Ewen Macdonald

August 3rd, 2012 at 9:47 am by David Farrar

Stuff reports:

 One of ’s victims has labelled the former Feilding farmer a “bad apple” as more details of his offending emerge. …

Macdonald and former family farm worker Callum Boe went on a series of night-time “missions” that included burning down a hut, destroying 16,000 litres of milk and killing a herd of calves.

The murder trial jury did not hear of these “missions”, but was told about the pair destroying property belonging to Scott and Kylee Guy and poaching deer from Colyton farmer Craig Hocken.

One of the newly revealed charges was for killing 19 calves on Paul Barber’s Foxton property overnight on August 9, 2007. They were all bashed on the head with a heavy object, thought to be a ball-peen hammer.

In discussing the trial, a number of people have said that there was a huge gap between vandalising someone’s house and actually killing them. There is I suspect far less of a gap between killing 19 calves with a hammer and killing someone – in terms of being the sort of person who could kill someone.

That is why of course it was suppressed. The attacks on the Guys were allowed as it was directly relevant to the trial, but this info would be prejudicial in that it would have the jury thinking “He is a sick bastard, so he must have done it”.

December 30, 2006: Ewen Macdonald killed two trophy stags on Craig Hocken’s Feilding property.

August 9, 2007: Intentionally destroyed 16,000 litres of milk at Graham Sexton’s farm at Himatangi.

August 9, 2007: Intentionally killed calves causing loss to farmer Paul Barber at Foxton.

March 21, 2008: Damaged a duck-shooting whare belonging to Graham Sexton.

October 24, 2008: Damaged an old house by fire on Scott and Kylee Guy’s property in Feilding.

January 30, 2009: Vandalism of Scott and Kylee Guy’s new home in Feilding.

July 8, 2010: Scott Guy shot dead at the end of his driveway in the early hours of the morning.

It is pretty clear there is something quite wrong with Macdonald. Hopefully he will get a long jail sentence for the crimes has has been found guilty of, and will get treatment for whatever ails him.

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136 Responses to “Ewen Macdonald”

  1. smttc (767 comments) says:

    I wonder how the jury members feel now?

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  2. iMP (2,457 comments) says:

    This man is clearly a psycho, quite disturbed and frighteningly narcissistic and wilful. The only reason he got away with murder, was technicalities of our modern judicial system, and I feel this is unjust, and separate from reality. In our hearts we all know this man killed Scott Guy, yet due to vagaries, he gets off “Scott Free.”

    Victims 0
    Killers 1 WRONG WRONG WRONG.

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  3. RRM (10,099 comments) says:

    Vets cost an arm and a leg these days! Better off just shooting this one.

    But I’m glad the standard for a trial in my country is about proving accused person x DID do crime y, not about smearing him as a general all-round bad bastard and then saying “come on! You can see he’s a bad bastard, he probably did it!”

    It’s astonishing how many otherwise smart people have real trouble appreciating this concept and why it’s a good thing though…

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  4. hj (7,166 comments) says:

    He doesn’t have much of a future, unless he is recruited by the mafia.

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  5. hj (7,166 comments) says:

    Nothing like that came out about Arthur Allen Thomas (as far as I know).

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  6. hj (7,166 comments) says:

    The psychology of an individual like that is interesting. We are machines after all, in so far as we have inherited traits. Family?

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  7. Luke Mutton (247 comments) says:

    There is I suspect far less of a gap between killing 19 calves with a hammer and killing someone – in terms of being the sort of person who could kill someone.

    Then you suspect wrong. Farmers kill animals year round. How many go on to be murderers?

    Quite simply, the police fucked up by charging him before they gathered sufficient evidence and the crown fucked up by bringing the case to trial before they had sufficient evidence. Would it have mattered if they’d waited another month? Year? Or even decade, if they actually got a conviction? As it is, there are no winners, only losers (except Ghoul McVicar who gets another 3 minutes glory).

    I’m with RRM – the prosecution needs to make its case on the facts of that case alone, not, as they do too often, rely on smear and inuendo.

    Remember, the law that protected Ewen McDonald is the law that protects us all.

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  8. metcalph (1,367 comments) says:

    In discussing the trial, a number of people have said that there was a huge gap between vandalising someone’s house and actually killing them.

    That was actually an argument put forward by one G. King, a defence lawyer. The Crown must have been seething on the inside when he made it.

    The fact that he killed 19 calves is vile (I was like Tony Soprano hearing that Chris sat on a dog) but it doesn’t negate that the evidence put forward at the trial indicates that he almost certainly wasn’t the person who shot Scott Guy.

    But then he lives near a Graham Sexton (a farmer of that name in the region served a prison term for running somebody over with a Quad Bike)? What are the odds?

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  9. KH (695 comments) says:

    I saw Greg King on TV (not in court) saying McDonald was an ordinary Kiwi Bloke. While I do understand what Greg King says about his defined role, I don’t accept that Greg believes MacDonald is in any way an ordinary Kiwi Bloke. Knowing what he knew, Greg King put up an image of MacDonald that he knew was incorrect, both to the court and to the public.

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  10. Longknives (4,961 comments) says:

    Why did I just know that Luke Mutton would be a Ewen MacDonald supporter as well??

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  11. KH (695 comments) says:

    Apparently it is not allowable to put up information that illustrates the defendant is a bad bloke. But is it is allowable for Greg King to assert the defendant is a good bloke. You can present it one way in court but not the other. That is a clever system. Not.

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  12. Keeping Stock (9,381 comments) says:

    Luke Mutton said

    Farmers kill animals year round. How many go on to be murderers?

    One would be one too many Luke.

    But whilst farmers do indeed kill animals all year round, it’s generally only their own animals that they kill, and they generally find more humane ways of doing it than by pulverising the animal’s skull with a hammer. There are however plenty of studies that show that people who commit acts of animal cruelty are capable of going on to commit similar crimes against humans.

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  13. Longknives (4,961 comments) says:

    “Farmers kill animals year round..”

    Not in these circumstances they don’t- The killing of these calves was malicious, twisted, and coming close to psychopathic.
    If anything they strongly dispel Greg King’s assertions that Ewen MacDonald is an ‘ordinary Kiwi bloke..’

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  14. Yvette (2,763 comments) says:

    hj – The psychology of an individual like that is interesting. We are machines after all, in so far as we have inherited traits. Family?
    _____________

    It has been reported that a car accident when timber fell from a truck killed his father and injured Scott in the head at the age seven, with his mother dying of cancer a year later. This may background some of what you call ‘psychology’.
    If this is true, just how much ‘past’ can be put before a court and how can 12 non-experts make of any of it, especially if it is presented as hysterical theatrics rather than in straight forward neutral manner?

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  15. Luke Mutton (247 comments) says:

    @ longknives – I am not a Ewen McDonald supporter, I am a supporter of truth, and in this case, the crown did not prove they have truth on their side. I suspect he’s guilty, but because the police and the crown fucked up so badly, left far too many holes for the defence, we will never know.

    @keepingstock – at this time of the year, there will be a lot of calves killed by a lot of farmers by a blow to the head with a hammer.

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  16. ross69 (3,652 comments) says:

    Macdonald did say that the vandalism etc was “fun”. The fact he committed these other crimes might lend credence to that claim. His idea of fun is a little different however.

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  17. RJL (152 comments) says:

    But I’m glad the standard for a trial in my country is about proving accused person x DID do crime y, not about smearing him as a general all-round bad bastard…

    I agree. The mirror-defence-version of this is known as compurgation, whereby a defendant gets a bunch of people to swear an oath that he is an “all round nice guy who couldn’t possibly commit said offence”. This was a valid defence under many medieval law codes, but wouldn’t be tolerated today.

    The prosecutorial version “bad people do bad things”, shouldn’t be tolerated either in a modern society.

