Macdonald up for parole

December 10th, 2012 at 10:00 am by David Farrar

Kathryn Powley at NZ Herald reports:

Ewen Macdonald faces his first Parole Board hearing at Manawatu Prison on Tuesday.

Macdonald is serving a five-year sentence for arson, vandalism and killing deer and calves on neighbouring Feilding farms.

Much of his time in prison was served while on remand and during his trial for the July 2010 murder of his wife’s brother, Scott Guy. In July, he was found not guilty of Guy’s murder.

Macdonald has served a third of his sentence, meaning he is eligible for parole, but it would be very unusual for parole to be granted at a prisoner’s first hearing.

Personally I think the fact that Macdonald appears to have sociopath tendencies is a pretty good reason not to give him parole!

The same story also reports:

Meanwhile, a prisoner has complained about the way Macdonald’s lawyer Greg King handled a previous case.

Law Society president Jonathan Temm told the Herald on Sunday a prisoner on a long term of imprisonment for a “whole range of very serious sexual offences” was at the heart of the report. The prisoner is understood to be in Rimutaka.

“He has made a complaint against Mr King’s conduct as his trial counsel and he is represented by a relatively senior member of the profession on the appeal.”

Temm would not comment on the merits of the appeal, but noted some people convicted of serious offending often complained about their lawyer.

“I’m not sure whether complaints against Mr King will resonate with a result that [the prisoner] will get a new trial, but who knows? These things do happen.”

The prisoner’s complaint also claimed impropriety around a legal aid claim.

Temm said there was no complaint before the Law Society about King and he believed the complaint had been to the Ministry of Justice.

However, a ministry spokesman would not comment, citing an order from Coroner Wallace Bain suppressing details around King’s death.

Again this substantiates the story broken a month ago by Truth. They have left out the fact that a call was made by the Dominion Post to the King family about the legal aid allegations shortly before his death.

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The hunt for the killer

September 17th, 2012 at 10:52 am by David Farrar

The Herald reports:

Kylee Guy is working with private investigators to find out who killed her husband and is asking anyone with new information to come forward.

Ewen Macdonald was acquitted of Scott Guy’s murder after a High Court trial, and Mrs Guy has now begun her own investigation.

I’d say the chances of them finding the “real” killer are at around the same level as OJ finding out who really killed Nicole.

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Ewen Macdonald

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

Stuff reports:

 One of Ewen Macdonald’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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The “Bain” factor

July 5th, 2012 at 9:00 am by David Farrar

Michael Forbes at Stuff reports:

Ewen Macdonald has been acquitted of murder in a court of law but he will still have to overcome the “Bain factor” in the court of public opinion, a top defence lawyer says.

Jonathan Eaton said the best advice he gave clients found not guilty of serious crimes was to accept the allegation would always follow them around.

Mr Eaton had Rex Haig’s murder conviction quashed in 2008 and successfully defended George Gwaze on charges of murder and sexual violation in May.

On Tuesday, Macdonald was found not guilty of murdering his brother-in-law and business partner, Scott Guy, in July 2010 after a month-long trial in the High Court at Wellington.

Mr Eaton said that in Macdonald’s case – where a crime had clearly been committed and police were not looking for anyone else – there would inevitably be members of the public who thought he was “lucky”.

“Regrettably, you’re always going to be tainted; whether it’s applying for employment positions, starting new relationships, moving to a new town – there’s always going to be a Bain factor, which you can’t escape.”

I’m not sure it is a case for regret. I don’t think there is anything wrong with people having an opinion based on balance of probabilities, rather than a criminal sentence which must be based on proof beyond reasonable doubt.

On Radio Rhema yesterday it was suggested to me and Sue Bradford (the panelists) that all defendants should receive name suppression until they are convicted, so they don’t have to wear the stigma of being accused but found not guilty. It was a rare issue where Sue and I both agreed – we were against.

I actually think it reflects well on our society, that we understand the difference between thinking someone did it, and the legal need to prove it beyond reasonable doubt.

I see the Macdonald case as somewhat different from the Bain case, which suggests to me that Macdonald may face much more hostility than David Bain. They are:

  1. In the Bain case, there was a plausible (to some anyway) alternative explanation for the killer. In the Guy killing, there has been no alternative explanation.
  2. David Bain actually served over a decade in prison for the murders, so even those who think he did it, recognise that he in no way “got away scot-free”,
  3. If David Bain did not do it, he was the horrible victim of a framing by his father. With Ewen Macdonald, he has admitted to a campaign of harrassment, vandalism and arson against Scott and Kyle Guy. So regardless of (1) and (2) above he will rightfully be judged badly for the crimes he has admitted to.

It will be interesting to see what sentences are handed down for the six charges Macdonald has admitted to.

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Bradwell on the Macdonald verdict

July 4th, 2012 at 9:38 am by David Farrar

There has been a trend in recent years for journalists who actually did sit through an entire trial and heard all the evidence, to then give their opinion on the verdict. I actually think this is a good thing. It means you at least get the opinion of someone who is not basing it just on the few hundred words summary every day.

Martin VB from The Press did an excellent article on why he thought David Bain, not Robin, was the more likely killer of the Bain family. Yesterday Simon Bradwell from One News wrote on why he thought the verdict for Ewen Macdonald was the correct one:

 Ewen Macdonald is not guilty. 

