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?