The Presumption of Innocence
The law of evidence may be shortly and simply stated. Most of it is just the application of logic, fairness, and common sense. Yet courts and tribunals throughout the land routinely fail to apply it, and our whole justice system suffers accordingly. It would be as well for those who administer the law to recall the pledge of the king in our sovereign law, Magna Carta, that the king would appoint as judges ‘only such men as know the law of the kingdom and well desire to observe it.’ That law has not been properly observed here – and it is hardly known elsewhere.
Presumptions in our law are routinely discussed as part of the ‘law of evidence’. One such presumption is that of innocence. For ‘presume’, the Compact English Oxford Dictionary has ‘suppose that something is probably the case.’ There looks to be a little more involved when the term ‘presumption’ enters our laws.
In his Treatise on the Law of Evidence (Little Brown and Company, 1898, 313-4,321, 576), Thayer was at pains to say that presumptions ‘belong to a much larger topic, that of legal reasoning’. We are dealing with rules of substantive law, and not just a rule of procedure, but I am not clear how ‘legal reasoning’ differs from other forms of reasoning, given that a ‘presumption itself involves no evidence, and has no probative quality,’ and that anyone who does not see this has ‘wandered into the region of shadows and phantoms’.
Well, whatever else might be said about the presumption of innocence in our law, it means that someone alleging that another has committed a crime has the onus of producing evidence that proves, to the standard of proof required by the law, that the person accused is guilty of the crime alleged. The law then provides that in an allegation of a crime, the standard of proof is ‘beyond reasonable doubt’ – and judges are expressly forbidden to descant on that formulation.
In civil cases, the standard is the balance of probabilities – that the finding that is required of an event is that it is more likely than not to have occurred.
But the law also recognizes that some allegations have serious consequences as to the gravity of the misconduct alleged – such as fraud by a person in an office of public trust – or the effect of an adverse finding on the standing of the person whose conduct is impugned, and that the seriousness of those allegations is such that they should be borne in mind before finding them to have been proved.
Judges and others – including me for thirty years on various tribunals – have wrestled with the formulation and application of this law. It is now recognized in statutes on evidence, but it may rest on the simple human reaction that you may want more evidence to hang someone on than to give them a parking ticket.
It has long been customary for parliament to say that a tribunal that does not exercise the judicial power of the state is not bound by ‘the rules of evidence’. If most of those rules consist of statements of logic or common sense, you can forget that exclusion. And if a tribunal said that it did not have to apply the presumption of innocence, the result would be Vesuvial.
But what, if any, is the effect of the presumption outside the forensic process?
Take a hypothetical case. You are entrusted with the care of three children for a week. You then must go out one night for three hours. You need a babysitter. Jill recommends Jack. But Judy says Jack was committed for trial for offences against a child. What happened? The complainant died and the proceedings concluded. Where does that leave Jack? He relies on the presumption of innocence.
It would be absurd to say that you would entrust those in your charge to the care of Jack. Indeed, if you did, and things went badly, you might well be sued for failing to discharge the obligations arising from the position of trust that you had accepted.
You would have applied a rule of law to an instance where that was inappropriate. This would be, I think, what Sir Gilbert Ryle called a ‘category-mistake’. That involves representing the facts of mental life as if they belonged to one logical type or category when they actually belong to another. (The Concept of Mind, Barnes & Noble, 1948, 15.)
If you have misgivings about that formulation, as I do, you might prefer to say that you have erred by asking yourself the wrong question. I have those misgivings because I get queasy about shifting events and consequences from one box to another. That does sound, for want of a better term, presumptuous. But if someone claims a free kick for holding the ball, you don’t ask whether the ball would have hit the wicket. That way madness lies.
Asking the wrong question may not just cause you to fail an exam – it may lead to your decision being overturned by the courts. There is a large body of law dealing with errors of law made by a branch of the executive in discharging its function. And for an administrative body to ask itself the wrong question is a good way to be seen to have exceeded its powers – or, if you prefer, gone outside its remit. There is ample authority – for example Craig v South Australia (1995) 184 CLR 163 – holding that if an administrative tribunal falls into an error of law which causes it to ask itself a wrong question, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.
