By Lara Albert

On 23 September, the jury delivered their verdict, finding Phillip Polkinghorne not guilty of murder. Polkinghorne was on trial in the Auckland High Court for several weeks, facing accusations of murdering his wife, Pauline Hanna, by strangulation. The prosecution alleged that the killing may have occurred while Polkinghorne was under the influence of methamphetamine or after a confrontation related to his infidelity. They further contended that he staged the scene to make it appear as though Hanna had taken her own life. In contrast, the defence argued that Hanna’s death was a suicide, with Polkinghorne maintaining his innocence throughout the proceedings. The trial included testimony from over 80 witnesses, with both the prosecution and defence presenting substantial evidence to support their cases.

An interesting feature of the trial – and the focus of this article – is the question the jury posed to Justice Lang before entering their final deliberations:

"Most of the people on the jury do not think there is enough evidence to support Pauline committing suicide. However, some people on the jury do not think that the Crown has supplied enough evidence that we can answer yes to the question: 'Has the Crown made you sure that Dr Polkinghorne caused the death of his wife, Pauline Hanna, by intentionally strangling her? Please can we have some direction?"

This question indicates that a majority of the jury believed there was insufficient evidence to support the theory of suicide. The challenging aspect is that no alternative cause of death or other potential suspect was identified. The jury essentially rejected both key arguments (suicide and murder) without any alternative explanation, creating a logical inconsistency. This left them in a grey area where the majority did not believe suicide occurred but also weren't convinced Polkinghorne was guilty despite having no other plausible explanation. Ultimately, the jury delivered their not-guilty verdict.

The issue with this verdict is that it conveys an impression of 'innocence,' when the outcome was more about insufficient evidence. While Polkinghorne was acquitted, the verdict does not necessarily reflect a conclusion that he was innocent but rather that the prosecution did not meet the burden of proof required to convict him of murder. The binary system of "guilty" and "not guilty" can be criticised in cases like this, where juries are forced to choose between two extremes despite uncertainties making such a decision incoherent.

This brings into focus a broader question about whether New Zealand's justice system might benefit from an alternative verdict option. In Scotland, the unique “not proven” verdict exists alongside "guilty" and "not guilty," functioning as a form of acquittal without complete exoneration. Notably, however, defendants who receive this third form of verdict still retain the right not to be tried again for the same offence.

Proponents argue that this third verdict allows juries to express doubt when there is insufficient evidence for a conviction but hesitation to declare full innocence. It offers a middle ground, reflecting the uncertainty in some complex cases, especially where juries are unsure but do not want to return a straightforward "not guilty." In Polkinghorne, a "not proven" verdict might have been a more appropriate reflection of the jury's state of mind. It would have allowed them to acknowledge that while the Crown failed to meet its burden of proof, they were still unconvinced of Polkinghorne's innocence.

This third form of verdict can provide a sense of closure for the prosecution while acknowledging the limitations of the evidence. The current binary system of “guilty” or “not guilty” can create the false impression that an acquittal means the charges were unjustly brought. But, as in Polkinghorne's case, the police often have no choice but to pursue a charge when there is substantial evidence, even if that evidence later proves insufficient to meet the legal threshold of "guilty." A "not guilty" verdict can leave the public thinking the defendant was wrongfully charged, and defendants sometimes exploit this perception, criticising the justice system for pursuing charges against them and framing the process as a waste of resources. Chris Kahui’s case is a prime example; after his acquittal for the murder of his twins, he not only blamed the police for mishandling evidence, but public backlash also emerged, and it was a later coroner’s inquest that held him accountable for their deaths.

However, the "not proven" verdict is not without its critics. Opponents contend that it leaves defendants in a state of legal limbo, creating confusion about their status. Defendants are acquitted yet left with a cloud of suspicion, as the verdict implies unresolved doubt about their innocence. This could be particularly problematic in a high-profile case such as Polkinghorne's, where the media and public opinion might continue to view the defendant with suspicion despite an acquittal.

Another argument is that the introduction of a "not proven" verdict could undermine the fundamental principle of presumed innocence. In the New Zealand context, where the justice system is predicated on the notion that a defendant is innocent until proven guilty, a "not proven" verdict could blur the lines between guilt and innocence in the eyes of the public.

Despite these concerns, it is worth considering how a "not proven" verdict might function in the New Zealand justice system. The case of Phillip Polkinghorne demonstrates how such a verdict could benefit the system. Allowing this form of verdict maintains the integrity of the jury process. Indeed, such an inclusion might strengthen public trust in the justice system by showing that juries can reflect nuanced situations where the burden of proof wasn't met, but doubt remains. In high-profile cases like Polkinghorne's, where public scrutiny is intense, a "not proven" verdict could also help manage public expectations by providing a clearer explanation of the jury's decision-making process.

That said, the New Zealand legal system would need to carefully weigh the advantages of introducing such a verdict against the potential for confusion and public misunderstanding. The implementation of Scotland's 'not proven' verdict has been problematic, highlighting the need for careful guidelines on its use. For instance, clear instructions should be provided to juries regarding when this verdict is appropriate, with the potential for excluding its use in cases involving sexual offences because such cases often rely on testimonial evidence where juries may struggle to reach a conclusion. Public education would also be essential to ensure that the public understands the distinction between "not proven" and "not guilty" and the implications of each verdict.

In the end, this article is just meant to act as a conversation starter; I think Polkinghorne is a good example of when the 'not proven' verdict could be used effectively.

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