Impossible to defend unfair trials

A presumption of innocence and right to a fair trial are what set our court system apart from mob rule and crony justice. That ACT Chief Justice Lucy McCallum seems ready to surrender fair trials in order to increase the likelihod of convictions in sexual assault cases crosses the line. What hope is there for courts to maintain the respect of the public if an unfair trial is to be the new benchmark for dealing with some crimes that might cause particular community concern, including sexual assault. Community satisfaction is something properly dealt with at sentencing, not at trial.

Justice McCallum was no doubt ventilating a frustration shared by Labor- Greens power players in the ACT, as well as some in the MeToo media, but she is firmly out of step with her legal peers. One barrister quipped a fair trial is not an “intractable problem”, as described by Justice McCallum, it’s an essential mechanism relied upon to ensure justice is done. That Justice McCallum believes there is a problem with courts being sceptical of a complainant until the facts are proven beggars belief. Imperfect as courts may be, there are sound reasons an accused must be proven guilty beyond reasonable doubt given the heavy consequences a guilty verdict can bring.

Debate about the way in which criminal trials involving allegations of rape are conducted has sharpened following the prosecution of Bruce Lehrmann, whose rape trial in 2022 was aborted due to juror misconduct. Mr Lehrmann subsequently was found, on the balance of probabilities – a lesser standard than beyond reasonable doubt – to have raped colleague Brittany Higgins. He is appealing the civil finding.

There have been calls for the Albanese government to consider a “civil” alternative to criminal rape trials, where the standard of proof would be lowered to the balance of probabilities. Last June, acting judge Paul Conlon warned that prosecutors had lost sight of their duty to the community to not take people to trial on suspect evidence. He was not alone; fellow judges highlighted “incredible and dishonest” allegations of sexual assault being “shepherded through the criminal justice system”.

Victims deserve their day in court but, as we have editorialised previously, caution and rigour must be applied to ensure any reforms genuinely enhance the justice system without eroding the presumption of innocence. Justice McCallum’s comments are not helpful and paint an unfortunate picture of a judiciary out of touch not only with the reasonable person but with the foundations of the law itself.