In the eyes of the jury, and in mine.  …

But having sat in court for every day of the month-long hearing (bar one, out of sickness) I can say what evidence they didn’t consider, simply because it wasn’t presented. 

First, no witness to say they saw who shot Scott Guy in the early hours of 8 July 2012. 

No DNA evidence worth the candle; only possible traces (along with other people’s) on the farm shotgun that could have got there before or after the murder. 

No murder weapon; only the Crown claim that the farm shotgun could not be excluded as the weapon. Along with any other 12-gauge shotgun in the country. …

No forensic evidence. Not a labrador puppy hair, not a fingerprint, not a fibre. Even the dive boot evidence – meant to be a Crown trump card – was inconclusive. 

Making a case with no witness, no forensic evidence and no murder weapon is a tough call.

Increasingly, as the trial went on, no motive. As Ewen Macdonald himself pointed out during his police interview, if he was aggrieved at how little work Scott Guy did on the farm, what sense did it make to kill him? As a result, he was working harder than he ever had. 

I think though with respect Bradwell misses the point here. The intent was not to have Scott Guy work longer hours, but to have it leave the farm (which he admitted to). He was worried Scott would try and inherit the farm and there would be no place for him. Plus he resented the equal profit sharing for what he saw as unequal work.

But a motive by itself is not sufficient.

Famously, his composure did break as his wife Anna described their idyllic life before the murder. I was sitting two metres away, close enough that I could have passed him a box of tissues, as he sobbed. There is no doubt in my mind that his distress was genuine. 

His distress can be genuine but have nothing to do with innocence.

Greg King, Ewen Macdonald’s ebullient lawyer, carried himself with a swagger and a smile that extended to court staff, reporters, witnesses and the public. 

He told me two weeks into the trial that he was supremely confident. The conversation was off the record but he won’t mind me repeating it now that he’s a winner. 

He told me the Crown’s case was “non-existent” and he had never been more confident of an acquittal. 

That was evident throughout the trial, as he turned Crown witness after witness to his advantage, dismantling and raising doubts about their evidence. 

It’s hard to imagine anyone who enjoys the audience as much as Greg King. 

I remarked on Twitter yesterday that if I ever kill someone, I’m so hiring Greg as my lawyer :-)

As momentum built during the trial, it was not unusual to find 100 people waiting for seats in the public gallery. I asked several what the appeal was; most agreed that it was the “family feud” aspect of the case. 

All murders are a tragedy for the family, but this one perhaps more than most. Bryan Guy was reserved with his choice of words yesterday, and I suspect this was due to the fact that Macdonald is the father of some of his grandchildren. They will have the unconditional love for a father that most children have, and the Guy family will have the awful job of coming to grips with their own loss and grief, but also looking after the Macdonald kids as well as they can. They seem to be have that amazing Kiwi rural resilience, but this is the most testing of times.

Several compared the case to a Shakespearean plot. It was an analogy that’s easy to understand. The wise ruler trying to keep the peace between the two warring heirs. 

Even the Crown used the term the “flaw of fairness” in Bryan Guy; that in trying to treat both men equally a tragic situation developed. 

Ewen Macdonald remains in custody. So he probably will for some time, as he pays the price for the crimes of arson, vandalism and poaching that he’s admitted committing. 

But whatever else he may be, he will never carry the tag of murderer. And that, to my mind, is entirely correct. Justice has been served.

In terms of the principle that no person should be convicted unless proven guilty beyond reasonable doubt – I agree.

However I would venture to say that I don’t think we are ever likely to see someone else charged with the killing.

Jordan Williams asked on Twitter yesterday if we should go down the Scotland route and have three verdicts available – guilty, not proven and not guilty.

I think this is worth considering. It isa fact that many people found not guilty are still assumed by many of the public to have done the crime. If the jury could return both a not proven and a not guilty verdict (both being acquittals), then those found not guilty would have less suspicion on them, and effectively have their names cleared – rather than just be found not criminally responsible. This is how the verdicts came about according to Wikipedia:

Historically, the two verdicts available to Scots juries were that the case had been “proven” or “not proven”. However in a dramatic case in 1728 the jury asserted “its ancient right” to bring in a “not guilty” verdict even when the facts of the case were proven (see jury nullification). As the “not guilty” verdict gained wide acceptance amongst Scots juries, Scots began to use “not guilty” in cases where the jury felt the “not proven” verdict did not adequately express the innocence of the defendant. 

There are arguments against it also, but a debate worth having. I am sure the Kiwiblog plethora of defence lawyers will tell me why I am wrong :-) I did like this reference to it:

In popular parlance, this verdict is sometimes jokingly referred to as “not guilty and don’t do it again”

Heh.

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The Guy verdict

July 3rd, 2012 at 4:02 pm by David Farrar

The jury has found Ewen Macdonald not guilty of the murder of Scott Guy, his brother-in-law.

I am not surprised with the verdict, as the prosecution was circumstantial and there was no direct proof.

Having said that, my view is that on balance of probabilities Macdonald probably did it. Not guilty just means not guilty beyond reasonable doubt. The timing of the killing at 5 am makes it incredibly unlikely to be a random killing, and Macdonald’s history of criminal acts against Guy was persuasive, but not obviously beyond reasonable doubt.

Macdonald has avoided a life sentence. But I suspect he will not be attending any Christmas parties with the Guy family in the future.

My thoughts go out especially to the Guy family. It must be awful for them, not to have a conclusion to Scott’s murder.

 

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