By John Andriano - 11 December 2022  5.00 AM

The golden thread rule running through criminal law in our common law system is that a person accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. This rule of law is crucial to the operation of a fair trial and a fair outcome.

The rule presupposes that the accused person who pleads not guilty to a crime for which they stand accused is as innocent as any other person inside or outside the courtroom. Even as innocent as the accuser.

In the recent ACT case of The Crown v Bruce Lehrmann, the accused man Lehrmann was charged with raping a woman known as Brittany Higgins in March 2019.

Lehrmann pleaded not guilty. There was a trial where a jury could not unanimously convict him, and the Prosecution subsequently dropped the charges.

Lehmann was therefore innocent before March 2019, after March 2019, and now is still innocent after December 2022. At no stage in this process is he anything other than innocent. He is as innocent as the prosecutors, as the judge, as the accuser Higgins, and every journalist, commentator, and politician who sought to presume him guilty.

I am not trying to defend Lehmann. He does not need defending. I am here to defend the rule of law, the presumption of innocence, and the bedrock of our legal system which is continuously coming under attack.

The main problem is that the attacks on the law are coming from those who are sworn to uphold it.

The former Prime Minister Scott Morrison and the current Prime Minister Anthony Albanese both made remarks which presupposed Lehrmann’s guilt by apologising to Higgins. The former Prime Minister and the current Prime Minister each take oaths upon accepting their office to uphold the laws of Australia and they each have shown that they had no respect for the presumption of innocence.

The Prosecutor Shane Drumgold, a lawyer who must have sworn to uphold the laws of the ACT, made the most extraordinary public statement, ‘In the light of the compelling independent medical opinion and balancing all factors, I have made the difficult decision that it is no longer in the public interest to pursue a prosecution at the risk of the complainants life.’ If a victim’s life was truly at risk, and the person who placed the victim’s life in that terrible state can be prosecuted for the crime, then it is precisely in the public’s interest that such a prosecution be mounted.

The truth is that there was not enough evidence to pursue the matter and find Lehrmann guilty beyond a reasonable doubt.

No doubt, Mr Morrison, Mr Albanese, and Mr Drumgold were concerned of the media reaction when uttering their comments.

This is sadly not an isolated incident.

In February 2022, a six-week trial of a Northern Territory Police officer Zachary Rolfe took place. Rolfe was charged, inter alia with the murder of an Aboriginal man, Kumanjayi Walker, after being called to investigate a domestic violence incident in November 2019.

Rolfe pleaded not guilty, therefore prior to the trial he was innocent, during the trial he was innocent, and after being found not guilty by the jury he was still innocent.

After the verdict Adam Bandt, leader of the Greens Party and a member of Parliament in Melbourne, was most vociferous in alleging that justice was not achieved for Walker. His utterings, and the media commentary, contributed to an inquest being conducted in the Northern Territory about the shooting. Precisely who is on trial at the inquest, because it can’t be Rolfe, he has already been found not guilty. The rule of law is on trial in that inquiry.

In a recent case in Sydney a former footballer, Chris Dawson, was tried for the murder of his wife. He also pleaded not guilty. Therefore, he was innocent before the trial and during the trial. He was innocent until the judge sitting alone found him guilty of the crime. Now he is no longer innocent unless the conviction is overturned on appeal. The fact is he is guilty now.

In all three cases justice was served by the fact of an objective trial, where the media input is irrelevant, and the evidence is paramount.

The accused exercised a right to plead not guilty and therefore profess innocence. The verdict is the result of justice being played out.

Lehrmann could not be found guilty, and no further proceedings continued. He is therefore still innocent, and justice is served. Rolfe was found not guilty; he is still innocent, and justice has been served. Dawson was found guilty; he is, therefore, no longer innocent and justice is served.

Justice, the rule of law, and the presumption of innocence, has therefore worked in three completely different circumstances to present the correct outcome yet many sections of the media and political activists are committed to trying to change the system.

In the current system the prosecution has the resources of the state behind them, police powers of investigation, well-paid and always very competent lawyers, funds to use scientific evidence, and expert witnesses to present such evidence. Armed with all those resources if they can’t convince twelve people of the accused’s guilt then the accused is probably innocent. That is precisely why the accused is presumed innocent until proven guilty.

No fair-minded person wants a guilty person to walk free. Nor do they want an innocent person to be imprisoned.

Laws change constantly both Federally and State-wide and usually for the better. The fundamentals of the common law system, such as the presumption of innocence have not changed over 120 years and for good reason, they work to preserve justice.

At the end of the trial process there can be degrees of guilt. The guilty person is always permitted to ask for lenience in sentencing. There is not however a degree of innocence.