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Not guilty – why it will not be the verdict of us all


There were two verdicts in the Scott Guy murder trial. In the first, a jury found the accused, Ewen Macdonald, not guilty. In the second, Scott’s widow, Kylee, declared Macdonald guilty when she screamed: ‘He killed my husband!’ These were the last words spoken at the trial.

It is interesting to speculate which verdict will resound most with the general public. My guess is that it will be the second.

There’s precedent to support that opinion. A not guilty verdict in high-profile murder trials, relying on circumstantial evidence, is rarely accepted as the last word by the man and woman in the street. Arthur Allan Thomas and David Bain, not to mention OJ Simpson, provide excellent examples.

This morning I decided to recruit my own jury. During our morning walk, I approached 12 adults, some of whom I know well, some with whom I have only a passing acquaintance. I’d say they were a reasonable cross-section in terms of gender, age and socio-economic status.

I asked each of them whether they believed Ewen Macdonald had killed Scott Guy. All 12 said they believed he had. When questioned further, all but one agreed that, given the available evidence, the not guilty verdict was the right verdict in law.

Several commentators have expressed the view that justice has been served in this case. It is true that the requirements of the law with regard to the trial of an accused person have been met. Patently there was reasonable doubt .

But I doubt whether anyone other than Ewen Macdonald knows for certain whether justice has been served.

Scottish system: guilty, not guilty, not proven
That is the problem with "reasonable doubt". The doubt remains at the end of the trial. Nothing has been resolved.

Since 1728 Scottish courts have had three verdicts available to juries in criminal trials: guilty, not guilty and not proven. Not proven seems to fit pretty well with the concept that the guilt of the accused must be proved "beyond reasonable doubt" – the middle ground between Guilty and Not Guilty.

Some commentators have therefore suggested that we should add not proven to the list of available verdicts in this country, particularly where evidence in the trial is largely or wholly circumstantial. But it seems to me that this is mere semantic juggling.

In the minds of our man and woman in the street not proven will be even more likely to be translated as guilty than not guilty under the same circumstances.

Most are confused by complex evidence
In a book on murder in New Zealand which I co-authored with Mike Bungay QC in 1983, Bungay observed that jurors often had difficulty following the complex forensic evidence in murder trials and tended to rely on their instinctive impression of witnesses and of the person in the dock.

If that is true of jurors, who are at least present throughout the trial, hear all the evidence and are guided by the judge on how to proceed, it must be doubly true of the average person who has read about the trial in the paper and seen clips on the television news.

Most of us will come to a view on Ewen Macdonald’s guilt or innocence on the basis or our impression of the players in this drama and, for want of a more satisfactory term, our common sense.

We will not be persuaded to avoid the conclusion that the terrible things Macdonald first denied and later confessed to having done to Scott and Kylee’s property are highly relevant to the question of whether he later killed Scott.

We will ignore the judge’s advice that no adverse conclusion may be drawn from Macdonald’s refusal to enter the witness box or face cross-examination. We will interpret the police’s statement that they will not be looking for anyone else as meaning they remain satisfied that Macdonald is the killer.

And the words screamed by Scott Guy’s widow on hearing the verdict, ‘He killed my husband!’, will ring more loudly in our ears than any argument advanced in court. Kylee Guy has no doubt that Ewen Macdonald murdered her husband.

None of this detracts from the fact that not guilty was the only possible verdict. But it will not be the verdict of us all.

Media trainer and commentator Dr Brian Edwards blogs at Brian Edwards Media

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Comments and questions

Thanks to Dr Edwards for repeating the fact "Since 1728 Scottish courts have had three verdicts available to juries in criminal trials: guilty, not guilty and not proven."

I can think of several cases in NZ where this would have been decidedly useful. What or who in the judiciary would be agin such a progressive and valuable law change? and why?

Even in Scotland, "Not Proven' is a contentious option and always has been - Sir Walter Scott called it a 'bastard verdict'. It does not, as many people seem to think, allow for the case to be brought again if new evidence comes to light: it is the same as a 'Not Guilty' verdict but carries the undertone 'We know you did it but we can't prove it.' Such a verdict has no place in law, whatever impression the 12 men in the street may have after seeing media reports of the trial.

The question of an accused declining 'the dock' has greater sway in perceptions than the 3 options above. Maintaining silence is a person's absolute right of course, but if accused legally had to "attend the dock" , then further silence 'in the dock' would convey greater influence on the jury, and public at large.

One word really.

"OJ" Macdonald!

Several "found guilty" people have now been found not to be so yet the jury found them to be so. I recall the late Sir Alfred North doing some review on the Arthur Allan Thomas case and he came to the same conclusion. As King said, if you presume guilt, then you will rationalise all evidence to lead to that conclusion.

I'm sure we can all think of minor mistakes made, if twisted by someone hellbent on making making you look bad, would make us seem capable of worse. I'm glad the jury gave this accused the benefit of the doubt after weighing up all the evidence.

