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Presumed innocent - once, briefly

By Gavin Putland - posted Wednesday, 15 November 2000

If the proponents of an Australian Bill of Rights are content to entrench the rights that Australians already enjoy, their opponents will claim that the Bill is superfluous; "If it ain't broke, don't fix it." To overcome this argument, a Bill of Rights must protect at least some rights that are violated under present law. I have nominated several such rights in an earlier contribution to the Forum. In this article I expand on just one of them: the presumption of innocence.

In a criminal trial, the jury is famously instructed to presume that the defendant is innocent and to acquit unless the prosecution proves its case beyond reasonable doubt. It should be noted in passing that the jury is given no guidance as to how much doubt is "reasonable'", and that there is nothing to stop the jury from making other presumptions that in practice may nullify the presumption of innocence. For example, the jury is free to presume that certain classes of witnesses can be trusted, or that certain kinds of evidence are foolproof and tamper-proof, or that certain forms of official malpractice, although theoretically possible, do not actually happen (well, not here anyway). Assuming, however, that the presumption of innocence actually works as intended, its effect is to prevent an innocent person from being convicted and formally sentenced in a criminal trial. Unfortunately, the criminal process does not begin and end with the trial. Conviction and formal sentencing are not the only unpleasant fates that can befall the accused in consequence of that process.



If you are charged with an offence and brought before a magistrate, you are presumed guilty for the purpose of deciding whether you will be granted bail. This presumption can be defended in the name of public safety, provided of course that you are compensated for time spent in custody in the event of an acquittal. But you are not. Even if the magistrate at the committal hearing rules that you should not face trial, you still have no automatic right to compensation.

Thus pre-trial incarceration is a punishment that can be imposed without a conviction or even a committal.

If anyone suggests that being remanded in custody is not really a punishment, suffice it to note that if the accused is convicted, pre-trial custody can be taken into account in sentencing. (Thus the guilty receive compensation for pre-trial custody while the innocent do not!) Either pre-trial custody is a punishment or it isn't. If it is, the presumption of innocence demands that it be compensated in the event of an acquittal or discharge. If it isn't, neither should it be credited towards any subsequent sentence (and accused persons don't really want bail, but only pretend to want it!).


If you are acquitted by a jury, you are not thereby entitled to reimbursement of the costs incurred in clearing your name. If you are discharged at a committal hearing, you can ask the magistrate for costs, but costs will not be awarded except in the rare event that you prove malice or negligence on the part of the prosecution. In other words, the Crown can claim good faith and due diligence as a defence. The same defence applies if you try to sue for compensation or costs after being acquitted by a jury.

Thus, financial ruin is also a punishment that can be imposed without a conviction or even a committal.


If you are acquitted, the requirement that you pay your own costs expresses contempt for the jury's verdict, and is inconsistent with the "loser pays'" principle that prevails in civil cases. It is also inconsistent with the "user pays" principle. If you are an innocent defendant you cannot fairly be described as a "user"' of legal services, because you have no reasonable discretion on whether to engage counsel and absolutely no interest in being brought before a court. The Crown is the real user because it is the Crown that wants the trial to proceed.


If your conviction is overturned on appeal or re-trial, you get no reimbursement of costs incurred in the appeal or re-trial, let alone in the original trial or committal hearing, and you get no compensation for the time served in prison after your conviction, let alone before. The total period of uncompensated imprisonment could be several years. Indeed, in many cases you would already have been paroled if you had not displayed such an appalling lack of remorse by maintaining your innocence.

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About the Author

Gavin R. Putland is the director of the Land Values Research Group at Prosper Australia.

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