The point at which Pundit gets all meta, with a post commenting on another post ... or, my thoughts on Tim's initial thoughts on the Ewen Macdonald trial verdict.

I was going to write a post of my own on the Macdonald/Guy trial verdict (interesting question - should murder trials be known by the name of the victim or the accused?) But then that busy little beaver Tim Watkin beat me to it.

So then I was going to make a comment at the bottom of his post. But that comment got so long that I thought "hey! Why not just be lazy and write a post of my own that basically plaigarises Tim's work under the guise of commenting on it?" 

And that's what I did. 

So Ewen Macdonald is found not guilty. That will surprise a lot of punters, I suspect, but not a lot of lawyers or journalists. Early confidence in a guilty verdict has ebbed throughout the case as the evidence has looked weak and Greg King's attacks strong. And within an hour of the verdict, the mood is turning.

I am a lawyer of sorts, and I was "surprised" by the outcome in the sense of when I heard it I went "wow ...!" That's not the same sort of surprise as I felt, for instance, when the verdict in OJ Simpson's murder trial was announced ... that was a total "what the fuck?" moment. Rather, my response to the Macdonald verdict was "wow - that could have gone either way, so it's interesting to see which way it actually went!"

My feeling was that the jury walked into their deliberations with a mind set of "common sense tells me Macdonald did it ... but is there enough hard evidence to back my gut instinct?" And Greg King did a very good job of showing how that evidence was a bit patchy - in essence, he was able to turn the jury's head against its gut. Which is a good thing ... but not easy to do. As Stephen Colbert reminds us:

"That's where the truth lies, right down here in the gut. Do you know you have more nerve endings in your gut than you have in your head? You can look it up. Now, I know some of you are going to say, "I did look it up, and that's not true." That's 'cause you looked it up in a book. Next time, look it up in your gut. I did. My gut tells me that's how our nervous system works."

After 13 hours the jury decided that there was [in]sufficient evidence to convict Macdonald of his brother-in-law Scott Guy's murder. Whether they believe him innocent or simply that the Crown failed to make the case, we'll never know.

Yeah - I guess we could bring in the Scottish "not proven" verdict to sit alongside guilty/not guilty. But I've never been that hung up on whether the jury think someone actually is "innocent" or not ... as Justice France reminded the jury before they began their deliberations, they aren't a commission of inquiry. All they are there to do is decide if the person before them is so demonstrably guilty of a crime that they can be justly punished for it. If not, then let the rest of the public decide if they only probably did it ... or didn't do it at all.

Guy's father Bryan gave an incredibly composed and impressive statement on behalf of the family and elft [sic] us all with the one central question:

Who is responsible for the death of our son?

From a media point of view, that's the next big question before the weekend's big wrap up pieces. Many will think Mcdonald has gotten away with it, but the family didn't go there, which is interesting.

What do they think as to who did it? We don't know, but that question suggests they're at least not convinced of Macdonald's guilt.

I read this statement differently to Tim. I read this as the family reminding us that the verdict leaves them without "closure" (without using that dread, hackneyed term). Also, the family still has the problem that Ewen Macdonald remains the father to Scott Guy's parent's grandchildren (and possibly husband to their daughter, but I somehow doubt it after her evidence to the court about her husband) ... so there's perhaps a reason why they aren't keen to pound on Macdonald in public.  

Oh, also, the fact that "Scott Guy's wife Kylee tearfully cried out 'he killed my husband' and stormed out of the court" following the verdict's announcement gives some indication of at least her thinking on the matter. 

Their silence on that issue is dignified, but mightn't we wish for more transparency? Perhaps it's too early. But the silence now only adds to the value of that first interview later, be it in terms of magazine money paid to the women involved or in ratings for the news programmes that gets them on screen.

Can I just say that I have NO desire for "transparency" with regards to the Guy family's view on the verdict. Can we just leave them alone as they ask? Please?

And have no doubt, it's the women - Anna Macdonald in particular as of this afternoon - who have the most value to media from here. The competition will be intense - but in most cases respectful.

Oh, please God no. Please, please no. Please?

The family have asked for privacy; I'm curious as to whether they're serious about that and how long they'll wait to speak. Many conversations have already been had.

Could those conversations now wait until the family decide to restart them? 

Another question is what becomes of Ewen Macdonald. You'd think he doesn't have much of a future in this country upon his release, given the court of public opinion.

Whatever future Macdonald has in New Zealand upon his release (which may not be for a while yet, depending on his sentencing for arson and intentional damage ... and note that arson carries a tariff of up to 14 years in jail), it's likely to be the only future he has. I doubt any other country in the world will let him in with those crimes on his rap sheet.

