Brian Edwards Media

Ewen Macdonald, the UMR Research poll on his guilt and a ‘triple jeopardy’ scenario.

 

 

 

 

 

 

Five days ago UMR Research published the results of a poll of 750 New Zealanders 18 years and older. Their  news release was headed ‘WHAT NEW ZEALANDERS THINK OF THE SCOTT GUY MURDER TRIAL’  and began:

 ‘Just 20% of New Zealanders believe Ewen Macdonald did not murder Scott Guy, according to a UMR Research poll released today.

‘UMR’s fortnightly Omnibus Survey shows 48% of people believe Ewen Macdonald is guilty, 20% say he is not guilty, and 28% said they were unsure. 4% of respondents refused to answer the question.’

UMR came in for some fairly sustained flak from letter-writers to the papers and bloggers for conducting the poll at all. At first I tended to share their disapproval. Macdonald had only recently been tried by a jury of his peers for the murder of Scott Guy and that jury had unanimously declared him not guilty. The UMR poll effectively constituted a re-trial of Macdonald for the same crime with the same evidence, but with a much larger, though considerably less well-informed, jury. That jury, it seemed, had found him guilty. Double jeopardy!

I was about to get stuck into UMR for this gratuitous breach of natural justice, when I suddenly remembered that, in a discussion of the trial and its outcome on TV3’s The Nation some days earlier, I had confidently declared that although Macdonald had been found not guilty by a jury of his peers, he had been found guilty ‘in the court of public opinion’.  The UMR poll had done nothing more than test that hypothesis by seeking the opinion of 750 adult New Zealanders and found it to be correct.  

Public speculation on ‘what really happened’ is inevitable in trials where the verdict is based on circumstantial evidence, insufficient to prove the case against the accused ‘beyond reasonable doubt’.  This is especially true where the accused exercises his legal right to remain silent. The inevitable corollary to there being reasonable doubt as to the accused’s guilt is that doubt remains in the public mind  as to his innocence. Was it unreasonable for a research company to attempt to quantify that doubt? Probably not.

And had Macdonald actually been found ‘guilty’ in that second UMR Research ‘ trial’? No. Of the 510 respondents who actually voted, 360 said guilty and 150 said not guilty. Translated into standard jury terms, 7 voted guilty, 5 not guilty. The court of public opinion had produced a hopelessly hung jury, unable to reach a verdict.

An interesting side-issue arose from the UMR Research survey: In publishing the results of its poll, showing that a majority of respondents believed him guilty,  had the company effectively defamed Macdonald? And, beyond that, could anyone who said publicly that, despite the jury verdict, Macdonald had killed Scott Guy, be sued for defamation?

It seemed to me that to accurately report the results of a survey of public opinion could scarcely be regarded as grounds for a defamation action. But what if I held a public meeting and stated unequivocally that the jury got it wrong and that Ewen Macdonald is a murderer? Different kettle of fish.

But it’s an academic argument at best. Macdonald is in prison and will almost certainly be there for some years. Even accepting the unlikely proposition that he could afford to do so, his chances of bringing such a case to court from his prison cell would seem to be slim.

More importantly, he would be offering himself up for what would amount to a third trial for murder – declared not guilty in the first; a hung jury in the court of public opinion in the second; and the third before another jury in the defamation courts. In theory the onus would fall on the defendant to prove Macdonald guilty of murder, truth being an absolute defence to a charge of defamation. But the reality is that the onus would be on Macdonald to persuade the jury that, on the balance of probabilities, he was not guilty. Given the result of the UMR Research Survey, his chances of success would be considerable less than even. Triple jeopardy.

Later tonight on TV1 investigator Bryan Bruce will advance a new theory on who killed the Crewes. Over the years I’ve made several TV documentaries about the Crewe murders, all of which came to the conclusion that Arthur Allan Thomas not only did not kill Harvey and Jeanette, but could not have done so. Despite that, the clear evidence that he was framed by the police, a Royal Commission of Inquiry and a Royal Pardon, I still meet people who tell me he got away with murder. And they’re massively outnumbered by people who still insist that David Bain slaughtered his family.

