Criminal Law

By Kate Gunther


She’s a witch! Burn her!

Go and hunt her

And find her

And kill her

 Good fortune, Witch Hunters!

…What a ridiculous notion, everyone knows it is dangerous to jump to conclusions like that. However, as a defence lawyer I am regularly exposed to the unconscious biases people hold against defendants who are the subject of certain allegations. For example, if you’ve heard the man in your street was accused of a child sex offence, I bet you are at least a little angered that the justice system would let him reside near your children, notwithstanding that his guilt is yet to be proved.

This paranoia is understandable, it is human nature to be suspicious of a person accused of wrong doing (mud sticks, after all).  However, if this mentality were applied by the criminal justice system it would be near impossible for a person to be granted bail. Bail is a crucial aspect of the criminal justice system as it is most inappropriate that defendants be locked up for extended periods of time (sometimes over a year) waiting for their criminal matters to be finalised. Such an approach would undoubtedly see many innocent people detained unfairly and gaol beds fill up very quickly. Fortunately, the Judicial Officers in Australia generally exercise their powers dispassionately and according to the law to ensure a fair outcome for people applying for bail and accused of serious crimes.

I cringe when I see media releases about offenders who have committed atrocities while on bail (who could forget Man Monis of the Lindt Café siege)? It is important to remember these offenders are the minority of people who are granted bail and this kind of fear mongering makes it easy to cast aside the presumption of innocence, that is; a defendant is innocent until proven guilty. We must be careful that the presumption of innocence is not forgotten when a person is charged with a particularly abhorrent offence such as paedophilia, rape, murder, terrorism or a hate crime. Affording defendants the benefit of the doubt is especially important in these circumstances as that is the mark of a society functioning according to the rule of law. The judiciary continuously exemplify their courage in granting bail to people accused of serious offences as, naturally, the general public are apprehensive to have these people in the community.

I am grateful our criminal justice system does not entertain the “She’s a witch! Burn her!” mentality – that is unnecessarily dramatic!