Editorial - July 10, 2012

Twice damned

Perhaps we should be grateful that we have a justice system, imperfect as it will always be, that has the capacity to acquit those against whom the evidence presented is less than compelling.

Those who gather evidence against those who will be or have been charged with murder and those who prosecute them in court seem to be damned if they gain a conviction and damned if they don't. Last week's acquittal of Ewen Macdonald, charged with the murder of his brother-in-law Scott Guy, added another chapter of dissatisfaction for what appears to be a growing number of New Zealanders who believe that our justice system is hopelessly dysfunctional.

For many onlookers Macdonald's acquittal would not have come as a surprise. The prosecution seemed very light on hard evidence against the accused; even the dive boot imprint found at the scene might have been interpreted as benefiting the defence more than the prosecution.

There was no weapon - the shotgun Macdonald would presumably have used could not have fired the three shots 'witnesses' heard in quick succession according to an expert called by the defence - no fingerprints, no forensic evidence of any sort apart from a boot imprint that could not be attributed without doubt to Macdonald, little more in fact than admissions by the accused that he had torched one house and vandalised another as an expression of ill-feeling toward's the victim and/or his wife.

As his lawyer insisted, Ewen Macdonald might be many things, but nothing presented to the court over four weeks proved he was a murderer.

Public reaction to the verdict suggests there are plenty of people who would have convicted him had they been given the chance, but our justice system doesn't work on hunches, gossip and innuendo. It requires evidence, if not incontrovertible then at least of sufficient power to persuade a jury that the accused is guilty beyond reasonable doubt. And those who did not sit in court and listen to the evidence are in no position to judge.

The vast majority of those who have expressed an opinion as to Macdonald's guilt or innocence know no more than what the media have told them. With the best will in the world, and a great deal more skill than many in the media possess, it is very difficult to accurately and comprehensively summarise a day's proceedings in 90 seconds of television or 400 words on the page of a newspaper. Court reporters pick the pieces they will use, perhaps with enough care to ensure that their resume is fair and balanced, perhaps with a view to making their contribution to the process as sensational as they can. We don't know.

What we do know is that those who did not attend Ewen Macdonald's trial heard or read an infinitesimal portion of the evidence offered. They did not see the body language of the accused and witnesses, they did not see the accused's reaction to evidence as it was given. There is no way that anyone who has not heard the evidence can accurately assess Macdonald's guilt or innocence. And they should not try.

The pertinent point is that the prosecution presented the best evidence it could find, and the jury didn't buy it. It might have been a close-run thing; we don't know that either, but there is nothing to be gained by second guessing the jury, accusing the jury of getting it wrong or decrying a justice system that is designed to err on the side of the accused if it is to err at all.

Some of the criticism that has been levelled against the system over recent days is seemingly based on the view that New Zealand has racked up another unsolved murder. The problem seems to be that with Ewen Macdonald's acquittal we have been deprived of knowing who did it. How that doubt could be removed by convicting a potentially innocent man is something only those who feel cheated can explain, but one might hope that no one of that school of thought will be on the jury should one ever face a serious criminal charge. That view reduces the justice system to the level of reality TV, with the acquittal of a man the jury did not believe to be guilty the equivalent of missing the final episode.

There are those who say that since and including Arthur Allan Thomas this country has amassed an unacceptable number of unsolved murders, in that the people charged with committing them were acquitted, sooner or later. Understandably, the police will effectively say they produced the guilty party and the court failed to convict.

Perhaps we should be grateful that we have a justice system, imperfect as it will always be, that has the capacity to acquit those against whom the evidence presented is less than compelling. Would we really have it any other way? Do we really want to see people convicted because the majority of radio talkback callers believe them to be guilty? Do we want to see people convicted of murder because they are portrayed as possessing character flaws that have nothing to do with the charges they face but make them difficult to like?

Those arguments have been raised by the champions of Scott Watson, convicted of murdering Ben Smart and Olivia Hope in the Marlborough Sounds. An entire book was fashioned around the premise that the methods the police used in the investigation that led to Watson being charged provided media with the time and opportunity to portray the accused as an extremely unsympathetic character.

Keith Hunter, the author of that book ('Trial by Trickery'), began by writing that he had asked a number of people whether they thought Watson was guilty or innocent. Opinion was divided, but, alarmingly, some were of the view that even if he was innocent of murder he deserved to be in jail. That view, Hunter argued, supported his contention that the police had so successfully demonised Watson before he went on trial that his chances of acquittal, whatever the evidence, were greatly reduced.

We didn't see that with the Ewen Macdonald trial, but reaction to his acquittal is reminiscent of it. Here was a self-confessed (eventually) thief and liar, a man who might not be the sort many would welcome as a friend. To travel from there to believing him to be a murderer, without solid evidence, would surely be too big a leap for most people to make, and should always be too big a leap for a jury.

Perhaps Ewen Macdonald got away with murder. It is unlikely that we will ever know. What we do know is that 11 people who heard every word and saw every image during a four-week trial did not believe beyond reasonable doubt that he killed Scott Guy. That should be enough.

Coffee's on usThe PSA would have us believe that our 'few' remaining civil servants are slaving away, each doing the job of three people, while waiting to be dispatched to the dole queue. The reality, according to one of last week's Sunday papers, seems to be that they are to be found in cafes, swilling coffee paid for with their taxpayer-funded credit cards.

The sense of entitlement that persists in the civil service is mind-boggling, aided and abetted by their masters. Transpower defended its CEO's use of our money to buy a $130 shirt in Melbourne by noting that his flight home had been cancelled, he was to attend a meeting in Christchurch next day and didn't have a clean shirt. So we bought him one.

Most people buy their own coffee and clothes. It's time civil servants did the same.