This also puts the onus back on police and their response. Do they re-open their inquiries or do they release a statement that they have taken it as far as they can, insinuating they think the jury got it wrong?

As Tim himself has noted in a comment to his own post, the Police have indicated that while they respect the jury's decision, they aren't looking for anyone else in respect of this crime and aren't going to revisit the evidence to see if there is anyone else they should be looking for. Which speaks for what they think quite eloquently.

Either way, it's another epic fail for the New Zealand Police. They thought the evidence pointed to Mcdonald, but couldn't prove it. How often do they fail in the big cases? From Thomas through Kahui and Bain to Gwaze, the Urewera Four and Kim Dotcom... well.

Well - hang on a moment. If the police had a 100% success rate on prosecutions (be it for murder or otherwise), then we'd have a real problem. Either we'd have a system that that rubber stamps whatever the Police say, or a police force (and Crown Prosecutors) that are overly risk averse. Remember, it's the jury's call as to whether a person is guilty or not - the job of the Police is to place the best evidence they can before that jury to enable them to make that assesment, provided there is a real likelihood of a conviction occuring. 

Not, of course, that the Police are immune from criticism or shouldn't be called to account when they do make mistakes. But I think its wrong to point to the mere fact of acquittals and conclude from these that the Police somehow failed, let alone failed epicly.

Already the fingers are being pointed their direction, with Scott Yorke the first off the blocks to say:

Some people will say the system has failed the Guy family, but those people should not blame the court system. They ought to blame the police and Crown for bringing a case that was always going to end in an acquittal and more pain for the Guy family.

I don't know that this case was "always going to end in an acquittal" ... after all, it took the jury a full 13 hours to make that call. And yes, this shows the evidence wasn't all there in the end. But once Macdonald's involvement in the arson/damage to the Guy's property was revealed and it became clear there was no other identified viable suspect (yes, yes ... there were "possible" others who could have done the deed, but were they really viable?), what were the Police meant to do? If they hadn't brought the charge, then would that have been any easier on the Guy family - knowing Ewen Macdonald had taken all these steps to get rid of Scott Guy, but never testing before a court whether he took the final one? And it's not like there was evidence the Police overlooked in their investigations ... or, at least, we haven't seen any yet. Were they really sloppy or too gung-ho here?

Obviously it wasn't a slam-dunk of a case by any means. But that largely is to do with the lack of forensic evidence that we've become so used to giving us a "certain" outcome, so that when a genuine "whodunnit?" comes along it feels like a throwback to an earlier era.  

So I think Scott's being a bit tough on the Police here - plus he's not being complimentary enough to Greg King and his excellent work severing the threads of the Crown's rope of evidence.

I'm sure there will be others.The other point to note is that Greg King's stakes have just gone through the roof. He'll be the second happiest man in New Zealand right now.

If I ever have the misfortune to be before a court on a murder charge (or other serious criminal matter), Greg King is the man I would want arguing my case for me. And tonight Greg definitely will be happy he's done the best he could for his client.

But knowing Greg, he'll also remember that there's a family has lost their son, husband and father and that no-one is being held to account for that loss. So I doubt he's breaking out the bubbly and kicking up his heels too much.

Comments (41)

by Graeme Edgeler on July 03, 2012
Graeme Edgeler

note that arson carries a tariff of up to 14 years in jail


That's an interesting use of the word "tariff" in relation to a sentencing. I'd have said the tarrif for arson was in the range of two-four years. And with a guilty plea, presumably no relevant previous, and no risk to life, perhaps at the lower end.

by Andrew Geddis on July 03, 2012
Andrew Geddis

"I'd have said the tarrif for arson was in the range of two-four years."

In which case, you'd be mispelling the word "tariff".  

by Paul Comrie-Thomson on July 03, 2012
Paul Comrie-Thomson

Purely out of interest, how does s 26(2) BORA operate from here in regards to MacDonald ...

As I understand it, he cannot be "retrialled", but if some new evidence came to light, could this be used on appeal? Or is an appeal restricted to questions of law?

Anyone?

by Tim Watkin on July 03, 2012
Tim Watkin

I don't by any means attempt to argue for a police state... but if the police hand over the best evidence they have and are so convinced by the rightness of their case that they won't consider another alternative, doesn't that mean by their own standards they've failed? It's not their job to get their man regardless – though they tried that with Thomas – but it is their job to get the man. In theory they just have to put the evidence together etc, but in practice they're actually meant to solve the thing.

Adding "epic" in may have been an overstatement, swayed by the moment and slang, but when does so many unsolved crimes become a stain?