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  18. campit (467 comments) says:

    Is there anything else about this case that is still suppressed? What else don’t we know?

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  19. ross69 (3,652 comments) says:

    > The fact that he killed 19 calves is vile

    Well, he didn’t act on his own. He was supported by another. The implication is that the other person is a murderer in waiting. No?

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  20. Lance (2,718 comments) says:

    Why in Christendom did Greg King proclaim that Ewen McDonald was an ordinary bloke when he knew otherwise?

    Or are these psychopathic actions considered normal these days?

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  21. David Garrett (7,700 comments) says:

    RRM: you may not like my support but I am with you on this one…Actually I have just re-read your comment… While I agree with most of it, I can’t agree with shooting McDonald; under our system he has been found not guilty…which is of course a country mile from “found innocent”. I agree with those who suggest that this is an excellent example of why a “not proven” verdict – which allows the defendant to be retried if significant new evidence emerges – is well worth considering.

    As for the calf killing…the unfortunate reality is a lot of things happen “down on the farm” which townies would find sickening, or even “sick”. Shooting dogs which are even suspected of worrying sheep, or which are no longer useful for work is one example. Some of my townie friends are very uncomfortable with the fact that every year or so the home kill man comes to my place and shoots and cuts up a steer for my meat. I am told that “bobbying” unwanted calves with a hammer is another unsavoury practice which was certainly practised in the past.

    When he comes in from tending to his girlfriends Johnboy might like to enlighten us on that. Or some of our other rural brethren more familiar with beef farming.

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  22. ross69 (3,652 comments) says:

    > I wonder how the jury members feel now?

    I think they’d feel quite content that they weren’t given irrelevant and potentially prejudicial information. I doubt it would’ve altered their verdicts, but given some of the hysteria here I wouldn’t be so sure.

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  23. Lance (2,718 comments) says:

    @ross69
    “The implication is that the other person is a murderer in waiting. No?”

    Are you sure about that?

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  24. tristanb (1,127 comments) says:

    Anyone with at least half a brain and not afflicted with severe Aspergers would realise that McDonald did this. He had motive, he had the psychopathy, he had planned how to get away with murder.

    There is nothing wrong with circumstantial evidence.

    I think the jury was misled into thinking that this needed to be proven beyond reasonable doubt, rather than proving he did this beyond reasonable doubt.

    To doubt that he did this is unreasonable. Sure some other nutter might have done it, maybe a sheep grabbed a gun stood on its hind legs and shot him, maybe there never was a Scott Guy and it was all a dream. But these possibilities are so far fetched, and so unlikely that I’d disregard them.

    I guess his lawyer, who’ll be smart enough to realise he got a murderer off the hook, deserves credit for convince the jury that despite obvious motives and a pattern of psychopathic abuse towards Scott Guy, that because the police can’t find everything he can’t be found guilty. He definitely deserves credit for disallowing evidence like this, which shows him as the evil bastard he is.

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  25. eszett (2,450 comments) says:

    smttc (295) Says:
    August 3rd, 2012 at 9:55 am

    I wonder how the jury members feel now?

    Not sure how you mean this question, whether you mean it as an accusation or not?

    The jury acquitted him based on the evidence that was presented to them.
    Why should they feel bad if this was not presented to them?

    Besides, this does not add any evidence that he in fact did kill Scott

    And in any case, it this does not add any evidence that he did in fact shoot Scott Guy.
    It is merely (if you can say merely in this case) a reflection of his character.

    But the evidence to convict him of the murder is still not strong enough.

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  26. tristanb (1,127 comments) says:

    I think they’d feel quite content that they weren’t given irrelevant and potentially prejudicial information. I doubt it would’ve altered their verdicts, but given some of the hysteria here I wouldn’t be so sure.

    That jury must be too thick to think anything.

    The fact he’s a fucking psycho is quite relevant. Sad that you’d want such evil to be free.

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  27. Linda Reid (341 comments) says:

    Yes, farmers kill their animals for many reasons. However I grew up on a farm, and my dad hated killing animals. He did it, and he did as humanely as possible, but he hated it.

    McDonald is NOTHING like my father.

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  28. seanmaitland (501 comments) says:

    @YVette – his personal psychology history is irrelevant – his criminal history is relevant. Choosing to commit acts of violence against other people and their property is a choice not because of whatever happened to him when he was a child. If you picked 50% of people off a street in town you could guarantee that they had had traumatic things happen to them during their life at some point.

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  29. eszett (2,450 comments) says:

    I agree with those who suggest that this is an excellent example of why a “not proven” verdict – which allows the defendant to be retried if significant new evidence emerges

    Isn’t that already the case, without the “not proven” verdict?

    I believe this came up in the Chris Kahui case, where it was argued that he wouldn’t be retired, because the crime was committed before the law change came into effect.

    So if significant new evidence came to light, could Ewen MacDonald be retried?

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  30. Lance (2,718 comments) says:

    @tristanb
    “That jury must be too thick to think anything.”
    For anyone that has served on a jury that obviously an ignorant thing to say

    The good people on a jury have to work with what is presented before them, they are required to do that.
    Never blame the jury, blame the fucked up system.

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  31. tvb (4,556 comments) says:

    These calves were killed in an act retribution because McDonald did not like being trespassed. That is a whole lot different from killing an unwanted animal in a humane way which some farmers do rather that send them to the works which may be uneconomic for bobby calves. McDonald is a disturbing individual and Greg King skilfully managed to keep the suppressed matters out of the homicide.

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  32. David Garrett (7,700 comments) says:

    eszett: Some of our criminal lawyer commenters are better placed than me to comment, but my understanding is that a retrial is possible now only if the acquittal was obtained on the strenght of what is later shown to be perjured evidence – such as someone giving a false alibi which later can be shown to be false. Someone better informed than me may wish to comment on that.

    “Not proven” is certainly not a verdict available now in every or even any murder trial.

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  33. metcalph (1,367 comments) says:

    There is nothing wrong with circumstantial evidence.

    Kindly repeat Ewen’s alleged actions. Ride a bike several hundred metres in the dark, wearing gumboots, carrying a shotgun and three cute puppies without leaving any tracks. With the shotgun then shoot three rounds in quick succession even though it is only a double-barrelled shotgun. And you have to do all this in less than 3 minutes.

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  34. metcalph (1,367 comments) says:

    Well, [Ewen] didn’t act on his own. He was supported by another. The implication is that the other person is a murderer in waiting. No?

    Since I never said that killing cattle makes a murderer in waiting, I’m struggling to follow your lapses of logic. I simply said the crime was vile. As for the support, Ewen was the leader while Boe was his underling. That mitigates but does not excuse Boe entirely.

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  35. F E Smith (3,307 comments) says:

    metcalph,

    The Crown must have been seething on the inside when he made it.

    Why?  It is a perfectly valid argument, made on a regular basis when there is propensity evidence, and the Crown is able to rebut it in their own evidence and closing address? I don’t think that your statement is correct at all.

    David G,

     see ss 378A-378F of the Crimes Act.  Basically there could be a retrial, but it would need ‘new and compelling’ evidence or evidence of McDonald committing a crime against the administration of justice in relation to the trial already decided that ‘tainted’ the verdict.

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  36. F E Smith (3,307 comments) says:

    That jury must be too thick to think anything.

    Seriously?  So it has nothing to do with the poor quality of the Crown case?

    No wonder nobody wants to be a juror these days.

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  37. Alan Wilkinson (1,938 comments) says:

    Although I support the trial jury decision as correct on the evidence presented, I do not support the suppression of evidence about an accused person’s criminal record. In my view the jury is entitled to hear all the evidence. The judge is entitled to instruct them on the law. Then they should make their decision.

