Separating Fact from Fiction

One of the most significant developments in criminal law of recent times occurred in the case of Dyers v. R, a decision of the High Court of Australia in 2002.

The most fundamental principle of our criminal law is that a person is innocent until proven guilty. Unlike many legal systems around the world, in Australia a person charged with a criminal offence does not have to prove he or she is innocent. Rather, the responsibility lies with the prosecution to prove, beyond reasonable doubt, that he/she is guilty.

More than anything else, this principle separates our legal system from totalitarian and suppressive regimes.

By contrast in a civil case, a suit between two parties such as a claim for compensation, each party is under its own separate obligation to prove its case on the balance of probabilities. Here, each party must bring evidence in support of its case, and a failure to do so can be seen as indicating that it doesn't possess such evidence.

Over the years, this principle of civil law has slowly been allowed to encroach upon criminal law, with the result that innocent people have been convicted and sent to jail for criminal offences, for failing to bring sufficient evidence on their own behalf. In criminal law this is a clear violation of the principle 'innocent until proven guilty'. This is the situation that arose in the case brought against Ken Dyers. All but one of the charges against Mr Dyers either failed in court before a jury (that is, he was found not guilty) or were dropped by the prosecution before even reaching court.

However, one charge was tried separately. The defence called several witnesses in support of its case. Yet the judge directed the jury that because the defence had failed to call even more witnesses, the jury was entitled to infer that they couldn't have helped the defence case.

By this, the judge clearly implied to the jury that further evidence would have been harmful to the defence case. As a result the jury returned a verdict of guilty.

The effect of this would be that, no matter how much evidence an accused person brought in his defence, the prosecution could still successfully argue that any jury was entitled to draw a negative conclusion from a failure to bring more evidence. The concept of innocent until proven guilty was beginning to look fragile, to say the least.

For many accused people, this would be (and has been) the end. But Ken was motivated not only by his own innocence but also the knowledge that other innocent people had been jailed because of this interpretation. He decided to keep fighting all the way to the High Court of Australia in Canberra.

Finally in October 2002, the High Court, in a resounding 4-1 decision, reaffirmed the principle that a person is innocent until proven guilty. It stated again that an accused is under no obligation to bring evidence in his defence and neither the prosecution nor the judge can suggest to the jury that they can draw a negative inference from any failure to do so. The High Court overturned the conviction and the charge was quietly dropped by the Director of Public Prosecutions.

Already in the few years since the decision in Dyers v. R, many innocent people have maintained their liberty by being able to call in their defence 'the Dyers Direction'.