How to presume innocence

While Hollingworth J’s lousy discussion of the scope of the presumption of innocence took up the bulk of the Charter discussion in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, it wasn’t the basis on which she dealt with Sabet’s claim. Instead, her only definitive ruling was her answer to the second of the three questions she posed: ‘did the Board impose any limitation on the presumption of innocence, in deciding to exercise its supervision power under s40(1)?’

This is a very difficult question. Most human rights are rights for or against particular actions: people have a right to ‘express’ things, they have a right not to have their privacy ‘interfered with’, they must be ‘told’ about the charges against them. But Charter s. 25(1) is different:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Breaking this down, this right governs what must happen between two moments in time: the moment when someone is charged with a criminal offence (e.g. Sabet being charged with eight counts and rape and indecent assault on 26th March 2008) and the moment (if ever) when that person is proved guilty according to law (e.g. if and when a court enters a guilty verdict against Sabet in relation to those charges.) In between those moments, Sabet must ‘be presumed innocent’. But what does it mean to ‘presume’ innocence?

Sabet’s Charter claim was that the Board breached Charter s. 38(1), which makes this question a little less abstract:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

The trick is to identify what it means to ‘act in a way that is incompatible with’ presuming someone innocent. (Note that there’s a second branch to Charter s 38(1), which I’ll discuss later.) Here are some arguably incompatible actions, from least contentious to most:

First, pronouncing guilt. A lot of European case law is about this sort of action, with official remarks carefully scrutinised. The concern here is limited to public remarks. In part, that’s because of the possible effects of official remarks on a person’s future trial; witness the controversy about McClelland’s mid-verdict comments about the Melbourne Terror Trial. However, the right’s purpose is wider than that, at least in Europe, where comments have been held to be incompatible even when no trial eventuates or the trial is over, apparently reflecting a concern to protect a person’s reputation in the absence of proof of guilt. Complicating these concerns, though, is a view that officials should be able to discuss the state of the proceedings and evidence, and act on events as appropriate.

According to Hollingworth, this aspect of the presumption of innocence wasn’t argued by Sabet:

Dr Sabet does not suggest that the Board has made public statements that he is guilty of the charges, in particular, any public statement which carries a risk of adversely affecting the prosecution o the charges.

The one public statement that the Board did make was to suspend Sabet’s licence to practise medicine two weeks after he was charged. It’s got to be said that, surely, many members of the public will treat that as  pronouncement that the Board thinks Sabet is guilty. However, a perusal of the Board’s statutory functions makes it clear (to lawyers, at least) that the Board can (and, I’d say, must) protect patients from mere risks that Sabet may hurt them, especially in interim rulings like the one at issue in this case. Pronouncing that someone may be guilty – which is essentially what charging someone does anyway – is not the same as saying that someone is guilty. That being said, it can be a fine difference. Arguably, the Board should make the point explicit, rather than leaving it to the public to work out for themselves. The Board’s website seems (on my brief reading) to fall short of that standard, and they ought to look into fixing it.

Second, presuming guilt. A presumption involves drawing an inference from something. In the context of the presumption of innocence, I’d argue that the presumption is breached by drawing an inference from mere fact that a process has been initiated against the defendant. (My doctoral thesis was about the rules against this sort of thing, notably the High Court’s ban on courts treating a defendant’s credibility as reduced simply because he or she is facing prosecution, logical as that might otherwise seem. Inquisitorial systems typically apply a stronger rule against according evidential weight to the ‘dossier’, i.e. the pre-trial investigation of a defendant.) Under the adversarial system, the obvious danger is that someone will use the mere fact that someone is charged as evidence of their guilt. Sabet complained that the Board had acting it in this way. When Sabet was first investigated for an inappropriate vaginal examination of a patient, the Board merely imposed conditions on Sabet’s licence (preventing him from doing similar examinations or treating female patients without a chaperone.) However, two weeks after Sabet was charged with offences against a different patient (which the Board would not act on, because of the pending criminal proceedings), it changed its mind about the existing complaint and suspended Sabet’s licence to practice.

That certainly seems a bit suss. But Hollingworth correctly rejected it on the basis of further facts:

This ground must fail, as it is not apparent from the reasons that the Board did have regard to the ‘mere fact’ that Dr Sabet had been charged, in deciding to suspend. Although the Board notes in the lengthy historical narrative that Dr Sabet had been charged, and that the charges had not been dealt with, the charges are not mentioned at all on the last page of the reasons, and do not seem to play any role in the analysis of risk. Rather, in reaching the decision the Board seems to have relied (amongst other things) on the contents of the two women’s detailed statements to police.

Crucially, those statements only emerged with the new charges. So, it seems like the Board didn’t make its finding that Sabet may be guilty because of the process against Sabet, but rather because of the evidence against him.

Finally, preferring guilt. Is it enough just to avoid inferring guilt from the process against someone? Or is there a further constraint on how a public authority reasons about the question of guilt? Sabet’s lawyers took issue with the following (and crucial) part of the Board’s reasons:

When the Board considered its statutory responsibility, the disturbing nature of the notifications, the similarities in the circumstances of the two separate notifications and the fact that the second notification occured whilst Dr Sabet was aware his professional conduct was being scrutinised, the Board determined that an Agreement did not adequately protect the public. The Board therefore determined to suspend Dr Sabet’s medical registration pursuant to s40(1)(c) of the Act.

