Brian Edwards Media

Why the jury in the Scott Guy murder trial should have been privy to all the facts about Ewen Macdonald

 

 

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.

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66 Comments:

  1. It seems very strange to me that the Crown is allowed to present evidence as to motive and state of mind (eg attacks on Scott Guy’s property and wife) but not on his capacity for vengeful violence – eg killing the calves.

    In my view there should be good cause shown before criminal history is suppressed.

  2. Indeed.

    And remember burning down the whare, destroying the milk and slaughtering the calves were McDonald’s response to being let off with an apology and a handshake after being caught poaching.

    Those who testified against him should watch their backs when he gets out.

  3. Isn’t it that the that the offences against the neigbours were not DIRECTLY relevant to the Guy case. Remember the jury in the Louise Nicholas case were not told about the previous convictions of the men accused of rape.If criminal history were to be immediately available you wouldn’t want to be caught shoplifting with 143 previous convictions for theft.The judge is given that information to inform his sentencing.

    BE: I’m aware of this argument of course. But Macdonald’s previous behaviour suggests that he might just be precisely the sort of ‘bloomin psycho’ that he himself describes. And why is it acceptable to let the jury know that he burnt down a house belonging to his half-brother and vandalised and wrote disgusting graffiti on Scott and Kylee’s new home, but not acceptable to reveal that he bludgeoned 19 calves to death? Each of those behaviours tells you something about the character of the man. But my main point is that it is hazardous for judges to be effectively ruling on the capacity of juries to distinguish between what is relevant and what is not relevant or their ability to make rational rather than emotional decisions. Perhaps we should introduce intelligence and psychological testing for prospective juries.

  4. If someone has a criminal record relative to the charge that they appear in court for then all previous offences should be admissable otherwise how can a jury reach a clear verdict.
    The outcome at the Guy trial is risible but McDonald will meet a sticky end both mentally and physically so he won’t get off Scott free entirely?!

  5. Well said Brian. How the judge could consider these serious events – which provide a good indication of McDonald’s state of mind – to be irrelevant, is beyond me.

    Alan is correct – the jury in the Louise Nicholas case were not told that two of the men on trial were already serving jail time for previous pack rapes. That’s yet another case where justice missed the mark badly.

  6. Juries do not decide innocence or guilt rather whether the evidence proves the charges beyond reasonable doubt.

  7. Ewen MacDonald did not have a criminal record that was relative to the charge he was appearing for, he had never been charged with a crime that involved violence towards another person. What he admitted to and what may have been in his background certainly indicated very serious character flaws but none of it actually linked him directly to the murder of Scott Guy and this is what he had to be judged on in a criminal trial, I don`t think as awful as it is that this Juries verdict would have been different. The Louise Nicholas case was one where persons had been convicted of the self same crimes, not so with this case.

    BE: The only point I would make here is that the relationship between violence against animals and violence against people has long been established.

  8. I fully agree, “juries must have access to all the relevant facts in a trial”. Jurors should be trusted to discard irrelevant information. Another point, too many criminals come to court with lengthy rap sheets. This is why a “three strike system” should be introduced into law which would further keep deviant behaviour in check.

  9. Alfie,

    It was only right and proper that in the Nicholas case the jury were not told of Schollum and Shipton’s prior convictions. After all, it wasn’t only them on trial. The prosecution could have tried the three accused separately but chose not to. Why? The prosecution wanted to convict Clint Rickards merely because of his association with the other two. A rather devious plan which came unstuck.

    As for Brian’s comments, I tend to agree with him. We saw something similar in the David Bain case, and previously in the Peter Ellis case, where evidence was suppressed.

  10. Testing juries for intelligence and psychological fitness? Heaven! We have enough trouble getting jurors now.

    BE: Irony is lost on Kiwis.

  11. 11

    Had the missing puppies been linked to MacDonald (no trace was ever found) they would have been allowed to introduce the killing of the calves. That being said, had the link been made between the puppies and MacDonald, you might not have needed to know about the calves to find him guilty.

  12. The judge’s decision to allow the jury to know of the vandalism committed by Ewen against Scott Guy’s property but then to withhold details of the slaughtering of the neigbour’s calves and the emptying of the milk vat, defies belief. This, coming after Ewen’s handshake to seemingly “atone” for the shooting of that neigbour’s prized deer and the burial of carcasses. Whatever the reasons the judge decided upon, it goes against every single judicial metric as to why the jury should be privy to one set of crimes, but not the other.