‘Twas ever thus!

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36 Comments:

  1. If we reied on public opinion for justice we would still have lynch mobs roaming the streets.

    All those airing their opinions on Macdonald’s guilt or innocence cannot possibly make an informed judgement since they are relying on the snippets of information presented in the media. Only those who sat trough the trial and heard ALL of the evidence can form ajudgement and that is why we have a jury.

    But we should look on the bright side. Had MacDonald been found guilty we would have had 10 years or more of books, TV programmes and court cases to prove the innocence of MacDonald.

    All this case and others like it prove that as many have observed the law has nothing to do with justice. It is about satisfying society’s need for someone to blame and in many cases someone from whom they can exact revenge.

    BE: Well actually the case was very fully reported by the print media. Less so by television which is by its very nature a headline medium, but at least allows you to see and hear the witnesses, if only briefly. Put the two together and you have a reasonable picture.

  2. UMR got free publicity from lazy media. End of story.

    It encouraged more idiocy from Saintsbury on Close up. “The prosecution failed. What is wrong with the system?” Doh!

  3. “Of the 510 respondents who actually voted, 360 said guilty and 150 said not guilty. Translated into standard jury terms, 7 voted guilty, 5 not guilty. The court of public opinion had produced a hopelessly hung jury, unable to reach a verdict.”

    Pedantic but.. this should read 8 guilty, 4 not guilty if it is a 12 man jury, or 7 guilty, 3 not guilty on a 10 man jury.

  4. Reportage and commentary was almost universally biased in favour of the Crown. The real surprise in the poll is that the media failed to convince 48% of them. So it should come as no surprise that the jury, denied the ‘benefit’ of the avalanche of ‘unfair, unbalanced, and inaccurate’ reportage, took little time to return a not guilty verdict.

  5. Tom says that reportage and commentary was almost universaly biased in favour of the Crown.He must get his news from different sources to me.There was a great deal of reporting on defence counsel and what he said.And as the defence only called two witnesses obviously we heard a great deal more about the Crown’s case.
    But one question will help.Who can name counsel for the defence and who can name the Crown Prosecutor.If you can only name counsel for the defence I will submit that the defence got its fair share of reportage and commentary.

  6. Macdonald may have had a second verdict in “the court of public opinion”, but there was hardly a second trial, was there? It was more “hands up all who agree”.

    I think the Scottish system of “not proven” ought prevail here but to be fair, unlike the Bain case, there was pretty scant evidence on offer.

    BE: ‘Not proven’ leaves even more scope for speculation on the accused’s guilt than ‘not guilty’. In the ‘court of public opinion’ it will simply be taken to mean ‘guilty’.

  7. Surely if you are going to translate the results of the poll to standard jury terms, 20% not guilty plus the 28% unsure, or in other words failed to meet the test of beyond reasonable doubt totals 48%. So discounting the refused to answer component, you have a verdict of 6 guilty and 6 not guilty.

    BE: Your correction involves moving one person from the guilty to the not-guilty camp. It may or may not be correct. But does it really matter? My point was simply that this would have been a hung jury and no verdict would have been reached. Whether its 7:5 or 6:6 makes absolutely not difference to that fact.

  8. Ben said:

    “Only those who sat through the trial and heard ALL of the evidence can form a judgement…”

    I sat through the trial and heard all the evidence. For what it’s worth, my conclusions are:

    1) The jury reached the correct verdict. The Crown did not prove its case beyond a reasonable doubt.

    2) I saw and heard much, though not all, of the media reporting of the trial. I concluded that it is not possible to reach a reasoned judgement on the merits of either the Crown case or the case for the defence on the basis of the (necessarily) limited reporting in the media.

    3) In the absence of any evidence additional to what was put before the jury, it is not reasonable to conclude that “he did it” or “he probably did it”.

    As for the UMR poll, it seems to me that the views of uninformed respondents are worthless and irrelevant, and it is mischievous to give publicity to them.

