Presumed innocent

People have freely discussed the matter on radio and television, in the press, and even in the chambers of Parliament. But while the nation is demanding retribution for the crime, we must be careful that the persons charged with the murder are given a fair hearing.

In particular, all forums for public debate which are airing people’s views on the tragedy must be very careful that they are not depriving the accused persons of the right to a fair trial. This right is guaranteeed by our National Constitution section 4 (A) which states a person must not be deprived of their liberty except by due process. Similar provisions exist in other countries.

It is a convention that a person facing trial is initially presumed to be innocent, unless and until they are proven guilty. For that reason, when a person has been charged with a crime, the matter becomes sub judice, which means that no-one must comment on the matter in such a way that might sway the decision of a judge or jury sitting in judgment.

A biased remark that is published or broadcast risks being deemed to be a contempt of court.

As part of the process of seeking justice for Sean Luke, all must be careful not to bias the proceedings or be seen to do so.

Director of Public Prosecutions Geoffrey Henderson recently warned media houses against any such contempt of court, which he said includes comments which “show accused persons in a bad light” or which “scandalise the criminal process and the court”.

The DPP warned against comments which are “sensational, inaccurate or misleading,” which he said could damage the administration of justice.

Newsday yesterday reported that the Senate on Tuesday may have breached the sub judice rules by freely debating Sean Luke’s death. The Senate’s standing order 35(2) states:

“Reference shall not be made to any matter on which a judicial decision is pending, in such a way as might, in the opinion of the Chair, prejudice the interests of parties thereto.” This provision warns Senators to avoid making remarks which might sway the outcome of a trial, with their relevance being evaluated by Senate President Dr Linda Baboolal.

Did Dr Baboolal err in not reining in the debate on Tuesday? Moreso, wasn’t the licence given to Senators to refer to the issue, in contrast to past rulings from the Chair which restricted virtually any reference to matters or inquiries involving parliamentarians such as Landate?

AHouse of Commons Select Committee Report in 1963 said the Chair should not allow debate if there is a “real and substantial danger” of prejudice to the proceedings.

However there is also a view, as expressed by an Australian Parliament, that suggests the Chair must take a realistic attitude by not automatically excluding debate on matters of public interest which have been freely ventilated in the media. The magazine Justice suggested the restriction must be applied “prudently” not “strictly.”

These are emotional times and we trust that Senators and elected Members of Parliament will exercise due care in their statements, and be adequately guided by their presiding officers. We would remind everyone that despite the crime level in this country which has reduced us to a low level of life we still have to strive to ensure that we do not descend to an even lower pit where justice is neither done nor seen to be done.