    The jury should have come to its decision that went beyond simple binary term of black-and-white evidentiary matters that would have provided a conclusive link, tying Ewen to the murder. It was also the ‘balance of probabilities’. And past crimes. And motivation. And demeanour. And cold calculation.

    The jury could reason that Ewen harboured a level of hate, which had been dangerously fermenting into a deadly toxic brew. And that he had become adroit in displaying a persona to disguise his true feelings, and deceive those whose rage he harboured against. Ergo, the faux act of contrition.

    By not taking the stand to give his own account, meant, that the jury had to make their character assessment of him by way of his stoic silence.

    Sadly, the jury were swayed by the histrionic highly-animated theatrics from defense counsel, and a judge who suppressed details of Ewen’s past crimes which were so germane to this case.

    BE: I’ve taken out your final paragraph re the judge, which I think might be tempting fate.

  13. “Sadly, the jury were swayed by the histrionic highly-animated theatrics from defense counsel…”

    Have you spoken with each member of the jury, Vern? Unless you have, you don’t know what swayed the jury. The prosecution case was not helped by the fact that the evidence against the accused was very weak. Witnesses hearing 3 shots when the weapon allegedly used could fire only 2 is difficult to counter, except with speculation. The Crown case was founded almost entirely on speculation. I strongly suspect that’s why the jury acquitted.

  14. I also view with dismay ‘the histrionic highly animated theatrics’ on display, from one side, in this trial. If I am ever charged with murder, and on occasions I have thought it possible, I would immediately enlist the most prominent Shakespearean actor I could find.

    On the matter of the judge revealing, or not, relevant past convictions or incidents. It would be simpler, if you choose to remain silent, to have all your history compulsorily revealed. By remaining silent you don’t allow a jury to see how you address accusations or explain inconsistencies.

  15. I continue to be amazed, but mainly concerned, that on the basis of one case, or maybe even a few, commentators have sufficient confidence in their own ideas to suggest removal of those developed by the justice system over hundreds of years. These rules about the right not to give evidence and the exclusion of prejudicial evidence were developed in times significantly less liberal than our own and have remained throughout the oscillations of the political pendulum. If they had been applied wrongly in the Guy case then a Crown appeal would have sorted that out. What these commentators forget is that, ultimately, these rules are not there to protect an accused. They are there to prevent the corruption of the law enforcement and justice systems that occurs when they are removed, and they therefore benefit us all despite how unsavoury they may seem in a particular case.

  16. It is obvious that very little useful information would come from tight-lipped Ewen Macdonald, even if he was required to take the stand. Callum Boe is the weak link in this duo. I am surprised that the police did not put more pressure on him inorder to gain stronger evidence against Macdonald.W

  17. Marion said:

    “Ewen MacDonald did not have a criminal record that was relative to the charge he was appearing for, he had never been charged with a crime that involved violence towards another person. What he admitted to and what may have been in his background certainly indicated very serious character flaws but none of it actually linked him directly to the murder of Scott Guy and this is what he had to be judged on in a criminal trial…”

    I think that puts it very well. That said, I’m inclined to doubt that knowledge of the earlier offences would have changed the jury’s verdict on the charge of murder. The factual evidence against Macdonald was very weak.

  18. 18

    I agree, I think the totality of the evidence even including that suppressed was sufficient to prove that Macdonald could have done it, even that he probably did it, but not that he did do it.

    And the prosecution failed properly to resolve both timing and footprint issues which then left reasonable doubt.

  19. @ Marion (and Random Punter)
    “…he had never been charged with a crime that involved violence towards another person”.

    Tell that to 19 calves, whose skulls have been caved-in.

    Maybe, we should just accept Macdonald’s snr’s assessment of his boy’s actions: those of a “larrikin”.

  20. In making his decision the judge would have had his eyes on precedent and the Court of Appeal. I suspect that had the judge allowed MacDonald’s history to be known and had a conviction resulted, it would have been overturned on appeal and then you would have been bitching about te waste of money.

