Reasonable doubt

Written By: - Date published: 6:10 pm, July 3rd, 2012 - 52 comments
Categories: police - Tags:

There’s some very wrong with the Police. A second murder trial in a month ending in acquittal (the Qwaze case wasn’t even a homicide). A case based on evidence that was never going to make it past reasonable doubt. This comes on top of the increased politicisation of the police and the grounds for two over-the-top armed raids being destroyed in court.

I’ll leave Imperatorfish to comment on the Ewen MacDonald trial. All it does to my mind is reinforce the need for a proper investigation into what is wrong with the police.

(don’t get me started on journalists skiting on twitter about being first to report the verdict by a couple of seconds – scoop of the century, fuckwits)

PS. Anyone saying “X did it” or similar will earn a ban. We won’t have that kind of prima facie defamation around here.


Imperatorfish – The Ewen Macdonald Trial: A Hopeless Crown Case

I wrote the bulk of this post last week, when it became clear that Ewen Macdonald would be acquitted. I followed the case closely, but it was difficult not to. What caught my attention was not the sight of the Guy and Macdonald women crying in front of the camera every night, but the astonishing fact that the Crown didn’t appear to have any strong evidence.

However, the sub judice rule meant I wasn’t able to publicly comment until now.

It’s commonplace for the police and Crown to get an ear-bashing whenever the accused person in a high profile case is acquitted. Sometimes it’s deserved, but sometimes the jury just surprises everyone.

In the case of Ewen Macdonald the system has worked. The Crown put up a shoddy case full of holes and inconsistencies, but the jury weren’t fooled.

The evidence put up against Macdonald was weak. It’s all very well establishing a motive for murder, but motive isn’t enough. The crucial evidence supposedly linking Macdonald to the crime scene was a pair of boots the accused was supposed to own. Boots that were never found. Boots that may have been chucked out years ago. Boots that left prints possibly too large to be those of Macdonald’s.

Nobody should be fooled into thinking that the verdict suddenly makes Macdonald a saint, or some harmless salt-of-the-earth cockie. His earlier behaviour towards the Guys was appalling and inexcusable and deeply disturbing, and many people will remain convinced that a murderer has walked free. We’ll never know whether Macdonald killed Scott Guy, unless there’s an “If I Did It” book in the pipeline or a deathbed confession. I suspect Macdonald won’t get the superstar treatment David Bain got when he was acquitted.

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.

52 comments on “Reasonable doubt”

  1. Glg 1

    Did anything REALLY change after Dame Margaret Bazelys report? I have often seen reports of policemen assaulting people and none of the other police saw/did anything. If there is a culture problem (and it looks like it to me) the rot always comes from the top. We have seen gung ho anti-terrorist police going all Hollywood on us, the embarrassment of the Dotcom raid, politiscisation of the police etc etc.

  2. A case based on evidence that was never going to make it past reasonable doubt.

    I hate to disagree with you Eddie but …

    I agree that the case was not going to make it past reasonable doubt.  I thought that there was a 60% chance or so that MacDonald did it but this was never going to be good enough.

    But the convention is that the Crown has to assess whether there is a prima facie case, that is there was a possibility MacDonald did it.  I think that the Crown got past this level if only just.  It is then up to the Jury to make the call.

    This means that cases will inevitably fail sometimes as long as the system is working properly.

    I agree with you about the Qwaze case though.  I do not know why the Crown had to appeal the original decision.

    • North 2.1

      In R v Qwaze it was prosecutorial arrogance which drove the second trial. Of course I can’t prove it but I feel that Qwaze being a very black man had something to do with it as well.

      We are a nasty little bunch of people. Especially those of us who don’t occupy the bottom ranks…….especially those of us whose lives aren’t so utterly hopeless that there’s room for “aspiration”. How we love someone “below” us to kick.

      That’s why the punk Key was re-elected. Because we’re a nasty little bunch.

      • St L. 2.1.1

        I know both the prosecutors and the defence lawyers involved in the Gwaze case.. I can assure you that race had nothing to do with the decision of the Crown to appeal the first acquittal. It was far more a case of the Crown lawyers disliking being surprised by the defence and then losing.

    • Blue 2.2

      I agree Micky. I think this case was an example of the system working as well as it can. Yes, the police did not have enough evidence to clear ‘reasonable doubt’ but that doesn’t mean they shouldn’t have prosecuted.

      We’d all like to think that if a murder is committed there will be enough evidence to convict the killer, but sometimes there isn’t.

