tag:blogger.com,1999:blog-3753486518085091399.post3698127641574828726..comments2024-03-29T17:12:19.648+13:00Comments on Bowalley Road: All Of Us? Reflections On The Trial Of Ewen MacdonaldChris Trotterhttp://www.blogger.com/profile/09081613281183460899noreply@blogger.comBlogger44125tag:blogger.com,1999:blog-3753486518085091399.post-60233314033954693902012-07-16T22:37:49.260+12:002012-07-16T22:37:49.260+12:00Thank you, Steve F, that has been immensely helpfu...Thank you, Steve F, that has been immensely helpful - and not a little disconcerting.Chris Trotterhttps://www.blogger.com/profile/09081613281183460899noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-74343013951350548222012-07-16T19:58:28.378+12:002012-07-16T19:58:28.378+12:00Continued from above…………
3) ON ADVERSARIAL V'...Continued from above…………<br /><br />3) ON ADVERSARIAL V'S INQUISITORIAL JUSTICE<br />Inquisitorial justice systems do have adversarial trials, despite what some in the blogosphere infer. They differ by having an independent investigator, often a judge, to order inquiries and dig up the evidence.<br />In an inquisitorial jurisdiction I doubt very much whether this case would ever have got to trial. The inquiring judge, would have in all likelihood, not been able to recommend a prosecution. It highlights a shortcoming in our current system whereby the crown solicitors, independent private practitioners contracted to the state, are not involved at the investigative stage and at the time of arrest. <br />They simply have the file dumped on their desk, after indictment, with a post it note, - go prosecute. They do have the power to stay a prosecution but their late involvement probably limits this discretion significantly.<br />In either system it will always be easier to show reasonable doubt, the bar in any civilized society, than it is to prove certain guilt, especially when no direct evidence exists. Prosecutors conform their cases to the demands of the legal system. The defence on the other hand, conforms the legal system to the demands of their case.<br /><br />In a jury trial there are three simple rules that guide every single decision on every single case: ask any experienced criminal defence lawyer:<br />1) Trial is war, second place is death<br />2) Truth is relative- pick one that works<br />3) In a jury trial there are only 12 opinions that matter.<br />For the defence winning is the only thing that counts, don't mention justice, that's God's problem, their job is to win.<br /><br />“The accused wore size nine dive boots” was a truth expounded by the prosecution. <br />“Size nine dive boots don't fit the plaster casts “ was a truth expounded by the defence. Clearly the defence picked the truth that worked. It's all relative.Steve Fhttps://www.blogger.com/profile/00045818739559587142noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-66798298986779655332012-07-16T19:57:40.403+12:002012-07-16T19:57:40.403+12:00Chris,
There is still some life in this thread, al...Chris,<br />There is still some life in this thread, although it is dwindling fast until, that is, the collaterals - books, magazine exclusives, movies, DVDs, re-enactments, add to the mix.<br /><br />I have two cents worth on a couple of points:<br /><br />1) ON THE DISCLOSURE OF EVIDENCE<br />Interestingly this case was tried under new evidence disclosure guidelines set down by the 2008 criminal disclosures act. I think the importance of this has slipped through the cracks with most of the court reporters. Under these new rules the prosecution has to hand over to the defence EVERY statement, signed or unsigned give by anyone interviewed in connection with the investigation, whether they appear as a witness for the crown or not. <br />Previously they were only obliged to hand over evidence from those who were going to appear as crown witnesses. So this changes the dynamics of the trial dramatically. It is probably why the crown had so many witnesses. If they didn't call all of them, then the risk to the prosecution would have been the defence calling them and an implied inference amongst the jury that the crown were trying to sweep evidence under the table.<br /> In the instance of the timing of the shots the court heard from four witnesses who heard the shots at, or very close to, 5am. One of them, Mr Sharpe had an unreliable clock, so he he said, an it ran a bit fast. That was the trapdoor for the prosecution out of what was a locked room of evidence that would have given the accused an alibi. But the jury probably didn't buy the crown's argument because they had heard all of the evidence from everyone interviewed. Under the old prosecution guidelines, perhaps Mr Sharpe may have been the only one they heard from.<br />The new disclosure guidelines now balance the opposing sides more equally. The previous imbalance was a major weakness in our adversarial justice system. The new rules reduce the limitations of an under-resourced defence.<br />It may well do to reflect for a moment on the conduct of previous high profile criminal trials, and how, if brought before a jury today, the outcome could differ.<br /><br />2) ON THE REPORTING IN THE MEDIA<br />The principle of open justice is sacrosanct in our legal system and pre dates even the Magna Carta in English law. Court reporting forms an essential part of the principle. The expansion of media exposure made possible by technological advances are testing the principle in it’s delicate balancing act of a free press v’s a fair trial.