Innocence is everyone’s right

 THE presumption of innocence is the legal principle that one is considered innocent until proven guilty.

Application of this principle is a legal right of an accused in a criminal trial, and is recognised in many nations, including Papua New Guinea. 

The burden of proof is  placed on the prosecution, which has to collect and present enough compelling evidence to convince the jurors or judge, who are      restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt. 

If reasonable doubt remains, then the accused should be acquitted.

Presumption of innocence serves to emphasise that the prosecution has the obligation to prove each element of the offence beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof.

This is often expressed in the phrase, ‘innocent until proven guilty’, coined by the English lawyer Sir William Garrow (1760–1840), who insisted that accusers be robustly tested in court. 

The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favour the accused based on the legal inference that most people are not criminals. It is literally considered favourable evidence for the accused that automatically attaches at trial. It requires that the trier of fact, be it jurors or judge, begin with the presumption that the state is unable to support its assertion. To ensure this legal protection is maintained, a set of three related rules govern the procedure of criminal trials. 

The presumption means:

• With respect to the critical facts of the case – whether the crime charged was committed and whether the defendant was the person who committed the crime – the state has the entire burden of proof.
• With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against him or her.
• The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.

East New Britain businessman Eremas Wartoto, who faces several fraud-related charges, has expressed concern, through his lawyers, that the National Court has readily entertained various applications ex parte against him, freezing his assets and bank accounts in PNG and Australia without giving him any opportunity to be heard and continues to deny him his rights.

“Our efforts on behalf of our client to be heard on the matters affecting him has been ignored and not forthcoming, although the various ex parte orders affect our client’s livelihood and his business,” Steeles Lawyers, which acts for Wartoto in the proceedings instituted by the Public Prosecutor, said in a letter to National and Supreme Court registrar Ian Augerea.

“… this is unfair and unjust as our client has not been found guilty and convicted of the crimes he is alleged to have committed, and therefore, he is innocent until proven guilty by the court.

“Hence, the treatment our client has received from the court system has been grossly unjust …”

While it is not our intention to support Steeles Lawyers in defending their client, we need to ask whether Wartoto has been subjected to judicial bias through the granting of various ex parte orders sought against him.

Even with the knowledge that Wartoto has variously missed court sittings by  pleading ill health,  we must ask whether the courts have adhered to the fundamental principle that he is innocent until proven guilty.

The presumption of innocence must be applied to all persons accused of committing offences under the Criminal Code. Wartoto is no exception.

The public prosecutor must be mindful that the entire burden of proof lies with the state when it takes a case before the court.