    BE: See my response to Kat on all these ‘uninformed people’. The margin for error in a random poll of 750 people is probably around 4%. So what you’re saying is that well in excess of 90% of people over 18 in New Zealand are ‘uninformed’ where this topic is concerned. I wish I had the confidence to judge my fellow Kiwis like that. I’m also not in favour of censoring unpalatable information.

  9. I wonder what percentage of this particular uninformed ‘court of public opinion’ vote as well?

    BE: I’m not entirely sure of the relevance of that, Kat. Nor am I entirely sure of the basis on which you can dismiss 750 people, randomly chosen, as all being ‘uninformed’.

  10. 10

    As I said in the previous blog, the prosecution proved that Macdonald could have done it but not that he did do it.

    To take the final step to a logical conclusion you must assume there was no-one else who could have done it – and that the police have exhaustively and honestly established that as a fact.

    In very many previous cases many people including jurors have made that assumption which has later been found to have been false. You could probably establish some kind of probability of that assumption being true, but it would remain just a probability – not a certainty.

    Whether those surveyed were informed or otherwise is irrelevant. The results just show the proportion of people willing to accept that assumption. I suspect it correlates rather well with the difficulty of getting a jury to convict in cases of police misconduct.

  11. The principle of open justice is sacrosanct in our legal system and pre dates even the Magna Carta in English law. Court reporting forms an essential part of the principle. The expansion of media exposure made possible by technological advances is testing the principle in it’s delicate balancing act of a free press v’s a fair trial.

    What we have seen in the Ewen McDonald trial is the emergence of the courtroom verdict being marketed as a brand. The extent to which this has been visible throughout this trial is, I believe, unprecedented in court reporting in New Zealand. Even within the strict confines of reporting directly from witness testimony the media have managed to evoke emotions amongst the public building the brand power. Snippets of evidence interspersed with suggestive and memorable images of witness close ups. You Tube clips to whet the insatiable appetites. Stories of puppy dogs that only a true sociopathic monster could harm. All contribute to the public’s desire to buy or reject the brand.
    This new age of courtroom drama now places the defendant on trial with a presumption of guilt where in reality, it is the evidence on trial and the defendant is in the dock under a presumption of innocence until the evidence proves otherwise. The front page story of last week’s Dompost “ The Court of Public Opinion” underscores my proposition and the power of the media to sell the brand. It is the result of trial by television.

    On the subject of brands, the last edition of North & South has launched the latest franchise of “Law & Order” ( the NZ edition) with the poster shot for the DVD cover on page 38. Greg King is the lead counselor and Peter Coles best supporting actor, in second chair.

    It should not be forgotten that this case was tried with the new disclosure rules as a result of the 2008 criminal disclosures act. EVERY statement from every person interviewed in connection with the investigation must be disclosed to the defence whether signed or unsigned and whether or not they appear as a crown witness. Under the old rules only evidence from witnesses appearing for the crown was required to be disclosed. I wonder if we would have had four witnesses to testify they heard gunshots at 5am if this case was tried before 2008.
    The blog is fortunate to have a contributor, above, who sat through all the evidence. On the one hand it is said that circumstances don’t lie, but on the other hand it’s said that the truth can be stranger than fiction.

  12. My point, which in all fairness I should have made clear, was a statement such as: “In publishing the results of its poll, showing that a majority of respondents believed him guilty” is incorrect, 48% is a minority.

    Yes Macdonald will continue to be tarred with the brush of guilt because that’s the interesting headline story, but if the poll carries any water, the majority of us in our court of public opinion agree with the jury’s not guilty verdict provided we apply their same rules of beyond reasonable doubt.

  13. I share Alan Wilkinson’s views.

    The police are not looking for anyone else to charge. And nor should they waste their resources in chasing down a ghost. There is no one else known, who could harbour such pathological malice, capable of displaying the explosive rage to do what Ewan Macdonald did. No one else.

    Btw: slaughtering a few labrador pups comes easy, if you have no problem killing a neighbour’s $10,000 deer, and burying it.

