Judge suspects but must acquit man on child pornography charges

At the end of a “judge-alone” criminal trial, South Australian District Court Judge Michael Boylan, having weighed up all the evidence, found a man charged with child pornography offences not guilty last week because he was not satisfied beyond reasonable doubt of the man’s guilt. What made this case noteworthy was that the judge, unlike a jury, was able to muse publicly that he felt “deeply suspicious” that the accused was guilty but went on to explain that he was not persuaded to the legal standard to that view. The judge had formed a doubt about guilt, and it was a reasonable one, and thus the accused was exonerated.

Despite finding the accused to be a “most unsatisfactory witness”, the judge concluded that “that is no basis for conviction” under the criminal standard of proof. Any student of law will know that this is to be contrasted with the standard required for civil trials, namely that the trier of fact in civil cases need only be satisfied “on the balance of probabilities” (sometimes referred to as “the preponderance of the evidence”) that a claim has been made out.

Standard of proof can make all the difference

The difference does, from time to time, lead to outcomes that are difficult to reconcile. There are many examples, but here is one from South Australia.

In 1982, a man by the name of Utans was charged with murdering his wife by knocking her unconscious and setting fire to their house. He claimed he was miles away at the time. The forensic evidence regarding the alleged accelerant was called into serious question under cross-examination.

In the end, the accused was found not guilty. The jury was not satisfied beyond reasonable doubt that the prosecution had made out its case.

Some time later, Utans claimed against his insurer for fire damage. He failed. A court exercising civil jurisdiction found that it was more likely than not that he had started the fire himself.

The same anomalies appear elsewhere in the legal system. The standard of proof that applies to coroners’ findings, for example, is the civil standard of proof, which falls a long way short of the standard that the Director of Public Prosecutions (DPP) demands.

For example, the SA Coroner in 1999 found that one Dominic Perre, five years earlier, had sent a parcel bomb that had killed a National Crime Authority agent. The DPP refused to continue a murder prosecution against Perre on the grounds that there was no reasonable prospect of conviction.

Sport tribunals fall somewhere in between

Into the mix we can place the decisions of sports tribunals. The standard in these tribunals is something less than the criminal standard but more than the civil standard. It is commonly based upon the seriousness of the consequences flowing from a tribunal’s determination.

An example is the case of Mark French, an Australian sprint cyclist outside whose boarding room at the Australian Institute of Sport cleaners had found an illegal doping agent and syringes. He was banned from cycling for two years.

The Court of Arbitration for Sport overturned a ban on cyclist Mark French because the balance of probabilities was not a sufficient standard of proof.AAP/Julian Smith

Subsequently, in July 2005, Court of Arbitration for Sport (CAS) cleared French. The CAS panel made their finding in favour of the cyclist because the allegations were serious and thus had to “be proven to a higher level of satisfaction than the balance of probabilities”. (the wording is from Article 3.1 of the World Anti-Doping Code).

This helps explain why, on March 31 this year, the AFL anti-doping tribunal announced its decision that all 34 past and present Essendon players were not guilty of using a banned supplement. The tribunal declared that it was not “comfortably satisfied” that any player had violated clause 11.2 of the AFL Anti-Doping Code. It was, however, comfortably satisfied of the guilt of Stephen Dank when it determined, two weeks later, that he had trafficked or attempted to traffic banned substances on ten occasions, contrary to Article 2.7 of the World Anti-Doping Code.

The World Anti-Doping Agency has decided to appeal the AFL tribunal’s decision on the Essendon players to the Court of Arbitration for Sport. New evidence can be tendered in a CAS hearing, where the standard of proof is, again, “comfortable satisfaction”.

The idea of a “half-way house” standard of proof is not unknown to Australian jurisprudence. It was discussed, most famously, in a 1938 case involving the requisite standard in a case where adultery had been alleged. In matters such as these, said the High Court, the allegation must be made out to the “reasonable satisfaction” of the trier of fact.

So what does this all mean?

One can safely conclude that standard of proof varies to a significant degree depending on the jurisdiction of the trier of fact and the seriousness of the consequences of a finding one way or the other.

Could there be any further variations? It has been argued that for those charged with child sexual offences, given the very low rate of convictions, the courts should adopt a different approach again. In 1994, a working party convened by the National Association for Prevention of Child Abuse and Neglect (NAPCAN) recommended that for such offenders we need an inquisitorial panel. Typically these courts, common in European justice systems, operate without a formal standard of proof.

If that were to happen legislatively, Judge Boylan, with his deep suspicion of the child pornographer’s culpability, would probably have come to a different conclusion. But there is no suggestion that that is going to happen soon. Attorneys-general Australia-wide have ignored NAPCAN’s call.

So, the criminal standard remains untroubled by any such speculation. A judge, magistrate or juror must be more than deeply suspicious, and more than comfortably or reasonably satisfied of a person’s guilt. Persons are not to be convicted unless their guilt is proven beyond reasonable doubt.

Rick Sarre does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.