Prosecution at all costs – persecution 
Posted By Mirko Bagaric on June 24th, 2008
It is incredible that in a highly literate society such as Australia that many people are still defeated by the presumption of innocence and the principle that people should not be punished more than once for the one act.
These are but two of the several dispiriting revelations to emerge from the fallout from the charging of Richard Pratt for allegedly giving false evidence to the Australian Competition and Consumer Commission at a price fixing inquiry three years ago
As soon as he was charged last week Pratt stood down from the presidency of the Carlton Football Club. Apparently, this was consonant with community expectation. This is absurd. The moral character and legal standing of Pratt is just as complete following the laying of the charges as it was before the charges.
The number of people that have been acquitted of criminal offences is countless. The fact that a prosecution authority decides to charge an individual with a criminal offence is a poor indicator of ultimate guilty. It is so poor to be pragmatically meaningless as a guide to the ultimate disposition of the matter.
The presumption of innocence is not a convenient expression. It is a fundamental bulwark of justice. It has a tangible application, which is that no hardship, restriction or disqualification should be suffered by an individual as a result of simply being charged with a crime.
Pratt should immediately and proudly resume his post at Carlton. There is no basis for assuming that he has done anything wrong.
The most disappointing thing to emerge as a result of the charges is that Pratt was charged at all.
The line between prosecution and persecution is sometimes grey. It has probably been crossed by the decision to charge Pratt.
Pratt is 73 years old. He has recently battled (prostate) cancer. The offences with which he has been charged are, as far as criminal offences are concerned, piffle. Each of the four charges carries a maximum penalty of one year imprisonment – by way of comparison the maximum for shoplifting is 10 years. The events occurred three years ago.
In the normal scheme of things, at age 73 people should be permitted to reflect on past glories or glorious failures instead of devoting a considerable amount of their very finite time and energy to battling criminal charges. At that age, each of our beds is well and truly made and only an extreme happening can alter one’s contribution or moral standing.
Age cannot, and should not, of course attract a blanket criminal immunity. For egregious crimes people should be hounded to the end of the earth. But allegedly lying to the ACCC (which is not a court) is hardly the moral or legal equivalent of a war crime or terrorist act.
To this end, it is important to note that Pratt has already been punished, in the form of a $36 million dollar fine, for the price fixing which was the subject of his evidence to the ACCC.
The need for finality to criminal proceedings is a principle enshrined in the criminal law. That’s why authorities in most states only have one year to charge people for offences that carry a maximum penalty of two years of less. If the ACC was a state entity, the three year charging delay would have given Pratt immunity from prosecution. For federal offences, the charging time limitation only applies for offences which carry a maximum of less than six months. Nevertheless the decision to charge Pratt so far after the event violates the spirit of the limitation laws.
Further, the Commonwealth Department of Public Prosecutions ostensibly applies a number of guidelines in determining whether to proceed with charges. In addition to ‘reasonable prospects of conviction’ test, other matters include the age and physical health of the alleged offender, his previous criminal history, the staleness of the offences and the availability and efficacy of any alternatives to prosecution. On any reasonable application of these criteria it is not easy to see how the public interest is advanced by prosecuting Pratt.
Even if Pratt is found guilty of all four offences, this should not affect his position at Carlton and other institutions which he heads.
A finding of guilt would result in Pratt receiving a criminal sanction – probably a small fine. This should be the end of the matter. People who have ‘served their time’, should not be punished again and be subjected to incidental deprivations in the form of disqualifications and other hardships.
It is repugnant to punish a person more than once for the one act. The twin punishments of a court sanction and incidental deprivations violates the most fundamental principle of sentencing – proportionality. In its crudest form it is principle that the harshness of the sanction should match the seriousness of the offence. This principle is invariably violated when people are subject to compound hardships.
Moreover, inflicting incidental hardships on people following a court imposed sanctions is tantamount to punishment a person for his or her character. This is a no go area. Putting to one side the saints and monsters among us, character is an utterly nebulas concept, incapable of being defined with the degree of precision that is necessary for it to form the basis of a legal standard by which people’s interests should be adjusted.
We make thousands of decisions and perform hundreds of actions daily. Sometimes through design, more often because of a lack of full knowledge some of these adversely impact on others. But we are not necessarily defined by the bad consequences we cause. Typically, we can point to an overwhelming number of redeeming considerations. Given the complexity of the human condition it is the height of arrogance to attempt to impugn another’s character on the basis of a single (probably aberrant) act.
This applies more so in the case of Pratt than most other Australians. From almost nothing, through sheer hard work and industriousness, he has created a billion dollar empire, giving jobs and livelihoods to tens of thousands of Australians. He has donated millions to charities.
The harm caused by price fixing scandal in which he became involved is inconsequential compared to the almost incalculable credits on the positive side of the moral ledger. Given my Collingwood allegiances, it is difficult to say this, but viewed in his entirety Pratt seems to be an imminently decent and good man. No amount of persecution can change this.
This was in the Age on 23 June 2008.