weak, juries and magistrates may struggle to reach verdicts based on conflicting or insufficient evidence, making them more susceptible to biases or external influences. Such practices risk undermining legal proceedings as a fair and proper assessment of the accused’s guilt or innocence.

The issue is particularly evident in domestic violence cases, which make up over 50 per cent of civil court cases. According to Augusto Zimmermann, the State of Knowledge Project reviewing over 1,700 studies found that female perpetrators are actually in the majority. While domestic violence is a serious issue, the conference highlighted concerns over how many fathers are disproportionately targeted in these cases. A survey of NSW magistrates reported that they believed 90 per cent of domestic violence claims were being used as tactical tools in family court disputes, often to secure an upper hand in custody battles. As a result, restraining orders are often issued without thorough scrutiny, leading to arbitrary arrests and detention. Many fathers are forced to exhaust their resources defending themselves against accusations that are later found to be unfounded, with the legal system inadvertently enabling the weaponisation of domestic and sexual violence claims.

This over-reliance on restraining orders has led to a growing trend of arbitrary detentions, as magistrates tend to err on the side of caution, fearing that not granting a restraining order might endanger potential victims. However, this approach effectively sidelines the principle of presumption of innocence, as individuals are punished based on allegations alone, even when those allegations are ultimately proven false.

The conference also addressed concerns over the relaxation of rules of evidence in civil cases, where the standard of proof is the balance of probabilities. This carries significant implications for fairness and judicial consistency, especially when hearsay or uncorroborated testimony is admitted. Wealthier litigants, with more resources, can take advantage of relaxed evidentiary standards to introduce marginal or questionable material that the opposing party may not have the means to challenge. This undermines the principle of equality of arms, a fundamental aspect of ensuring a fair trial. The imbalance that results from such practices disproportionately impacts vulnerable individuals, leading to inconsistent and often unjust outcomes.

The broader implication is that relaxed evidentiary standards lower the threshold for what constitutes proof, encouraging more litigation and enabling the weaponisation of the legal system. This can result in judicial bias, where subjective interpretations of evidence lead to unfair advantages for one party, often leaving the disadvantaged party unable to navigate the complexities of the legal system. Such trends erode public trust in the justice system and threaten its integrity.

An essential point raised at the conference was the primary responsibility of solicitors is to the court rather than their clients. This means that if the separation between legal, political, and media estates is weak, significant implications arise for the fairness of the legal process. Political interference could pressure solicitors to align their conduct with the interests of political figures or parties rather than upholding justice. In extreme cases, this could lead to unjust outcomes where the legal system is influenced by external political forces, compromising the fairness of trials.

Additionally, when the media is not sufficiently separated from the legal and political systems, there is a heightened risk of trial by media, where sensationalist reporting influences public opinion and, potentially, the courts. This erodes public trust in the judiciary, as individuals are no longer confident that they will be judged impartially based on the facts presented in court.

The erosion of the presumption of innocence is a significant threat to democracy. This principle acts as a check on state power, requiring the government to justify its actions with evidence rather than mere suspicion. Indeed we saw during the Covid period the threat of cancellation had a chilling effect on free speech, with the loss of many of our basic rights that are still yet to be returned. We have witnessed the increasing weaponisation of our legal system being used as a tool to silence opponents, critics, and minority groups.

When the presumption of innocence is weakened, the burden of proof shifts to the accused, forcing individuals to prove their innocence. This not only undermines fair legal proceedings but also leads to arbitrary detentions and the suppression of dissent, hallmarks of authoritarian regimes. Without the presumption of innocence, governments can more easily justify repressive measures, leading to the normalisation of human rights violations.

Our conference served as a powerful rallying cry for public awareness, judicial accountability, and systemic change, ensuring that the right to be presumed innocent until proven guilty remains a cornerstone of the legal process in Australia. By drawing attention to pretrial injustice, weak prosecutions, and the disproportionate impact on men from false allegations, we aim to build momentum for reforms that will strengthen the legal system and protect the fundamental human rights of all Australians.

This article first appeared in The Spectator Australia.