    Like the Clayton Weatherstone case, this has generated the usual knee jerk reaction on the part of those know nothing of the law and who either the quarrel with the verdict or object to the way the defence was handled. We have already had one piece of poor lawmaking because of Weatherstone; let’s not rush into another one.

    In the end the decison on whether or not the accused’s history should be made known is for the judge not for the lawmakers and if you and others don’t like it, that’s tough. I know if I were accused of a serious offence I would rather the judge decide what the jury is allowed know about me, rather than the lynch mob determined to get a conviction at any proce.

  21. Ben

    You make a valid point. Some evidence isn’t admissible. That includes irrelevant or unhelpful evidence. Also, evidence that is more prejudicial than probative is not admissible. Judges have to decide what to allow and what to exclude. It’s not black and white nor is it a case of all or nothing.

  22. “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.”

    As much as it galls me to see McDonald go free (of the murder charge, at least), and as much as part of me would have wanted all the facts in front of the jury, I can understand the legal logic of limiting evidence of known wrong-doing to that connected DIRECTLY to the circumstances of the charge the jury is considering. McDonald’s malevolent actions against Guy’s property counted. The other stuff, as ugly as it was, didn’t.

    If not, then the Crown, with the police in tow would have an open license to go digging for dirt, knowing they can present anything and everything. Who of us hasn’t committed a legal, moral, or civil transgression, to which those with the job of gaining a conviction in the adversarial system can put a malevolent spin, sometimes years later and in a completely unrelated context?

    It stops fishing expeditions, where arguments such as “state of mind”, and “nature” can mean anything that puts the accused in a bad light. Until such time as the legal system can ensure common sense will apply (and I doubt any codifying bureaucracy ever can), then the present system is the lesser of two evils.

  23. Here’s my response – http://jcelaw.posterous.com/ewen-macdonald-is-a-scumbag-is-that-evidence#

  24. Brian – I did agree that McDonald’s past offending should have been made known to the jury when I first read your post but upon reflection I’m not so sure.

    Knowing these things about McDonald makes me thing he probably is guilty of the murder – and that is WITHOUT SEEING ANY EVIDENCE OR HEARING EITHER THE PROSECUTION OR THE DEFENCE CASE. And I guess that is the point of keeping the information secret.

    After all, other scenarios ARE possible: for example, if someone knew about these past incidents they could have seen it as an opportunity to get away with murder by framing McDonald, knowing that the information would prejudice Police and possibly the Court.

    Alternatively, the actual murderer may not have known about McDonald but just got lucky.

  25. John,

    I read you response, but it makes no mention of the fact that it was revealed at trial that Macdonald had killed and buried deer on a neighbour’s property. How was that relevant to the charge of murder? Why was that evidence admissible?

  26. 26

    Geoff , well said. The Crown has to prove their case beyond resonable doubt without prejudicial evidence. The jury must make that decision on the evidence of the case alone. The alternative is surely not what we want?

  27. It is not the first time nor the last that a trial judge has made an error in deciding what information is relevant to the case. If the defendant has displayed himself to be a rat-bag then the jury should have this information. Let’s not down play Mcdonald’s serious offending as “larrigan” behaviour.

  28. If a jury can’t be trusted with all the information and previous convictions of an accused, why would we believe it could be trusted with a selected portfolio of filtered details? Perhaps we should replace a jury with three judges who hear everything known about the accused, but who are required to deliver a unanimous verdict.

  29. 29

    Negligent Holdings Ltd

    @ rick

    What makes you think a judge could get it right? When so many are found to be wanting. Just like those that infest the Parole Board.

  30. “Irony is lost on kiwis”

    Also on BE apparently

    But can you be certain I wasn’t being ironic when I wrote that ‘irony is lost on Kiwis’?

  31. Ross’s question is the one that has puzzled me too: why allow the revelations about the killing of the trophy deer but not the bludgeoning to death of the calves? Surely, on the logic that has been adduced so far, the former should have been excluded as well? Was it allowed in order to demonstrate that Macdonald’s capacity for violence was not exclusively directed towards things connected with Scott Guy? And if so, why was the case of the deer allowed rather than the case of the calves? Was the latter seen as being something that would have given rise to too much prejudice (bludgeoned rather than cleanly shot)? If I was a member of the jury, I might be wondering about this.