    The present system both insults the jury and weakens justice in my opinion.

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  38. hj (7,166 comments) says:

    I’m a dying breed: one who has a grandfather who farmed (honkitawhenua). I remember my grandfather lamenting about how horrible it was to have to kill his dog: “and the dog would try to get out of the way” and of
    how a cow would “put it’s nose to the ground and follow the calf, all the way to…” and examples of stock being “kind to each other”. No way would he have acted as the Dick-head Mutton suggests.

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  39. metcalph (1,367 comments) says:

    Why? It is a perfectly valid argument, made on a regular basis when there is propensity evidence, and the Crown is able to rebut it in their own evidence and closing address?

    I don’t think claiming his offences were property rather than people is at all convincing when the offence was against 19 defenceless bobby calves.

    What’s the Crown going to rebut it with? He shot two stags? Hardly abnormally cruel. That he drowned puppies? An allegation for which they had no evidence whatsoever.

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  40. tvb (4,556 comments) says:

    Hj there are plenty of farmers like your grandfather including my parents who always recoiled at the thought of killing animals for purely economic reasons. But McDonald’s actions were cruel and sadistic. A very disturbing person.

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  41. hj (7,166 comments) says:

    I wonder if being on $1000/ hour colors one’s judgement?
    What?
    Old boy?
    Bertie?
    Learned Big Head?

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  42. Colville (2,318 comments) says:

    The supressed charges certianly show that Macdonald can plan and commit a crime (‘mission”) and it seems like he did these crimes to get those he didnt like.
    To me these crimes should have been part of the evidence in the murder trial.
    Its not that he killed animals but that he entered property where he wasnt meant to be under cover of darkness and killed them.

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  43. metcalph (1,367 comments) says:

    Its not that he killed animals but that he entered property where he wasnt meant to be under cover of darkness and killed them.

    The stag killings were admissable evidence for that reason. The jury still acquitted.

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  44. smttc (767 comments) says:

    eszett – a reflection on his character

    That’s right and Greg King tried to persuade the jury that this man is an ordinary kiwi rather than the pyscopath he now seems to be. That’s why the jury might feel a little different now assuming, contrary to what tristranb suggests, that they are not completely thick.

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  45. F E Smith (3,307 comments) says:

    a number of people have said that there was a huge gap between vandalising someone’s house and actually killing them.
    That was actually an argument put forward by one G. King, a defence lawyer.

    Well, the above is what I was responding to.  But the calves are property, albeit living property, and I do draw a distinction between killing them and killing a person. 

     I agree that he appears to have indulged in some quite nasty pieces of vandalism/property destruction.  It certainly shows a bad side of him. But the requirement for obtaining a conviction, especially for murder, is based upon evidence, not character. 

    Please note that I am not saying that he either did it or did not do it.

    hj, who is on $1000 per hour?

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  46. hj (7,166 comments) says:

    funny how the law has evolved to take justice from the common people who have (themselves) evolved a sort of social intelligence.

    In some situations, anyway, the locals can deal a fair and effective justice.

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  47. Colville (2,318 comments) says:

    So why the stags and not the calves?

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  48. SHG (321 comments) says:

    Well we’ve got cruelty to animals and lighting fires – all we need now is childhood bedwetting for the sociopath trifecta. What’s that combo called again?

    Oh snap.

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  49. Nostalgia-NZ (5,320 comments) says:

    ‘Alan Wilkinson (1,278) Says:
    August 3rd, 2012 at 11:19 am
    Although I support the trial jury decision as correct on the evidence presented, I do not support the suppression of evidence about an accused person’s criminal record. In my view the jury is entitled to hear all the evidence. The judge is entitled to instruct them on the law. Then they should make their decision.

    The present system both insults the jury and weakens justice in my opinion.’

    ‘Although I support the trial jury decision as correct on the evidence presented,’

    So what’s different now, more evidence than the none that existed before, or just more reason to fuel speculation – that’s the core to most of the objections, speculation. A good thing to keep away from where no hard evidence exists – far too dangerous.

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  50. hj (7,166 comments) says:

    hj, who is on $1000 per hour?

    http://www.stuff.co.nz/business/industries/7403424/Barry-Hart-guilty-of-misconduct
    I heard that on morning report. I was thinking “minimum wage………. $1000/hour”, “minimum wage………. $1000/hour”, “minimum wage………. $1000/hour”………..
    (or should that be “minimum wage………. $1000/hour”; “minimum wage………. $1000/hour”;…etc?)

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  51. Graeme Edgeler (2,972 comments) says:

    David Garrett:

    Some of our criminal lawyer commenters are better placed than me to comment, but my understanding is that a retrial is possible now only if the acquittal was obtained on the strenght of what is later shown to be perjured evidence – such as someone giving a false alibi which later can be shown to be false. Someone better informed than me may wish to comment on that.

    FE Smith is (unsurprisingly) correct. The Corwn can seek a retrial in two circumstances:

    1. A tainted acquittal (which is an acquittal, after which the defendant is convicted of one of a set of crimes against justice: perjury, conspiracy to defeat the course of justice, bribery of a judge or juror etc.

    2. Where there is new and compelling evidence.

    Kahui cannot be retried under either head because his acquittal was a month before the law change came into effect, however, even if he could be retried under (2), the Coroner’s report would make no difference. Someone can be retried if there is new and compelling evidence. These things are all defined, and the simple point is that the coroner’s report fails on every single one of them: it’s not new, it’s not compelling and it’s not evidence.

    What the Coroner looked at was pretty much the same material that was put before the jury: same experts, same scientific tests, same evidence. The only major difference is that the coroner heard from Kahui. The coroner thought he was lying. That just means his evidence would be set aside and the rest of it looked at. There wasn’t anything new (as defined in the law). It also doesn’t add very much to the case, so it’s not compelling (as defined in the law). And, of course, the finding itself is not even evidence.

    In short, the major differences between the inquest and the trial was that the there was a different level of proof required, and the expert witnesses did a better job at explaining themselves. The police don’t have anything new to add to what they put before the jury, they and the coroner just looked at the same evidence and came to a different conclusion is all.

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  52. Alan Wilkinson (1,938 comments) says:

    Nostalgia-NZ, I don’t know if there is any difference, that would have been up to the jury to decide. It may have altered the weight they gave to competing evidence and alternatives they were presented with.

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  53. hj (7,166 comments) says:

    In a way Ewen McDonald is sentenced to National Detention. Everywhere he goes people will look sideways and it is cheaper than keeping him in prison. I’m not that troubled by the verdict.

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  54. nasska (12,101 comments) says:

    F E Smith

    The crown must have known that their case was going to be hammered by the defense & probably successfully. Was there any legal reason for not prosecuting the current three charges & getting him sentenced on those first?

    This would have established the fact that he was a dicey character & given more time for extra evidence of the killing to come to light.

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  55. Lance (2,718 comments) says:

    @hj
    And he will have fucked up his chances of hiding in Aus or some other country.

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  56. F E Smith (3,307 comments) says:

    hj,

    I don’t think that is a very good example. That is Barry Hart overcharging, not a lawyer earning $1000 per hour. There is a difference.

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  57. F E Smith (3,307 comments) says:

    nasska,

    yes, but if they did then they acted wrongly in preferring charges. Therefore they must have thought that they had sufficient evidence. Obviously they were wrong.

    With regards the other charges, it was quite possible to charge them and then bring the murder charges at a later date if there was more evidence. But public pressure and all that…

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  58. KH (695 comments) says:

    I can’t agree with the criticism of the police and prosecutors. They did what they did in difficult and unknown circumstances. It is quite possible that waiting would have made it harder to convict. Who would know. They had to make the call and did. All honour to them.

