I don’t really mind that some people think a killer got off. Only one person really knows if that’s true (or two people, if Macdonald wasn't the killer!), assuming he hasn’t confessed his sins to his priest or therapist. So anyone who opines on whether or not Macdonald did the deed is just blowing hot air and should be ignored.
I was critical of the Crown’s decision to prosecute on the basis of what appears like flimsy evidence, but I don’t have an opinion on whether Macdonald got away with murder. He may have. However, the jury got it right. The fact of the matter is that juries can only decide on someone’s guilt on the basis of the evidence put in front of them.
In that respect the Crown failed. Macdonald was acquitted, not because he didn’t kill Scott Guy, but because the Crown couldn’t prove that he did.
One apparent controversy regarding this case is the fact that Ewen Macdonald didn’t take the stand in his own defence. This seems to have irked Wellington writer David Stevenson* to such an extent that he’s written a column in the Herald today on how he thinks the legal system is failing us.
I don’t for a moment think our system is perfect, and we all know of instances where someone has been subjected to a gross injustice via the court system. But however imperfect our system is, it beats most of the alternatives. Our system has evolved over centuries, and it will continue to evolve. What we don’t need are sweeping changes being introduced without much thought for the consequences.
Take the right to silence. David Stevenson thinks it should be abolished.
… (according to Halsbury's Laws of England) it evolved more than 200 years ago because the legal establishment felt that the uneducated criminal classes should be protected, as a matter of fairness, from incriminating themselves.The right to silence is not some archaic legal principle that has no value in today’s legal system. The right is inextricably linked to the presumption of innocence. If we believe in the presumption of innocence, then it is for the agencies of the state to prove a person’s wrongdoing. If we are now to say that accused people must take the stand, we are really saying we think they are guilty and that it is for the accused to prove otherwise. That is effectively a presumption of guilt.
Can a law designed to protect uneducated ancient Britons from themselves have any place in today's educated society where personal accountability is required in all other aspects of life?
Stevenson blames the legal aid system on the fact that some people have the nerve to defend themselves:
The dysfunctional role that legal aid can now play in criminal trials also deserves scrutiny. Legal aid was introduced to ensure that those facing criminal charges had access to legal advice and representation.But that’s absurd. Legal aid has been cut to the bone, and the pay structure is such that there are now perverse incentives for lawyers to encourage their clients to plead guilty.
Again, because a criminal trial is not held to establish the truth but sets out to establish whether the prosecution can prove its case beyond reasonable doubt, legal aid often gets used (perfectly legally and properly under the present defective system) to fund evidence to cast doubt on the prosecution case.
It’s even more absurd when you consider the vast resources available to the police and Crown. The prosecution in a major trial will typically have a large team of lawyers and experts, and police witnesses eager to nail the accused. Against this army the accused will typically have a small team, perhaps only one lawyer, and may be left at the end of the trial financially crippled.
A common tactic used by police (as any criminal defence lawyer will tell you) is to overcharge an accused person, in the hope that they’ll cop to a lesser plea. Another tactic they sometime use is to pursue a weak case right up to the very day of hearing, before suddenly dropping the case. They do this in the hope that the pressure (emotional and financial) on the accused will force a guilty plea.
And what will the average defendant have to counter this all? Probably a lawyer funded through legal aid, but a lawyer who’s already overworked and underpaid, and who can’t afford to spend too much time on preparation.
This is why we need to maintain the right to silence and the presumption of innocence. The playing field is not an even one, and it never has been. With the resources of state law enforcement agencies growing and becoming more sophisticated, and with more and more surveillance rights and special powers being granted by Parliament to law enforcement agencies, the right for a person accused of a crime to say nothing is more important than ever.
Stevenson suggests a number of other reforms, that he claims if implemented would reduce the number of trials. Presumably this would be because the scales would be tipped so unfairly in favour of the prosecution that accused persons would plead guilty at an early stage. That would be a good thing if everyone charged with an offence was guilty, but that is not the case at all.
It's obvious that the not guilty verdict will not bring "closure" to the family of the dead man. That's regrettable, but our system isn't designed to do that. It's designed to determine whether there is enough evidence to hold a person accused of a crime guilty. I almost sense from Stevenson's argument that he thinks Macdonald should have gone down for the crime, regardless of the lack of evidence directly tying him to the killing, just to make the Guy family feel better.
And one final comment on the Macdonald verdict. I’m fairly confident that the jury’s decision would have been the same even if they had all read Hamlet.
And the next person who quotes King Lear will be very, very sorry indeed.
* Is the writer of the opinion piece this David Stevenson? I honestly don't know. I suppose it's a common enough name. Does anyone know if they are the same person?
Only one person really knows if that’s true, assuming he hasn’t confessed his sins to his priest or therapist.
ReplyDeleteMedical privilege isn't as extensive as you appear to believe.
I wasn't for a moment suggesting it was. It's still possible that if he did commit the crime he confessed it to someone, and that someone knows the truth but is not telling.
DeleteVery good reply. Stevenson has used the presumption that somehow people are now more equal in intelligence and education than 200 years ago and would, for example, not see the danger in a simple question 'can you tell me of anybody more likely to have committed this crime than you?'
