When a person is charged with a criminal offence, that person is presumed to be innocent. What has been described as the “golden thread” running through criminal law is that the prosecution must prove the guilt of the accused, and must do so beyond a reasonable doubt.
Those fundamental principles seem to have been lacking in the public and media treatment of Golriz Ghahraman. Initially, there was a suspicion that she may have been involved in a shoplifting incident. I emphasise suspicion. Suspicion is like a rumour – difficult to find a concrete foundation.
Then there was suspicion of a further allegation of shoplifting. Again, a suspicion only. No charges had been proferred.
What happened was that Ghahraman was dealt with in the court of public opinion. It would seem that the presumption of innocence doesn’t apply in that court. Rather, the social media mob presumed guilt. Ghahraman wisely decided not to engage.
The rules of procedure – be impartial before rendering judgment, hear both sides of the case, make a decision based on admissible evidence rather than rumour or suspicion – don’t apply in that court.
New Zealanders like to pride themselves on their sense of fairness but the way Ghahraman was treated by the press and the public was anything but fair.
“But what about the video?” I hear you say. We know nothing of the provenance of that material. We don’t know the circumstances under which it was acquired. We don’t know whose hands it passed through before it appeared online. We don’t know if it has been the subject of manipulation or interference – all too easy in the digital age. Whether that footage is admissible in a court of law has yet to be considered. Clearly, rules relating to verification and reliability of evidence don’t apply in the court of public opinion.
But she resigned. Isn’t that enough? She may have resigned but in law she is still presumed to be innocent until she has pleaded guilty or has been found guilty after trial and been convicted. Her resignation statement was unfortunately worded and from that wording an admission could be inferred. That possibly may be part of the evidence that the prosecution may present at trial or that may be considered by Ghahraman’s legal adviser.
The criminal law is there for a reason. It is hedged around with presumptions and rules of procedure and evidence – all designed to provide a framework where a contestable, dispassionate and fair analysis of the evidence may take place before a finding of guilt may be made.
The criminal law – indeed, the rule of law in general – is to prevent mob hysteria in determining whether a person may have committed a crime. But many people do not understand that. The fact that a person is charged is sufficient in the minds of many to establish guilt – no presumption of innocence there. And when an accused is acquitted, it is because he or she had a “smart lawyer”, that there was some trick that was pulled or that the accused “got off”. Behind those last two words is clearly a presumption of guilt.
Ghahraman is entitled to her day in court where she can face the charges. She can put the prosecution to the proof if she so desires. She remains innocent until a finding is made otherwise.
And as for the court of public opinion, perhaps a course in civics should be part of the education curriculum so that more respect for the rule of law and the processes of the courts are inculcated. And most importantly, an understanding of the golden thread of the presumption of innocence.
David Harvey is a retired district court judge.
