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Canberra Today 14°/21° | Friday, February 23, 2024 | Digital Edition | Crossword & Sudoku

The presumption of innocence is dead and buried

Brittany Higgins and Bruce Lehrmann… “Consider the reports of Ms Higgins’ financial and appointment good fortune since she made her allegations. Contrast that with the reports of the taint upon Mr Lehrmann once the allegations became public in February 2021 (about 10 days short of two years after the alleged sexual assault).”

Legal affairs writer and former barrister HUGH SELBY says the presumption of innocence is dead and buried. It has been inverted. It is now a presumption of guilt unless and until a court finds the accused “not guilty”.

WRITING about the recent public humiliation of a now former local Green politician, one time chief minister Jon Stanhope noted: “The response of the ACT government to the recent allegations concerning a member of the Assembly, including strident demands that he resign, lacked any semblance of a commitment to that person’s right to the presumption of innocence.”

Hugh Selby.

I have sad news for Jon: in alleged “sexual matters” the presumption of innocence is dead and buried. It has been inverted. It is now a presumption of guilt unless and until a court finds the accused “not guilty”.

I am writing here about everyday attitudes, not the concept carefully repeated – albeit with unknown effect – by every judicial officer conducting a criminal matter.

At trial its effect is unknown because “every person” has been guided away from the wise advice. “do not rush to judgement”. 

Now we are repeatedly force fed a diet of “acceptable beliefs” about sexual assault allegations that starts with equating a complainant with a victim, labels those accused of “sexual misconduct” as vile predators, and condones pre-trial media coverage that is unbalanced and looks for salaciousness ahead of accuracy.

The presumption of innocence is important in every criminal matter because it takes account of the possibilities of mistake, vindictiveness, publicity seeking, poor investigation, and the inequality of resources between a defendant and the prosecution. 

An aspect of the presumption disappeared in Queensland with the recent abolition of their sensible law that prevented the naming of a defendant in serious matters unless and until s/he was committed for trial. 

The change was motivated by a desire to name and shame one man: Bruce Lehrmann. Mainstream media was so pleased. At last they could catch up with social media that had bandied his name around for months.

Committals used to be the norm for serious criminal matters. With the creation of independent prosecution offices it was decided, quite reasonably, that the expense of committals could be avoided by leaving it to the career prosecutors to weigh up the strength of the evidence. But Queensland kept committals.

Nobody considered the possibility of human frailty in decisions to prosecute, as seen in the DPP pursuit of Bruce Lehrmann here in the ACT, or in some recent NSW sexual assault cases that have attracted adverse judicial comment.

But the naming and shaming is just the start of the procession of societal injustice and the inequality of the treatment meted out to defendants and self-proclaimed victims.

Nobody pays any attention to the toll upon those wrongly accused

Consider the reports of Ms Higgins’ financial and appointment good fortune since she made her allegations. Contrast that with the reports of the taint upon Mr Lehrmann once the allegations became public in February 2021 (about 10 days short of two years after the alleged sexual assault).

The abandonment of the presumption in our pretrial public conversation and actions did not take place in a flash. It was incremental, so much so that the extent of the damage was well concealed behind the cloth of “ever so reasonable” decisions in unrelated cases.

Nobody pays any attention to the toll upon those wrongly accused who must wait months, even a couple of years to have their case heard. 

It was heartening to see after the recent not guilty decisions in the ACT Magistrates Court for the two NRL stars that one of them commented publicly upon the stress he had endured while waiting months for his hearing. Rather more attention should be paid to those comments.

In his evidence in chief in the defamation proceedings being heard in Sydney this week Mr Lehrmann told of his “being suicidal” after the allegations against him were publicised in February 2021 and that he became an inpatient in a mental health facility.

The two footballers were not charged with “sexual assault” offences. Had they been then they would likely have been sidelined for the season. If the presumption of innocence was alive that would not happen.

An apprentice was charged with sexual assault offences. He had no criminal record. He lost his job immediately. The complainant selectively deleted her mobile phone records to support her fabrications. He was acquitted but lost two years of his life.

A doctor is awaiting trial interstate on sexual assault allegations made by his ex-partner. The relevant professional body has placed severe restrictions on his ability to practice, which are unrelated to the charges. After waiting a year for his trial he was told that the trial dates had been cancelled and it would be another year before his trial would take place. He cannot get access to his child, his reputation is in tatters, and his work opportunities are slight compared to what they were before he was charged.

In Tasmania, a Supreme Court Justice has been sidelined, save for writing judgments, because of allegations that appear to be family violence related.

Why is he not hearing cases – save for those with a family violence element – until this matter is finalised? Answer: the presumption of guilt.

He had to go and he’s gone. No charges laid.

The same errant presumption was applied to our now former Greens member of our Assembly. It wasn’t enough that the other party to a sexual liaison stated that it was consensual. There was the unsupported inference that something was amiss. He had to go and he’s gone. No charges laid. Yet again, a presumption of guilt.

Here in the ACT we have a Victims of Crime office, dedicated to supporting complainants (who are not yet proven victims) through the process of investigation and trial. Suffice to say that defendants – despite the presumption of innocence – have no comparable resource.

We have a Bail Act so that judicial officers can impose the minimum, necessary conditions upon a defendant who has been charged until the case is heard in court.

We don’t need extrajudicial sanctions.

But we have them, alleged well-meaning acts of protection of others, that are in truth based upon an assumption of guilt and a fear of not being seen and heard to be a follower of “current proper thinking”.

I fear it is too late to turn the tide. No one wants to be seen as “contrary”. Commissioner Sofronoff asked all counsel at his inquiry whether Mr Lehrmann should not have been charged. Silence reigned.