  32. Brian,
    You say “ …… then we had better start looking for a different system of criminal justice.……… “

    I’m not really sure what alternative form of justice system would be more desirable. The current English system of adversarial trial by jury has evolved over hundreds of years and is practiced in some shape or form in most English speaking jurisdictions. You could look towards an inquisitorial process as practiced in it’s various guises in countries such as Denmark, France and Germany. Looking further afield there are doubtless numerous alternatives, none of which look particularly inspiring. Consider Sharia law, the moral and religious code practiced by millions across the globe. While it would satisfy many non secular opinions in the blogosphere by imposing God’s will, it clearly is fanciful to think anything of the sort would be considered.

    But the justice system is not the problem in this case. For the Crown, the problem was the evidence. There really wasn’t any. Or none of any probative value that could further their case to a conviction. John Edwards in his short narrative via his website in the post above, probably sums up this whole vexing and somewhat unpleasant issue of prior history disclosure, as well as could be done by anyone. In a nutshell, it is the evidence that is on trial in our courts, not the accused.

    There are three fundamental elements that are embodied in the evidence before an accused in any serious criminal trial. They go to motive, means, and opportunity. Precedent in New Zealand dosen’t require motive to be proved in order to obtain a conviction. But the Crown most certainly has to prove to an exceptionally high standard, that the accused had the means and be present at the scene of the crime when it took place. So the Crown needed to be able to place the murder weapon, or one matching the description, in McDonald’s hands, his feet on the ground at the crime scene, and both, at time the crime was committed. The evidence failed to prove that and in all likelihood the Crown solicitor’s office was aware of the odd’s well before they donned silk.

    Many argue that in McDonald’s case the jury was denied an insight into his mind that could have given them cause to reflect more judiciously on their deliberations. But it was all irrelevant, of no probative value and if admitted would, as alluded to above, have left the case wide open for an appeal, on solid grounds in my opinion, had the unlikely conviction materialized. If anything, all the undisclosed evidence could have done was bolster the case for motive in demonstrating his unforgiving and inexorable attitude to retribution.At a stretch it could make a tenuous contribution to means, his ability to commit such a crime.

    I would argue that there has been no greater legal engine invented for etching out the truth than our adversarial system. At the heart of this engine lies the process of cross-examination. It is the relentless testing of the evidence and the human witness statements that accompany it, by advocates with an unbridled incentive to probe for every shred of fact. If it takes histrionic animated Shakespearean theatrics to do this, then so be it. The stage is free for both sides to act.
    But the court needs all of the evidence before it for cross-examination to drive the trial process. Until a couple of years ago in serious criminal trials, the scales were clearly out of balance. The prosecution with all the resources of the State and its agencies verses the defence on legal aid and limited funding to advance its case. It was a major criticism to the adversarial system.
    The Criminal Disclosures Act 2008 changed the game plan. It codifies the terms of disclosure and balances the scales. Today, every written account from every witness interviewed in connection with the investigation, signed or not, whether the witness appears for the Crown or not, must be disclosed to the defence. It is in stark contrast to the previous rules with only evidence from witnesses appearing for the Crown, and by default, favourable to the Crown’s case, being disclosed to the defence. One could reflect for a moment on McDonald’s case. Sixty plus witnesses for the Crown, a couple or so for the defence. But they were all in court whether they were helpful to the Crown’s case or not. Sitting in front of them were the only opinions that mattered. All eleven of them. They heard evidence in it’s entirety, not just a witness with an apparently unreliable clock who heard shots at 5am, but also from other witnesses who testified to hearing shots at, or very close to 5am.
    So, I may have stated it before but I’ll repeat it again here. It is said on the one hand that circumstances don’t lie. On the other hand however it is said that the truth is sometimes stranger than fiction.
    New Zealand has a justice system that, despite it’s foibles, has evolved over centuries in societies that we could never hope to match in the range of material fact scenarios. We are fortunate to be able to stand aside from those jurisdictions and use their experience to adapt our system, honing it to the point where both sides of the divide can expect justice to be delivered.