Because the law recognizes at least two standards of proof, the same conduct may lead to different findings depending on the nature of the proceeding. A man acquitted of murdering his wife may be precluded from taking under her will by a finding by a civil court on the balance of probabilities that he had in fact murdered her.
Ben Roberts-Smith was found to have committed war crimes by findings made on the civil standard. Those findings were made in a libel action where Roberts-Smith challenged the press to make good their allegations and, after the most expensive litigation we have known, the court found against him. The common law of defamation puts the onus of proof of a defence of justification on the defendant making that plea, but inviting a court to rule on your conduct in issues of such moment is not a course to be entered into lightly or ill advisedly. A seasoned trial lawyer might be mordantly moved to comment that the Yiddish expression is chutzpah, and that the English precedent is Oscar Wilde.
The government now proceeds against Roberts-Smith seeking to have him convicted of the same crimes. For that purpose, the case will have to be proved beyond reasonable doubt to the satisfaction of a jury. And Roberts-Smith is for that purpose entitled to the presumption of innocence.
As I read the judgment of the trial judge, the possibility of a decision adverse to Roberts-Smith leading to criminal charges being laid against him was the subject of substantial argument at the trial. (Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 (1 June 2023) pars. 95-116, esp. 113.) He knew the risk and he rolled the dice.
But what impact, if any, does the rule of law on the presumption of innocence have outside the criminal prosecution?
Let us say that a question arises whether the conduct of a man is such as to render him unfit to hold any office of public trust or duty. And let us say that a question arises where there is credible evidence that he has in the past been guilty of fraud to an extent that shows he is unfit to hold such office. Would the law require the decision maker to be convinced of his guilt of such fraud beyond reasonable doubt?
I do not think that is the law, and the decision maker would be applying the wrong test, or asking the wrong question, or applying the wrong criteria to this category of issue, if that person did require proof beyond reasonable doubt. And the case would be a fortiori if a court had made findings of fraud on the standard required in civil proceedings.
The Roberts-Smith case was not an ordinary or simple case. The findings were made by a superior court after the most painstaking care, and confirmed on appeal, before the High Court refused leave to appeal.
I have not seen a reasoned critique of any of the relevant findings. It is a fair bet that you could count on the fingers of one hand those who have read the 2618 numbered paragraphs of the decision of the trial judges, much less the decision on appeal.
As it appears to me, the press called the bluff of Roberts-Smith, and he lost. Those supporting him and funding him – his pay masters and choir leaders – will have their own agenda, but Australians at large, apart of course from the jurors, may proceed on the footing that Roberts-Smith has been found responsible for war crimes. Whether they choose to use the terms ‘guilty’, is, I suppose, a matter of taste in the sphere in which we live.
May I offer another case of a curious invocation of the presumption of innocence?
Two members of the U S Supreme Court are the subjects of well publicized and publicly examined accusations of sexual assault. If they were to be prosecuted, they would of course have the benefit of the presumption.
But we are talking of a space where appearances matter. Justice must not only do done, but it must be seen to be done. For that purpose, is it appropriate for people appointed for life to the highest court in the land to be subject to unresolved allegations of serious crimes – and be left to rely on something invented by the lawyers called a presumption?
Such a quandary would be inconceivable here or in England. And I have no doubt that many Americans are troubled by it.
So, if lawyers have trouble with this rule of law about the presumption of innocence, it may be as well for others to leave it alone, and leave the lawyers to wrestle with their own problems – and their consciences.
May I go back to the dictionary definition of ‘presume’ – ‘suppose that something is probably the case’? That language befits the adversarial approach of the common law. My favourite citation about presumptions was stated by Wigmore on Evidence (cited in Carkeek v Tate-Jones [1971] VR 84):
Presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts …. presumptions have no place in the presence of the actual facts disclosed to the jury….
