Judge Doesn’t Like Fair Trials

Would you rather meet a sloth of savage bears* in the woods or face a judge who thinks the presumption of innocence is an “intractable problem”? I’d take the running of the bears, any day.

(*Yes, that’s the collective noun for bears. I looked it up.)

As I wrote recently, Australia’s capital is a funny place. The sheer volume of Teslas on Canberra’s immaculate roads, as observed on a recent visit, is a testament to that fact. That its highest judge alarms even its woke legal community is another.

Canberra barristers are up in arms at ACT Chief Justice Lucy McCallum’s comments that the fair trial process was an “intractable problem”, saying her remarks could undermine the presumption of innocence and disintegrate the public’s confidence in the rule of law.

The Australian understands a group of senior lawyers and barristers is preparing a letter to Chief Justice McCallum expressing concern about the comments, which were made in an exclusive interview with The Canberra Times announcing an inaugural sexual assault list for the territory.

What’s truly alarming is that such a senior judge doesn’t even seem to understand — or at least, give any heed to — what is supposed to be the bedrock principle of our legal system.

“There’s an intractable problem in that our overriding task and function is to ensure an ­accused person has a fair trial,” she said.

Read that again. Let it sink in.

The Chief Justice thinks ensuring a fair trial is “an intractable problem”.

Can anyone spot the problem, here?

Her comments have shocked many members of the Bar, with concerned barristers banding together to object. “Why would you use the phrase ‘intractable problem’?” one barrister, who requested anonymity, said.

“It’s not a problem. It’s the principle of the whole justice system. A fair trial is not an ‘intractable problem’, it’s an essential mechanism that’s relied upon to ensure justice is done.”

Then she drops this clanger:

She also said the “messaging” for rape complainants in the territory was “we are entitled to think you might be lying until you prove that you’re not”.

Well… yes.

That’s a fundamental precept of, not just the law, but logic: the burden of proof. When someone makes a claim, the burden is on them to prove it, not for anyone else to disprove it. In science, it’s called the Null Hypothesis: the hypothesis is not true until shown otherwise.

Further, the more extraordinary a claim (and, contrary to the claims of activists, a rape accusation is a very extraordinary claim), the heavier the burden of proof.

“I just reckon” is not proof of any sort. We don’t take anyone’s word for it on any number of propositions. Yet, when it comes to rape accusations, we’re supposed to just throw law, logic, and credulity aside, and just take any random woman’s word for it.

Yet, more and more, this is just what activists, all the way to the top of the judiciary as we see, are demanding.

“I am concerned there is a slow creep occurring where to even publicly suggest such things as a presumption of innocence for all persons charged with criminal offences but particularly sexual offences is to risk criticism, abuse and ostracism,” [barrister Steven Whybrow SC] said.

To prove his point, Whybrow cites an email sent to him by McCallum in the wake of criticisms he made of former ACT director of public prosecutions Shane Drumgold.

“Shortly after that interview went to air, I received a personal email from the Chief Justice on 17 August, 2023, that (amongst other things) cautioned me that ‘when a comment is published that concerns or could be construed to concern the conduct of the court, the court cannot respond’,” he wrote.

Then there’s the argument, nearly universally accepted in some quarters, that if women accusers change their stories, it’s not because they’re lying, it’s just “their truth” is malleable — but still 100% true, no matter what.

Another submission to the criminal law committee from a concerned barrister said there “seems to be some emerging ‘prevailing wisdom’ that if a complainant in a sex-offence pro­ceed­ing gives a different version of events each time they recount what they say happened to them, this can be readily dismissed as some kind of ‘trauma response’ and should not be taken to suggest that they are either lying or un­reliable in their account.”

The Australian

And, according to this be-robed wokester, if more Aboriginal Australians are in jail, it’s not because they’re responsible for committing crimes. You guessed it: it’s all whitey’s fault.

In giving the address, titled The Rule of Modern Law, McCallum said it was her “moral duty” to speak about issues relating to Indigenous Australians and the justice system, and help turn around the huge and disproportionate percentage of incarcerated Aboriginal people.

The Australian

She sees herself as quite the White Saviour, doesn’t she?

God help the Canberra legal system.