      I don’t think it’s reasonable for the police to just give up and not prosecute if they don’t have an airtight case against someone. The police put up what evidence they have and the jury makes the decision. That’s how it’s supposed to be.

  3. Anne 3

    I agree with you about the Qwaze case though. I do not know why the Crown had to appeal the original decision.

    I don’t profess to be at all familiar with the Qwaze case, but would they have appealed the original decision if he had been a born and bred middle class white New Zealander? Just a thought.

    • I agree Anne.  Qwaze appeared to be a very decent human being with a black skin.  I am struggling to work out other explanations for his treatment.

      • Inventory2 3.1.1

        @ mickysavage – I think the Police were led (or misled) by medical staff who put two and two together and got 22. Either that, or the ghost of Peter Ellis and the Christchurch Civic Creche miscarriage of justice had not been fully exorcised.

    • Te Reo Putake 3.2

      I think the medical evidence supported both the potential causes of the death of Charlene Makaza, actually. Going for a retrial does seem foolish, and I bet they aren’t going to consider that for a moment in the Guy case, but I’m OK that the original prosecution went ahead, because the Police did have reasonable grounds, given what they understood at the time, based on the advice they received from medical professionals. But the verdict of not guilty was the right one, I believe.
      So were the cops racist?
      Nope. Just wrong.

  4. There’s just one flaw in Eddie’s increased-politicisation-of-police theory. Charlene Makaza died in January 2007, almost two years before the change of government at the 2008 election. George Gwaze was arrested shortly after Charlene’s death, and was acquitted in 2008.

    Unless of course Eddie is suggesting that the Police were ALREADY politicised before the 2008 election; that’s a novel thought.

    As far as today’s verdict goes, the Judge as good as told the jury to acquit in his summing up yesterday. The Crown case was weak, and guilt was not proven. And only Ewen Macdonald will know whether or not he is a killer.

    • Gee …

      Agreed I2 about today’s verdict.

      If you want to freak out someone tell them that if proof beyond reasonable doubt means that you have to be 95% sure someone is guilty before convicting it means that 5% of people convicted after trial are actually innocent.

      Kind of does the head in doesn’t it …

      • “proof beyond reasonable doubt” does not mean “95% sure of guilt”.

        • mickysavage

          Kia ora Graeme.

          I agree it does not but “beyond reasonable doubt” is not “beyond a shadow of a doubt”.  “Reasonable doubt” is not the same as “unreasonable doubt”.  There can be trials where an unreasonable doubt may nevertheless reflect what actually happened.  I suggested a 95% confidence level as an approximation for what “reasonable doubt” may mean.

          Do you agree that the test may mean occasionally that innocent people may end up in jail?

    • Lanthanide 4.2

      Eddie was talking about the Qwaze trial that just ended. Not sure why you’re talking about something else.

    • Eddie 4.3

      I didn’t say the Gwaze case was politicised, just as I didn’t say the MacDonald case was politicised.

      Try reading the post.

      I’m concerned both at the poor quality of actual police work and on the flipside the politically-charged investigations (raiding media outlets at the behest of the PM during an election campaign!) and the over-blown armed raids.

      Perhaps I was too subtle in suggesting that the one is suffering because of the other.

  5. Lanthanide 5


    • So you’re suggesting that political pressure was brought on the police to apply to the Supreme Court for an unprecedented retrial of a man already acquitted by a jury?

      Why? What possible gain would there be for the government? To me it smacks of vindictiveness and arrogance on the part of the police who originally decided that Charlene had been murdered when she actually died of complications from HIV-AIDS; and that takes the timeline back to 2007, when Charlene died.

  6. RedLogix 6

    I’m thinking that our national obsession with high-profile murder cases really does not help the process at all. It does nothing to promote probity and clear-thinking on the part of police and prosecution and creates a hot-house media culture which has to be entirely counter-productive.

    I have no problem with the Court process being open and scrutinised by the media; but in a sane and measured fashion…not the circus we have at present.

  7. Treetop 7

    It is better to let a guilty person go free, than it is to lock up an innocent person.

    The Office of the Commissioner of Police in four years have not got off there backside regarding Patrick O’Brien’s perjury confession, FFS how much more transparent can the man be. There is talk about a Truth Justice Commission on NZ Justice Forum and a petition.

    The police have to be held to account, their track record regarding historical cover ups is atrocious and they carry on as if nothing has occurred.

    I wonder what ACC has done with long term undercover cops re wages?

    Probably ACC are still paying them out to shut them up.