  14. “BE: See my response to Kat on all these ‘uninformed people’. The margin for error in a random poll of 750 people is probably around 4%. So what you’re saying is that well in excess of 90% of people over 18 in New Zealand are ‘uninformed’ where this topic is concerned. I wish I had the confidence to judge my fellow Kiwis like that. I’m also not in favour of censoring unpalatable information.”

    I grant you, BE, that I’m making an assumption, namely that the 750 people polled did not attend court and sit through 100 hours of evidence and argument. That’s what I meant by “uninformed”. That still seems to me a reasonable assumption.

    I’m not in favour of censoring unpalatable information either. I just question whether opinions formed on the basis of limited media reporting rather than on the full evidence presented in court qualify as “information” in any useful sense. What is it “information” about, other than the opinions of the respondents?It certainly isn’t “information” that has any bearing on the guilt or innocence of the accused.

  15. There is plenty of reasonable doubt that Ewen did it. The security company recorded that Ewen and his workmate deactivated the alarms on the cowsheds at almost the same time the gunshots were heard way down the road.

  16. @matti

    There has been a lot of discussion on this and many other blogs over , “did he or didn’t he”. I, like virtually everyone else in New Zealand had to rely on court reports for my information. I tried to do the best I could. There were probably a dozen or more journalists in and out of the courtroom at various times. Each of them reported different tidbits of testimony, so one would hope to stitch together a reasonable picture of the day’s testimony after they all filed their summaries online.
    But this new age of court reporting, exacerbated in high profile trials such as the one under discussion, brings with it the side effects of filing reports under pressure. The inconsistencies were lamentable. There were for example, three different interpretations and reporting of fact on the search of the crime scene. There were different reports on the simple fact of the distance of the murder scene to the accused’s own home. The list goes on. So in the end I gave up in trying to form an opinion as a lay juror in the trial by media.
    However, the one strand of evidence that places me squarely in the court of reasonable doubt is the timing. Despite the efforts of the prosecution to weave the rope of evidential strands that gave great strength to their case, an accused person cannot be in two places at the same time. It is all about the timing. One needs to have a sense of place and go down Aorangi Road themselves as I did the other day. Pull over to the side of the road and sit for a while and reflect on what you know.The witness testimony as to the timing of the shots and the presence of the accused in his own driveway , unless it has all been misreported, is the clincher in my opinion.
    For the Jury who sat through 100 hours of evidence, perhaps they thought the same.

  17. “The UMR poll effectively constituted a re-trial of Macdonald for the same crime with the same evidence, but with a much larger, though considerably less well-informed, jury. That jury, it seemed, had found him guilty. Double jeopardy!”

    BE, in your own words you say these 750 randomly chosen people are ‘considerably less well-informed’. I just wondered how many of these people also vote, as it may explain how every now and then we end up with similar election results.

  18. it beggars belief that there are people who, knowing Macdonald’s demeanour, beleve he is innocent.
    It is said ” that the eyes are the window to the soul”.
    The guy makes my blood run cold.

  19. “it beggars belief that there are people who, knowing Macdonald’s demeanour, beleve he is innocent.”

    That staggers me too, but evidence is what the court needs and apparently there wasn’t much. I don’t think steely grey eyes with a purple tint, too close together or too far apart, necessarily indicate much more than too many Brussels sprouts in the childhood diet, but usually it doesn’t require two people to disarm an alarm, and anyone with size 7 feet can wear size 13 clogs for long enough to fool some people.

    It seems the task of the defence lawyer is, failing a bomb-proof alibi, to muddy the waters enough to induce confusion in the jury room: no clearer has this been demonstrated than in the Bain case.

  20. 20

    “it beggars belief that there are people who, knowing Macdonald’s demeanour, beleve he is innocent.”

    However, it is common for people who seem different in some way to be targeted by police and wrongly convicted.

  21. @zinc, 19th July 0925
    “….but usually it doesn’t require two people to disarm an alarm,…..”

    I can’t figure out the inference of this and I am curious as to what it could be.

