Embittered family of slain farmer Patrick McCarthy want to call new evidence about his killing as they battle over his $2 million estate with the son who shot him.
"We want to establish an intentional killing, which equates to murder," the family's lawyer, Robert Fardell, told Justice Bruce Robertson in a preliminary hearing in the High Court at Auckland yesterday.
Mr McCarthy's son Daniel McCarthy, aged 17 and of Whangarei, was cleared of murder but convicted of his father's manslaughter in February 1999.
At his trial, the jury heard that McCarthy shot his 57-year-old father in the chest with a rifle at their farm at Parakai, north of Auckland, on January 4, 1998. Daniel McCarthy stands to inherit part of his father's $2 million estate in a hearing expected to be heard this year.
Mr Fardell, appearing with Belinda Sellars, told the judge that the family had employed a private detective, Mark Templeman, after the criminal trial.
The dead man's sister, Rosaleen McCarthy, and brother, Roland McCarthy, trustees of their brother's estate, want to call the private eye to give evidence at the civil hearing into Daniel McCarthy's claim. The family maintain that Daniel McCarthy should not share in the estate because his actions amounted to intentional killing.
But Daniel McCarthy's lawyer, Gerard Winter, says the family are intent on relitigating the murder trial, and that the new evidence should not be allowed.
The case falls under the Family Protection Act, which allows a court to refuse an order in favour of a person whose character or conduct in the eyes of the court did not entitle him or her to benefit.
The courts have said it would be contrary to public policy for a murderer to profit from a crime. But whether that extended to manslaughter had never been considered.
Mr Fardell said: "If you establish murder, there is no case for him making a claim against the estate."
Mr Winter said his client's culpability had been determined by the jury.
The trial judge, Justice Colin Nicholson, said at sentencing that the killing was the "unintended result of the reckless use of a rifle."
Mr Winter said McCarthy's claim could be summarised as being an unlawful killing with a "low degree of culpability and high degree of mitigation."
"Rosaleen McCarthy, the one effective trustee, will make considerable gain if she successfully disinherits her nephew.
"A sure way to achieve this goal is to relitigate the killing of her brother and declare her nephew a murderer," Mr Winter said.
But Mr Fardell said it was not a "second try" by the family, who were not part of the criminal proceeding.
They merely wanted to call all relevant evidence for their defence against Daniel McCarthy's claim.
The criminal trial and the civil claim were two completely different proceedings involving different parties and different standards of proof.
In criminal cases, the law demands proof beyond reasonable doubt but in civil cases the standard is the balance of probabilities.
Mr Fardell said the private detective had uncovered issues either not investigated or developed by the Crown in the criminal trial.
That evidence included expert advice on the discharge of the firearm, investigations into the relationship between father and son and the boy's behavioural history while at one of the top schools in the country.
The name of the school was suppressed at trial.
Justice Robertson reserved his decision.
Family squabble over $2m estate
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