ReplyDeleteThe legal aid situation you describe strikes me as one where the authority are saying that even though there is room for abuse of the system Lawyers have an obligation not to do so. Well, how about they just make it fair, as the purse holders, so avoiding it being seen that there might be 'perverse' incentives in a Government Legal Aid Authority.
I deleted the comment of a person who rightly pointed out that if Macdonald didn't do it then two people will know, not just one. I have updated the post, but the comment was anonymous, and I delete those.
ReplyDeleteA correspondent's opinion, in response to my suggesting that because there were claims of misuse of the system by a small number of lawyers - that it is stupid of the authority to present an opportunity that might on the face of it facilitate misuse. Also comment on Stevenson's proposal to throw out centuries of law and replace it with his own:
ReplyDeleteYes, I think it was Bazely.
I think removing the right to silence is a nonsense when it is so easy to tie people in knots. And when you are not allowed to explain answers.
Also, with regard to the inquisitorial system: one of the problems with it is that there is a presumption of guilt. We have seen recently so many cases where the ‘system’ has acted badly (eg dotcom stuff being released and now Pike arguing the toss on it) that to have a system where there is a presumption of guilt if it reaches court would be extremely dangerous. The French are gradually accommodating more and more of the adversarial system into their inquisitorial system, so why would we go down the line of switching to something similarly imperfect? In Canada, they use a combination of both, thanks to the bicultural (French: English) heritage.
I, too think David Stevenson is hasty in his dismissal of centuries of legal history. I'm sure he would approve of our reverson to a system where we make the accused walk ten steps holding a red hot iron bar in their bare hand. If it heals cleanly, they're innocent. If it gets infected, then they're clearly guilty.
ReplyDeleteAlthough the widely avaialable access to modern medicine even amongst the criminal classes will probably lead to many acquittals. Damn you, Science! Damn you to hell and back!
The Higgs Boson knows too.
ReplyDelete"......Is the writer of the opinion piece this David Stevenson? I honestly don't know. I suppose it's a common enough name. Does anyone know if they are the same person?....."
ReplyDeleteA wellington writer, knows a lot about the law, had a past grudge against judges.......
Not sure if it makes the threshold for beyond reasonable doubt??
No the system didn't work. After an exceptionally long time ruling out all options and chasing all leads, the police had their man and put their case. Once on trial it fell apart with a not guilty verdict. Colossal waste of police time and resources - either way, if they got it right or wrong. Somewhere a murderer walks free.
ReplyDeleteGil Elliot makes a good point about the imbalance between rules for prosecutor and defence - evident in Bain retrial and Macdonald and, I presume, Weatherston.
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10817850
With all due respect to Gil Elliot there were 60 odd witnesses called by the Crown and only 2 for the defence hardly the Crown absorbing only about a third of the trial. Anyway, the Prosecution represent the victims yet are increasingly, along with the Courts, put under pressure by victims or victims families that are not happy with some or other aspect of a trial or sentencing.
DeleteI think that line of separation remains a problem as the Court function can be disabled by not observing a distance, they can't function as being seen as being on one side or the other because they serve justice taking into account all the aspects and making a judgement on them.
If that function of the Court is continually eroded we will no longer need Judges. We will simply have prosecutors acting on complaints, entering convictions and punishment according to their whim and the authority of those with complaints. I think there is a not so subdued vigilante aspect abroad where it is believed by some that only victims know 'what is like' and therefore should take some control of the system. The recently privately drafted proposed 'amendment's' to bail laws has an obvious desire to make the Courts 'accountable' to enlightened voices of an 'elite' that 'truly' understand what the rest of us are apparently unable to comprehend.
No the system didn't work. After an exceptionally long time ruling out all options and chasing all leads, the police had their man and put their case.
ReplyDeleteIsn't it entirely possible the the police had the wrong man?
In this case, I don't think so. They spent an awfully long time ruling out all the possibilities. Where is the alibi or piece of evidence that unequivocally rules out Ewen Macdonald? The defence raised enough furphies to create sufficient doubt in the jury's mind, that's all. The odds are pretty remote of it being the farm worker (must have had an alibi or some other evidence that checked out) or the "phantom burglar" or some random compared with that of a local, skilled shot, who knew Scott's habits and timings and had a motive. Occam's razor points to Ewen.
Delete'Awfully long time ruling out possibilities' They didn't even shut the farm down, isolate all the family members and farm workers in the normal fashion of treating the killing as a possible domestic. They didn't seize the farm shotgun, or check it until the following year.
DeleteNot that EM needed an alibi to supplant pure supposition, but in fact 3 witnesses placed him at home at around 5am when they heard the shot, his presence there confirm by his turning the workshop alarm off at 5.03am. Meanwhile the farm worker saw the laundry light go on when he arrived early for work.
The single piece of forensic 'proof' in fact exonerated him because the 'expert' matched a size 9 print with a different density of sole waves, ultimately confirming that the print wasn't made from a size 9 boot.
'Skilled shot' is also fantasy. A shotgun at close range doesn't require skill to hit a target and it appears the assailant took 3 shots. The evidence allowed about the poached deer from the owners in their report to the police says they found no signs that the deer had been shot.
In other jurisdictions he wouldn't have been charged because of lack of evidence, particularly had the boot evidence been accurate.
Erm, isn't the imbalance between prosecution & defence one of the safeguards of individual liberty and all that?
ReplyDelete