And I didn't mean to be callous about Greg or to imply any callousness on his behalf – heck, I'd want him too if I got caught up in anything, though I doubt I could afford him now! But let's be honest, Greg will enjoy the bragging rights about this in years to come, alongside the other notches on his belt (such as his legal aid fees, art and watches!). His competitive nature is part of his motivation and part of what makes him so good.

by Simon on July 04, 2012
Simon

Andrew,

How different is the Ewen Macdonald set of facts from those of Scott Watson and David Tamihere? Those both being successful prosecutions where the evidence was not conclusive to the fictional tv "CSI" standard. No bodies for starters.  

Would Greg King acting for the defence in those two cases have possibly made a difference to the outcomes?

by Andrew Geddis on July 04, 2012
Andrew Geddis

Paul,

Appeals are restricted to matters of law. But the rule against double jeopardy (which is what is in the Bill of Rights Act) can be set aside if significant new evidence emerges against a person already acquitted of murder, or it is shown the original trial was tainted by perjury or the like.

Tim,

But what about where the police DO get the man, it's just that there isn't enough completely compelling evidence to convince a jury (and I mean that evidence is not available at all, not that the Police just miss it)? 

Simon,

Somewhat similar, but also a bit different. King may have helped ... but then again, a different 12 people on the jury might have too!

by Steve F on July 05, 2012
Steve F

Andrew

two points about this trial that I don't think have been picked up on, if in fact they are reality;

1) was this trial conducted under new prosecution guidelines.? Guidelines that compel the prosecution to disclose every statement whether signed or not of everyone interviewed in connection with the investigation whether they are called as a witness or not. Previously the defence only recieved evidence from the prosecution of those individuals who were called as crown witnesses. So would that explain the inordinately high number of crown witnesses v's the defence? If they were not called by the crown because their testimony would dilute the crown case, then they left themselves open to the defence calling the witnesses with the inherent risk of an inference, that the crown were trying to minimize the impact on their evidence.

2) Given the rule in (1) above is the crown solicitor involved too late in the prosecution process? They do have a discretionary power to halt a prosecution but if they only enter the fold after a pre trial hearing and indictment then it's probably going to limit their use of this power. Perhaps they should be involved at the arrest stage, look at the evidence file and make a call then, like what happens in the UK. Perhaps the police could have been persuaded to shore up their evidence before moving it along, but I guess the pressure was on, and the money spent.

 

by Steve F on July 05, 2012
Steve F

@ Simon

 

Andrew,

How different is the Ewen Macdonald set of facts from those of Scott Watson and David Tamihere? Those both being successful prosecutions where the evidence was not conclusive to the fictional tv "CSI" standard. No bodies for starters.  

Would Greg King acting for the defence in those two cases have possibly made a difference to the outcomes?

 

probably yes, if he had the new prosecution guidelines to work to........

by Bruce Thorpe on July 05, 2012
Bruce Thorpe

In reply to @ Simon,

another significant difference was the non appearance of "secret witnesses" with lurid cell mate confessions.

The prosecution has my respect for playing such a circumstantial case without dishonesty.

The big fails to me are the New Zealand legal system,

in which there is such a widespread indulgence in judicial suppression of associated evidence,

and insistence that an accused's record and reputation are not matters for the jury to weigh.

 

 

 

by Andrew Geddis on July 05, 2012
Andrew Geddis

Steve F,

I don't know the answer to question (1), but in respect of (2), the Crown Prosecutor is involved right from the outset of a murder prosecution (including the laying of an indictment).

by Iain Butler on July 05, 2012
Iain Butler

Andrew, what do you think of the featured letter to the editor in today's DomPost ,where Wayne of Newslands writes:

"I have a wonderful idea to save taxpayers a great deal of money. How about the next time the police seek to prosecute someone for a very serious crime based on flimsy circumstantial evidence they run it by me first so I can tell them whether or not they have even a remote chance of success. Actually, it wouldn't even have to be me. Anyone with common sense would do."

Would do you reckon? Some form of pre-trial appraisal of the evidence by a dispassionate and right thinking person would surely have prevented Ewen McDonald's case going to trial, right?

by Bruce Thorpe on July 05, 2012
Bruce Thorpe

Would it have been a good thing for this trial to have not occurred?

It is my view that when an investigation believes the offender has been identified, and all likely evidence has been gathered, the case should be put to trial.

I have many doubts about our justice system, but in this case, the prosecution team seem to have conducted things properly.

 

 

 

by Quentin on July 05, 2012
Quentin

If the police eventually empty the farm effluent pond using a suitable pump complete wiith suction screen (any competent engineer will design), and find the remains of 3 chocolate labrador puppies alongside a pair of size 9 proline dive boots, could they reopen a new case against MacDonald?

by Andrew Geddis on July 05, 2012
Andrew Geddis

@Iain: "Some form of pre-trial appraisal of the evidence by a dispassionate and right thinking person would surely have prevented Ewen McDonald's case going to trial, right?"