    • North 7.1

      Just bring on the Botox Banks prosecution I say ! I’d love to see that little talking-down bastard in the slammer. He’s malevolently wished evil on the rest of the world for decades and decades.

      Karma !

  8. Richard Christie 8

    I suppose we ought at least be thankful the police didn’t plant a cartridge case in Ewen’s bedroom or something in order to strengthen the case.
    They still haven’t owned up to the Thomas case corruption.

    • ghostwhowalksnz 8.1

      Go back 10 years and they would have ‘assisted the evidence’ in the Scott Guy case as well.

  9. mike e 9

    The police are looking for no one else.
    All the circumstantial evidence points to Mc Donald .
    I think the Judges direction was poor.
    It looks like he,s going to spend some serious time behind bars any way who else had motive no one
    he is a conniving criminal.
    And has got away with murder but he will never see his children and wife again .so he is going to do a life sentence anyway.

    • ghostwhowalksnz 9.1

      ‘the police are not looking for anybody else’ is just one of those things they would say.
      It would be a bombshell if they didnt, the detective in charge would be looking for a new job

    • I disagree Mike; I think the Justice France’s direction to the jury was strictly according to Hoyle, and pretty much guided the jury to a not guilty finding. He clearly had concerns that a verdict that was against the weight of the evidence might be reached.

      There was strong circumstantial evidence against Macdonald, but the Crown lacked one vital strand that could not be disproven, and in my bush-lawyer opinion, the jury reached the only verdict it could have, properly directed as they were.

      I don’t think it’s a case of police or prosecutorial incompetence. The police will doubtless have taken the evidence to the Crown Solicitor for an opinion before making an arrest. I just wish the media would now stop hounding the families involved, and give them the space to come to terms with the events of the last two years.

  10. Populuxe1 10

    I don’t think you can be too hard on the medical team’s interpretations in the Makaza case – AIDS in children is fairly damned rare in the West (for which we can be truly grateful) and it’s unlikely they would have much familiarity with the way it presents in children. I doubt there was racism involved, but a dead little girl is certainly going to put the pressure on a jury. The police really can’t be blamed for doing there job in that instance.
    As for the McDonald case – sometimes that’s just how it goes in a functioning legal system, although it is perhaps symptomatic of the tendency of farmers to think themselves above townie laws.

    • Richard Christie 10.1

      I don’t think you can be too hard enough on the medical team’s interpretations in the Makaza case
      I certainly think you can’t be hard enough, they didn’t consider other possibilities, they saw what they wanted to see, they exaggerated – even to extent of inflating 1mm to 3mm tears to “a gaping 7 cm” gash.
      DSAC still peddle dodgy stats etc like the “1 in 4 girls..will be sexually abused by age 16.” myth.
      More than one player in the Gwaze prosecution was involved in the Peter Ellis miscarriage of justice.

  11. Tiger Mountain 11

    NZ Police culture in my personal experience tends towards being bent, violent, racist and anti woman. They have a track record of ‘stitchups’. AOS call outs being highly likely to result in execution by proxy. Weren’t taser and pepper meant to be used as a substitute where possible for lethal force? Instead they have become mostly compliance devices.

    There are now special ops and “spook” squads within the Police as Op 8 demonstrated. The friendly cop finding lost hikers may still exist, but not at Occupy, GI housing actions or union picket lines.
    There seems considerable disunity amongst the force. And certainly the case against MacDonald did not hold water for a jury in a conservative area.

    • ghostwhowalksnz 11.1

      This seems to get forgotten, the trial and jury was in Wellington. Not Palmerston North

      • mike e 11.1.1

        Ghost so what sort of character burns down their brother in laws house ,writes intimidating graffiti on his wife’s brothers new house, Kill neighbours Stags, leaves nasty messages in letter box’s, trashes close families new house,Then knows before any one else that he was shot not throat cut. had a dream about neighbours ute driving up to the steel gate with the head lights on he could see the steel bars in the gate as the ute drove up to the gate the early morning of the murder.Coincidental I think not.The boots’ the bike’ the comments on shot guns can’t be traced.
        The hall marks of a psychopathic conniving Murderer who has got away with murder.
        I think the Judge overstepped the boundaries in directing the jury.

        • ghostwhowalksnz

          The dive boots would be the right size ?
          there wouldnt be witnesses who heard 3 quick blasts, not the 2 that could be produced by the ‘supposed gun’. You wouldnt have a witness who though his alarm clock sped up due to power lines to get timing right.

