Editorial: A sign of strength

20:39, Jul 08 2012

The murder of Scott Guy and subsequent trial of his brother-in-law, Ewen Macdonald, has been described as a soap opera and a Shakespearean tragedy.

Even counsel in the case was driven to grope for a literary analogy, calling it a classic whodunit. It was none of those things. It was real life in which a husband, father and son was brutally gunned down leaving his family bereft.

And unlike the endings that come in escapist literature, there has been no neat conclusion with the conviction and jailing of a culprit about whom there is no reasonable doubt. To some that may be unsatisfying and suggest a weakness in the justice system. On the contrary, it is in fact a demonstration of the central strength of the system by which guilt is established in criminal cases.

The case gripped the attention of the nation in a way unmatched by any case like it in recent times. Media coverage was intense and sustained for the four weeks of the trial. In devoting such resources to it, and maintaining them, the media were only delivering what their audiences wanted.

The instant feedback provided by the internet showed intense interest in every development in the case. Since the case made by the prosecution was not unusual - by far the largest proportion of homicides are committed by family members because of some emotional or financial strife - this could only have been because it was less ordinary in that it involved a young, attractive, middle-class family.

The prosecution case was a circumstantial one. There were no direct witnesses or near witnesses to the shooting, so the Crown had to show, by a chain of separate pieces of evidence, that in the circumstances that existed at the time the accused was guilty of the crime beyond reasonable doubt. As in all criminal cases, the onus of establishing the accused's guilt lay wholly on the prosecution.


As Justice Simon France said, the trial was not a whodunit in the sense of attempting to find out who, out of a number of possibilities, committed the crime. The jury's task was only to decide whether the Crown had proved its case to the required standard.

As it turned out, the jury found unanimously that after four weeks of meticulously presented evidence, which itself had been gathered in an intense investigation of many months, the case had not been made out. For the jury, there remained at least a reasonable doubt.

While there had been resentment at one time between the accused and his brother-in-law, for instance, there was also evidence that showed the rancour had faded more recently. Doubt, too, was raised around the few pieces of real evidence, such as footprints left by dive boots.

The adversarial system by which trials in New Zealand are conducted – in which the prosecution puts up its best case, which the defence puts to the test as best it can, with a judge presiding to ensure fairness – has its critics.

Some say a more inquisitorial process, like that used in much of Europe in which a judge leads the investigation may be better, at least in some cases. The Law Commission is currently examining that notion.

On the face of it, there is little to suggest that the European process would be clearly better.

In the Scott Guy case the adversarial process cannot be shown to have been flawed. Ewen Macdonald entered the dock entitled to the presumption of innocence. His acquittal means that in law that presumption remains.

The Press