Sabet’s lawyers argued that this fell short of presuming Sabet’s innocence:

Dr Sabet’s written submissions assert that the Board could only have had those concerns or formed those opinions “if it did not take as the starting premise the innocence of the applicant.”

Hollingworth rejected this argument and therefore Sabet’s Charter s. 25(1) claim:

That argument proceeds on a fundamental misunderstanding of how the presumption of innocence operates. Dr Sabet is essentially arguing that the presumption operates so as to prevent the Board from evaluating the material before it and forming any opinion which is incompatible with innocence in respect of the criminal charges. The presumption of innocence does not have such an effect. Such a result would be absurd, particularly in the context of disciplinary proceedings such as those before the Board. Dr Sabet has not established that the Board imposed any limitation on the presumption of innocence, even if the presumption has direct application in a s 40(1) hearing before the Board.

I’m not sure if Hollingworth is fair in how she characterises Sabet’s argument here. Sabet expressly complains about the Board’s ‘starting premise’, whereas Hollingworth paraphrase is about the Board’s final conclusion (‘evaluating’ and ‘forming an opinion’). Hollingworth’s right that a presumption of innocence can’t prevent a conclusion of guilt – otherwise a guilt verdict in a criminal trial could never happen – but Sabet’s concern is different: that the Board didn’t approach the evidence against Sabet with an appropriate degree of skepticism.

Sabet’s argument would seem to equate with the US Supreme Court’s approach that equates the presumption of innocence with a piece of evidence in the defendant’s favour:

Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is ‘reasonable doubt.’ It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect.

Moreover, Australia’s High Court has itself used language that suggests that the presumption of innocence is more than just a ban on a guilty starting premise:

If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts.

It seems to me that being ‘presumed innocent’ does involve more than just not presuming guilt: it should involve some degree of weighting in favour of the defendant when it comes to perusing the evidence, or at least a firmly open mind about the issues. A key purpose of the presumption of innocence is the dangers of investigative tunnel vision, where fact-finders leap too quickly from suspicion to belief. A lack of hesitation or an over-eagerness to infer guilt would, therefore, arguably be incompatible with the presumption of innocence. As renowned evidence scholar Thayer put it, the presumption prevents fact-finders from being ‘allowed to range… wherever mere reasons and human experience would carry them’ and, in particular, to ensure that a criminal defendant ‘shall not be made the victim of the circumstances of suspicion which surround him, the effect of which it is always so difficult to shake off…’

That being said, the Boards reasons seem quite appropriate to me. Importantly, they focus, not on individual allegations against Sabet – either of which may well be false – but on independent circumstances that suggest their truth, i.e. their similarity and (it seems) Sabet’s willingness, while facing an investigation for an inappropriate examination of a female patient, to put himself in circumstances where a similar allegation could be plausibly made. (The number of counts against him in relation to that second patient add to the particular concern.)

So, despite her shoddy treatment of the ‘engagement’ (scope) question, I’m with Hollingworth on her conclusions on the ‘limitation question’. But I think her analysis is far short of ideal. Notably, as part of her reasoning, she portrays Sabet’s argument as absurd ‘particularly in the context of disciplinary hearings’. This seems to imply that she thinks that the answer to the ‘limitation question’ varies depending on its impact in particular contexts. I don’t think that’s right, especially because the Charter contains other provisions designed to limit the negative impacts (absurd or otherwise) of human rights in particular contexts/ Indeed, that’s what Hollingworth thinks too:

Some commentators have suggested it is appropriate to adopt to two-staged approach in analysing issues under the Charter, by first asking the engagement question, and then asking a single question which combines the limitation and justification questions. I prefer the three-staged approach, because it forces the court or tribunal to focus on and clearly identify whether there has been any limitation on the right, before moving to consider questions of justification.

Beats me who those commentators are. (She doesn’t cite them.) Anyway, they’re wrong. As Hollingworth says, it’s a bad idea to confuse the question of whether or not a right is limited with the appropriateness of that limitation. She should practice what she preaches.

More generally, it’s very disappointing that Hollingworth’s reasons on this point – the ratio for her decision, after all – are very brief – a couple of paras – and mostly consist of an outraged dismissal of Sabet’s arguments. Wouldn’t it be appropriate to tell the Board (and similar organisations) what things they couldn’t do? Alas, I think Hollingworth’s unfortunate views about the scope of Charter s. 25(1) – and, I reckon, her own personal judgment about Sabet’s likely guilt – meant that she failed to utilise a significant opportunity to use her reasons for judgment to promote public authorities’ understanding of their obligations in relation to Charter s. 25(1). Indeed, some of them may take the (I hope wrong) view from this decision that they have little or no obligation other than avoiding the most blatant forms of prejudgment against a charged defendant.

Finally, Hollingworth’s approach to the operative provisions of the Charter missed some further issues relevant to disciplinary actions in general and this case in particular, and misconceived some of the preliminary and follow-up questions about the Board’s conduct and Sabet’s complaint. But I’ll leave that for another post.

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