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  59. David Garrett (7,700 comments) says:

    FES: I like that! I have heard talk of Paul Davison QC charging $1000 an hour for actual court time…but he is a rare exception I suspect.

    But I am also aware of a certain “friend of all criminals” lawyer who some years ago charged $50,000 – in cash – for a plea in mitigation.Overcharging AND tax evasion?

    Greg would have done the McDonald trial for about $220 per hour including GST if on legal aid, is that right?

    But on another topic, do you have any idea why the Crown would have elected to charge and try McDonald when they must have known they had a weak case? Why not allow him to sweat a bit – such as the guy widely believed to be guility of Jennifer Beard’s murder – and wait for some better evidence to emerge? (Mind you in the case of the guy I am thinking of they waited in vain) In McDonald’s case, surely they should have known that the uneasy relationship between McDonald, his wife, and Mr Boe may have led to developments in the fullness of time?

    KH: But that’s just the point….they didnt have to “make the call” to put him on trial with a case they ought to have known was not strong

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  60. Weihana (4,621 comments) says:

    Alan Wilkinson,

    …the jury is entitled to hear all the evidence…

    …up to the jury to decide…

    So should we just let the jury consider whatever? We can have armies of supporters testifying what a great guy the defendant is and we can have the prosecution dig up people whom the defendant gave a wedgy in primary school. Then we can move on to the real important evidence like what are the defendants political views and does the defendant believe in the impending climate disaster. All these factors show what kind of person the defendant is and will tell us whether he raped that girl or not.

    Either that or we can stick with the current system where prejudicial evidence is excluded unless such prejudice is outweighed by its probative value.

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  61. ross69 (3,652 comments) says:

    > Was there any legal reason for not prosecuting the current three charges & getting him sentenced on those first?

    You’d have to ask prosecutors that question. I’m sure if police and prosecutors could have pulled a swifty, they would have. They tried Shipton, Schollum and Rickards at the same time, in the apparent hope that Rickards would be found guilty by association. But prosecutors came unstuck. The fact they tried all 3 at the same time meant that the prior convictions of Shipton and Schollum were inadmissible, because they risked causing prejudice to Rickards’ chances of a fair trial. Police and prosecutors aren’t averse to manipulating the justice system for their own ends.

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  62. metcalph (1,367 comments) says:

    So why the stags and not the calves?

    I think it was because killing the calves had an element of cruelty that was not present in Scott Guy’s murder. If Guy had, say, had his kneecaps smashed in in addition to being shot in the face, then the Crown could have a case for introducing it as evidence.

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  63. Nostalgia-NZ (5,320 comments) says:

    Alan Wilkinson.

    Does the potential emotional content outweigh the value of the evidence? I say yes. There was enough emotion sought to be wrought from the Jury without them needing to consider photos of dead calves. The Crown needed proof beyond reasonable doubt of murder not speculation on what kind of nutter kills calves. That said, we may yet hear more of these various situations which could be part of the reason GK applied for the sentencing to go to the High Court.

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  64. Nostalgia-NZ (5,320 comments) says:

    Another aspect to consider here is that EM pleaded guilty to the charges. A more deliberate scenario may have been pleading not guilty and seeking to have the trials on those matter held after the murder trial, at which point a guilty plea may have been entered anyway. That scenario is far from unprecedented, with the most serious charge taking precedence.

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  65. Will de Cleene (462 comments) says:

    There is I suspect far less of a gap between killing 19 calves with a hammer and killing someone – in terms of being the sort of person who could kill someone.

    And I suppose you think working on a freezing works chain makes people a Dexter-in-waiting and every deer hunter is a weekend Hannibal Lecter.

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  66. Alan Wilkinson (1,938 comments) says:

    Weihana, the judge will still rule on relevance. Evidence of convictions is factual, not merely subjective opinion.

    Nostalgia-NZ, actually I think the evidential weight is objective rather than emotive. Those who mistreat animals are also likely to commit violence against humans. Those who habitually lie and conceal are likely to be untrustworthy.

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  67. Chuck Bird (4,906 comments) says:

    I believe animals should be killed as humanly as possible if practical. I see nothing wrong with shooting cat or dog. However, in a recent case two men were jailed for shooting a number of dogs where the others dogs seen it happening and know they would be next. There is a big difference between a farmer killing one animal for food by a quick hard blow to the head and doing the same to 19 bobby calves in a pen where the others seen it happening. I have not had farming experience. Does anyone who has think the method of killing is normal and humane?

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  68. Nostalgia-NZ (5,320 comments) says:

    I don’t know that is actually objective Alan Wilkinson, possibly for some of the reasons Will de Cleene mentions at 12.25, and if there is the risk I say don’t enter the chance. Particularly in this case where Crown basically disproved their own case.

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  69. ross69 (3,652 comments) says:

    > Those who mistreat animals are also likely to commit violence against humans.

    I think you’re skating on thin ice with that claim. Farmers keeping chickens in terrible conditions are likely to commit violence against humans? I doubt any research has been done on that question. There is an argument that people who are cruel to animals go on to more violent crimes. But of course that ignores the likely corollary – plenty of people who are cruel to animals never go onto to use violence against people. And for what it is worth, I understand Hitler was very fond of dogs and treated them well. :)

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  70. Cath (1 comment) says:

    Ewen McDonald’s offending dates back to 2006, why wasn’t he prosecuted for these previous offences? Was the position of the Guy family in Feilding society so powerful that other members of the community didn’t want to cross them? Scott Guy’s father Bryan lied to police about whether or not a rifle was locked away in his house; sounds as though there is more than one bad apple in the extended family. Why did the police lay murder charges against Ewen McDonald when it must have been obvious that they lacked sufficient evidence for a conviction. Was the fact that McDonald’s brother is a detective? The whole saga has a nasty smell about it, like something rotting under the carpet.

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  71. ross69 (3,652 comments) says:

    http://en.wikipedia.org/wiki/Blondi

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  72. Nostalgia-NZ (5,320 comments) says:

    Chuck Bird the lines get clouded. I’m still struggling to fit the word ‘massacre’ with the recent dog killing case the SPCA prosecuted. My dictionaries don’t show any reference to massacre other than to the killing of a large number of people as in battle and said to be wanton or savage.

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  73. tvb (4,556 comments) says:

    Having read the interview of one of McDonalds victims I am furious at the wanton cruelty of McDonald. There is something evil about that man. I wish the jury had a better picture of McDonald’s bad character

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  74. F E Smith (3,307 comments) says:

    DavidG,

    But I am also aware of a certain “friend of all criminals” lawyer who some years ago charged $50,000 – in cash – for a plea in mitigation.Overcharging AND tax evasion?

    No comment!!! :D If we are thinking of the same lawyer, then I had a client once who allleged he sold a certain Class A substance to him, but I have no idea if that is true or not…

    Still, not a bad income if you can swing it!!!

    Greg would have done the McDonald trial for about $220 per hour including GST if on legal aid, is that right? 

    Nope, $159 plus GST ($182.85 including). The rate you have mentioned is the one that the Crown gets for exactly the same work.

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  75. Graeme Edgeler (2,972 comments) says:

    David Garrett:

    Greg would have done the McDonald trial for about $220 per hour including GST if on legal aid, is that right?

    The top legal aid rate for the most experienced lawyers doing the most serious trials is $159+GST* per hour. Which is per hour billed, not per hour worked. Legal Aid will very rarely actually pay for all the hours worked.

    (*obviously this the cost before expenses come out, like office rent, secretarial staff, etc.)

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  76. F E Smith (3,307 comments) says:

    do you have any idea why the Crown would have elected to charge and try McDonald when they must have known they had a weak case?

    Quite simply, they must have thought that they had sufficient evidence.  The requirements for prosecution as set out in the Guidelines state:

    3.1 Evidential Sufficiency

    The first question always to be considered under this head is whether the prosecutor is satisfied that ther is admissible and reliable evidence that an offence has been committed by an identifiable person.