I don't know of any reason to believe the prosecutor (Ben Vanderkolk) is not "dispassionate and right thinking" person. Remember, the test for whether to prosecute is not "is a conviction guaranteed?", but rather "is there a reasonable prospect of conviction." That test then is fleshed out as:

A reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.

And, yes, I do think the jury made the right call in the end on the evidence that could be put before them. But it still took them over 12 hours to make that call. So it isn't as if this was a cut-and-dried example of there being no basis for thinking Macdonald did it.

by Andrew Geddis on July 05, 2012
Andrew Geddis

@Quentin,

There is provision for the Court of Appeal to order the retrial of a person already acquitted of a charge where "new and compelling evidence" comes to light. This provision has never been used in New Zealand, so what exactly counts as "new and compelling evidence" and whether the remains of the puppies and dive boots would meet that test is uncertain ... we'd have to see what the Court of Appeal makes of the argument!

(The provision really has in mind the fact that advances in DNA technology, etc may reveal forensic evidence that wasn't available at the time of a person's original trial, but it isn't limited to such matters).

by Steve F on July 05, 2012
Steve F

further to Iain Butler's post above this came from the 2010 prosecution guidelines:

"...What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor. In forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences....."

So if Ben Vanderkolk looked at the evidence file would he have been looking at it through the eye's of Greg King, or through the eye's of Ben Vanderkolk...

 

by Quentin on July 06, 2012
Quentin

I can't help but wonder, with so much incriminating circumstantial evidence in a case such as this, why the prosecution doesn't call in a statistician as a crown witness?

The statistician could explain what the probable likelihood was for a number of things to have occurred.

eg 1. What was a statistical likelihood that the murderer wore size 9 Proline dive boots, given that most of the footprints left at the scene matched that size and particular type of boot. (MacDonald owned size 9 Proline dive boots)

2. What was the murderer's likely form of transport given that there were no fresh automobile impressions left in the ground, and that if the murderer used an automobile, they would have to have parked on the side of a major arterial road for a lengthy period of time to lay in wait for Scott Guy (Noting that Ewen MacDonald used a bicycle to get around the farm)

3. The timing of the murder was probably around 4:43, but more loosely between 4:41 and 5am. (Did MacDonald have an alibi that excludes him from this timing)

4. Scott Guy died of gunshot wound. What is the statistical likelihood that Ewen MacDonald would have been correcting the original suspected cause of death if he had no cause to know?

etc etc etc etc

When you start to combine individual probabilities, the overall mathematical effect can be very compelling, and in this case may have turned up a scenario that could potentially have determined by the application of appropriate statistics that the chances of being anyone else were 10 million to 1, with a confidence level of 99% for instance.

 

 

by Andrew Geddis on July 06, 2012
Andrew Geddis

But Quentin ... a large part of the evidence focused on questions like "were the footprints actually from size 9 Proline dive boots?" (the number of lines on the imprints suggested they actually were from a larger pair); "when did the murder happen?" (there was evidence from witnesses it was at 5am, when Macdonald did have an alibi); "did Macdonald know of the cause of death before anyone else?" (there were conflicting accounts of this).

So, a statistician may have been able to "prove" that all these factors added together gave a very high chance that Macdonald was the man - but would you really have needed a statistician to convince a jury of that? However, there's a prior question involved ... did these factors actually apply in Macdonald's case? 

by Steve F on July 06, 2012
Steve F

Quentin......

"1. What was a statistical likelihood that the murderer wore size 9 Proline dive boots, given that most of the footprints left at the scene matched that size and particular type of boot. (MacDonald owned size 9 Proline dive boots)..."

They were never found so we don't know what size he owned but really this whole issue of the boots has missed the point. When you buy dive boots you are buying them for wearing over bare feet. They are made and sized  to fit snuggly over bare feet. At some stage years ago the hunting and tramping fraternity cottoned onto the fact that dive boots were actually a neat way of carting a spare pair of lightweight "overshoes" on tramps and wearing them at the end of the day around the hut for comfort, over, thick woollen socks. So consequently the hunting guys would buy a pair one or two sizes bigger. McDonald would have tried the boots on at purchase time, over thick woollen socks. Being a size 9 foot, and that was his shoe size, he would have purchased size 10 or 11.......31 to 33 tread lines in the forefoot......

