The presumption of innocence in criminal cases is one of the most of important tenants of the criminal law. It also fundamentally underpins the operation of democracy in countries such as Australia.
The History of the Presumption of Innocence
The phrase “presumed innocent until proven guilty” was first coined by the British barrister Sir William Garrow during a trial at the Old Bailey in 1791. The period of the 1700-1800’s was a pivotal period for the development of criminal jurisprudence in Great Britain, which then expanded throughout the colonies and across the Western world. It was born out of the British experience of developing a democracy out of a monarchy, including under despotic monarchs who would summarily punish and execute dissenters. Having experienced the overwhelming power of the state, and its ability to use criminal punishment as a political tool, the criminal law developed robust protections for individuals accused by the state of committing crimes, whether against the monarch, other citizens or the state itself.
The Presumption of Innocence in Practice
The presumption of innocence recognises that, if an allegation is made against a person, it is up to the accuser to prove the allegation. The prosecuting authority always bears the burden of satisfying the Court to the highest possible standard of the person’s guilt for the crimes charged. The person accused is not responsible for proving their innocence and, in Australia, a jury cannot make such a finding. They can only find the accused “guilty” or “not guilty”. The very idea of proving a person’s innocence is nonsensical because, in most cases, it is impossible to prove that something didn’t happen. One cannot be asked to prove a negative. The presumption of innocence also recognises that there is a serious responsibility imposed on an accuser to the effect that, if they are going to make an allegation of serious criminality against another (which might deprive the other of their liberty or impose a punishment upon them), the accuser bears the only onus in the matter.
An accused person is innocent from the moment they are accused until the point that a jury (usually) or a Magistrate (in summary cases) decides that they are not. Accordingly, they are to be treated as an innocent person throughout the course of their proceedings and until they are found guilty. Intertwined with this is the concept of a “right to silence”.
The Right to Remain Silent
All persons accused of a crime have the right to remain silent. It is one of the first things that a person is told by Police following their arrest. A person under arrest and/or accused of a crime is not required to respond to the allegations and they are not required to assist the Prosecution. The fact of their silence also cannot be used to infer guilt or used against them in any way. An accused person is presumed innocent and is entitled to remain silent throughout their proceedings. It is always for the prosecution to prove beyond all reasonable doubt that the person is guilty of the offence with which they are charged.
Giving Evidence at Trial
In a criminal trial, the Prosecution cannot compel an accused to give evidence in their trial. That is regardless of whether the accused has made a prior statement to Police or given a record of interview in relation to the allegations. The only person who can call the accused to give evidence is the defence and this is only ever done after careful consideration of the costs and benefits of doing so and when it is considered forensically necessary. Of course, if the accused is called as a witness in their own defence, they will be cross-examined by the Prosecution. The advantage that the accused has, however, is that they do not need to give advance notice to the Prosecution that they will be giving evidence. The Prosecution will only learn that the accused is going to be called to give evidence when they are called into the witness box. This will give the Prosecution limited time to prepare and retain the advantage to which the accused is entitled in their proceedings.
How a Defence Lawyer Can Help make Sense of Criminal Cases
Being prosecuted for a crime is a very serious thing and most accused people do not properly understand their rights and entitlements at law. It is essential to receive the most comprehensive legal advice in advance of making any decisions with respect to a criminal matter. It is also important to understand the distinction between the presumption of innocence and the onuses that apply in bail application matters. Notwithstanding that you are presumed innocent, in bail applications the onus still rests on the accused person to satisfy the court of the first limb of the relevant bail test. Quite unfairly in our view, an accused person can be both innocent at law but have their liberty curtailed because they are bail refused in circumstances where the onus was on them to satisfy the Court that they should be granted bail. If your loved one is remanded in custody and wishes to make an application for bail, please consider our Bail Application page and contact our office to speak with one of our experienced criminal defence lawyers.
