Why the jury should have been privy to all the facts about Ewen Macdonald
OPINION
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.
Media trainer and commentator Dr Brian Edwards blogs at Brian Edwards Media.
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Comments and questions40
It's all about the defendant's rights, NZ Justice system 101.
It's all about maximizing fees, not natural justice.
The victims are dead so who cares about their rights which are extinguished by their deaths.
As about the Kahui twins if you really want to know how NZ justice works.
Until such time as legal aid is extended to victims of crime to pursue the criminal elements for proper restitution and compensation, the scales of justice will always be tilted in favor of those who commit crimes. Too many lawyers make a handsome livelihood working the system on the dark side. And our justice system goes out of its way to extend them that privilege.
Regretfully, the judge was misguided in suppressing evidence as to MacDonald's character and misdeeds.The jury should have been given this information to form a better opinion of the man before them.
We can but wonder whether a jury system is best; maybe the French system is better?
liberte
The suppressed evidence had a bearing only on whether Macdonald could have done it, not whether he did do it. The verdict would have been the same.
This miscarriage of justice clearly highlights the failings in our judicial system that has always been stacked in favour of the offender. What about the victims? The right to silence must be eliminated in pursuit of the truth and totally dispose of the jury system - it has way too many flaws. Murderers need to be convicted and incarcerated.
Any genuinely innocent person would have been busting to get into the witness box to give his side of the story - right Ewen? So why were you hiding behind your lawyer in pursuit of a false verdict?
That's justice in good old NZ - yeah right!
The judge did a great job of helping Macdonald.
The jury were of the same intellectual calibre as the idiots at the OJ Simpson trial.
The only good news is that this brutal psychopath will be going to prison for a long time for his other crimes - though nothing like long enough. The Guy family have been denied the small consolation of justice being done for Scott's murder.
That's an entirely stupid comment. The jury were required to judge the evidence and did so. If you want to blame someone, blame the prosecution for failing to resolve the evidence of the footprints and Macdonald's timing in a way that removed reasonable doubt.
Macdonald's behaviour and actions in the needless killing of calves on neighbouring farms, beheading deer, arson and acts of sabotage clearly indicate that he poses a risk to the community at large and he needs to be incarcerated for a period so that he is able to receive the help to address the drivers of his offending.
Andrew Hoggard, Federated Farmers Manawatu-Rangitikei provincial president and vice-chairperson of Federated Farmers Dairy said, "As a farmer, MacDonald well knows there are codes of animal welfare on how we treat our stock. I have never heard anything untoward about how he treated his own stock, so how could he sneak onto another farmer's property to kill their calves?"
"MacDonald also knows how hard it is to produce quality milk. Milk the lifeblood of any dairy farm and I cannot understand why anyone would maliciously and callously empty a vat."
"These are cold and calculating actions let alone he has admitted to also burning down a historic whare."
"Farms absolutely turn on trust. Since it has been reported MacDonald has admitted to these crimes, how could you put your undivided trust in him? Speaking personally, I couldn't," Mr Hoggard concluded.
The signs of a killer waiting to kill a human being were already there in MacDonald's sick, "psycho" jealous, evil and vile head.
Young MacDonald Has No Farm..EIEIO sob!
Your Honour, Simon France: NZ is deeply indebted to you.
Yeah, he steered the jury to find him not guilty.
If MacDonald did not do it,who did ?
And what was the motive ?
I reckon your out of your depth when it comes to criminal law Mr Edwards. I thought you are meant to be a media commentator.
Stick to your knitting.
Mr Edwards in this commentary puts a case that is certainly the talk of everyone in my circle. I concur with his thoughts. How different the outcome in much brought before the courts if during any introduction to a judge or jury the accused had the full list or history (rap sheet) made public, including charges pending. Yet those making an occupation or dollar servicing these matters certainly don't want to be handicapped by a lifetimes litany of crime that may take 5 minutes to read out while they try to convince the court that the well groomed soul before them is anything other than whiter than white. Interesting that those legal would prefer media focus including Mr Edwards butt out of scrutinising their cosy club.
Thats the problem with this article. Mr Edwards an otherwise intelligent man wastes our time with coffee talk. Waste of a good pen.
Look at the evidence folks. The boot print was not of the same size as that of boots warn by McDonald. Not even his wife (and sister of Mr Guy the victim) could recall with certainty having recently seen boots of the same tread at their home.
I for one would far sooner see a guilty person go free than an innocent one go to jail. I like most if not all commentators was not there for all of the trail, and have relied on media reports. So I support the jury as they did hear all the evidence presented.
He could have planned it that way to fool the cops by wearing different sized boots, which is the same as planting evidence.
The Evidence Act of 2006 freed up the earlier relatively restrictive rules of using evidence of prior criminal convictions during trial. There is a relevant section that codifies the more liberal rule in very clear terms. It is Section 7. The part that makes it clear is this:..........
(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.
Now some would argue that it does prove something of consequence, but only to McDonald's character, not to the evidence. Whatever way you want to cut it the criminal trial in our legal system is not a test of the defendant , but of the evidence presented against him. Put another way, it is the evidence on trial, not the accused.