<br /><br />What we have seen in the Ewen McDonald trial is the emergence of the courtroom verdict being marketed as a brand. The extent to which this has been visible throughout this trial is, I believe, unprecedented in court reporting in New Zealand. Even within the strict confines of reporting directly from witness testimony the media have managed to evoke emotions amongst the public building the brand power. Snippets of evidence interspersed with suggestive and memorable images of witness close ups. You Tube clips to whet the insatiable appetites. Stories of puppy dogs that only a true sociopathic monster could harm. All of it contributes to the public’s desire to buy or reject the brand. <br />This new age of courtroom drama now places the defendant on trial with a presumption of guilt where in reality, it is the evidence on trial and the defendant is in the dock under a presumption of innocence until the evidence proves otherwise. The front page story of last week’s Dompost “ The Court of Public Opinion” underscores my proposition and the power of the media to sell the brand. It is the result of trial by television.<br /><br />Continued below…………Steve Fhttps://www.blogger.com/profile/00045818739559587142noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-81132135614004730352012-07-13T20:39:51.330+12:002012-07-13T20:39:51.330+12:00The most important part of any murder inquiry seem...The most important part of any murder inquiry seems to me to be the Police interviews of the persons "helping with their enquiries". If I were to be called for jury duty I would want to see, not just some grainy, poorly made video footage taken from the side view, but a high definition, front-on, full-face exposure of the suspect answering Police questions. I would want to clearly see their reactions, facial expressions as well as their body language at the time of questioning or arrest, not just the well groomed, well tutored defendant in the courtroom many many months later.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-2063447119840570462012-07-13T20:37:39.830+12:002012-07-13T20:37:39.830+12:00The most important part of any murder inquiry seem...The most important part of any murder inquiry seems to me to be the Police interviews of the persons "helping with their enquiries". If I were to be called for jury duty I would want to see, not just some grainy, poorly made video footage taken from the side view, but a high definition, front-on, full-face exposure of the suspect answering Police questions. I would want to clearly see their reactions, facial expressions as well as their body language at the time of questioning or arrest, not just the well groomed, well tutored defendant in the courtroom many many months later.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-30372450483109096242012-07-13T14:23:14.299+12:002012-07-13T14:23:14.299+12:00http://www.youtube.com/watch?v=_B1WLRhaiVo&fea...http://www.youtube.com/watch?v=_B1WLRhaiVo&feature=plcpAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-7308415217888053132012-07-08T11:06:48.266+12:002012-07-08T11:06:48.266+12:00"A Jury more familiar with Hamlet might not h..."A Jury more familiar with Hamlet might not have proved so susceptible to Mr King's theatrical summing-up."<br /><br />Given that so many other plays, movies and telly shows are based on Hamlet I really doubt that many are unfamiliar with the storyline. Sons of Anarchy is a great example.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-69638229471453105592012-07-06T19:26:47.384+12:002012-07-06T19:26:47.384+12:00Fair size chip on your shoulder there Chris.Fair size chip on your shoulder there Chris.kevinhttps://www.blogger.com/profile/17842815244767085190noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-19797573173458218642012-07-06T17:29:41.097+12:002012-07-06T17:29:41.097+12:00Well, Chris, what is the evidence that's been ...Well, Chris, what is the evidence that's been ignored?<br /><br />And since when was insistence on <br />the known facts legal legerdemain?<br /><br />It could be that insisting on the accused's right to silence prevented him breaking down under cross-examination and admitting all. But, on the evidence as presented, this seems unlikely. <br /><br />As to the Law being served in this case, that's no small thing when you recall the barely lawful travesties of the recent past.<br /><br />Meanwhile, with respect to Justice, this may yet be served by ensuing prosecutions of McDonald on lesser charges.<br /><br />Undoubtedly there's room for further police investigation of the murder and the events surrounding it. <br /><br />And, yes, I accept on reflection that 'pilloried' is considerably too strong a word.<br /><br />I'm not sure what the correct term is for turning people into involuntary hooks for someone else's pet ideas.<br /><br />But Kant's insistence on treating individuals as ends and not as means seems to have some relevance here.Victornoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-4016976990804637342012-07-06T16:19:02.018+12:002012-07-06T16:19:02.018+12:00No one was pilloried, Victor. I simply pointed out...No one was pilloried, Victor. I simply pointed out that the Editor of the Manawatu Standard was wrong, the Guys are not "all of us".<br /><br />I would find your compassion for the family more convincing if you could forbear from celebrating the legal legerdemain which so theatrically thwarted the claims of Justice.<br /><br />Only the Law has been served in this case, Victor. To insist otherwise is not only ignorant, it is cruel.Chris Trotterhttps://www.blogger.com/profile/09081613281183460899noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-34699540748302844922012-07-06T15:24:43.654+12:002012-07-06T15:24:43.654+12:00Olwyn
Just one more point....
