By Jacqui Miller.
The Claremont trial has begun, do you know much about it?
I’d say every lawyer is talking about this as much as the general public. We’ve all been following it for all of the years’ everybody else has. I have had a couple of opportunities to have to look more closely at how this trial is likely to unfold. It is the biggest criminal trial we’ve ever had in this state, in Western Australian history, some are saying national history.
Why is there no jury, it’s just being seen before a judge?
Great question and it’s actually a question bouncing around Australian trials, criminal trials, generally at the moment. We’re such a small country, and our cities aren’t that big, so when something like this has been going on for as long as it has, how on earth would Mr Edwards receive a fair trial in front of a jury that has been selected from anywhere in Australia? That would be the big issue and that’s what weighed heavily on the court’s mind when deciding to make this a judge-only trial. And I’m pretty sure there was no resistance to that from the accused.
Is the judge, as the sole person saying guilty or not guilty at the end of the day, allowed to seek advice from other people?
It’s very lonely at the top. Not really, is the quick answer. He is hearing from two extremely senior council, both with very strong reputations in criminal law trials. They have reputations for not just putting a robust prosecution and defence but also for being lawyers of great integrity who will make sure that the judge is well aware of all pertinent facts. It’s not like something you’d see on TV or read about in a John Grisham novel. These are points of law and points of fact and he’s going to have all of that in front of him, he’s not going to be swayed by drama and charisma.
How long is it going to take?
This is going to run for at least six months, it might run longer. So many little things can come up every day. We saw, for example, on day one this whole issue as to how much of the recent guilty pleas, the accused had made on two separate offences, could be introduced to this trial. If you were the accused, you wouldn’t want those other confessions to come up because some would say it goes to character and credibility. That came up day one and I don’t know if that’s over, it might still be spilling over to today. So these things come up and then you’ve got the substantive issues as well. Six months minimum is what I’m putting on this one.
The judge reminded everyone that Mr Edwards is innocent until proven guilty and the onus was all on the prosecution to prove otherwise and they had to meet the highest standard of proof to get guilt beyond a reasonable doubt. What does that mean, how do you do that?
Great question, critical to anybody listening and following this case. In essence, you can be accused of anything in this country and it can look like without any shadow of a doubt that you were the person that committed a crime. It is simply not your job or your lawyer’s job to have to show the prosecution wrong. It is their job to show, beyond any reasonable doubt, that all of that evidence adds up to one conclusion and only one conclusion. So all the circumstantial evidence, plus what we might call stronger evidence of a different nature, has to tie together in such a way that whether it’s a jury or a single judge trial, it’s simply not reasonable to draw any other conclusion than that this person is guilty. That’s a high bar for the prosecution to jump over but the only alternative, which is in some countries of the world, is to assume that everybody’s effectively guilty until proved innocent.
We don’t want to do that. As a country, this goes to the core of our freedom. None of us would want to be in a position where we could be accused of anything and then have to fight to clear our name. It looks bad enough like that in the first place, let alone to have to do it to stay out of jail. In really plain English, the ball is in the prosecution’s court here, not the accused. The defence lawyers have to muddy the waters and effectively make it as clear as possible that there are other potential explanations here.
So they don’t have to explain the evidence that’s brought forward but they can bring other things to the case that show that he couldn’t have done it?
That’s right. If that’s the case theory that the defence is running with, that someone else did this, then they will point to the possibility of other people being involved. They’ll no doubt make a lot of noise about how many hundreds of men were interviewed during all of this.
If that is the way they’re going, why would they have allowed him to plead guilty to other cases earlier on?
I think this is my early pick of one of the mysteries so far from this trial. I don’t know the answer to that question and I’m really curious because to me it seems very strange that you would go and plead guilty to these other, very serious, crimes only weeks before this trial starts. It just sends all sorts of wrong messages to anybody watching and reading about this. So I’m saying, I don’t know the answer to that and I’m watching carefully, and I think we all should because something will become clear.
Is there a chance they won’t be able to refer to the previous conviction in the case?
I know it was being argued heavily yesterday and I don’t know what the outcome is yet on that. That will be a separate ruling, but quite often prior offences are kept out, struck out because they throw too much of an inference of guilt on what is before the court today.