The law is clear. Justice France, 10 years a VUW academic and 15 years at Crown Law is beholden to do justice and answers to no master other than the law. Had the unlikely guilty verdict eventuated and all the prior criminal history been admitted, the chances of an appeal that could have set a new trial were, in my opinion, fairly solid given the fragile nature of the evidence presented by the Crown against the accused.
There hasn't been a case in recent times that has whipped up such a frenzy of social media and main stream media activity. All of it bar a few scraps is driven by emotion, not logic. The justice system was 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. Those in the Crown Solicitor's office well well aware of their odds before they donned silk.
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.
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.
The dead Kahui twins would beg to disagree with you about the adequacy of the NZ justice system if they could.
It's still all about defending the rights of criminals - not about delivering justice to the victims.
It is important that the justice system doesn't create new victims. That's why we have rules of evidence and require proof of guilt rather than mere suspicion and probability.
Any changes have to be measured against that principle.
@Steve : well written and well considered. Nice to see common sense prevailing over "bush justice". The issue was the (lack of) evidence, not the legal process.
What will be interesting is that if anything happens to the new boyfriend of MacDonalds ex once he is out as would not like to be him especially when opening gates in the dark
To suggest that knowing about a defendant's prior convictions is not relevant to a jury is totally inane and just serves to highlight what a 'crim paradise' New Zealand has become. A person's background convictions and pendings are totally relevant to an understanding of their overall character and propensity to offend. I for one would vote for a political party that finally has the guts t o adopt a policy of full disclosure. It is about time the pendulum swung in favour of the victims. Also, why is it that rescidivous drink drivers are not given substantial jail terms, loss of license for long periods etc? Instead the system slaps them with a wet bus ticket in the misguided hope that they will reform. The facts tell a different story - with many of our road deaths due to repeat drunks. I despair of the limp-wristed legal system in this country that seems afraid to impose decent penalties. We need to take a lesson from Singapore!
I believe that criminal records should be exposed to the jury. However, I also believe that the jury should convict only if the accused has been proven beyond reasonable doubt to have committed the crime.
As I said before, the criminal record bears only on whether he may have committed the crime, not on whether he did do it.
Prior criminal convictions are surely a measure of the defendants character. Character witnesses are typically allowed.
MacDonalds prior actions were clearly those of someone bordering on psychopathic, two counts of arson, (theft) shooting of prized deer, two counts of vandalism, bludgening animals to death and leaving others to suffer....great guy, hope he gets some prison justice.
Justice France, by suppressing the details of Macdonald's previous crimes, should be charged with jury-tampering.
Consider an alternative scenario. The rules are all different. All prior history is revealed and McDonald is compelled to take the stand.
The evidence is the same.
So the jury have in front of them a proven miscreant of the lowest order. Then they watch him walk to the stand. He sits and says absolutely nothing. Not a word. The country doesn't permit torturing to extract a confession, although I dare say many would want to change that rule as well.
Then they hear the evidence. They have to be able to place the murder weapon, or one matching the description, in his hands, his feet on the ground at the crime scene, and both, at the time the shots were heard.
The evidence doesn't do it, in fact it doesn't even come close unless there has been some serious perjury going on in the witness stand.
If they were deciding on a crime of being an evil villain then they would have deliberated for about 10 minutes, just enough time for a toilet break.
But they weren't. They were deliberating on the evidence of a murder, and although there would have been much discussion in the jury room about his propensity to do the crime they couldn't place him at the scene of the crime at the required time. He had an alibi and one can't be in two places at the same time no matter what one's past history may have been.
I am sure Justice France would have listened at length to all the arguments from opposing counsel to include the full prior history, but he knows the law and the last thing he wants on his plate is an appeal that sends the case back to be re tried. He had read the case brief was familiar with all the evidence and made the decision.
So we now have a killer, a murderer and time bomb unidentified in our midst.
Knowing what has been revealed about Ewen -- do you think he is guilty of the murder? And please, leave the legal waffle out.
It's impossible to say. The murder is one event. These other charges (not all convictions yet!) are other events. Do I think he's a psycho: personally, yes, I do. Does that mean he committed murder? I can't say, without knowing all the evidence. Personal opinion is not a reason to convict.
MacDonald is clearly a physcopath . These personality types will stop at nothing to do what they want to do and being cunning and calculating is part of their armour. So leading a false trail with different sized boots etc. is of no surprise. Most people will consider MacDonald guilty of Scott Guys murder. Feel sorry for his ex wife as she could well be a target of revenge on his release. Leopards don't change their spots overnight, even with counselling.
Yes, but it is amazing how many Leopards find God just before their parole board hearings.
Steve - fine, and based on the evidence (or lack of) the jury reached the only decision that it could. However I still strongly maintain that full disclosure of prior convictions and pending is another important and totally relevant piece of the puzzle in allowing the jury to reach a fully informed decision.