    The second question  is whether that evidence is sufficiently strong to establish a prima facie case; that is, if that evidence is accepted as credible by a properly directed jury it could find guilt proved beyond reasonable doubt.

    So you can see that it isn’t the toughest of tests.  It doesn’t mention anything about the evidence being contested or contradicted, or does it require the prosecutor to consider the likelihood of success, which is a requirement in England and Wales.  If you think about it, one could say that it is entirely possible that a jury, properly directed, could have convicted based on the evidence presented.  Heck, that qualifies even if there was only a slim chance.  So, based upon the guidelines, the case was properly brought before the Court.

    But I can say that in England, with the requirement of considering the likelihood of success, it would not have been.

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  77. Weihana (4,621 comments) says:

    Alan Wilkinson (1,282) Says:
    August 3rd, 2012 at 12:34 pm

    Weihana, the judge will still rule on relevance. Evidence of convictions is factual, not merely subjective opinion.

    Bullying in school is also factual. Your political opinions are also factual, in the sense that it is a fact whether or not you hold them. Similarly the opinions of your friends are also factual, in the sense that it is a fact whether or not they hold such opinions about you.

    Just because something is factual doesn’t make it relevant. Prejudice is not avoided by ensuring that the information presented is factual. For instance, if a jury were to decide a case based on the race of the defendant they would be basing their verdict on something factual but nevertheless it would also be a decision based on prejudice rather than facts relevant to the matter at hand.

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  78. Weihana (4,621 comments) says:

    tvb,

    I wish the jury had a better picture of McDonald’s bad character

    People aren’t on trial for their character, they are on trial for a specific act.

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  79. metcalph (1,367 comments) says:

    Ewen McDonald’s offending dates back to 2006, why wasn’t he prosecuted for these previous offences?

    He has plead guilty to these offenses. He wasn’t arrested for them before because nobody knew who did them. It wasn’t until Scott Guy was killed that the police put a massive effort into resolving these cases in the hope that it will lead to the killer.

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  80. F E Smith (3,307 comments) says:

    Which is per hour billed, not per hour worked.

    Which is a very good point, as is the next one

    Legal Aid will very rarely actually pay for all the hours worked.

    emphasis on the word rarely.

    What would have happened is that Greg would have had to estimate how much preparation time and court time the trial was going to require and give the MoJ an estimate in writing.  They would then consider his estimate and come back with a number of prep hours that he was allowed.  If he uses more than his estimate then he had better have a very good reason why, otherwise he will be refused an extension and all work beyond that estimate will be for free.  Trial time they don’t quibble with, because it is beyond his control.

    EDIT: Can I just point out that most cases are at the lower PC1 rate, which, for senior lawyers, is $121.90 including GST. Less than a law clerk in a major firm.

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  81. F E Smith (3,307 comments) says:

    People aren’t on trial for their character, they are on trial for a specific act.

    Again, well said, Weihana.  People don’t seem to be grasping this point.

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  82. Weihana (4,621 comments) says:

    “Those who do ABC are more likely to do XYZ”

    That is the basic argument many people are offering to show relevance of prior bad acts. But this logic would apply equally to race and religion. Statistically some minorities are more likely to commit crime. Therefore by that very same logic a person’s race and ethnicity is relevant to the crime they are charged with. Similarly, atheists are less likely to commit crime. Therefore by that very same logic a person’s religious beliefs are relevant to a crime they are charged with.

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  83. wreck1080 (3,999 comments) says:

    I was unsure whether mcdonald did it before — at least, there was no good evidence.

    But, now, I think it is likely he did it but there is just not enough hard evidence to convict.

    Laywers in general have been educated to think in a certain way with respect to things such as right to silence and revealing of past convictions. But, the environment we live in today is far different from when those rules were formulated so it is worth taking a step back and asking why we have these. Maybe we’ll find that these are still important principles with respect to justice and so be it.

    But to me it makes eminent sense that a persons character contributes to whether someone would behave in a certain way and should be part of the overall package of evidence. Jurors would still evaulate the evidence but for finely balanced cases where jurors may be skeptical the person is capable of the crime it may be useful to know that they have a prior history of nasty behaviour.

    If someone has committed heinous crimes throughout their life then the revealing of these crimes is their own fault in the first place. Perhaps the fact that ones crimes will be revealed for every future allegation will be a punishment/ deterrent in itself?

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  84. roball (7 comments) says:

    I dairy farmed for nearly 20 years, starting as ‘the boy’ and progressing onto 50/50 sharemilking.

    For all those poorly informed comments here, bashing calves in the skull with a hammer or something similar is the preferred method for very young calfs. Go into most calf sheds in NZ and take a good look, you’ll find the the device there somewhere.
    Done right it’s instant death and about as humane as you can get. Shooting them would be preferrable but I’ve seen calves survive a .22 in the head and with the rules around firearms it’s not always an option.

    To try and argue that somebody who’d done this probably hundreds of times to his own stock could murder his brother in law simply because he’d done it to somebody else’s is drawing a longbow. It makes this character a pos, but not a murderer

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  85. wreck1080 (3,999 comments) says:

    @weihana :

    That is not how I’d think. Certainly not down racial lines like that.

    It is more like this, person x has committed 20 burglaries/assaults, is, it is likely person X will commit another burglary or assualt. Person X may be black, white or polka dotted, it doesn’t matter. Just their past convictions.

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  86. Luke Mutton (247 comments) says:

    so, wreck1080, person Y has never committed a burglary/assault, therefore it is unlikely he committed this one. Nothing to see here, move along.

    Sure, if you were to decide, based on your flawed premise, you’d get a conviction. But would you convict the right person?

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  87. Chuck Bird (4,906 comments) says:

    wreak1080, we already have people is jail who should not be there as well as some that the state has acknowledged to be wrongfully convicted.

    If a child is sexually abused and murdered the police just have to round up all the paedophiles in the area and charge the one most likely who does not have an alibi. If they are wrong not only does the wrong person get jailed for life but the real killer remains free.

    I forget the case but someone might remember that someone was doing time for rape and murder and DNA evidence proved someone else in jail did it. And then there was the case of David Dougherty where the police based their suspicions on his record but later they found the real rapist. This is unrelated to the current case but I do not think we should have knee jerk reaction to a high profile case and have more innocent people imprisoned.

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  88. Chuck Bird (4,906 comments) says:

    @roball, please check my post August 3rd, 2012 at 12:44 pm

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  89. OpenMind (54 comments) says:

    “There is I suspect far less of a gap between killing 19 calves with a hammer and killing someone – in terms of being the sort of person who could kill someone. That is why of course it was suppressed”.

    It also didn’t exactly shore up the Crown case that MacDonald had a one-eyed vendetta with Scott Guy. It shows that MacDonald would seek retribution towards anyone he has beef with (no pun intended). Not just Guy.
    Interesting MacDonald had no history of being violent towards humans- you’d think he would have been a bully to school kids or siblings or been mean to Anna or his parents at some stage. I guess there are many walking amongst us showing one persona to the world while you live a double life behind closed doors. Like many of our criminals, child abusers, domestic violence offenders, paedophiles, fraudsters etc

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  90. Dean Papa (784 comments) says:

    Weihana, I think you would find that extra information, such as ethnicity or religious beliefs, when factored into whatever bayes statistic you want to use to estimate a probability of guilt, would be of statistically negligible effect. While information, such as the suspect having committed a similar string of crimes, would be of a statistically significant nature.

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  91. Weihana (4,621 comments) says:

    wreck1080 (2,314) Says:
    August 3rd, 2012 at 1:56 pm

    @weihana :

    That is not how I’d think. Certainly not down racial lines like that.