    To wrap it all up we must all remember that this country has no written constitution to enshrine an individual’s fundamental rights. Yes, we have some cobbled together acts and conventions but they can all be fiddled with.
    A justice system that can survive a few hundred years with it’s cardinal principles intact could be aligned with the Magna Carta, that bedrock constitutional document of all times that underpins our legal system . It is the supreme safeguard to protect an individual’s freedom against the arbitrary excesses of the state.
    Most of the time the cops get their man. Only on rare occasions are they are unable to nail a conviction. On even rarer occasions, very rare indeed, they get the wrong man. For that, there can be no greater travesty of justice, regardless of the system that was responsible for sending him down.

  33. @ Ben, “I know if I were accused of a serious offence I would rather the judge decide what the jury is allowed know about me, rather than the lynch mob determined to get a conviction at any proce.”
    And let’s not forget that other lynch mob, the media, chasing a story at any price, in order to sell advertising, at a hefty price.

  34. @ Steve F
    “I would argue that there has been no greater legal engine invented for etching out the truth than our adversarial system. At the heart of this engine lies the process of cross-examination. It is the relentless testing of the evidence and the human witness statements that accompany it, by advocates with an unbridled incentive to probe for every shred of fact. If it takes histrionic animated Shakespearean theatrics to do this, then so be it. The stage is free for both sides to act.”

    Not quite. MacDonald was not cross examined.

    I wonder how the jury would have felt if they had given a not guilty in this case and found out his history after
    http://www.stuff.co.nz/the-press/news/7448160/Man-guilty-of-street-rape

  35. @ MH

    “I wonder how the jury would have felt if they had given a not guilty in this case and found out his history after”

    Probably very sick for a long time.

    However, the problem with divulging details priors at trial is it opens the possibility of police targeting those with previous convicted, and stitching up a case, knowing full well that a paucity of evidence will be quickly out-weighed in the jury’s mind by the criminal history.

    Police have good reason to check out those with previous convictions and similar MOs when conducting their inquiries. But that is different.

    As I argued before, the status quo is probably the lesser of two evils…

  36. 36

    Negligent Holdings Ltd

    Incompetent judges need to be sacked!

  37. @MH

    “…..Not quite. MacDonald was not cross examined……..”

    Clayton Weatherston took the stand…it was an outrage, the nation up in arms.

    Ewen McDonald remains silent…it was an outrage the nation up in arms.

    I’m not quite sure what way you would like to have it. Supposing the rules were changed. You put him in the dock and he remaIns silent. Not a word. The negative inference from this would be all in the Crown’s favour, but they still have to place him at the scene of the crime at the time the shots were heard. All the evidence has to align.
    The Christchurch rape case you cite as an example of withholding prior history involves an entirely different set of material facts. It is direct evidence v’s circumstantial evidence.
    The DNA match would have been beyond doubt. The judge would have assessed it’s probative value in making the decision to exclude the defendants prior history. There was never going to be a not guilty verdict.

  38. “Incompetent judges need to be sacked!”

    What an asinine comment. You would not have a clue as to whether a judge is competent or incompetent. Your only measure is whether you happen to agree with a particular judge’s decsion.

  39. Sorry, Ben – I agree with NHL – incompetent judges SHOULD be sacked, surely? What’s asinine about that?

    Do you prefer to retain incompetent judges in the courts? Of course you don’t! NHL’s statement was simply a statement – where (and if, I assume) there’s incompetency in the judiciary, he wants it out. And so should we all!

  40. Steve F, good comments.

  41. 41

    Negligent Holdings Ltd

    @Ben

    “What an asinine comment”

    Why? I would want an incompetent airline pilot sacked as well; as I would an incompetent police commissioner, teacher, driving instructor, surgeon, milkman, postie etc, etc.

    Learn to understand what you’re reading, because you show signs of a blinkered jury member.
    I did not preface my statement with, “This” — and a singular noun was used.

    Mind you…

  42. I have no problem with incompetents being sacked, but referring to NHL’s comment earliers,
    “What makes you think a judge could get it right? When so many are found to be wanting. Just like those that infest the Parole Board.”
    the implication is that in his view most if not all judges are incompetent. Just because NHL does not agree with decisons made by the Parole Board does not mean that the members are incompetent. He or she provides no justification whatsoever for such a statement. Who are the “so many found to be wanting”?

