Page 55 - Week 01 - Tuesday, 16 February 1993
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You would not guess from the presentation speech that this is a very major breach of a common law tradition which has protected both innocent and guilty people over many centuries. I say "innocent and guilty people" advisedly, because the sorts of protections that we build into our criminal law system operate in that way. They are broad-ranging and are designed to cover as many people as possible on the assumption that many innocent people will be in that bag of people who are protected from successful prosecutions. Obviously, many guilty people are there as well, but that is the nature of these things. As I have indicated, it is better that nine guilty people be acquitted than that one innocent man be convicted.
It is the nature of these assumptions that that is the case. I give an example. The rule of evidence is that in criminal proceedings the onus of proof rests on the prosecution, not on the defendant. If you are looking at this purely from the point of view of logic, you could easily argue, "Why not say that it is simply a matter of balancing the two arguments put forward by both sides, hearing both parties in a case - the defence and the prosecution - and deciding on the basis of all the evidence whether the accused is guilty?". We do not do that. We say that a prosecution has an onus to establish a case against a defendant and, if the prosecution has not done that in the first place, then the defendant is not required even to give evidence before the court. It is the court's duty, where a case has not been made out against a defendant, to dismiss the charge without hearing the defendant, because the onus falls on the prosecution to prove, not on the balance of probabilities but beyond all reasonable doubt, that the defendant has committed the crime.
That is a rule designed to protect defendants, and that rule undoubtedly means, in practical terms, that many guilty people walk away from courts free. It also means that innocent people escape the clutches of conviction. I for one am happy, perhaps because of my training, to see the law continue to exist on the basis that it concentrates principally on protecting the innocent and not so much on catching the guilty. That might appear to be a very strange thing to say but, clearly, we must devise laws and rules of evidence which have a broad, shotgun effect rather than a narrow focus on each individual case.
In the kinds of rules that I have referred to - the onus of proof and the burden of proof - there has been an assumption that if there were an open hearing with no rules of evidence many more innocent people than would otherwise be the case would be likely to receive convictions. Therefore, Madam Speaker, I think it is reasonable to say that these rules are not anachronistic, but they are relevant and they are valuable in protecting individuals.
At the heart of this question, therefore, is the issue: Do children, when they appear in court as witnesses, tell lies? Stating it in another way: Having told lies perhaps to a member of the police force or to a parent or to some kind of public official, do children sustain those lies when they appear as witnesses in criminal proceedings against the person that they have accused? Is it possible that children can be untruthful? In an ordinary court proceeding there are, of course, a number of protections that individuals have against being falsely accused. First of all, an individual who gives evidence is required to swear an oath on the Bible. That dates back to the days when it was assumed that a person would not perjure themselves in swearing an oath because that would affect the fate of their mortal soul. I suspect that there are many individuals who appear in our courts today for whom that would be of very little relevance indeed.
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