    Of course not, but the logic is the same.

    It is more like this, person x has committed 20 burglaries/assaults, is, it is likely person X will commit another burglary or assualt. Person X may be black, white or polka dotted, it doesn’t matter. Just their past convictions.

    But the question is not “will X commit another burglary”, the question is “did X commit THIS burglary”.

    While a person with prior convictions for burglary may be more likely to commit another burglary, people of a certain race are also statistically more likely to commit certain crimes relative to other races. The logic is the same. You have a factor that serves as a statistical indicator and are using that statistical indicator to make an inference about a specific instance.

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  92. OpenMind (54 comments) says:

    wreck1080 “It is more like this, person x has committed 20 burglaries/assaults, is, it is likely person X will commit another burglary or assualt. Person X may be black, white or polka dotted, it doesn’t matter. Just their past convictions”.

    Well that would make sense if you’d committed lots of burglaries you might go on to commit another, or if you’d raped several times it could be a likely scenario you might do that again. Based on that assumption you could say MacDonald would be likely to poach more deer (which he did several times) or burn something down (which he did twice) kill farm animals (he did that a couple of times too) but where did he commit violence towards humans that would then make it natural to assume he would then murder one?

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  93. Weihana (4,621 comments) says:

    Dean Papa (105) Says:
    August 3rd, 2012 at 2:17 pm

    Weihana, I think you would find that extra information, such as ethnicity or religious beliefs, when factored into whatever bayes statistic you want to use to estimate a probability of guilt, would be of statistically negligible effect. While information, such as the suspect having committed a similar string of crimes, would be of a statistically significant nature.

    I disagree because being a prior offender only means it is more likely that you will commit a crime rather than the crime for which you are charged.

    Moreover, over half the prison population is Maori which would seem quite a significant disparity.

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  94. Cricklewood (21 comments) says:

    Sadly the police were to slow on the uptake in suspecting Ewen… Of any of the perviously reported crimes on aorangi rd… He is a smart guy who had ample time and knowledge to cover his tracks quite poosibly supremley conifident he could get away with it having evaded suspicion with regards to his priors. Without his accomplice squealing I dare say he would still be wandering round as normal… Sociopath for sure

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  95. Weihana (4,621 comments) says:

    wreck1080,

    Laywers in general have been educated to think in a certain way with respect to things such as right to silence and revealing of past convictions. But, the environment we live in today is far different from when those rules were formulated so it is worth taking a step back and asking why we have these. Maybe we’ll find that these are still important principles with respect to justice and so be it.

    I think you completely misunderstand how we have come to have these rules. According to your narrative they are (or may be) outdated customs from a bygone era. But in fact our system of justice didn’t start with most of the rules we have today. They got added to the system over time and they are fundamental to justice today only because they have withstood the test of time. It is folly to think that you can achieve better by having a bunch of politicians hack away at the system at the behest of a howling mob in relation to one case.

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  96. Christopher Thomson (377 comments) says:

    So what we have is an offender who has been getting away with crimes of violence on an escalting scale for some time. So it isn’t hard for him to make the next logical step and think that a murder can be plotted and executed sucsessfully.

    I am also struck by the distinctive boot patterns that were left at one scene and these I infer were the same as the ones left at the murder.

    The prosecution went with everything it had. It was never going to get any more so there is nothing to gain by waiting. You will find that they couldn’t proceed with the lesser charges that the investigation uncovered as the obvious prejudicial effect forces the crown to hold off on them.

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  97. Dean Papa (784 comments) says:

    Weihana, we are not talking about a random member of the population of those who have committed crimes in the past. If we were, then it would be true that there was no reason to suspect one more than the other. This is specifically related to the case when there is already a suspect, and that suspect has been selected on the basis of evidence other than his criminal past. Then, if you add his criminal past into the equation, it may well have a statistically significant effect. Religion or ethnicity will never have a statistically significant effect.

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  98. OpenMind (54 comments) says:

    Christopher Thomson
    “So what we have is an offender who has been getting away with crimes of violence on an escalting scale for some time”

    Macdonald’s list of offending:
    Criminal damage: Slaughtering 19 calves belonging to Himatangi dairy farmer Paul Barber on the night of August 9, 2007. The calves had been struck on the head with an object.  

    Criminal damage: Emptying 16,000 litres of milk from a vat belonging to another Himatangi farmer, Nigel Sexton, on the same night the calves were culled.

    Arson: Burning down an historic Maori whare built in 1888 which was on Mr Sexton’s farm. Macdonald used an LPG bottle and boat fuel to start the fire. The whare was used as a family sleep out and a duck shooter’s shelter.

    Theft: Driving to a nearby farm and shooting two trophy stags. He put them on his trailer and buried them in a pre-dug hole on the Guy family farm, where he was a manager.

    Criminal damage: Burning down an old farm house on the back of removal trailers at the site of Scott and Kylee Guy’s new home. The house and trailers were destroyed.

    Criminal damage: Vandalising Scott and Kylee Guy’s new home once construction had nearly finished.

    Not sure about the escalating scale??…seems to me the calf slaughtering, milk vat emptying and Whare burning were possibly the most serious of his crimes, the most recent being vandalising the Guy’s house and graffiti. If not a descending scale they would be on par with the earlier offending- not really escalating are they?

    “So it isn’t hard for him to make the next logical step and think that a murder can be plotted and executed sucsessfully”.

    Why does everyone say this is the ‘next logical step’. Surely the next logical step of violent acts isn’t always murder.
    There would be plenty of people in jail for serious or indecent assault who wouldn’t have taken the ‘next logical step’ to murder.
    Surely you can just keep committing acts of destruction or violence without becoming a murderer?

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  99. roball (7 comments) says:

    @ Chuck Bird

    In answer to your two questions. Normal, yes. Humane, about as humane as killing gets.

    I’m not sure you can draw a parallel with the dog slaughter case from a few months ago. All from memory but those guys were done on a firearms charge and “having no regard” to killing hamanely. From what I saw about that case it seemed like they went in there like a pair out of a Rambo movie.

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  100. ross69 (3,652 comments) says:

    > Why does everyone say this is the ‘next logical step’

    Well, quite. It is simply lazy thinking to suggest murder is the next logical step. Farmers that mistreat animals…they should automatically be suspects when someone is assaulted or murdered? Hmmm there would be a hell of a lot of suspects. And why should we stop with the mistreatment of animals? What about the destruction of the environment? Should someone who harms the environment be viewed suspiciously when a violent crime is committed? Contempt for one law should equal contempt for another, right?

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  101. grumpyoldhori (2,205 comments) says:

    Question for a lawyer, did King not open up the killings of the calfs as evidence when he stated that McDonald was just an ordinary Kiwi bloke ?
    Should the judge have not offered the crown a chance to show what King meant by an ordinary kiwi bloke by allowing the evidence of the calfs in ?

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  102. OpenMind (54 comments) says:

    grumpyoldhori
    “Should the judge have not offered the crown a chance to show what King meant by an ordinary kiwi bloke by allowing the evidence of the calfs in?”

    End of the day would that have made any real difference? It makes him out to be more of a loose unit, and as Greg King said he will be punished for those heinous crimes. But would knowing he slaughtered the calves have made the Crown case against him any stronger?
    Nope. There are still 4-5 witnesses that suggest the timing is impossible, no physical evidence really at all- except for the dive boots- and they messed that up royally.

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  103. Weihana (4,621 comments) says:

    Dean Papa (107) Says:
    August 3rd, 2012 at 2:46 pm

    Weihana, we are not talking about a random member of the population of those who have committed crimes in the past. If we were, then it would be true that there was no reason to suspect one more than the other. This is specifically related to the case when there is already a suspect, and that suspect has been selected on the basis of evidence other than his criminal past. Then, if you add his criminal past into the equation, it may well have a statistically significant effect. Religion or ethnicity will never have a statistically significant effect.

