Saturday, April 03, 2010:
Unprintable remarks on the presumption of innocence
On March 19, in response to the Herald Sun's online story “Drug law at odds with human rights, rules Victorian Court of Appeal”, I posted the following comment:
If you're on a jury, and if the judge tells you that the law requires the defendant to prove on the balance of probabilities that he/she didn't know the drugs were there, it is your civic duty to ignore the law, put the onus of proof back where it belongs, raise it to the proper standard (beyond reasonable doubt), and hand down a verdict on that basis.
To anyone who disagrees, I say: May it please God that drugs are found among your belongings, and that you are tried by jurors who think as you do. “For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.” Amen.
The comment was rejected, perhaps in part because the story had been posted the day before — although it still appeared to be open for comments.
Perversely, the analysis quoted in the story was to the effect that the Court's ruling was benign because it didn't require Parliament to change the law so as to uphold the presumption of innocence, and because any such change would be unlikely to rectify past violations of the presumption of innocence. Well, that's all right then!
Nevertheless, the story was fair in its coverage of the raw facts, including the essential point that the defendant was convicted of drug trafficking in spite of the undisputed admission by her live-in boyfriend that the drugs were his and that he was the trafficker.
The same cannot be said for the version that appeared in the Herald Sun's printed edition on March 19, to which I responded as follows:
Letters to the Editor
The Herald Sun
March 19, 2010Juries must uphold presumption of innocence
Re “Drug dealer out of jail” (Herald Sun, 19/3, p.44): If you're on a jury, and if the judge tells you that the law requires the defendant to prove that he/she didn't know the drugs were there, it is your civic duty to ignore the law, put the onus of proof back where it belongs, and reach a verdict on that basis.
To anyone who disagrees, I say: May it please God that drugs are found among your belongings, and that you are tried by jurors who think as you do. “For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.” Amen.
Dr. Gavin R. Putland
. . .
The letter was rejected. And if those who rejected it did so because they didn't want juries defending the presumption of innocence against the assaults of the legislators, that's their “judgment” and their problem.
The tone of the printed version of the Herald Sun's story was set by the opening paragraph:
A LAW designed to stop the scourge of drug trafficking has been found to be in breach of Victoria's controversial Charter of Human Rights.
What's so controversial about the Charter? One would have thought (with apologies to Karl Lehenbauer) that being in favour of the presumption of innocence ought to be sort of a bipartisan thing. Moreover, if you want to know what a law really designed to stop the scourge of drug trafficking would look like, see “The worst drug-criminals are legislators” (at OpEdNews). And for a further defence of the jury as a check on legislative malfeasance, see “Jury: Defence against bad laws” (first published at Crikey).