Pretty basic really and I reckon Greg King had it worked out and was pretty confident the prosecution hadn't.

by Quentin on July 06, 2012
Quentin

Steve F, based on what you've said, and if Greg King's assertions are true on Ewen MacDonald's foot size, you've confirmed the fact that the correct size of dive boot that MacDonald should have bought was size 9....In January 2004 he did in fact purchase size 9 Proline dive boots from Hunting & Fishing. The most reliable way of determining shoe size is apparently from determining length and width from the impressions, not from the number of forefoot wave patterns which can vary slightly between batches, as well as from toe roll. I refer you to the evidence as quoted in the trial below:

"Mr King argues that if Macdonald had a pair of Proline dive boots, his foot measurement shows he would be more suited to a size 7 - which have a wavy line count of 25.

This morning the High Court in Wellington heard how Mr Neale had analysed the boot impressions left at the scene, of which there were more than 50.

Mr Neale says the scene impressions were consistent with a size 9 or size 10 boot, ruling out a size 7 because it was too small and a size 11 because they were too big.

He also presented to the court an impression of Macdonald’s foot, taken during the investigation.

“It fit within the boundaries of the size 9 cast from the exemplar boot, and a size 10, and the casts found at the scene,” he says."



Read more: http://www.3news.co.nz/Crown-nears-end-of-evidence-in-Ewen-Macdonald-trial/tabid/423/articleID/259123/Default.aspx#ixzz1znrck7oz
by Iain Butler on July 06, 2012
Iain Butler

Andrew and Steve F, I accidentally set my sarcism meter to 'deadpan' rather than 'scathing', since what Wayne of Newlands is demanding sounds exactly like a depositions hearing, dontcha think?

by Andrew Geddis on July 06, 2012
Andrew Geddis

@Iain ... now I don't know if you're being deadpan sarcastic or not ... Macdonald didn't have a depositions hearing!

by Mike Osborne on July 06, 2012
Mike Osborne

Good points Quentin - and a jury does evaluate the odds in determining guilt beyond "reasonable doubt" (i.e. some small probability) albeit in an intrinsic and informal manner. The assistance of some formal statistics could well be very helpful - provided prosecution and defence could agree the odds for each piece of evidence (e.g. reject the "correction he was shot" evidence and the overall odds drop from 1 in 50,000 to 1 in 5,000 say) - can't see defence lawyers being very keen on this as they seem to prefer working with emotion as much as fact.

Your observation of the lack of fresh tyre prints around the scene and implication were perceptive..

by Steve F on July 06, 2012
Steve F

Quentin...

Manawatu Standard…(Jimmy Ellingham ) 16.6.2012

“…..When police looked at Macdonald's footwear in July 2010, no dive boots were found. All his shoes and boots were size nines…..”

 

So immediately the police go looking for size nine proline dive boots. No one knows what size the boots actually were, they were never found and there is no record setting out precisely that he purchased size nine proline boots. So we can assume that McDonalds feet generally fit size nine footwear, after all that is what they found at his house.  When it came to purchasing rubber dive boots for a purpose they are not designed for they need to fit over feet with thick woolen socks, maybe even two pairs. The likelihood is that he purchased larger boots say size 10 or 11, which then accounts for the number of “wavy lines” Greg King highlights in his cross examination of the expert witness…..

 

These are the words that sounded the death knell of the case

 

NZ Herald, (Mathew Backhouse,) 26/6/2012

“….But under cross-examination by Mr King, he agreed the size nine boot he had seen as an example could not have been the same as those worn at the scene.

Mr Neale said he counted about 32 to 33 rows of the wavy pattern on the forefoot of three partial footwear impressions at the scene.

But under instruction from Mr King, he counted about 29 rows on the forefoot of a size nine Proline boot produced as an exhibit in court.

Referring to the impressions at the crime scene, Mr King said: "If your calculation is accurate, there is no way in the world that it can be a pair of size nine Proline boots.''

 

It is my proposition that the casts were of larger dive boots that McDonald owned. Larger than all his other boots and shoes……

 

 

 

 

by william blake on July 06, 2012
william blake

@ Steve, From your musings I doubt that you would be claiming McDonalds innocence if the prints were size 9 and he had been proved guilty over that.

by Scott Chris on July 06, 2012
Scott Chris

Not, of course, that the Police are immune from criticism or shouldn't be called to account when they do make mistakes. But I think its wrong to point to the mere fact of acquittals and conclude from these that the Police somehow failed, let alone failed epicly.

