Little Fish in a Giant pond

Tuesday, October 23, 2007

A Bad Decision or Bad Journalism?

I was back home for a little while this weekend, and while I was there I couldn't help but noticing the following story in the local newspaper:
It appears that Ontario Superior Court Justice, Jospeh Donahue, made the decision to acquit a man accused of posession of child pornography, based on the fact that he did not posess a large quantity of it and because he felt that the crown had failed to prove that the accused knew that it was there.
I hate to be critical of a judge for making any decision (particularly since I may find myself pleading in front of the man some day!). The fact is that judges have to make tough calls every day. All too often they hold someone's life in their hands. In this case, the judge had to decide whether or not to convict someone of one of the most despicable crimes to our society. Such a conviction carries with it a terrible social stigma. In fact, if he had been convicted, even his fellow prisoners would likely hold him in such a low estem that it may be necessary to keep him in isolation from the other inmates for his own protection.
Aside from my first year of law school, where we learned a few basic principles of criminal law, I haven't studied criminal law an awful lot. I am scheduled to take Advanced criminal law, and criminal procedure next semester. But for now, let me be the first to admit that my knowledge in this area is not the greatest. Still, I think I have been able to get the gist of things from the article. Now anyone who has ever seen an episode of law and order knows that the burden of proof is always on the prosecution in a criminal trial, though the burden can be reversed under certain circumstances, (such as when the accused does not deny having commited the criminal act, but wishes to present a defence, such as insanity, involuntary intoxication, etc.).
In the present case, it is difficult to tell from the article but it appears that the accused might have used a defense of called absence of mens rea. This basically means that there was no "guilty spirit", no intention to commit the crime. If this is the case, it means that the accused does not deny that the child pornography was in his possession, but denies having had any knowledge of it being in his posession. Effectively, it means that the defense must present sufficient evidence to demonstrate that the evidence presented by the Crown does sufficiently prove that the accused knew about the incriminating materials being stored on his hard drive and CDs.
Now it stands to reason that the simple presence of child pornography on the accused's hard drive and CDs alone implies that he knew it was there unless it was put there by someone else. The question now becomes, how likely is it that someone else could have put it there? Any evidence that defense could have put forward to support that it is likely, would no doubt have been helpful. Evidently the facts and evidence in this case did not convince justice Donahue beyond a reasonable doubt that the accused knew that the criminal materials were in his possession.
The article does not mention anything about what kind of evidence was presented by the defence (if any), which kind of makes me uneasy. Were there any expert witnesses who could have testified that this material could have been accidentlaly downloaded? Was there any evidence to suggest that other people might have had access to his computer? I am willing to accept that it's entirely possible that perhaps the defence presented nothing of the kind and perhaps Justice Donahue simply wasn't satisfied anyways.
The reason I'm writing about this is just to illustrate the heavy responsability that lies on the shoulders of every journalist when reporting an event, but particularly in reporting decisions made in the courts. Decisions can sometimes be hundreds of pages long, and journalists have only a few paragraphs to summarize them in. It reminds me of my favourite legal quote from Lord Hewart "it is ... of fundamental importance, that justice should not only be done; but be manifestly and undoubtedly be seen to be done." Journalists have the difficult task of bringing the essence of a decision to the public, so that they in turn can decide for themselves. It is a task I do not envy.
The author of this article does not appear to be deliberately biased, but at least on the surface it does appear to be missing something, though it is entirely possible that this could simply be because there was nothing more to add. I don't cast judgement on either Justice Donahue or the journalist in this case, but somewhere along the line, it appears to me that someone has made a mistake.

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  • From a grad of your law school 30-years back, don't ever try to make sense of judgments based on news reports.

    By Blogger The Mound of Sound, at 10:29 PM  

  • M of S, you make a good point. Even in writing this post, I was being very careful to mention that I may not have had all the facts.

    I decided to write this post not as a critique of Justice Donohue's decision, but more to illustrate the importance of perception with regard to decisions made by the courts.

    On a slightly different note, this case is actually kind of important for the high tech crimes section of my forensic sciences essay, so I have been looking for a copy of the decision. After having phoned the Chatham courthouse, I discovered that there is no written decision, so I have to obtain the transcript if I want to use it in my essay. It could be costly, but is potentially worth it. If I decide to fork over the cash, I will post about it again.

    By the way, my former boss, Paul DeVillers, was also an Ottawa U law grad from about 30 years ago, did you know him?

    By Blogger Fish, at 9:50 AM  

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