There is nothing politicians like more than to look for someone to blame for a disaster. In the case of a clearly emotional Kevin Rudd yesterday, those responsible for the tragic Victorian bushfires are guilty of “mass murder”. Federal Attorney-General Robert McClelland, the nation’s first law officer, even suggested foolishly, that any person accused of deliberately lighting a fire should be charged with murder.

While it is understandable and human for our political leaders to be sharing the pain of those whose loved ones have died in these horrific fires, or who have lost all of their worldly possessions, they must be very careful not to create a witch hunt atmosphere, that pressures police and prosecuting authorities to take short cuts and lay charges against people without sufficient evidence.

At this stage it is not clear that these fires were deliberately lit — that is still a matter for investigators. And even if they were, what has to be established is a causal connection between the lighting of a fire and the death of individuals. This again is a matter for investigators and eventually prosecuting authorities.

Even if the police arrest and charge an individual with offences relating to these fires, the presumption of innocence must prevail. Mr Rudd’s comments about mass murder are very unhelpful in terms of creating an atmosphere of calm and fairness so that due process can take place. One hopes the Police do not feel political pressure to arrest someone so that they can satiate the media, politicians and the public’s thirst for blood. This is not a farfetched and unfair proposition — recent history is littered with examples of wrongful arrests and prosecutions in climates such as the one which exists today.

The law in this area is not as straightforward as Mr McClelland suggested yesterday. In Victoria, the charge that would be successfully brought against an individual who is alleged to have deliberately lit a fire is that of arson causing death. It carries a maximum 25 year term of imprisonment. A charge of murder in circumstances where a person lights a bush fire is possible but more problematic. To prove that the accused is guilty of murder in such a case, the prosecution would need to show a deliberate or reckless intent on the part of the person lighting the fire to cause death.

The law in Victoria is such that if a person is charged with arson causing death and say 50 deaths can be shown to have been caused by the death, the prosecution could lay multiple counts of that charge and a sentencing judge could hand down cumulative sentences, which would mean someone would be imprisoned for life in any event.

If there are people to be arrested and charged in relation to these fires they need to be accorded the same fairness as any other accused. Comments by the Prime Minister and the Attorney-General yesterday will simply encourage an unscrupulous media and police to create an atmosphere surrounding an accused that would make it very difficult if not impossible for them to get a fair trial.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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