    The judiciary has to act within the current legal framework. Judges have to make decsions based on the law. Sometimes their interpretation of the law may not suit NHL and Garth McVicar. Even at the risk of a judge making an incorrect interpretation of the law I would rather that than have my fate decided by the likes of NHL.

    NHL is clearly a member of the ‘hang ‘em high or throw away the key mob’ and any judge who thwarts that belief is branded incompetent.

  43. “Irony is lost on kiwis”

    As witness many recent judicial decisions and sentences (Ben, where on earth are you living?)

  44. WAKE UP for God’s sake wake up. Judges have to operate within a legal framework. We have an independent judiciary because of people like you, NHL and Garth McVicar. Because people like you do not like ‘recent judicial decsions and sentences’ does not brand the judicary incompetent.

    The more I read from people like you the more I am thankful that we have moved on the from the Wild West form of justice which I have no doubt you espouse.

  45. 45

    Negligent Holdings Ltd

    @ Ben

    “Even at the risk of a judge making an incorrect interpretation of the law I would rather that than have my fate decided by the likes of NHL.”

    With me, you’d have someone who looks at evidence that transcended the mere physical. I would look at the case in its totality — demeanour and comportment of the defendant, motivation, past history etc. I would look beyond the empirical to that of the metaphysical. The intangibles. Which is the core of Intuition and Instinct and Probability. And, in aggregation, meld to form Common Sense. Something, that is not nurtured by certain judges, who preside over their trials in an unyieldingly legal prescriptive fashion.

  46. “I would look beyond the empirical to that of the metaphysical. The intangibles. Which is the core of Intuition and Instinct and Probability.” (NHL)

    None of this constitutes evidence in any meaningful sense of the word. I suspect that’s exactly why Ben (and I) would not like to have our fates decided by NHl et al.

  47. @ Negligent Holdings Ltd

    “I would look beyond the empirical to that of the metaphysical. The intangibles. Which is the core of Intuition and Instinct and Probability. And, in aggregation, meld to form Common Sense.”

    In other words, what you really seem to mean is –

    If they float they are a witch, so you burn them,…

    whereas if they sink and drown, they aren’t.

    Maybe I’m knocking over a straw man, but I suspect I’m not, and Ben and Random Punter have your number),

  48. Judges are able to affect the outcome of a trial by controlling what evidence is admissible. The classic case of this was the Peter Ellis case. Evidence from the children that seemed vaguely credible was admitted but not the more bizarre claims they made. By admitting the lot the jury would have been able to see what things the children believed to have have clearly happened. I believe this would have produced a very different outcome. The jury in this case was clearly affected by the judge. For those who believe in the adversarial system surely this case should leave them feeling more than a little perturbed.

    BE: Slightly edited since potentially defamatory.

  49. 49

    Negligent Holdings Ltd

    You’re way too cute, Kimbo.

    Juries should be able to arrive at a “Safe” verdict that’s not confined exclusively within the narrow strictures of “incontrovertible physical evidence”.

    Ewen’s partner-in-crime, Callum Boe, didn’t need to feel the barrel of a gun pressed against his neck, to feel that his own safety was endangered after witnessing how Ewen slaughtered the calves. The menacing aura that came from Ewen, was telling enough, for Boe.
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10825777

    It is unfathomable that the judge — in his inestimable wisdom — should believe that this should be withheld from the jury but allow the crimes against Scott Guy to be revealed. It may not have been the tipping-point for the jury, but it was of material consideration when completing the broader mosaic as to what type of person Ewen was. And, more importantly, what he was capable of, once crossed. It should have been part of the overall amalgam, when the jury was deliberating its verdict.

    Why, the judge saw it differently, defies logic; and militates against the jury in weighing the evidence with regard to the all-important “motive”.

    As for the “metaphysical” dimension — when forming perceptions and impressions about any defendant — don’t confuse that with the burning of incense and mumbling incantations to Vishnu. Or the drowning of witches. OK, Kimbo?

  50. “Juries should be able to arrive at a “Safe” verdict that’s not confined exclusively within the narrow strictures of “incontrovertible physical evidence”…It is unfathomable that the judge — in his inestimable wisdom — should believe that this should be withheld from the jury but allow the crimes against Scott Guy to be revealed….Why, the judge saw it differently, defies logic;”

    Without wishing to harp on the point you seem determined to ignore, there was a logic to it – the crimes (for which there was most certainly “incontrovertible physical evidence” – so that wasn’t the confining “stricture” that needed to be loosened) did not (key word) directly relate to the circumstances of the death of Scott Guy. The judge’s application of logic may be open to dispute, but it was present, and any “unfathomability” seems rooted in your unwillingness to accept that fact.

