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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