It's not your ...Olwyn<br /><br />Just one more point....<br /><br />It's not your comments that appall me. I understand your viewpoint. <br /><br />It's the original piece that amazes and horrifies me.Victornoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-60310596455364748032012-07-06T15:14:12.690+12:002012-07-06T15:14:12.690+12:00Olwyn
I think where we might have been differing ...Olwyn<br /><br />I think where we might have been differing is that I found many of the faults of traditional New Zealand (as alluded to in my previous post) so obviously apparent in both the crime and the events leading up to it.<br /> <br />In contrast, I saw little of the faults (many and gross though they are)of the new New Zealand in either the circumstances or conduct of this case.<br /><br />And I also saw many traditional New Zealand virtues at play, not least on the part of the deceased's family.<br /><br />But, above all, I'm pleased that many of the all too normal traditional New Zealand pitfalls to the administration of justice were removed or circumvented this time around.<br /><br />The accused was tried on the evidence and not on his character.<br />The defence counsel insisted on playing the ball and not the man, and neither judge nor jury demurred. That's how it always should be, but is far too rarely. <br /><br />Perhaps the police were too obsessed with making an arrest or perhaps they merely presented their case badly. Either way, there was no great sign of the deliberate fabrication of evidence. Would that we could say that of every high profile murder case of the last several decades! <br /><br />Might I add that, as someone with reasonably firm views on a range of political and social issues, I nevertheless object to individuals (or families) being held up for public censure on the grounds, not of their thoughts or actions,<br />but of their membership of this, that or the other population quartile. It doesn't take a huge degree of imagination to see where this could lead. <br /><br />And, of course, this type of approach takes on an additional and highly distasteful level of nastiness when those pilloried are suffering from grief and trauma. Frankly, I'm appalled!<br /><br />In summary, if I didn't believe so firmly in playing the ball, I'd be tempted to suggest that whenever Chris and Cactus Kate agree, they're both likely to be wrong.Victornoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-34070754027482317352012-07-06T07:42:59.615+12:002012-07-06T07:42:59.615+12:00The Ballad of Ewan McDonald
Hold up your head the...The Ballad of Ewan McDonald<br /><br />Hold up your head there Ewan<br />give us a big high five<br />hold up your head there Ewan<br />at least you are still alive<br /><br />Pity about the arson<br />the house wrecking and graffitti<br />hadn't of been for Callum Boe<br />you'd have got off scott free<br /><br />Hold up your head there Ewan<br />give us a big high five<br />hold up your head there Ewan<br />at least you are still alive<br /><br />hanging around the cowshed<br />"wonder why Scotty's late?<br />the bugger must be sleeping in!"<br />yeah,down by his own front gate<br /><br />Hold up your head there Ewan<br />give us a big high five<br />hold up you head there Ewan<br />at least you are still aliveAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-69637224552005682802012-07-06T01:16:27.790+12:002012-07-06T01:16:27.790+12:00A brilliant column. Thoughtful and well writing.A brilliant column. Thoughtful and well writing.newzildhttps://www.blogger.com/profile/02689893260360520234noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-64894091235534780842012-07-05T22:52:57.452+12:002012-07-05T22:52:57.452+12:00The article would have made Ronald Hugh Morrison p...The article would have made Ronald Hugh Morrison proud. Now we just have to find the straw man put up by Greg King, er, I mean the Scarecrow-type character that prowls random driveways who was responsible for the murder!<br /><br />More than anything, I just like the way your article operates as a call to arms against the kind of fiefdom that has always existed in NZ (and is inherent in farmer's way of life we cherish) being extended to the corrosive attitudes that are fast expanding out of Epsom and Remuera. <br /><br />I am afraid that the horse, the stags and chocolate labs and the have already bolted on that one.Tim G.noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-23441940378333004162012-07-05T17:19:54.004+12:002012-07-05T17:19:54.004+12:00Ronald Hugh Morrison anyone?Ronald Hugh Morrison anyone?pyGranthttps://www.blogger.com/profile/09017282266652883905noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-80488988281797753042012-07-05T17:05:47.505+12:002012-07-05T17:05:47.505+12:00@Victor: I certainly did not mean to slight the fa...