    “As for the “metaphysical” dimension — when forming perceptions and impressions about any defendant — don’t confuse that with the burning of incense and mumbling incantations to Vishnu. Or the drowning of witches. OK, Kimbo?”

    In the absence of further elaboration of your sloppy, ill-chosen, amorphous phrase, I’ll stick to my original assessment – cute or not. You used it as an alternative to the status quo – you define it, or others will be forced to if you choose to leave the task undone

    Cheers,

    Kimbo

  51. “I would look beyond the empirical to that of the metaphysical. The intangibles. Which is the core of Intuition and Instinct and Probability. .”

    What a lot of nonsense – gut instinct or intuition may have a place in deciding whether a particular house is a good buy, or whether you might hire someone, but it is not the basis on which to decide murder convictions.

    “Beyond reasonable doubt” is a very high standard, and I haven’t heard anyone argue against it. Evidence based on “The intangibles” does not reach this standard.

  52. 52

    Charlene McDannold

    Thanks Brian.

  53. Ben said (of me) “The more I read from people like you the more I am thankful that we have moved on the from the Wild West form of justice which I have no doubt you espouse.”

    People like what, Ben? You don’t even know me, and your ad hominem attack is no answer to my assertion. Your seemiungly wilful ignorance of some of the more insane judicial decisions of recent times is frightening.

  54. The prosecution lawyer in this case urged the jury to take a common sense approach re. their verdict.
    verdicts based on commonsense are allowable in law as far as being beyond beyond reasonable doubt goes.
    Also, I personally believe the shooting of the stags (as unacceptable as it is) fits into a lesser category of crime. shooting an undonesticated from a distance is a less psychotic act as it fits in the “hunter” culture. Going close to your neighbour’s dwelling, going into their workday space with advantage of familiarity to aid a violent crime and, one after another, smashing hand-fed calves’ small heads in with a hammer (and not killing them outright)reveals a person prepared to heap on suffering with no thought to their victims, to kill because of perceived grievances and to lie again and again about any involvement in it. If his apprentice had not spilled the beans, we’d all still think he was a pillar of the community.
    i’m saying i feel the butchering of domesticated stock belonging to your neighbour, in a tight- knit rural community, is relevant to this case – as evidence for the prosecution.

  55. “not just a witness with an apparently unreliable clock who heard shots at 5am, but also from other witnesses who testified to hearing shots at, or very close to 5am.”

    This is the second time i’ve read this from Steve F.
    S Guy’s computor was accessed in the morning of his murder. Time known. The alarm at the milking shed deactivated. Time known. Arrising of acccused,unknown. Nearest home to murder, not aware of shot gun blasts, probably double insulated being a new build.
    Where exactly were the witenesses when they heard the two/three blasts? Did the investigation carry out a simulation at a comparable time/weather condition and record their findings? Was there an echo at any of those locations?
    Knowing the alarm deactivising will be on record the smart “poacher” fires off two more rounds knowingly audible within minutes of deactivating the time recorded alarm/s.
    The accused was prompt in going to set up the break for the cows post milking, understandable because it’s an important part of the process.
    After milking did the 257 cows go under the underpass or adjacent to the accused’s path enabling the collection and (temporary?) disposal of evidence?
    In hindsight the whole scene should have been shut down and everything should have been carried out only under police escort.

  56. Wake Up, yes there have been poor judicial decsions and there will continue to be poor judicial decisions in exactly the same way as doctors, pilots and all professionals sometimes make poor decisions. Even Wake Up, when he is awake, probably makes poor decisions. That fact is not a reason for a knee jerk change to the rule of law.

    I was interested to read in a prominent murder case in China that in cases that go to court the conviction rate is close to 100%. I am sure you and NHL would love that system of justice here. You probably favour organ harvesting from criminals as well.