          Relying on someone who remembered months later that he said ‘he was shot’ as opposed to others who guessed ‘throat cut’ ( ie a 50 50 chance of one or the other)

          Real murderers leave real clues and more motives than a little bit of male work rivalry.
          The arson and graffitti seem directed at the wife…. who is still alive

          • Kotahi Tane Huna

            “A little bit of male work rivalry”? Arson and massive property damage? And how do you reach the conclusion that it was “aimed at the wife” as opposed to at the the couple? We have McDonald’s own confession to go on here don’t forget – this from Stuff:

            The arson was just a bit of fun, he said. Putting an axe through every wall in their new home and plastering “f…… bitch slapper” and “f…… [w]hore” on the outside three months later was targeted at Scott and Kylee, yes, but there wasn’t a great deal going through his head at the time. “I was just doing it,” Macdonald told police.

            The case against McDonald was not proven beyond reasonable doubt in the minds of this particular jury, and that is the most charitable thing I can say about him.

            • ghostwhowalksnz

              the words are clue- is he really calling Scott Guy a ‘whore’

              • Kotahi Tane Huna

                Of course, how silly, abusing your spouse doesn’t have any impact on you, now does it? Still, I expect you know better than McDonald what was going on in his mind; it’s your word against his.

          • mike e

            A psychopath is very good at planning and lying.
            A bit of work rivalry what utter nonsense burning down houses etc maybe in your deluded world.
            If Mc Donald had been caught for these other very serious offences before the murder he would not have gone on to kill his rival.
            The fact he got away with the other offences without being detected showed he was an expert in avoiding detection.
            Scott Guy is dead the children have no father even Mc Doanalds wife knows it was him he was so cunning his wife knew nothing about any of the offences
            Psyhopaths know if they can get away with something they will keep on doing it and up the anti to satisfy their insatiable need

    • higherstandard 11.2

      “NZ Police culture in my personal experience tends towards being bent, violent, racist and anti woman. They have a track record of ‘stitchups’. AOS call outs being highly likely to result in execution by proxy.”

      Have you got the data for the number of AOS call outs in the last five years and how many of these ended up in a death ?

  12. BLiP 12


    The jury apparently asked a question during deliberations, the details of which were suppressed at the time. Has that suppression order been lifted, anyone know?

    • ghostwhowalksnz 12.1

      Strange ! What possible purpose can it serve now the trial is over.
      Cant see how the judge will now call a special hearing to unsuppress it.

      Macdonald goes back to the district court in Palmy for the other matters, so it may be quite relevant to those

    • millsy 12.2

      Theres a lot about this case that we dont know about….

  13. Kotahi Tane Huna 13

    Question: can you imagine anything like this ever happening in New Zealand?

    Still think we have an independent police force?

    • ghostwhowalksnz 13.1

      Its the French judge -prosecutor system

      • mike e 13.1.1

        Ghost he would have to take the stand under the inquisitorial system and would not be able to keep his body language in check or keep convincing people with his Lies and would slip up.
        David Bain’s first trial he took the stand and was found to be a liar.

  14. deemac 14

    or you can draw the conclusion that if you can afford a top lawyer, they will blow enough sand in the jury’s eyes to convince them of “reasonable doubt” so that the jury feel obliged to acquit.It is not a finding of innocence!
    And how do you KNOW the Gwaze case was not a homicide? There were as many opinions as expert witnesses.

  15. bad12 15

    I had to ask myself this morning how easily our minds are conditioned, how many of us all are secretly or openly holding the opinion that ‘he done it’,

    The jury heard the full 21 days of evidence from the prosecution not just the nightly gasp,shock,horror from the nightly dose on the news at 6,

    Not Guilty they said and i refuse to speculate beyond that, there are far too many of us far too willing to believe that as soon as ‘the plods’ arrest someone for something that it follows that the guilt of the person is established…

    • Kotahi Tane Huna 15.1

      Once the arson and vandalism came to light it was inevitable he would be charged, and inevitable that many will assume his guilt. Guilty or not he is the architect of his own misfortune.

  16. tracey 16

    rumour mill on override in feilding alleging mcdonald has done things not revealled in court

  17. Vicky32 17

    It’s commonplace for the police and Crown to get an ear-bashing whenever the accused person in a high profile case is acquitted. Sometimes it’s deserved, but sometimes the jury just surprises everyone.

    It’s already happening – see 3 News tonight!

  18. tracey 18

    Remember scott watson? Being a creep and a wanker doesnt make you amurderer, we need more convincing than that.

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