Justice not best served by selective public interest

By John Tripe

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Justice is not a joyful subject, or even very exciting; but it dominates the media - because crime happens, and we seem to relish bad news and retribution.

We are interested only in the criminal law. We are drawn like hawks and crows to violence, and a related desire for vengeance. I wonder however if we are as interested as the media suppose - or if it would be so without such endless reports. We are not edified.

Nor is justice enhanced by the selective publicity and public interest. The process is perverted by implication that somehow we own, and have a right to engage in it - even though we don't know all the facts or the law. It is far from perfect but rules of evidence and procedure are there to protect persons accused, while we speculate and practically presume they are guilty. There must be proper evidence even before charges are laid.

Witnesses give evidence according to their actual knowledge, and facts must be proved beyond reasonable doubt, to establish all the elements of crime as determined by the judge. We know that the accused is presumed innocent until proved guilty. If the evidence is weak charges may be dismissed at a preliminary hearing.

Every person is entitled to prove his innocence.

Failure to prove the charge is not proof of innocence - doubt will often remain. Yet we know about alibi - evidence and proof absolutely or beyond reasonable doubt, that the accused was somewhere else at the time. Also it may appear on evidence that the proved facts do not measure up to the charge.

The prosecution must prove not only facts, but also a state of mind. it's called mens rea. The accused person must have had criminal intention, or at least a degree of carelessness about what may happen. Sometimes intention is presumed, but the defence may disprove it. Insanity is such a defence, but so is compulsion, or honest mistake, or contrary intention.

Criminal lawyers say that every man (and the occasional woman) is entitled to his defence; but at risk of what confusion - it's actually an invitation to untruth. If I am asked to plead - and I say "not guilty" - what does it mean? 1 - I didn't do it; 2 - I did it, but you prove it, and I'm a liar anyway, or 3 - I did it but I am not a criminal.

You may ask cynically - who expects to hear the truth in a court of law? Who on earth can know or believe the truth?

John Tripe is principal with legal firm of Jack Riddet Tripe.

- Wanganui Chronicle

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