Not guilty – why it will not be the verdict of us all
"Thanks for repeating '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 NZ cases where this would have been decidedly useful."Featured comment
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.