What’s happened to the presumption of innocence?

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Figure under arrest

There seems to be an increasingly popular view that a person would not be accused of a criminal offence, let alone charged by police or taken to trial unless they are indeed guilty.

There is a corresponding view that a person who is found guilty must in fact be guilty; whereas a person who is found ‘not guilty’ must have somehow ‘gotten away with it’ by finding a legal loophole or getting a ‘hotshot lawyer’.

We published a social media incident.

The public responses were interesting, but in some respects quite concerning.

Being unconvinced of the co-accused’s guilt, I posted that: ‘I feel for the co accused if he is innocent’.

One person responded: ‘What do you mean by “feel for the co accused if he is innocent”? Hasn’t the co accused been found guilty’?’

That comment assumes that anyone who is found guilty must indeed BE guilty.

It flies in the face of the hundreds of reported cases where a person has been found guilty and sentenced to decades in prison, but later proved to be innocent on the basis of DNA evidence.

‘Innocence Projects’ in the USA alone have proven that over 300 innocent people were convicted of serious crimes and sentenced to lengthy terms in prison.

Such projects are few and far between. They have very limited resources and strict guidelines as to who might have access.

In my opinion, the 300 people ‘proved innocent’ are just a drop in the ocean.

My exposure to thousands of criminal cases over more than 20 years has tought me that, even if the evidence suggests innocence, you may nevertheless have to work very hard to get the case ‘dropped’ or to secure a verdict of ‘not guilty’.

Moreover, you will often need to do this on a meager budget and against a prosecuting body that can spend hundreds of thousands of dollars on a single prosecution – with half a dozen or more ‘expert reports’ at it’s disposal – when your client can sometimes not even afford a single report!

‘Justice for victims’ is the popular catch-cry.

‘Lock’em up and throw away the key’.

The Daily Telegraph loves it, fuels it, and people buy into it.

It seems that a person is convicted by the court of public opinion as soon as they are accused of a crime.

What a shame.

What a subversion of the presumption of innocence.

I remember defending a case some years ago where my client was charged with manslaughter for allegedly allowing an elderly lady, his friend, to die at her own home.

The case was all over the media who painted my client as a vile, guilty man.

He was refused police bail.

I applied for bail the next day in Parramatta Local Court and managed to get him out of custody.

As I don’t like speaking to the media, I walked straight from court to my car with cameras in my face.

The questions that I was being asked showed very little understanding of the case, to say the least.

I was convinced of my client’s innocence.

He had very little money so I made an application to the Legal Aid Commission for funding.

That application was refused because he had a part time job and made more than the Legal Aid Commission’s ‘means test’ threshold.

Over the next 3 or 4 months, I was served with 8 or 9 ‘expert reports’ and a massive ‘brief of evidence’.

My client could not afford to pay for any expert reports.

I felt for this man. I was concerned that if the case went before a jury, they might accept the ‘expert evidence’ on the basis that there was no defence expert evidence to rebut it.

I knew that his only chance of avoiding a jury trial was to draft very lengthy written submissions dissecting the massive brief and exposing it’s flaws, then sending this to the ‘DPP’ (prosecution) and calling for the case to be dropped.

I drafted and sent 83 page written submissions detailing a range of matters and formally requesting withdrawal.

After a number of lengthy conversations with the DPP solicitor and a case-conference, he (the DPP solicitor) finally got approval from the Director of Public Prosecutions himself to withdraw the case.

I can give many examples of cases where the the evidence (or lack thereof) has strongly suggested my client’s innocence but the case nevertheless went all the way to a jury trial, or got very close to it.

Another comment that was posted on the social media page was by a man whose sister was tragically murdered. He said:

‘Thanks to shady criminal defence lawyers, and a ridiculous justice system, both men who where clearly guilty walked free due to defence reliance on “expert” evidence. Crap crap crap.’

I feel deeply for this man. I couldn’t even begin to imagine the torment of such a loss let alone having to go through a trial thereafter and to see people who you knew were responsible walking free.

But I think it’s a misconception that ‘shady criminal lawyers’ go around getting dodgy reports and sneakily hatching plans to get clients off, all the while knowing that their clients are guilty.

As we have previously pointed out, it would be highly unethical for any criminal defence lawyer to run a case suggesting their client’s innocence when they are aware that the client is guilty.

It should not be done and I certainly don’t know of any examples.

I then posted a comment about our ethical obligations, to which one person responded:

‘Its comforting to know that lawyers do not profess their clients are innocent if they know they’re guilty…’

We have posted blogs about this topic, including one that’s titled: ‘Can my lawyer still defend me if they know I’m guilty?‘.

In response to our client being acquitted yesterday, one person posted:

‘Where is the Justice for victims ?? Where is your judicial duties? Where is the common sense test of causation of the crime with intent ??”

Again, this assumes guilt.

Would it be ‘justice for a victim’ if an innocent person were sent to prison?

The comment also assumes that we have somehow done something wrong because we worked hard to give our client the best possible legal representation!

I can tell you that each member of our 8 lawyer criminal defence team had an important part to play in thoroughly preparing our client’s defence – and that’s nothing to be ashamed of!

If I were accused of a crime, I would love to have 8 experienced, specialist criminal defence lawyers ensuring that no-stone-is-left-unturned for me!

Another post that we recently published was about media reports of child sex allegations against singer Cliff Richard.

That post reached a whopping 1.5 million people and sparked heated online exhanges!

We made it clear in that post that ‘he has DENIED the allegations and has NOT been arrested or charged’.

Yet many people assumed his guilt- calling him all sorts of nasty names.

So where is the presumption of innocence?

Is it dead?

It seems that the presumption is slowly withering away, which is a shame because ‘mud sticks’ and those charged with offences may not be able to rectify the damage – even if it becomes clear that they are innocent.

Here’s an interesting anecdote that someone posted yesterday, which is a good endnote to this blog:

‘A friend of mine who’s father is an ex police officer, now in public prosecution, stated she had jury duty. His comment to her (in jest) was “remember the police wouldn’t have charged them if they weren’t guilty”. That seems to be a commonly held belief in the populace.’

Indeed Ricky, indeed.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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