Journalist and media trainer Brian Edwards (no relation) thinks that the jury in Ewen Macdonald's murder trial should have been told about Macdonald's guilty pleas to unrelated charges (read: Why the jury should have been privy to all the facts about Ewen Macdonald).
The jury in the trial heard that Macdonald had pleaded guilty to setting fire to the Guy's house, and to trashing and graffiting their new house.
That in itself is an exception to the old strict rule that evidence of previous convictions is inadmissible.
Why would that be?
Because the role of the prosecution is to prove, beyond reasonable doubt, all the elements of the charge before the court. Information about things a defendant did at a different time, in respect of different people, for different reasons is not evidence of the matter before the court.
The evidence of the offending towards the Guys might have supported the Police contention that Macdonald had a motive to kill, as he already had a motive to do other harm to that family.
Macdonald's guilty pleas to spilling milk on another farm, burning down a whare, and with an accomplice, killing 19 calves were suppressed, and not disclosed in the murder trial.
Why was that?
Because they were not relevant to it.
Knowledge of those matters would not have assisted the jury in coming to a decision about whether Ewen Macdonald killed Scott Guy.
The details of those charges seem quite appalling.
Had the jury been made aware of those charges It might have caused them to "gloss over" deficiencies in the prosecution case, because Macdonald had been clearly proven, beyond reasonable doubt to be a scumbag.
Problem is, Macdonald was not on trial for being a scumbag.
He was on trial for the murder, with a shotgun, of his brother-in-law at specific time, in a specific place.
Prior to the Evidence Act 2006 there was a very strict rule against evidence of prior criminal convictions except for the purposes of sentencing. That was liberalised in the 2006 Act. A general principle was enacted in s.7:
Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is:
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
Edwards finds 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's "nature" was not on trial. The evidence of the offending against the another farmers' calves could not have met the "relevance" test. It did not prove or disprove anything that was of consequence to the determination of the murder charge.
Section 43 of the Evidence Act deals directly with "propensity evidence" (that is, evidence which while not about the particular matter for which the person is charged, might demonstrate a propensity on the part of the accused to act in a particular way).
There is a list of things the judge must take into account in deciding whether or not to admit such evidence but the judge must ultimately determine whether the "probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant".
Evidence that a farmer had killed calves by donging them on the head in much the same way as occurs at the meatworks would undoubtedly have had a considerably prejudicial effect on the jury, while not really illuminating anything required to be proved by the prosecution. Is the fact that a farmer kills calves evidence that he killed or was capable of killing his brother-in-law?
After the Brad Shipton et al Police sex offending trials a few years ago, in which the media was prevented from reporting, and juries were prevented from knowing about other offences the accused had been convicted of the Minister of Justice asked the Law Commission to consider the circumstances in which conviction history could be introduced.
In a 2008 report entitled "Disclosure to Court of Defendants' Previous Convictions, Similar Offending and Bad Character" the Law Commission closely examined the current practice, and whether the law needed to be reformed. After a thorough two year examination, it concluded that it did not.
The Law Commission reckons that judges are best placed to weigh up what will assist versus what might pointlessly contaminate a jury's consideration of the prosecution's case, and that the liberalised Evidence Act gives them plenty of scope to do so. I'm inclined to agree with them.
John Edwards is a Wellington barrister. He blogs at www.johnedwards.co.nz
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