"history seems to suggest that no better method has yet been found of determining the truth in criminal trials." - um, other jurisdictions found out that a jury trial is not necessarily the best way to adjudicate criminal liability. A jury system is NOT the only option. This case is a classic example of how such a system can be manipulated.
In my opinion we can't blame the Jury, they're forced to work for 1970's style minimum wage, while everyone else in the process gets paid top wack. In reality you get what you pay for and for those who have done Jury service will tell you the pay sucks and they often out of pocket if their employer does not pay their normal wages while on Jury duty. In many cases the Jury would just want to get the hell out of there. For a start try paying them better wages then we will have a more focused, less frustrated Jury lol. I agree that previous convictions should not be disclosed to the Jury, as the facts of the case being tried must stand on their own merrits and Juries should not be swayed by past events.
I guess the point to take from the above comments is that the majority of New Zealander's subscribe to emotionally driven, uninformed and un/ill-educated rhetoric (much of which is based on their consumption of sensationalised media reporting - not on balanced and objective facts and information). In light of this it is safe to say that most people have assessed the case from an already skewed point of view.
Here we have one accused murderer (out of many who are successfully and rightly convicted under the current rules), who much of the public believes is guilty walk free and we immediately advocate for arcane and draconian law changes. Such changes are to apply to all future cases (not just ones like the MacDonald case), and if applied generally, are likely to lead to many more wrongful convictions than the proportion of failures to convict that occur under the current system.
Believe it or not, but a lot of highly skilled and intelligent people (who are often not lawyers) have dedicated many years of their life to improving the legal system. In doing so they have attempted to strike the appropriate balance between a defendant's right to natural justice (a fair trial) and the public's right to see that justice is done (e.g. in this context the extent of the prosecutions ability to adduce evidence).
The very reaction that the above comments demonstrate is the very reason why the Evidence Act (when applied correctly as was the case in the MacDonald trial), prevented the disclosure to the Jury of the information that has since been released. Such information is far too prejudicial to allow the jury to hear and was hardly relevant to the case. Once such a Pandora's box is opened the average jury member will struggle to remain objective and will struggle to base their conclusion as to guilt or innocence on the relevant facts at hand.
What many people fail to realise is that such information was held back in the context of what was already a finely balanced case in terms of guilt/innocence being found by the jury. I sat and watched large chunks of the trial at the Wellington High Court and from what I observed; there were large evidential gaps in the prosecutions. Therefore it was not the evidence ruling that resulted in the not guilty verdict, but the absence of any solid evidence generally. To then call for radical (and idiotic) law changes because the jury reached, what many thought was the wrong verdict fails to square with logic.
Drongo! A jury member has spoken out, about how he feels that the information that Simple Simon witheld from them, should have been made known.
Haha it appears that you haven't taken on board what I said above. If you had any idea of what evidence was presented at trial you would know that it was unlikely the jury would convict. To say that one jury member would have liked to know the above information means what? nothing. The information about the cows etc does not aid the jury in determining guilt or innocence in the murder case, therefore it was not probative. That a farmer killed livestock goes nowhere to proving anything beyond just that - that he killed cattle. The actions however, do evoke emotion and a sense of disgust that has a very real chance of clouding issues relevant to the murder trial and inhibiting the jury's ability to remain objective. I can understand how any jury member would have liked to know the above information but the fact remains this does not mean that they should have known.
I look forward to your intelligent response on the issues.
@ Informed non-legal.
How would you feel if Scott Guy was your brother? Go back to the hippy commune.
I reckon we need a law like the 2nd amendment of the American Constitution. If Scott had the right to carry a gun he might still be alive.
@ Non Jury system #33
Doing away with the trial by jury system is fraught with danger. Other jurisdictions use a panel of "professional" jurists, who may be legally trained but not always so. What you end up with is one class of people receiving the justice and another class of people meting it out. There is a grave risk that this will lead to a lack of legitimacy in the criminal justice system, a lack of trust in the system, so you have privileged people meting out the justice and poor and venerable people receiving it.
I think that juries have common sense, they have life experience and they are the best people to decide if someone is telling the truth or not.
In this case the jury heard over 100 hours of evidence tested by cross examination. They heard evidence from multiple witnesses who placed the time of the shooting and McDonalds presence a mile apart. Try as hard as you like but you can't be in two places at the same time.
If you want an example of a jury being manipulated then familiarise yourself with Arthur Allan Thomas's case. Despite the passage of time he has still not been exonerated of the crimes. So at least preserve the vital part of the criminal justice system, the verdict, in the hands of your peers.
Trial by jury has evolved over 800 years. It is the cornerstone to our legal system along with the independent judiciary, open justice and our rights to free speech and religious freedom.
The suppressed crimes show us Mcdonalds character, what he is capable of doing, and how far he will go for revenge. This is very relevant information to this case. He has gotten away with these crimes over many years, possibly if he had been put in jail instead of just reprimanded, Scott Guy may be alive today. Stop protecting criminals, maybe if it was Greg King or Justice Frances brother they might feel very differently. There is no justice in NZ!! Shame on these highly paid individuals and this great miscarriage of justice.