It was a silence that carried a lot of meaning. After all, why stick your neck out? It was best to let the question disappear.

German Pastor Niemoller got it, albeit belatedly during the Nazi years: ignore these attacks upon others at your peril, lest there be no one left to speak for you.

Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.


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Hugh Selby

Hugh Selby

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11 Responses to The presumption of innocence is dead and buried

cbrapsycho says: 23 November 2023 at 6:00 pm

The police, the DPP and Sofrinoff all agreed that the decision to prosecute Lehrmann was appropriate in the circumstances. Why does Selby continue to say it wasn’t? What could he possibly know that everyone else does not? Of course, it’s just his personal belief.

Mrs Marion Le says: 23 November 2023 at 6:12 pm

A concise, balanced, and reasoned article which has hit on the crux of the matter – thank you Hugh Selby. The demise of the presumption of innocence in the media, in society and in the Court system is shamefully apparent in the fiasco of the Lehrmann / Higgins saga – our system of justice is openly a shambles – a theatre of the absurd.

Andrew says: 23 November 2023 at 9:59 pm

A timely, truthful and sad article, Mr Selby.

Thank you for writing this.

Men in Australia suffer greatly under unfair and unbalanced legal standards. No one hears their voices.

All the fake talk about suicide prevention and “towards zero” suicides, when the criminal justice system is built to instead do everything to push men towards that outcome.

cbrapsycho says: 26 November 2023 at 10:13 am

People who have always been privileged see any removal of that privilege as unfair and unbalanced, when the balance is just being shifted from where it was. The low rate of reporting of sexual assault has resulted from the lack of balance that exists. Now, some reports are being taken a bit more seriously, but many are not.

The judicial process has not changed.

Andrew says: 26 November 2023 at 10:25 pm

cbrapsycho, the judicial PROCESS may not have changed much, but the actual LAWS in recent years have changed over multiple iterations by pro-feminist attorney-generals, repeatedly so in favour of women and successfully disadvantaging men in every possible way each time. Please do your research and fact-checking before making claims intended to mislead readers and to simply oppose the author of this opinion piece because you can, as you are well known to do in your trolling activities here.

As a result of laws changing to lower the threshold for sexual assault, to basically now include men simply looking or touching a person, naturally the number of cases has skyrocketed. That is all a part of the broken me-too movement. So now people such as yourself can proudly declare that rates of reporting have risen (and spuriously equate those rising rates to “being taken a bit more seriously”). The feminist political pressure, feminist media-driven ideologies that completely dominate all of Australia today and the feminist-ruled police and judiciary (by that, I mean the omnipotent DPPs).

The benefits of making sexual assault claims (genuine or fabricated) are so great for women, and to those ambitious but immoral police who receive such reports, the benefits for them to knowingly charge innocent men are also huge. There is no disincentive for fabrication and lies, under the guise of encouraging women to make reports so as to show they are “being taken a bit more seriously”. There is virtually zero chance for police or complainant to be found guilty of perjury so the natural outcome is for women to go ahead and lie to police, expecting to be “taken seriously”.
It is a rising trend and is fashionable among millennials and the older Gen Zs. While the younger Gen Zs are actively being indoctrinated that they will be sexually assaulted at some stage (and thus, become victim-survivors), need to protect themselves from vicious boys and men all around them, and make reports to police at every possible opportunity. All this, championed by those such as yourself.

Ellen says: 30 November 2023 at 8:52 am

Mate do you actually believe women make up rape complaints and go through the judicial system for social media kudos? You’re showing your age and referencing “Millenials” and “Gen Z” is ridiculous. Reality is, women get sexually assaulted daily. 1/3 women have been raped or sexually assaulted. Most do not report it and do not speak about it. We should be proud as a society that people are speaking about it. False rape complaints are rare, less than 1%, but sure don’t let that stop you crying wolf about women out to get poor, sad, sweet boys.

David says: 30 November 2023 at 12:26 pm

Sadly Ellen you live in a very selective world. One group of females who suffer in silence is the mothers who watch their sons being blackmailed by the mothers of their grandchildren to do what they want or the grandparents will not get access to the children. These threats often escalate from there to false domestic violence and rape claims. The sad thing is its the children who suffer the most. Remember, preaching to the choir actually makes the situation more dangerous. The behavior you are trying to change is that of the potential perpetrators and the last thing you want to do is put them in a situation where they believe the system is so rigged against them they may as well take a nuclear option. Have you every had or known someone with a kid who is constantly teased so much that you fear the relentless mental abuse will make them physically lash out? Fear because you know once physical violence occurs the constant mental abuse is somehow considered acceptable and the abusers’ suddenly become the victims. Sexual abuse is not acceptable but properly dealing with it means you have to be just a vigilant to ensure false accusations are identified. Remember who you should be preaching to and you don’t wont to be responsible so someone thinking, I may as well commit the crime if I’m going to get accused of it anyway and assumed to be guilty.

davidmaywald says: 30 November 2023 at 10:00 am

There is a misandrist narrative that all perpetrators are male and all victims are female, which couldn’t be further from the truth. Canadian police records reveal that three in ten victims of domestic and family violence are male. Australian Institute of Health and Welfare data from last year show that in 26% of physical violence from a partner that the victim was a man, and in 38% of emotional abuse from a partner that the victim was a man. It is a sad society where sexism is rampant, important principles are ignored, and compassion is asymmetrically applied.

cbrapsycho says: 1 December 2023 at 12:20 pm

There is no doubt that there are plenty of male victims of domestic and sexual violence as well as female victims. However, the perpetrators are primarily male. Not always, but certainly the men are the majority of perpetrators by a very long way.


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