Innocent until proven guilty

Is it justice or injustice to withhold the information of a defendant's previous conviction from a jury? That's the question many people are asking this morning.

Shipton and Schollum were found guilty in 2005 of a similar rape to the one with which they were charged in the recent case; that rape happened at a similar time to this one. That conviction surely speaks volumes about their character, doesn't it? Shouldn't juries be made aware of the type of people they are judging?

My answer: Not necessarily.

You see, juries are rightly required to judge only on the facts before them. The prosecution is required to lay out the facts that prove beyond doubt that the defendants did what the prosecution says they did, and if the evidence itself can't convict, then a jury is rightly required to deliver a not guilty verdict. This is how innocent people are protected from unfair convictions. This is what it means to be innocent until proven guilty -- a person's guilt on specific charges must be proved by the facts germane to those charges.

But surely the character of the defendants is important to a case? Well, not necessarily. Character can certainly become an issue during sentencing. And it can become an issue too if the defendants choose to stand on their character and make that part of their defence; at that point, a previous conviction would certainly be germane. If their lawyer was to say, "These aren't the sort of men who would do this sort of thing," then straightaway a previous conviction comes on point.

But Shipton and Schollum's lawyer didn't do that for them. He couldn't -- and not just because of the prior conviction. It's true that former All Black Steve McDowell was called to give evidence on behalf of Clint Rickards (and based on the paucity of factual testimony offered by McDowell, we can only conclude he was called as an 'informal' character witness for a man very much short of the quality) but given the previous conviction -- and what that conviction was for -- the defence knew in this case that they just couldn't go there; they were unable to use their character as any sort of defence, or even to place Schollum or Shipton in the witness box lest they inadvertently make their own character an issue -- and the defence was hamstrung here not just because of the previous conviction, but also because the character of all three defendants is so loathsome.

Rickards did take the stand, and even at the distance offered by the filter of television, radio and newspaper his thuggishness and brutality was clear enough. Yet despite this obvious thuggishness, which we figure must surely have stared the jury in the face, the jury concluded that the facts did not support a conviction in this case. Such is their right. They saw all the facts that the prosecution had determined related to this case, and we didn't. Their verdict was given on the basis of those facts.

Justice, we have to say, has been done in this case, and on these charges.

But the character of all three men has now been laid bare for all time, and it's not a pretty sight. And that sort of character is itself is a life sentence.