@Victor: I certainly did not mean to slight the families, who seem like decent people and who have suffered terribly. Nor am I obsessed with their having "too much dosh." Furthermore, I accept your point that such things happen in the best of times. However, I do think that the concentration of wealth into fewer and fewer hands along with diminishing opportunities add an edge of desperation to any real or perceived threat of this kind. Nonetheless,I may well be "reading in" something that I already think, independently of the trial.Olwynnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-26179165844983753562012-07-05T16:36:50.980+12:002012-07-05T16:36:50.980+12:00Chris; my jaw dropped when I read this sentence: &...Chris; my jaw dropped when I read this sentence: "A jury more familiar with Hamlet might not have proved so susceptible to Mr King's theatrical summing-up." <br /><br />Mr King's summing up involved showing the jury where reasonable doubt lay; it was impassioned but was not pure theatre. Possible motive is not enough to convict someone of murder; the concrete evidence also has to link them to the murder. And if the evidence can point to other, equally plausible explanations, then there is clearly room for doubt. There was insufficient evidence to convict Ewen MacDonald, and Mr King would have been letting him down had he not pointed that out. <br />There are probably more innocents languishing in jails because juries do not study critical thinking than there are criminals walking free because juries have not read Hamlet. I agree that reading Shakespeare gives you insight into the human condition, but it cannot stand in for the critical appraisal of evidence and argument among jurors.Olwynnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-50916843559404897742012-07-05T16:21:08.276+12:002012-07-05T16:21:08.276+12:00Hi Olwyn
For once we disagree!
I certainly recog...Hi Olwyn<br /><br />For once we disagree!<br /><br />I certainly recognise that our society is becoming unpleasantly and dangerously polarised between rich and poor and that tough economic times make for much licking of more privileged posteriors. <br /><br />And, obviously, the Guys aren't just like everyone else, in the sense that they're richer than most. <br /><br />But, strange as it might seem, many of those with whom I've discussed the case were unaware that there was a great deal of money involved. They clearly saw the stricken families as folk similar to themselves and followed the case so avidly for that very reason.<br /><br />Moreover, the Guy family behaved, though most of their ordeal, with a simple dignity that instantly refuted any possible charge of being "up themselves". Moreover, even if the deceased had pitched himself as the young prince claiming his 'ain, without first paying his dues, his parents don't seem to have been too enamoured of the idea. <br /><br />And, yes, Anna McDonald was always exquisitely groomed for her days in court. But that's a pretty thin thread on which to hang the charge of neo-feudalism, unless you're using the logic of Madame Defarge!<br /><br />Turning to the character of Ewen McDonald, there's surely nothing remotely new about the dark truculence and vengeful rage that lurks behind the quiet, non confrontational persona of many an old fashioned Kiwi male. <br /><br />If anything, this type, although still far too numerous, is less predominant than in the days when Muldoon built his career on siphoning their rage. <br /><br />Nor is there anything new about the extraordinary capacity of New Zealanders to nurture grudges. <br /><br />I hate to peddle national stereotypes. However, had there been an Olympic Gold available for grudge-bearing, we'd probably have been a shoe-in for at least Bronze every four years since the late nineteenth century.<br /><br />And, both here or overseas, inheritance is the field in which anger is most likely to simmer away for years, sometimes reaching catastrophic breaking point. <br /><br />Just about every family I know is in thrall to some poisonous myth of promise betrayed, inheritance denied or patrimony squandered. And that's not normally because of the amounts involved but because of the outrage felt at denial of personal mega-narratives.<br /><br />To accept defeat is to question your own worth, the love of your parents, your love for them, the years you have suffered in worthy but unremarked silence etc. etc.<br /><br />Another thing that isn't new is the casual and callous violence of much of rural New Zealand. The truly terrible aspect of some of the incidents associated with this case was not the damage to property but the brutal slaying of innocent animals. <br /><br />There's certainly a great deal in New Zealand that can be blamed on the triumph of neo-liberalism and the consequent splintering of our society. But almost everything of significance about this case would, to my mind, have been equally possible in the infinitely more egalitarian New Zealand of mid-century. <br /><br />And so, at the end of the day, we're left with around a dozen broken lives. You might consider that the people concerned have too much dosh. You might not like what you think they stand for. But, ultimately, they're people and deserve our compassion. <br /><br />Returning briefly to Shakespeare, who's been cited so much in recent days: Lear isn't memorable because he's "King of Britain" but because he's every fast-aging father, who was ever filled with vanity, regret,weakness and a clumsy inability to express love in the right way, as his eyes cloud over and his mind moves in and out of sanity. Perhaps Shakespeare based the character around his own father, the master glover and one-time alderman who had fallen on hard times. <br /><br />And, of course, Hamlet isn't memorable because he's the "Prince of Denmark" but because he's Everyman. <br /><br />As another famous writer put it: "Only connect"!Victornoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-10374622585469206982012-07-05T16:09:23.439+12:002012-07-05T16:09:23.439+12:00Greg King is a meatworker's son from Turangi. ...Greg King is a meatworker's son from Turangi. I assume he earns a 6figure salary. Case dismissed!