While I agree with most of what you've written Andrew, my general (and highly unqualified) impression of the presentation of evidence by the prosecution is that it lacked cohesiveness and attention to detail. What little evidence they did have to work with was ambiguous, such as the tread pattern and size of the dive boots which could only really create doubt as to the certainty of Macdonald's guilt. They couldn't even identify the murder weapon ffs. Surely the prosecution knew all this when they decided to try Macdonald, so it is a decision I find highly questionable.

by Andrew Geddis on July 06, 2012
Andrew Geddis

@Scott Chris: "They couldn't even identify the murder weapon ffs."

Is there a way to distinguish a shot fired from one shotgun from another (in the same way as bullet styrations can distinguish shots fired from one rifle from another)? Or are you meaning the witness evidence relating to the interval between the shots fired on the morning athat pointed to a semi-automatic  (which I take with a grain of salt ... if I were woken by shots at 5ish in the morning, I'd have trouble remembering how many were fired/how far apart they were).

by Steve F on July 06, 2012
Steve F

@Wiliam Blake...Steve, From your musings I doubt that you would be claiming McDonalds innocence if the prints were size 9 and he had been proved guilty over that.

What I would claim is irrelevant. The evidence is what it is. The boot prints weren't size nine and he was found not guilty.

What I am trying to point out is how a strand of evidence can be presented in a manner that is dependent upon the skill of the advocate. Not that I am suggesting Ben Vanderkolk is less of an advocate than Greg King, but the defence saw a trapdoor in what the prosecution thought was a locked room of critical physical evidence and exploited it to their advantage. It is after all a jury trial and there are three simple rules that guide every single decision on every single case: ask any experienced criminal defence lawyer:

1) Trial is war, second place is death

2) Truth is relative- pick one that works

3) In a jury trial there are only 12 opinions that matter.

For the defence winning is the only thing that counts, don't mention justice, that's God's problem, their job is to win.

 

by Scott Chris on July 07, 2012
Scott Chris

is there a way to distinguish a shot fired from one shotgun from another (in the same way as bullet styrations can distinguish shots fired from one rifle from another)? Or are you meaning the witness evidence relating to the interval between the shots fired on the morning athat pointed to a semi-automatic

My criticism is  mainly but of the decision to prosecute not so much of the forensic analysis. (although I find it hard to understand why the crown couldn't obtain specific manufacturing specification data relating exactly to the boot prints rather than using a boot that didn't match the prints as an exhibit)

And yes I've heard that it is difficult to positively identify a specific shotgun as a murder weapon. Perhaps the prosecution should have explored and demonstrated the idea that two shots sounds like three because you also have 2 echos, the first of which is masked by the second shot.

by Scott Chris on July 07, 2012
Scott Chris

Oops, superfluous 'but' five words into my reply. (Oh dear - have to decipher CAPCHA again....)

 

by Scott Chris on July 07, 2012
Scott Chris

These are the words that sounded the death knell of the case


Steve, I'm not sure that that would have helped the prosecution case. King's easy out is: 'Macdonald is size nine. Why would he be wearing size 11s, especially if his intention in wearing them is stealth. If woolen socks make a difference why is all the rest of his footwear size nine?'

My guess though is that either the tread pattern has changed over the years, or that they were in fact 11s and Macdonald intentionally wore them not for stealth, but to provide a proxy aliby. Perfect murder maybe.

by Steve F on July 07, 2012
Steve F

 

Scott

 Your reply is precisely my point and what I was anticipating. Without direct evidence in cases such as these there is no certainty. In exclusively curcumstantial cases it is always easier to show reasonable doubt than it is to prove certain guilt. The prosecution has to conform its case to the legal system. The defence conforms the legal system to fit it's case. This strand of evidence, the dive boots, I considered to be the plank that would carry the prosecution across  a frozen pond of circumstantial evidence that was melting fast. In my opinion if the crown had considered the numerical aspect of the tread pattern they could have neutralized it effectively with witness testimony as to why this would have been the case. Find enough credible huntin' shootin' fishin' witnesses to testify that one would always purchase dive boots, for land based  outdoor purposes, a size or two bigger than their normal shoe size.The trap door the defence found could have been held shut. In other words, they could have picked another truth, one that worked. It's all relative and there are only 11 opinions that mattered. 
by Ross on July 09, 2012
Ross

 Quentin said:

 "I can't help but wonder, with so much incriminating circumstantial evidence in a case such as this, why the prosecution doesn't call in a statistician as a crown witness?"

 I would treat statistical analysis with a lot of caution. In Britain, Sir Roy Meadows infamously caused a miscarriage of justice by claiming that the odds of two cot deaths in the same affluent family were 1 in 73 million. In fact, the true odds were a fraction of that. Sally Clark was wrongly convicted and later committed suide.

 

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

 

"I can't help but wonder, with so much incriminating circumstantial evidence in a case such as this, why the prosecution doesn't call in a statistician as a crown witness?"