And having had children who, when younger, would say they didn't do something, I could NEVER work out the innocent one.

Does a 'not guilty' verdict close the possibility that MacDonald can be charged again for the same alleged crime if new evidence come to light in the future sometime? If the answer is no and a 'not proven' verdict allows that a person may be charged again for the same alleged crime if new evidence comes to light, perhaps we should consider a law change to include this, particularly in cases such as this where the prosecution case is built entireley or substantially on circumstantial evidence.

I say empty the settling ponds on the farm and see what you find !

The anger obviously felt by the Guy family and his wife should be focused on the Police for the half done job they did.

How did they not think to get hold of a set of those boots and make sure they exactly matched the impressions they found? Basic stuff one would think and of course Greg King pounced

How did they have three neighbours all saying the bangs where at five in the morning when Macdonald had a cast iron alibi but insist that the shots were 14 minutes earlier?

Why did they not try desperately hard to find those puppies and the boots by dredging the effluent pond? Might be an unpleasant task but that is what they are paid for.

And what right to they have to say that the case is effectively closed? They could not mount a credible case to convict Macdonald(Remember the dive boots didn't match) therefore they MUST keep

Circumstantial evidence and all conjecture aside, there's one person who knows Macdonald intimately enough to detect the smallest nuances that would indicate whether he was telling the truth, when disavowing being culpable or even involved. And that's Mrs. Macdonald. Until, she proclaims his innocence, he's the one.
Do not hold your breath, waiting for the declaration.

What is Brian's view of the notion folk found Not Guilty are "innocent"?

Thanks goodness we have a trial by law and not media / public opinion ... People love to have opinions and that's fine but unless you sat on the jury you have no right to proclaim a man innocent or guilty (including Guys wife)... it astounds me the lack of intelligence people take in their approach to this and how primitive we really still are as a mob. Anything other than due and fair legal process (innocent until proven guilty) is akin to burning witches at the stake - a dangerous and sad reflection on the state of our media / society today.

At least if we did act as a mob we would save a great deal of money in these pointless media attention grabbing trails. I would guess that at least 70% of the time the mob would be right and well the other times are a fact of life.
I would not like to be on the end of this but at least it would be quick and we could all move on.

Thank you so much Brian Edwards for your comments. I agree with you entirely, and your analysis of the general public's take on the evidence and the verdict. And yes, my common sense for lack of a better word, leads me to believe Ewen McDonald is guilty of the murder of Scott Guy. I also want to say that Scott and Kylee's neighbours who were interviewed on TV3 news last night, were very courageous to state their belief on tv, when my survey of all the other interviews on tv and the national radio program, avoided presenting this belief, for legal reasons perhaps? a culture of the politically correct? or? I hope Kylee Guy will read your article, and take solace from the many people who believe as she does. We can only hope that one day the absolute truth will prevail, and whether Ewen McDonald can be tried again or not, he has already suffered the consequences of his actions. His marriage is over, as his neighbours stated he no longer has a home, he will have a criminal record for his other horrendous deeds, just to name a few of the more obvious ones. Perhaps the only good thing that has come from this verdict is that Ewen's children can grow up believing their father is not guilty of murdering their uncle. (Until the truth is known at least). I note that you refrained from stating whether you agree or disagree with the verdict. Well?
C. McDannold

While MacDonald can say he's not guilty of murder he can't possibly say he's a nice person. He's admitted to some strange and troubling actions. I wouldn't like to work or live next to him. Having said that I am prepared to keep an open mind on the murderer, it may well not have been him. It will be interesting to see what the other 3 serious charges against MacDonald are though.

How many of the above people were at the trial and heard all the evidence that the jury heard ?
None I bet but they can all give an opinion from what they read in the newspaper.

Yes they can. Its called the freedom of speech and it is a basic human right in a democratic country, such as ours.

When I heard of Kylee's outburst as she ran from the court I thought "methinks she doth protest too much".

I think the police did an abysmal job as per usual, perhaps as well as performance pay for teachers there should be performance pay for police, oh sorry I forgot they do have their speed ticket quota to fill.

It is strange that Edwards appears to place so much weight on a victim's spouse's 'dramatic utterance of anguish' ("he killed my husband") rather than the considered opinion of 11 people who sat through and listened (and then presumably argued about) to some weeks of testimony, evidence from police, experts, lawyers and witnesses. The verdict of 'not proven' belongs to Hollywood and not the real world - what does it mean in effect.

i think he killed him.but not guilty was the right verdict and i thought this before this was the outcome.

I though that track had issues (ie. end of life or resource consent issues) which is why Hampton Downs was built. It would make sense if one was north and one south but do we really need two tracks so close to each other. ip

I have not worn a diving suit, but would assume that a diver doesn't wear socks inside the diving boot. When using a diving boot for game hunting it would be necessary to wear socks to keep warm and to avoid sweating. In this instance an oversize boot would surely be necessary. An oversize boot would match the print profile.

I haven't heard this question covered, maybe someone has.