    Dean, we are not talking about a random member of the population of those who are Maori. If we were, then it would be true that there was no reason to suspect one more than the other. This is specifically related to the case when there is already a suspect, and that suspect has been selected on the basis of evidence other than his ethnicity. Then, if you add his ethnicity into the equation, it may well have a statistically significant effect.

    :)

    Seriously Dean, maybe I don’t understand something about statistics but I fail to see the difference. Maori are statistically more likely to commit a crime. Past offenders are also more likely to commit a crime. In what manner are these statistics different?

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  104. Weihana (4,621 comments) says:

    Contempt for one law should equal contempt for another, right?

    But I would go further. Violation of the same law in one instance does not imply a violation in another unrelated instance. All these discussions about whether someone is the “type” of person to do a certain thing completely misses the point. We don’t convict people because they are a “type” of person. We convict them because they did a specific thing, because they are a specific person, not a “type” of person.

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  105. F E Smith (3,307 comments) says:

    grumpy,

    I didn’t follow the trial that closely, so could you (or someone) give me some context, please: when did Greg use the phrase ‘ordinary Kiwi bloke’?

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  106. F E Smith (3,307 comments) says:

    Contempt for one law should equal contempt for another, right?

    No.

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  107. F E Smith (3,307 comments) says:

    The only major difference is that the coroner heard from Kahui. The coroner thought he was lying.

    Just a quick comment on this:  the court system (both adversarial and inquisitorial) places great emphasis on how a person comes across when giving evidence in the witness box.  The problem is that we know for a fact that the way a person comports themself in the witness box is not a reliable indicator of whether they are telling the truth or not.  Just like eye-witness evidence is seriously unreliable.  Sadly, judges still place a lot of emphasis on this sort of thing.

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  108. Alan Wilkinson (1,938 comments) says:

    Weihana: “Just because something is factual doesn’t make it relevant.” Exactly, so if I hold some opinion about Macdonald that is factual but not relevant. If Macdonald has a criminal history that is factual and relevant.

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  109. OpenMind (54 comments) says:

    Pretty sure Greg King never said that or inferred that in court. It was only in the days after when he was interviewed…

    “Greg King told TV ONE’s Sunday he believed Macdonald was just a “normal Kiwi bloke” who had the rest of his life ahead of him”.

    http://tvnz.co.nz/national-news/ewen-macdonald-just-kiwi-bloke-lawyer-4960848

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  110. grumpyoldhori (2,205 comments) says:

    F E Smith I was following what a poster at the top put down, here
    (In discussing the trial, a number of people have said that there was a huge gap between vandalising someone’s house and actually killing them.

    That was actually an argument put forward by one G. King, a defence lawyer. The Crown must have been seething on the inside when he made it.)
    I do remember Greg King saying before, during ? the trial that McDonald was an ordinary kiwi bloke.

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  111. grumpyoldhori (2,205 comments) says:

    Make that after

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  112. F E Smith (3,307 comments) says:

    grumpy,

    I saw that too, but didn’t take much notice of it. I was just going to answer your question and the context is important. If, as openmind suggests, it wasn’t in Court then no matter. However, if it was in Court and was in the closing address, then a fair bit of leeway is given in those speeches, so unlikely to attract rebuttal.

    If it was in an earlier part of the trial, then it would really be for the Crown to make an application to bring in the other offending. Now, as a defence lawyer one is always aware of what has been excluded, so you do your absolute best not to say something that will allow the Crown to make such an application.

    Therefore I would not have expected Greg to have said that in the main part of the trial. But, as I said, if he had then it would be for the Crown to apply, rather than the judge to offer.

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  113. Dean Papa (784 comments) says:

    Weihana, I admit I’m only arguing intuitively, I haven’t done the calculations, and do not know stats on Maori V Pakeha offending rates. I agree, in most cases previous crimes committed by a defendant are not relevant. I was considering, obviously given the subject of discussion, cases where those crimes committed were of a particularly serious nature, and fit a pattern of offending. In the case of Macdonald, these include previous crimes against the victim. Although Maori may have a statistically higher rate of offending than Pakeha, it is still very low, and even lower for serious crimes committed. So Weihana, suppose there are two candidates under suspicion for a very serious crime. One is Maori and the other Pakeha. The Maori suspect has no previous criminal history of note. The Pakeha, on the other hand, has committed a string of serious crimes. Which one would you have your money on, if you were the detective?

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  114. F E Smith (3,307 comments) says:

    suppose there are two candidates under suspicion for a very serious crime. One is Maori and the other Pakeha. The Maori suspect has no previous criminal history of note. The Pakeha, on the other hand, has committed a string of serious crimes. Which one would you have your money on, if you were the detective?

    Both.  It is stupid to concentate upon one simply because they have a criminal history.  Cleanskins commit crime, and often the more serious crime simply because it is a one-off.  A good policeman should go where the evidence takes him, not focus upon one offender simply because of their past.  

    There are actually names for each style of investigation, but I forget what they are.  Suffice to say that you get a lot more miscarriages of justice when you pick and choose rather than following the evidence.

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  115. Chuck Bird (4,906 comments) says:

    Macdonald the ‘worst thing’ – Guy

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10824399

    Interesting update.

    I beleive some Scandinavian country allows the accused criminal history to be part evidence of a key Witness’s honesty is challenged. It appears that Guy’s sister and widow’s honesty have been challenged as they did not say certain things until after MacDonald was charged.

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  116. tvb (4,556 comments) says:

    McDonald killed those calves in an act of wanton cruelty. The man is sick.

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  117. Reid (16,703 comments) says:

    Suffice to say that you get a lot more miscarriages of justice when you pick and choose rather than following the evidence.

    What would have happened in an inquisitorial system FES?

    Would that have bought out these offences for consideration or if not the particular offences, at least something more of a background than the jury gets to know under the adversarial?

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  118. Nostalgia-NZ (5,320 comments) says:

    As the Herald ferret through the material they come up with the following:

    ‘Defence lawyer Greg King had objected to the evidence on reliability grounds, arguing that Ms Guy had told police about the comments only after Macdonald’s arrest.

    Justice France noted Mr Guy was “intoxicated and probably affected by drugs” at the time he made the remark and Ms Guy had indicated she was uncomfortable with the topic.

    Mr King argued the only way to undermine the evidence was by “drawing out unflattering material about the deceased”.’

    Hardly supports the idea that King is some kind of mercenary who cut his teeth on the Weatherstone case learning how to dismember the character of victims. He shows here that he was mindful of the likely probative value of this particular evidence compared to the picture it drew of the deceased.

    I think it gives the opportunity to put in context the statement after the trial of his belief that EM was an ordinary kiwi bloke. King seems to accept that none of us are perfect and whilst he was hard hitting in his analysis of EM’s offending in closing to the Jury, his comments later hardly overlooked them. Rather setting out a personal belief, that while EM had mucked up big time, for which he is paying, he still has his life ahead of him and children to care for.

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  119. Reid (16,703 comments) says:

    Who the fuck else was it Nostalgia. I know that’s not for anyone but Police to answer, but that’s the question, and it’s a bloody reasonable one, after those things he did which no-one of sound mind would have done. Any one of those things might, might have been understandable in the heat of the moment. All of them? Over a period of years? Indicates something seriously fucked up upstairs mate. Doesn’t it.

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  120. Weihana (4,621 comments) says:

    Dean Papa,

    I agree, in most cases previous crimes committed by a defendant are not relevant. I was considering, obviously given the subject of discussion, cases where those crimes committed were of a particularly serious nature, and fit a pattern of offending. In the case of Macdonald, these include previous crimes against the victim.

