The presumption of guilt

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In a sweltering, steamy Queensland summer, strange things happen when it gets too hot to handle. Violent crime was the front page of the Brisbane Courier Mail as the city was rocked by the senseless murder of a grandmother, allegedly by a 16-year-old on bail for a number of offences. Several members of the Queensland Police were calling for tougher measures:

Legislation must be introduced to remove the offenders from society in the interests of community safety. It can’t go on…

Yet the main headline could not have been more revealing in terms of the corollary to the Queensland Police position.

In one example, a woman was held in detention for 6 years without trial or conviction, while the Crown alleged she had overdosed her child with drugs in a smoothie. The judge took the unusual step of instructing the jury that the prosecution case relied on the evidence of another child who was ‘mentally compromised’, allegedly had a motivation to lie about her mother, and had given inconsistent testimony.

When your only tool is a hammer, everything starts looking like a nail. According to the Australian Bureau of Statistics, 15,182 prisoners held in Australian jails were on remand, held without trial or a conviction  in 2022. That’s an annual increase of 16 per cent from 2021 and represents 37 per cent of the entire prison population. In this respect Australia is following a trend in the USA where in some counties up to 90 per cent of prisoners are pretrial detainees, often unable to afford their bail.

Australia has imported and implemented American-style tribunals, where the normal rules of evidence don’t apply and power is ultimately left in the hands of the judge or magistrate to make a determination, based on the ‘balance of probabilities’. Often this leads to a reversal in the onus of proof, where the accused has to prove his or her innocence, rather than the prosecution proving guilt.

According to the Australian Attorney-General’s Department:

Some laws, commonly called reverse onus provisions, shift the burden of proof to the accused or apply a presumption of fact or law operating against the accused. Under international human rights law, a reverse onus provision will not necessarily violate the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the
reverse onus provision would be important in determining its justification. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.

IAccording to the Australian Institute of Criminology, 50 per cent of suicide victims were on remand at the time of their suicide. Suicide is the leading cause of death in Australia under the age of 45 and in 2023 there were 798 deaths from suicide according to the Australian Institute of Health and Welfare.

This means of the 15,000 or more individuals held in Australian jails without trial or conviction, 400 are likely to die from suicide. Twice as many individuals held in remand will die from suicide as a result of their experience as there are murders in the entirety of Australia. A person is 41 times more likely to die from his or her own hand than from an intimate partner. Sometimes we have to ask whether the cure is worse than the disease? Sometimes a bigger hammer is not the answer.

In Australia, over 90 per cent of prisoners are male and evidence shows that children with absentee fathers are 3 times more likely to commit crime and to spend time in jail themselves. In Queensland every year there are twice as many Domestic Violence Orders (DVO) issued than there are male births. There are also more than twice as many DVOs issued than there are new marriages. Since the introduction of the new legislation in 2012 the number of DVO violations has increased from around 65 per cent to over 90 per cent in 2023. A DVO violation potentially constitutes a criminal act and often fathers desperate to see their children unwittingly end up with a criminal conviction through such a violation. Even an innocuous inquiry about whether a rates bill has been paid may constitute a criminal act under the legislation. Normal behaviour is becoming increasingly criminalised.

Queensland has one of the highest rates of incarceration in the country, with many prisoners being held in private jails owned by large multinational corporations from the UK and the USA  enjoying multi-billion dollar returns. Young men are voting with their feet, with almost a third choosing to remain single. Indeed, it is becoming increasingly difficult to see how the institution of marriage, our cultural bedrock for more than 2,000 years, can survive such a heavy weight of legislative scrutiny. The exercise of coercive control is ubiquitous in our increasingly bureaucratised society, yet it is only in coupled relationships that it is deemed to be a criminal offence requiring extensive jail time.

Whilst the principle of the presumption has been sacrificed on the altar of ‘absolute safetyism’, there has been no reduction in intimate partner homicide in Queensland, no change in the incidence of domestic violence, but rather a surge in prisoners held on remand without conviction along with an unprecedented surge in youth crime throughout the state. There is a sense that the current system is exacerbating crime, if not entrenching the problem. Furthermore, there is strong evidence that individuals held in remand become increasingly likely to commit crimes, particularly sexual offences.

The corrosive abrogation of the principle of the presumption of innocence has been relentless so that today it effectively only applies at criminal trial. The consequence for society is the erosion of our democratic rights and freedoms. Where we once believed we elected government to serve its people, it is clear that government regards its entire people as potential criminals. Just as the onus of guilt has reversed, so too has the position of government to its people.

The vast majority of detainees accept criminal charges simply to get out of the system. Most buckle despite their innocence and accept a charge in return for ‘leniency’. In the current system it serves no purpose to expedite or resolve matters until the 11th hour because there are no pressures on the police to do so. Quite the contrary, exoneration poses a media hazard. Recently in New South Wales an innocent individual was awarded $150,000 costs by a judge after he had been held in pretrial detention for 18 months without bail.

In a rapidly changing world, it is becoming increasingly difficult to understand what actually constitutes a crime. Just as in medicine the number of diagnoses in the DSM catalogue of disease has increased inexorably over the years, so too has the legislative burden expanded relentlessly, making the space that remains in which to retain a normal life increasingly confined. To quote Martin Luther King:

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

This article first appeared on the Spectator Australia here. It has been reproduced here with some minor changes.

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  • Dr David Richards

    Dr David Richards is an Australian General Practitioner and Adjunct Professor at an Australian University in the faculty of medicine. He graduated from London University in 1984, having also completed an Honours Degree in Human Genetics and Immunology. He has peer reviewed papers for a major European Journal and presented at International Conferences on Genetics and Carotid Ultrasound.

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