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-61421363628744320612012-07-05T15:39:14.078+12:002012-07-05T15:39:14.078+12:00A splendid diatribe, Anonymous@12:58 PM, which wou...A splendid diatribe, Anonymous@12:58 PM, which would have been even more effective had you the courage to sign it.<br /><br />If you really think that the fortunes of rural and provincial retailers, stock agents, accountants and district councillors are improved by biting the hands that feed them, then you have never lived in the country.<br /><br />Shakespeare may have written his plays 500 years ago, but the distillation of human experience contained within their pages rings as true today as it did in the sixteenth century. A Jury more familiar with Hamlet might not have proved so susceptible to Mr King's theatrical summing-up.<br /><br />Your own (paradoxically) eloquent anti-intellectualism marks you down as the sort of person whose misplaced reverence for muck and Diesel is currently holding New Zealand back. <br /><br />Sadly, provincial New Zealand is full of them.Chris Trotterhttps://www.blogger.com/profile/09081613281183460899noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-60330897464866408702012-07-05T15:17:16.645+12:002012-07-05T15:17:16.645+12:00The reference to the men's salaries was simply...The reference to the men's salaries was simply to indicate how far from the daily reality of life in NZ these people were. <br /><br />Barely 3 out of 100 New Zealanders enjoy an income that runs into six figures.<br /><br />We may sympathise with them, but the Guys are most definitely NOT "all of us".Chris Trotterhttps://www.blogger.com/profile/09081613281183460899noreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-42199777946143274402012-07-05T14:39:30.257+12:002012-07-05T14:39:30.257+12:00A rather bitter diatribe Chris? you seem to be pl...A rather bitter diatribe Chris? you seem to be playing the envy card about the $100k pa, most farm managers seem to be in the $80 to $100k earning area and to my observation they do put in the hours and earn it.Putting it simply, Ewen could well have done it but it couldn't be proven beyond reasonable doubt to a Wellington jury,case closed. Cant see the need for all the other bitter suppositions and generalisations you make about provincal NZ.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-35472992363059107242012-07-05T13:00:03.020+12:002012-07-05T13:00:03.020+12:00"All of us were interested " Really? Evi..."All of us were interested " Really? Evidence?Mikenoreply@blogger.comtag:blogger.com,1999:blog-3753486518085091399.post-54200259687286681562012-07-05T12:58:09.220+12:002012-07-05T12:58:09.220+12:00For a man who hammered the Labour party for intell...For a man who hammered the Labour party for intellectual snobbery a few weeks back, you sure do seem to lack any sense of self-awareness.<br />To suggest that modern farming is nothing more than attaching pumps to teats, for which unworthy drop-outs are overpaid, is snobbery at its worst. <br /><br />Whatever the darkness of his character, Ewan MacDonald was a high achiever at the farmer of the year contest and succeeded in running half of a multi-million dollar business. From all accounts, he had a tremendous work-ethic to match his farming abilities. But one suspects that in the exclusive salon Chris Trotter, one isn't capable unless one is book capable. The farmers of the Manawatu simply aren't worth talking to until they get a post-grad qualification on the gender implications of medieval Spanish literature. <br /><br />You go on to demonstrate how divorced you are from reality by suggesting that Feilding will close ranks out of fear of the Guys. It is as if you believe that fee simple title comes with the right of Prima Nocta or the control of a local gallows. <br /><br />Perhaps the local townsfolk will close ranks to try and protect a family of thoroughly decent people who have gone through a brutal, prolonged and public tragedy? Just maybe they will respond out of a sense of community and solidarity, a desire to protect a family they see as one of their own? But of course not. Such a conclusion is far less entertaining than portraying the town as rural England circa 1381.<br /><br />But my favourite part of the rant is the suggestion that justice would have been better served, not by a jury that considered the deflated evidence of the circumstantial prosecution case they had witnessed, but by a jury which came to a decision by way of reference to 400 year old literary characters. One wonders how you can possibly have been overlooked for a place on the law commission.<br /><br />The rest of the column is just a Great Wall of waffling wankery constructed to protect your own prejudices from imagined threats.Anonymousnoreply@blogger.com