I would treat statistical analysis with a lot of caution. In Britain, Sir Roy Meadows infamously caused a miscarriage of justice by claiming that the odds of two cot deaths in the same affluent family were 1 in 73 million. In fact, the true odds were a fraction of that. Sally Clark was wrongly convicted and later committed suide.

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

by Quentin on July 09, 2012
Quentin

I wonder whether the police have taken DNA from the remaining labradors, so that a match can potentially be made if the carcasses of any remaining chocolate labs are found (eg buried on the farm, or downstream on the banks of the Oroua river which backs onto the property where Scott Guy was murdered only a few hundred metres from the building they were housed in).

Speaking of burials, did they find where the stolen stags were buried

Incidentally, does anyone know of the relevance of the cigarette packet found at the Feilding end of Aorangi Rd a few kilometres from the murder scene, 11 months after the murder, other than it was the same brand as some stolen in Palmerston North, (whch was claimed by the defence as being close to the murder scene, but is actually tens of kiilometres away in a different town? So maybe there are 10 common brands of cigarettes. You have a 1 in 10 chance that any cigarette packet on the side of the road is the same as the type stolen in any town or city in NZ! Let's say that the murderer was a smoker then....he lay in wait and shot Scott Guy using great stealth, leaving no trace of cigarette butts or packets at the gate, but then straight after the murder, isn't worried about quick getaways and finds time to light up the last cigarette that was in his packet, while driving towards Feilding rather than the natural escape route away from any built-up area, before throwing out the packet 2km down the road on Campbell Rd/Aorangi Rd where a packet was found undisturbed 11 months later! The cigarette packet find is totally irrelevant.

Can someone also explain why the Crown put the murder time so specifically at 4:43am? I would have thought that the murderer would have first collected the 3 pups at about 4am (and probably disposed of them in the Oroua River less than half a km bike ride away), before coming back to shoot Scott Guy at around 4:57am, then taking approx 4 mins at 20kph to ride the 1.5km distance to disable the building alarm

by Steve F on July 10, 2012
Steve F

Quentin,

I’m not sure about your packet of cigarettes, but this one below, plus the fag butt in the driveway I think would be alarmingly relevant……

“….Defence lawyer Peter Coles asked him if that included a man who was given an alibi by a woman with a methamphetamine addiction, who was "wrecked" the night of Mr Guy's murder. Mr Thompson said the man had been cleared, as were his two accomplices in the burglary of a Palmerston North house the night before Mr Guy died, where Winfield Gold cigarettes were taken. A cigarette of that type was found in Mr Guy's driveway…..”

Manawatu Standard , Jimmy Ellingtham 16.6.2012

 

“….On July 9, 2010, police searched Aorangi Rd. They found rubbish, including a bottle top and balloon. On the other side of the road from where Mr Guy was killed, an empty packet of Winfield Gold cigarettes was discovered near a power pole......"

Manawatu Standard, Jimmy Ellingham,  19/6/2012

 

As for the timing of 4.43am, that was required to fit in with the crowns version of the truth.

Scott walks out of his house at 4.41am, according to the last computer usage, which was not certain under cross examination, and gets to the end of his driveway a minute or so later.

There were however 4 witnesses who heard shots at or close to 5am. On of them, Mr Sharpe had an unreliable clock. He said it could have been a bit fast, so that was the trap door out of the locked room which would have been a watertight alibi for McDonald. In the minutes just before 5am he was seen coming out of his house, across the driveway  and heading to the milking sheds. That is the version of the truth picked by the defence. Truth is relative, they picked one that worked and as I alluded to above there were only 11 opinions that mattered.

by Quentin on July 10, 2012
Quentin

Steve, with respect, you are quoting bad reporting. If you take the facts as presented by the police investigation, no cigarette nor cigarette butts were found in Scott Guy's driveway, but in fact an empty Winfield Gold cigarette packet was found in the area (the exact location of which wasn't wasn't specified) during a wider area search 11 months after the shooting. This search covered an area to Campbell Rd, more than 2km from Scott Guy's driveway. No empty cigarette packets were found near the driveway at the time of the shooting

 

Finding bottle tops and cigarette packets is hardly surprising on the back roads of any township, where people often lurk on weekends to smoke and drink. Go have a look down some of the backroads close to the town where you live...you might even find a cigarette packet and bottle top or two.

Please read what actually was found and when as detailed in police evidence below 

"On June 9, 2011, Mr Jackson went back to 147 Aorangi Rd". (ie 11 months after the shooting)

“I went to the address so I could measure the distance from the laundry door of the house to the workshop door and also record the time it took me to walk it..”

The distance was 80.4 metres and it took 65 seconds to walk. The test was done in daylight.

