Editorial Opinion
Hepburn Shire is no stranger to controversy, and the past year has produced more than its share. Among the matters now before the courts is a private prosecution brought by a Daylesford resident against a sitting councillor and the Shire’s outgoing Chief Executive Officer. The possibility of mounting a private prosecution is an accepted safeguard in our justice system. The charges are serious but as yet untested in court. The defendants are entitled to the presumption of innocence while the court proceedings are underway. Nothing in this article should be read as suggesting otherwise — and that, in fact, is precisely the point.
The right to prosecute is a serious one
Private prosecutions occupy an unusual corner of our legal system. They are a centuries-old safeguard: if public authorities decline to act, a citizen may, in limited circumstances, bring criminal proceedings themselves. It is a right worth defending. It exists so that no one — however senior, however well-connected — is beyond the reach of the law.
But it is a right that comes with obligations. A person who takes on the role of prosecutor takes on something of the character of a public office. Prosecutors are not partisans pursuing a grievance; they are meant to be a servant of justice, not a campaigner for a cause. Their task is to put evidence before an impartial tribunal and accept its verdict, whatever it may be. The Victorian Director of Public Prosecutions retains the power to take over — and, if satisfied the prosecution is not properly founded or properly conducted, to discontinue — any private prosecution. Courts can also permanently halt proceedings they find have been brought or conducted for an improper collateral purpose. The system, in other words, polices itself against misuse.
Why the rules about public comment exist
Alongside the courtroom rules sit the rules about what may be said outside it. The law of sub judice contempt restricts public commentary that carries a real risk of prejudicing pending proceedings. These rules are sometimes caricatured as gag laws protecting the powerful. They are nothing of the sort. They exist to protect something that belongs to all of us: the guarantee that guilt and innocence are decided on evidence, tested in open court, by an impartial tribunal — not by whoever can shout loudest on social media.
The rules bind everyone, but they bear with particular force on the parties to a case. A defendant who campaigns publicly against their accuser risks contempt. And a prosecutor who campaigns publicly against the person they have charged risks something more: undermining the very case they have brought. Courts take a dim view of prosecutions that appear to run in parallel with public vilification of the accused, because it invites the question of whether the proceedings are being used to vindicate the law or to prosecute a feud. When that question arises, it is the prosecution itself that is placed in jeopardy.
That should give pause to anyone who genuinely believes wrongdoing has occurred and wants to see it answered. If the allegations at the heart of any prosecution are sound, the surest way to see them upheld is to let the evidence do the talking in the only forum where it counts. Every inflammatory post, every assertion of guilt made before a court has heard a word of evidence, hands the defence an argument and hands the community a spectacle in place of a judgment.
Public interest is not the same as public commentary
None of this means the community must fall silent about the governance of Hepburn Shire. Questions about how ratepayer funds are spent, how legal costs are approved and indemnified, and how councillors discharge their oversight duties are legitimate matters of public interest. This publication has reported on them and will continue to do so. Council policies on indemnifying officers, the transparency of legal expenditure, the adequacy of councillor scrutiny — all of these can and should be examined openly, on the evidence, without touching the merits of any charge before a court.
There is a difference, though, between scrutinising institutions and prejudging individuals. The first is journalism and civic engagement. The second is trial by social media — and it corrodes the interests of everyone involved. It is unfair to defendants, who face allegations they cannot yet answer in the proper forum. It is unfair to the community, which is invited to reach verdicts on assertion rather than evidence. And, perhaps least appreciated, it is unfair to complainants themselves, whose genuine grievances risk being dismissed as vendettas when they are pursued through megaphones rather than through the measured processes the law provides.
Let the court do its work
The proceedings now on foot will be determined by a court, on evidence, in public. That is as it should be. The defendants may be acquitted; they may be convicted; the charges may be resolved in other ways. Whatever the outcome, it will carry authority only if the process that produced it is seen to be fair.
Everyone in this community — supporters and critics of the council alike — has a stake in that. The courtroom is one of the few places left where facts are tested rather than asserted, where both sides must be heard, and where the loudest voice does not win. Those bringing matters before it, and those commenting from the sidelines, would do well to respect it.
The alternative is a Shire where disputes are settled by whoever posts most often. Nobody should want to live there.
The matters referred to in this article are before the courts. No findings have been made against any person, and all defendants are entitled to the presumption of innocence.