  57. At Ben
    Can you provide the newspaper quote to back that up, or the official figures ?? Otherwise it looks like a knee jerk reaction, similar to your last sentence

  58. http://online.wsj.com/article/SB10000872396390443517104577571140783245590.html

    That’s one source; there are others including the Guardian which I cannot now track down.

    Google “conviction rates in China” and you will find plenty of other sources.

    The statement was also made I believe in checkpoint in reporting te current high profile murder case.

  59. 59

    Negligent Holdings Ltd

    at Ben

    If you are referring to Bo and Gu, wrt the death of Neil Heywood, I’m stumped as to where the parallel is.

    Talk about clutching at straws and drawing a long bow; you remind me of a scarecrow competing in an archery competition.

  60. I believe it’s been mentioned several times the previous offending of shooting the trophy stags was admissible as it referred directly to MacDonald’s practised ability to fatally shoot a target in the dark and to do so undetected. Which could suggest he was also capable of a similar scenario with Guy’s murder.

    The killing of the calves, if you look at it in an objective manner, rather than emotively, is a crime presumably anyone with the strength to wield a forceful blow could undertake and doesn’t suggest a certain skill set or unique ability.

  61. agree, open mind.
    parallel scenario to killing an unsuspecting, unarmed person, eh? and in the dark, too.

  62. Most of the time the cops get their man. Only on rare occasions are they are unable to nail a conviction. On even rarer occasions, very rare indeed, they get the wrong man. For that, there can be no greater travesty of justice, regardless of the system that was responsible for sending him down.

    Very reassuring that few innocents get charged yet the guilty often do get freed only to do wrong things agian and again.

  63. Ben said (of me): “I was interested to read in a prominent murder case in China that in cases that go to court the conviction rate is close to 100%. I am sure you and NHL would love that system of justice here. You probably favour organ harvesting from criminals as well.”

    And here’s me thinking that perhaps, just perhaps, we could have an intelligent discussion based on facts, Oh well.

  64. Paul Thomas in today’s NZ Herald (Aug 18, page A28) has a good article on the number and type of offences (including murder) committed in NZ by people on bail. As he says: “The system is failing the community on whose behalf it operates”.

  65. I’ve wondered if the bullet was meant for MacDonald – after all the things he did to his neighbours it wouldn’t be surprising if someone took it upon themselves to take him out – especially after seeing him get away with an apology and a handshake after such an appalling crime.

    It is galling that the character of the victim is allowed to be attacked and bought into question (Louise Nicholls, Sophie Elliot) but the perpetrator is protected. While our system assumes innocence until proven guilty that seems to be a compromise we need to make to prevent the falsely accused from being convicted – I’d just like to see better protection for the reputation of the victims.

  66. @ Kimbo August 7th, 2012 at 19:03 – “As much as it galls me to see McDonald go free (of the murder charge, at least), and as much as part of me would have wanted all the facts in front of the jury, I can understand the legal logic of limiting evidence of known wrong-doing to that connected DIRECTLY to the circumstances of the charge the jury is considering. McDonald’s malevolent actions against Guy’s property counted. The other stuff, as ugly as it was, didn’t.

    If not, then the Crown, with the police in tow would have an open license to go digging for dirt, knowing they can present anything and everything. Who of us hasn’t committed a legal, moral, or civil transgression, to which those with the job of gaining a conviction in the adversarial system can put a malevolent spin, sometimes years later and in a completely unrelated context?

    It stops fishing expeditions, where arguments such as “state of mind”, and “nature” can mean anything that puts the accused in a bad light. Until such time as the legal system can ensure common sense will apply (and I doubt any codifying bureaucracy ever can), then the present system is the lesser of two evils.”

    I have to concur with Kimbo on this issue; he’s explained precisely why “limiting evidence of known wrong-doing to that connected DIRECTLY to the circumstances of the charge the jury is considering’.

    It may seem ludicrous, but the Arthur Alan Thomas case highlights precisely how (some) Police can mis-use their powers when on a witch-hunt.

    If we permitted unrelated “evidence” to be admitted, how far back do we go in time? How wide is the net thrown? How wide the defendant’s background and associates?

    Eventually, it becomes a kind of Star Chamber.

    And in case anyone believes, for a moment, that only criminals would be affected, think again.

    We should be careful of what we wish. Giving away our rights for greater security, as one wise man once said, will give us neither.