The Presumption of Innocence

Overview

The presumption of Innocence is a principle that states the prosecution must prove guilt, and the accused is considered innocent until proven otherwise.

The presumption of innocence ensures individuals will be punished by a court, only in accordance with the law. Until a person is found guilty, they are known as the ‘accused’. An accused can be held on remand (in prison) while awaiting trial, but even if they are denied bail, they are considered innocent until proven otherwise.

The onus of proof of the guilt of the accused is on the prosecution. The prosecution must prove every element of the offence, rather than the burden shifting to the accused to prove their innocence. The standard of proof in criminal trials is beyond reasonable doubt. The prosecution must satisfy this high standard before a person can be found guilty. In criminal trials, judges or juries decide whether the prosecution has proven its case beyond a reasonable doubt.

Why is the presumption of innocence needed?

The presumption of innocence, which means everyone is treated as innocent until proven guilty. The presumption of innocence is essential to justice and freedom in Australia.

1. Fundamental Protection

The presumption of innocence is an important human right and should be available to everyone, no matter their background, status, religion, or citizenship. It supports key legal protections, such as protection against self-incrimination, the right to a fair trial, legal representation, and the ability to present a defence.

The presumption of innocence is not a legal right in Australia that is enforceable at law. A person cannot sue upon the presumption in our courts. Whilst the Magna Carta is often cited as establishing the presumption into our law, it does not create an enforceable legal right in Australia, nor do any of the Human Rights Acts of the States of Australia or the Australian Capital Territory and nor does the International Covenant on Civil and Political Rights and neither does the Federal Constitution.

Instead, it exists through common law, which means courts have recognised and protected it over time. They do this using the principle of legality, which helps safeguard important rights even when they are not directly written into legislation.

However, because the presumption of innocence exists in common law and not in a specific written law, it can be changed or removed at any time by a Federal or State Act of Parliament. This has been happening more frequently over the past 10 years.

2. Human Nature & Justice

Part of human nature is that people may lie, misrepresent facts, or give false evidence. Presuming innocence acknowledges human complexity and ensures fairness, not blind trust or idealism. It presumes the best of us and not the worst.

This can be seen with the protections from being coerced to give testimony or to incriminate oneself. People may lie or give false evidence in the course of attempting to prove guilt or innocence. This is a fact of human nature, and why a person charged with an offence is presumed innocent and not a saint.

It places humans on a high plane and thereby facilitates, where appropriate, a plea of guilty.

3. Limits oppression and provides a check on power

The government has the strongest power in our society. It can charge people with crimes and punish them. Because this power can be misused, we have important protections to keep things fair. One of the most important is the presumption of innocence, which means everyone is treated as innocent until proven guilty.

Imagine a person is charged with committing an offence. The police have the onus to establish that the accused has committed the offence. The police have the power to prosecute but are checked on the misuse of this power by requiring them to prove each and every case objectively. As the police (government) will generally have more resources and time to prove innocence or establish mitigating factors, the battle is considerably fairer and just if the police have the burden of proving their case. It would be unfair and unjust if an Australian who is charged with committing an offence seven years ago had to prove that they did not do so. Proof might involve collecting evidence and finding witnesses. How would this be possible for the ordinary individual? Placing the onus on the prosecution is reasonable and fair.

This is what is meant by having to prove the negative that is on some occasions, an impossible task. The presumption acts as a safeguard against misuse of police and prosecutorial power. It ensures the burden of proof lies with the state, not the individual.

4. Wider Meaning

The presumption is usually expressed in relation to a charge of a criminal offence. However, beyond criminal law, it applies to other accusations, requiring proof before assuming guilt.

For instance, the website of the Federal Attorney General describes the presumption as imposing on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. However, the expression has a much wider understood meaning in Australia as applying to any assertion made, and requiring the person, the subject of the assertion, to be presumed innocent unless the maker of the assertion establishes the assertion as correct.