That replicated Macdonald’s walk to work on the morning of July 8, 2010, when he disabled a shed alarm at 5.03am.

Prosecutor Paul Murray asked Mr Jackson about what was found that day on June 9 2011 at 293 Aorangi Rd, where Mr Guy was shot.

At the Campbell Rd end of Aorangi Rd, some tire impressions were found.

“The impressions went from the road on to the grass area and then appeared as if the vehicle had come out of there.”

Also found was a plastic lid from a takeaway coffee cup, and a Winfield Gold cigarette packet.

 

by Alan O'D on July 11, 2012
Alan O'D

Sometimes, no matter how much you wish there was, there is not enough evidence to convince a group of 12 Jurors, that the accused is guilty beyond reasonable doubt.

The Police have made it quite clear that there were no other lines of enquiry, and in fact, nothing really to point at McDonald, until is mate blew the whistle on the damage.

Without sitting in court for the entire case, and listening to all of the evidence, observing the demeanour of the witnesses to assess credibility, and thus the weight of any evidence they give, it is very difficult to form a truly balanced opinion.

I think Juries these days, with the public outcry over a few high profile cases that have resulted in appeals and retrials and a general circus, are acutely aware of the "a reasonable doubt" standard of proof, and if one were to test that standard against the case involving a certain Dunedin paper boy, then MacDonald was only ever going to walk on the Murder.

It will be interesting to see the details of the other charges when they are disclosed, a little birdie tells me that there may be a few more people raising an eyebrow or two over the verdict and admissibility of evidence

by Steve F on July 12, 2012
Steve F

Quentin,

".......Steve, with respect, you are quoting bad reporting. If you take the facts as presented by the police investigation, no cigarette nor cigarette butts were found in Scott Guy's driveway...."

The man was also involved in the burglary of a property the night before Mr Guy's death at which a number of items, including cannabis and a carton of Winfield Gold cigarettes, were stolen. A cigarette of that brand was found at Mr Guy's driveway, defence lawyer Peter Coles said.

NZ Herald, Mathew Backhouse, 14/6/2012

So that makes two journalists responsible for bad reporting. Do you know if the police investigation notes as you quoted above were read as testimony in the court and heard by the jury?

 

 

 

 


by Quentin on July 12, 2012
Quentin

Steve, the number of journalists that have misreported on this case with unacceptably shoddy, substandard journalism is far more than 2!

If you look through the reports, you'll see, for example, at least three different 'interpretations' by journalists of the date of the burglary in Palmerston North of the carton of Winfield cigarettes. eg

1. Andrew Koubaridis, NZ Herald July 4 2012 "One of the names on the suspect list was an aggravated robber who committed a robbery four days before Scott was killed. Part of his bounty was a carton of Winfield Gold cigarettes"

2. ONE News/FairfaxJune 25, 2012:" This evidence was used to tie in a burglary two days before the murder, where cigarette packets the same as the one found near the crime scene were stolen"

3. Matthew backhouse NZ Herald June 14 2012 "The man was also involved in the burglary of a property the night before Mr Guy's death at which a number of items, including cannabis and a carton of Winfield Gold cigarettes, were stolen".

Further to the cigarette packet, and unless this was also misreported, the defence also attempted to deceive the jury by stating in a summary designed to deflect guilt, that a cigarette was found in the driveway of Scott Guy, which was not true:

Matthew Backhouse NZ Herald Jun 14, 2012 "A cigarette of that brand was found at Mr Guy's driveway, defence lawyer Peter Coles said"

Police enquiries ruled out any connection between the cigarette packet which incidentally was found further down the road during a wider area search 11 months after the killing, and the burglary tens of kilometers away in a different city, which from a statement of Police evidence actually occurred the night before the morning of the murder. No cigarette was found near Scott Guy or on his driveway at any point in time

 

by on July 12, 2012
Anonymous

Does anyone know where the effluent ponds are in relation to the gate and where the puppies were kept .. in terms of distance and time bike riding or walking ? Thanks.

by Quentin on July 13, 2012
Quentin

I presume the effluent ponds are close to the milking shed which is back at trhe MacDonald house 1.5km away. The puppies were kept in the shed at Scott Guy's place 293 Aorangi Rd, about 50 metres from the house and 80 metres from the gate. This shed is only about 100 metres from the Oroua River. Google maps satellite will give you a good idea of the layout.

It will interesting to gain further insight into the psyche of Ewen MacDonald when suppresion of the additional charges he is facing is lifted in a couple of weeks. What is also interesting is that police found cannabis growing in a cottage on the MacDonald property a well as on the banks of the river on the boundary of the property

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