  22. Short of Scott Guy being involved in some criminal enterprise (such as drug cultivation and/or dealing), his wife would, most certainly, be aware of any danger to his well-being from another person or persons. He would have confided in her over any serious matter. And she would’ve sensed a change in his mood and behaviour as to what was troubling him. Even if, he had kept it from her.

    No one can underestimate how envy arising from the apportionment of family assets amongst its members can, over time, produce deep-seated resentment and simmerimg hatred, which becomes toxic — and deadly.

  23. After all that is said and done, there is only 1 person who *truly* knows whether Ewen McDonald shot his brother in law, and that is Ewen McDonald himself. A jury works on the evidence that is presented to the court. If there is not enough evidence, there is no conviction.

    Of course, the guy has lost everything anyway. The wife, the kids, the job for life with the 6 figure salary, the father in law who went out of his way to ensure he was able to provide for himself and his family…

    As a friend of mine says…things can always get worse.

  24. @ Millsy 19th July 22.07
    “””…..After all that is said and done, there is only 1 person who *truly* knows whether Ewen McDonald shot his brother in law, and that is Ewen McDonald himself….”

    – knows whether- implying that he either shot him or, perhaps not….so that makes two persons…the perpetrator and the accused.
    Many say circumstances don’t lie……but on the other hand the truth can be stranger than fiction.

    Almost twenty years ago Vicky Calder accused of attempted murder, was your gender equivalent to Ewen Mcdonald…Ruining property ,cutting up clothes, spreading dog excrement over the house, threatening to “do bad bad things to any man that upsets me”, access to specific poisons and so on….it took two of these trials and it gripped the nation…both juries had to step through a maze of circumstantial evidence and that was in the days when the prosecution only disclosed a fraction of the evidence they are obliged to do today under the new Criminal Disclosures Act….
    So after one hung jury and a not guilty verdict she stepped from the dock acquitted and a free person.

    The jury in this case heard a lot more evidence, 100 hours of it, than perhaps they would have done if it was tried before 2008. So indeed the police did conduct a thorough, rigorous and extensive investigation….only this time they turned it all over to the defence and that is what balanced the scales in the courtroom. The case didn’t need a hung jury and second trial.

  25. Steve F: The alarm reference was in response to the post from “matti
    July 18th, 2012 at 18:20″

    Did the shed have an alarm system which required two men to disarm, or is it possible Macdonald turned up to the cowshed at opening time, and said something to his oppo like “bugger – forgot me smokes. You open up and I’ll be back in half an hour”…?

  26. For the crimes Macdonald has been convicted of, he will be sentenced to prison. And when he comes out, he’ll be sent straight to Coventry; as he should be.

  27. The jury only hears what is presented to it. What about the suppression of charges that the accused has already pleaded guilty to? Was it judged that if the jury was allowed to hear about these they might be swayed too far in one direction? So we pick and choose what the jury is allowed to know.

  28. I watched the Bryan Bruce ‘documentary’ last week and was totally underwhelmed. I was in my 20’s when the ‘Crewe murder’ took place and lived in the Waikato region at the time. I also took a keen interest in the proceedings, especially once Arthur Allan Thomas was arrested and tried and convicted [twice] for the murder of Harvey and Jeanette Crewe. After watching ‘The Nation’ this weekend, a comment made during the discussion reiterated what I have thought for all these years – that if Arthur Allan Thomas did commit the murders and his wife Vivienne said in her statement that Arthur was home that night, after putting down a sick cow, why wasn’t she charged with perjury. This case is just going to keep on keeping on until ALL documentation is released for public scrutiny.

  29. “– knows whether- implying that he either shot him or, perhaps not….so that makes two persons…the perpetrator and the accused”

    Quite right. Mind you, I believe that McDonald did do it.

  30. Gypsum July 19th, 2012 at 18:05
    “Short of Scott Guy being involved in some criminal enterprise (such as drug cultivation and/or dealing), his wife would, most certainly, be aware of any danger to his well-being from another person or persons. He would have confided in her over any serious matter. And she would’ve sensed a change in his mood and behaviour as to what was troubling him. Even if, he had kept it from her.”

