The criminal justice system in this country, as in many other countries, is founded on the principle that the combined experience, wisdom, reasoning power and common sense of 12 of an accused person’s peers may be relied on to reach a sound verdict on that person’s guilt or innocence. Though, for a variety of reasons, juries do occasionally get things wrong, history seems to suggest that no better method has yet been found of determining the truth in criminal trials. Given the faith that we put in them to reach that sound verdict, it seems axiomatic that juries must have access to all the relevant facts in a trial.
A decision to suppress or conceal certain facts from the jury is therefore extremely serious and must surely meet the test that those facts can have no bearing on or relevance to the accused’s guilt or innocence. In the Scott Guy murder trial, Justice Simon France allowed the jury to hear evidence of certain actions by the accused to which he had already pleaded guilty. The revelation of these actions placed Ewen Macdonald in an extremely poor light and might well have suggested that he harboured feelings about his brother-in-law Scott Guy and the Guy family that might be considered a motive for murder. Macdonald had burnt down an old house on the Guys’ property and had vandalised and sprayed highly offensive graffiti on Scott and Kylee’s new home.
In his summing up, Macdonald’s own lawyer, Greg King, referred to these events:
“He did that dreadful, shameless, shameful thing and wrote dreadful things on the outside. It was gutless and cowardly.” Since Justice France allowed these facts to be heard by the jury, it must be assumed that he considered “that dreadful, shameless, shameful thing” relevant to the jury’s deliberations. It went, His Honour may have reasoned, to Macdonald’s state of mind. Put slightly differently, the judge trusted the jury to give Macdonald’s previous criminal behaviour only the weight that it deserved, not to allow it to prejudice their deliberations on whether he had killed Scott Guy. The Judge did not , however, trust them with the fact that during his ‘missions’ with Callum Boe, Macdonald had destroyed 16,000 litres of milk, burnt down a whare and slaughtered 19 of a neighbour’s calves by beating them to death with a ball-peen hammer. Not all the calves were dead when they were discovered.
I find it hard to believe that these facts were not relevant at least to Macdonald’s state of mind or to his nature. His actions, and in particular the killing of the calves, showed him to be a vengeful person capable of violence. Macdonald himself would probably agree. Referring to the burning down of the old house on Scott and Kylee Guy’s property and the vandalising of their new home, he told police that he was “not that extreme” that he would take someone’s life: ”It looks obvious, these leading up to events, but I’m not that blimmin psycho.” My understanding is that Justice France denied the jury access to the fact that Macdonald had already pleaded guilty to burning down the whare, destroying the milk and slaughtering the calves because he considered that knowledge would prejudice their judgement on Macdonald’s guilt or innocence on the charge of murdering Scott Guy. He did not trust them, in my words, “to give Macdonald’s previous behaviour only the weight that it deserved, not to allow it to prejudice their deliberations.” He therefore kept those facts from them.
My concern in all of this is that if we subscribe to the principle “that the combined experience, wisdom, reasoning power and common sense of 12 of an accused person’s peers may be relied on to reach a sound verdict on that person’s guilt or innocence”, then we ought to trust them to do precisely that, rather than assuming them incapable of distinguishing what is relevant from what is not, or allowing emotion to cloud their judgement. A judge, is must be remembered, has the power to instruct a jury on their responsibility not to be swayed by emotion and to reach a calm and considered verdict solely on the strength of the evidence presented to them. That ought to be enough. When we stop trusting juries with the facts, in the arrogant belief that they aren’t up to separating what is relevant from what, however shameful or sickening, may not be, then we had better start looking for a different system of criminal justice. In the meantime, it is worth noting that the jury in the Scott Guy murder trial, found Ewen Macdonald not guilty. They evidently had no difficulty in separating what was relevant from what was not or in setting their emotions aside.