    Sounds like we are aiming for the same goal posts. But I think too many people apply the term “pattern” far too loosely. Literally it means “a particular way in which something is done, organized or happens”. The fact that Macdonald committed prior crimes does not appear to establish a pattern. It does not establish a particular way in which something was done. It does not appear there is anything in particular about the manner of his previous crimes that is relevant to the murder of Scott Guy aside from generalities about violence and criminality.

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  121. Nostalgia-NZ (5,320 comments) says:

    Silly question Reid. I don’t know. But I do know that in all this drawing apart of the possible propensity of EM to have committed the crime – there is a big gap. The man is physically powerful, as can be seen in the police video interview but not one instance anywhere of him being violent toward anyone, not one. For the propensity thing to work, the escalation of offending that some chortle about, I think there needed to violence toward others, stand over, punch up or worse, even the more ‘discrete’ bullet through the farmhouse. Without that we have only unrelated events, none of which put the shotgun in his hands or even himself in the Guy’s driveway at 5am that morning.

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  122. F E Smith (3,307 comments) says:

    Chuck & Reid,

    I beleive some Scandinavian country allows the accused criminal history to be part evidence of a key

    and

    What would have happened in an inquisitorial system FES?

    That is a difficult thing to say, Reid, because so there are so many variations within the civil law criminal systems that one cannot really point to any particular form and say ‘there you are, that is what would happen under an inquisitorial system’. 

    As Chuck pointed out, in some Scandinavian countries the accuseds criminal history is a part of the evidence.  But that is because the trial is judge alone (or a panel) and the accused’s history is a part of the entire trial file that goes to the judges prior to the hearing.  That file includes all of the evidence, including witness statements.  The judges usually come to a decision before the hearing, and only call witnesses if they want a bit more information.  Often the hearing is only held to announce the verdict.

    In Italy there is a combination of judges and lay-jurors who hear the case and come to a decision.  They can take a wide variety of evidence into consideration.  Italian trials often take a year or more, mainly because the Court might only sit a couple of days a week.

    In France, serious cases are investigated by an examining judge, who calls witnesses, takes statements and directs the process.  If the examining judge finds that there is a case to answer, then there is a jury trial in the adverserial manner! 

    In Germany, serious cases are heard by a panel of three judges, plus a couple of lay-judges.  I am not sure about whether they allow prior criminal history in. One thing that Germany has is a state prosecution service plus the right of the complainant to have legal representation at the trial, which means effectively two independent sets of prosecution counsel, which seems quite tough on the defence!

    We mustn’t forget that the European Court of Human Rights is getting very tough on the fairness of due process in the criminal system, because historically the inquisitorial courts have not had a strong commitment to fairness at all.  Indeed, France had to pass legislation only a decade ago to strengthen its commitment to the concept of innocent until proven guilty! 

    In some (Scandinavian courts, I think) the defendant is the first person called, in others he/she has a right to silence.  In some the defence and prosecution are only allowed to ask questions with permission of the judge (much like the coronial system in NZ) and if the judge comes to a conclusion after the first witness then that is the end of the trial!

    You know, the English are proud of their system for a good reason.  Notwithstanding the slow manner in which it took to get around to a balanced system (for example, the defendant was prevented from giving evidence until the very late 19th century) it remains a better system than the inquisitorial system.  Certainly it is a lot more robust, and less suspect to the whims of the judiciary.  One of the glories of the English system has been where jurors have refused to play along with the judge’s telling them what verdict they should arrive at, which happened a lot more than was appropriate.

    That is convoluted, I know, but I hope it explains a little!

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  123. Chuck Bird (4,906 comments) says:

    “That is convoluted, I know, but I hope it explains a little!”

    It does thanks.

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  124. Reid (16,703 comments) says:

    So FES the theme seems to be where inquisitorial treads, angels ergo naturally get hammered. OK, well I did ask.

    Seriously I appreciate your thoughtful and detailed response. I’m personally not convinced we have the best system possible yet but do recognise the centuries of wisdom empanelled in the Westminster system does give us a v good tested and true system able to stand up to harsh scrutiny despite its flaws.

    I’m not sure how much longer it’s going to hang for tho. The public these days, switch on a dime, don’t they. The silly mentals.

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  125. nasska (12,101 comments) says:

    F E Smith

    As Reid has said….thanks for the info you have supplied on this thread. Most of us, with good cause, see the law as little more than a collection of “henceforths” & “not withstandings”.

    It is great to be given the opportunity to learn something of what goes on & why…..especially in plain English.

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  126. F E Smith (3,307 comments) says:

    Gentlemen,

    it is my pleasure, and thank you all.

    Just so you know, I don’t think that we have the best system possible either, I just think it is better than the others. If I find one that I prefer then I will let everyone know!

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  127. Anthony (768 comments) says:

    I think they should now carefully drain the effluent pond – what would happen if they found the gun and the puppies in there with some evidence linking them to McDonald?

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  128. joana (1,983 comments) says:

    Noone gets ”treatment” in NZ prisons.

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  129. Right of way is Way of Right (883 comments) says:

    Soooooo, McDonald get’s off, and Peter Ellis still has convictions hanging over his head?

    I guess McDonald’s is lucky he didn’t (allegedly) shoot Scott Guy in Christchurch then!

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  130. Dean Papa (784 comments) says:

    “Maori are statistically more likely to commit a crime. Past offenders are also more likely to commit a crime. In what manner are these statistics different?”

    The difference is, from the point of view of a jury, that the criminal history of a defendant helps in assessing character. It may indeed be that the criminal offending of a particular defendant is not a significant factor in the mind of a jury. But the jury can be the judge of that, as they can judge other character based evidence. But you can’t generalise from a population based statistic/characteristic to the individual level.

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  131. F E Smith (3,307 comments) says:

    in no way does past character prove present guilt.

    Propensity evidence is about similarities in offending, whether in the manner of the offending or the victim. It is used to show that the accused is more likely to have committed the offence because they had previously committed that offence in the same or a similar way.

    Use of past criminal history to show bad character is not really about propensity evidence, it is about creditability of the accused and their denial of the charge/s. It is introduced not to prove that the accused committed the offence, but to undermine their denial.

    While those may sound the same, they are not.

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  132. Dean Papa (784 comments) says:

    and of course good character does not prove innocence. Evidence of the character of a defendant, good and bad, can be weighed up by the jury.

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  133. F E Smith (3,307 comments) says:

    and of course good character does not prove innocence. Evidence of the character of a defendant, good and bad, can be weighed up by the jury.

    So, good character does not prove innocence, and bad character does not prove guilt.

    Tell me again how, then, a person’s character can be of relevance?

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  134. Dean Papa (784 comments) says:

    Ask Greg King. Perhaps you might like to define the word “prove” as you are using it here.

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  135. F E Smith (3,307 comments) says:

    Why should I define it? You are the one who mentioned it. I am sure that any web based dictionary can help you.

    I think it would be helpful to keep in mind the relevant law:

    Evidence that is not relevant is not admissible in a proceeding.

    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.

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  136. Dean Papa (784 comments) says:

    because you are the one using the word. You might also want to define what you mean by “is more likely”. I’m guessing it is a statement about probabilities? Which is what the task of the jury is about, assessment of probabilities, and the way to do this is to have as much information available as possible. You seem to be saying that some information can hinder this task, which is an insult to the intelligence of a jury. If evidence pointing to the good character of a defendant is admissible, then so should evidence that shows bad character. The jury can then decide how much weight to give the evidence, good and bad. If a jury were to decide that evidence falls just below the standard of beyond reasonable doubt, and it was the good character of the defendant presented that ultimately lead to them applying benefit of doubt, then they could rightly be annoyed if it turned out the defendant’s character was not of the quality implied by the defence.

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