Presumption of innocence doesn’t mean a suspect is innocent, leading Sydney barrister warns
The high-profile barrister Bret Walker SC has warned that the presumption of innocence doctrine should not be misunderstood to mean that a person is in fact innocent.
Walker told the Rule of Law Education Centre’s Presumption of Guilt conference on Tuesday it would be “terrible” if the presumption of innocence meant everyone was compelled to regard an accused person as innocent until they were convicted.
The barrister said the concept meant instead that the prosecution had “to prove beyond reasonable doubt the guilt of the accused”. He labelled the view that a person was necessarily innocent until they were convicted as a form of “magical thinking”.
Walker is an eminent senior counsel and former inspector general of intelligence and security who successfully represented George Pell in his appeal to the high court. He also represented the former attorney general Christian Porter in his defamation case against the ABC, which was discontinued by agreement.
In February the ABC reported that an unnamed cabinet minister had been accused in a dossier sent to Scott Morrison of a sexual assault in 1988 when he was 17 and the alleged victim was 16. Porter then identified himself as the minister, and strenuously denied the allegation.
In March the prime minister declared that Porter was an “innocent man under our law” because he had never been charged with or convicted of sexual assault.
Police had begun an investigation but concluded there was “insufficient admissible evidence” to continue after the complainant withdrew from the process, then took her life.
On Tuesday Walker said that “unfortunately both politically and socially in everyday language people – many of them lawyers … speak of the presumption of innocence as if it means somehow, that at the time of speaking – that is before an accused has been con-
victed – the person actually is innocent or, if you like … that the person is not guilty”.
“If that simply means he or she hasn’t yet had pronounced a verdict of guilty and thereafter a conviction entered – so much is true but trivial.”
Walker said when prosecutors signed indictments they were declaring they believed there was enough evidence to allege the commission of an offence, notwithstanding the accused’s presumption of innocence.
But Walker said it would be a “terrible thing if we thought that everybody was thereby compelled to regard them as innocent”.
“The prosecutor mustn’t – that would be appalling. I hope the police who investigate and put the brief together … don’t think so either, that would be appalling.
“In short, the presumption of innocence involves an open mind about the outcome of a trial but not the magical thinking that says until a person is convicted they were innocent, they should never have been tried.
“Guilt of a crime … is only ever of conduct which was criminal at the time it was committed – and you’ve been guilty, as a matter of English law, since you’ve committed the offence.”
Walker said “presumption of innocence” should be “banished from discourse concerning people who are the objects of criminal process”.
“They are presumed innocent, it doesn’t mean they are innocent.”
In May the Rule of Law Education Centre incorrectly billed Porter as a speaker at the conference, which promises to “examine recent challenges to this doctrine [the presumption of innocence] and the threat this poses to the Australian concept of a ‘fair go’”.
A spokesman for Porter told Guardian Australia that he “hadn’t actually accepted” an invitation and organisers had “got ahead of themselves”.
In the event description organisers claim the “presumption of guilt” is a “dangerous new doctrine on the rise … in an era where public policy is frequently influenced by the latest frenzy on social media”.
The centre said the presumption of innocence should be a bulwark “not just against over-mighty governments, but against those who would side-step the normal law and impugn people who have done nothing wrong”.
It promised the conference would “examine the consequences of allowing this doctrine to be eroded by confining it to the formal processes of criminal justice”.