    What a load of tosh. Ewen macDonald managed to carry out years of ‘secret missions’ without his loving wife or the rest of his family having a clue. Scott Guy could have been up to anything he liked without Kylee knowing. Just as many partners have affairs, commit crimes, molestation and all sorts of nasty things right under their spouse’s nose. Who says he would confide? Who says she would notice? Talk about fantastical speculation.

    The point that many commentators keep forgetting is that nice, innocent (or not) people are victims of random acts of crime every day. Burglary, assault, homicide etc. does not require a pre-meditated, precisely planned motive- just intent at that moment in time. Because the prosecution painted such a long and detailed story about how Ewan was simmering with resentment all these years, everyone has decided to rule out any other potential ‘motive’ or opportunity because what else could there be?

    Well I dunno, what about the car that was seen driving from Scott’s house by the farm worker waiting for Ewan. Or the very specific cigarette pack found outside Scott’s gate. Or the burglary of shotguns and semi-automatic weapons in Feilding a week before? Or the fact that there were posters around town advertising $800 lab puppies for sale. (Feilding’s a very small town- it wouldn’t have taken much chit chat to work out who they belonged to).

    If there weren’t witnesses saying gunshots were close to 5am and the worker who saw Ewan come out of his house just after 5 and alarm company had record of him deactivating alarm at 5.03 then I imagine Ewan would have been found guilty. But that’s 5-6 witnesses that suggest he physically couldn’t have been there to do it.
    Where are the witnesses cementing that he did do it? All the other witness accounts could offer was a picture of Ewan’s introverted and frustrated personality, and off-hand comments that were subsequently given enormous weight. Yet none of them placed him at the murder scene. Neither did the physical evidence.

    Also one last thing…why is the deer killing made out to be some gruesome act of animal cruelty? He was a hunter- he shot them dead- bam. No suffering, no weird torture just what a hunter does. Plus people do realise what that farmer was breeding those stags for don’t they? Safari park style hunting- that’s exactly what was going to happen to them eventually, they weren’t his Bambi baby pets. The act was vandalism/ or theft of property… same as taking someone’s quad bike or a builder’s tools.

  31. He murdered cattle with a hammer-what sort of person does that-he is such a horrible person and I think guilty guilty guilty.

    BE: Edited. I understand how you feel, but not recommending violence against Macdonald.

  32. What shocked me was that the Police deliberately planted cartridge cases in the grass to convict Arthur Alan Thomas, thereby proving the Police can be criminals themselves, and get away with it “Scot free”, even though a DSIR Scientist proved their guilt.

    Phil Goff repeatedly blocked David Bain going to the Privy Council for a Rehearing.

    The Magistrate presiding over the Bain Trial disallowed evidence over Robin Bain.

    All information should be put on the table for Trials.

    Ewen McDonald confessed to killing 17 calves, which is a real concern, but this was suppressed from the Jury.

  33. Ewen is truly a vile speciman of humanity and only the most blinkered would believe he is innocent.

  34. killing young yarded calves with a hammer? calves have very hard heads, quite honestly. some or all would have had a long slow death.
    going around and doing these dreadful acts on animals owned by neighbours, wrecking property owned by neighbours. from the list of unlawful and heinous acts, he was apparently not just sour with his brother in law.
    he appears as a jekyll and hyde – disturbing, and yes, psycho.

  35. One thing is for sure the system at the moment is set up to fail the guilty are walking free the pendulum of justice has swayed to far in favour of the guilty, we are an educated country where a person accused of murder should have to stand up in court and answer questions and tell us what they know instead of standing there like a dummy, the right to silence is aiding killers to walk free, we have seen it with David Bain we have now seen it with this case. To get justice the right to silence must go, the jury must be informed of all the evidence, if the accused had clubbed to death 19 defenceless animals in an act of revenge then the jury must be informed of that in order to see the character of the accused to assess whether this goon in court with the suit and tie is what he appears or whether he is really a sick psychopath.