Who Killed Scott Guy? (13 page)
King wanted his client to see the courtroom he would be appearing in and let him get his bearings so it wouldn’t be a shock to him on the trial’s first morning. He sat Macdonald in the jury box and went to sit in the dock himself, just a couple of metres away. ‘See how close we are? See how they can see every move you make?’ King stressed to him.
Macdonald later wrote in a journal he kept throughout the trial that even this was nerve-racking for him. ‘I can’t imagine what it’s going to be like when all the media are there, the jury and public.’
King had also shown Macdonald the photo book that each juror would have, documenting the crime, scene and police investigation. At the end there were pictures taken of Scott after he’d been shot. ‘There are some really gruesome photos of Scott’s wounds, not nice to see at all,’ Macdonald wrote. ‘It’s going to paint a real bad picture of me but it doesn’t mean to say I’m a murderer. I don’t envy the jury at all. What a huge responsibility they have.’
King had only arrived back from America the week before but had worked on the case nearly every day while there, making sure he had undisturbed time each night in his hotel room. ‘To be honest, I don’t know if I’ve ever been this prepared for a trial. And I think we can answer their case. And there are many strands which we think just do not add up and there are many lines of inquiry that point away from our client being the offender,’ he said.
‘But statistically, what are the chances of getting off a murder charge in New Zealand nowadays? Not many do. It’s relatively rare in a whodunit for people to be acquitted. The jury see the amount of work the police have put into it and there’s a natural comfort to think the police must have got it right. And it’s really, really hard to overcome that.’
The other obviously enormous struggle facing the defence was the fact the jury would know from the outset about the arson, vandalism and shooting of Craig Hocken’s stags, potentially overwhelming their objectivity. ‘The Crown are going to open on Tuesday morning with that and it’s going to be headlines. That creates a really negative and prejudicial mindset. And our challenge is to make sure that’s put in its proper context. Our client did some terrible things. He acknowledges that and pleaded guilty and he will be sentenced for that in due course. But it doesn’t make him a murderer. And that’s what we’ve got to get across to the jury, to say, that’s not a good starting point for your deliberations and it’s not the end point either. You need to see it for what it was, see what’s happened since then and make an assessment on the totality of the evidence.
‘But I keep saying to Liam, the approach you have to take with something like this is you’re going into a five-day test match. So you play session by session. If you sit back and try and look at it, it’s just too big and vast and monumental to get your head around so you’ve just got to concentrate on ticking off one thing at a time, working through the phases of the evidence, working through the individual witnesses, making sure you’re not missing points, making sure we’ve got everything. We’re wanting to get into it—it’s been a long time, we’ve all put our hearts and souls into it so we’re just wanting to get it underway.’
Alongside the time taken to understand the case against Macdonald, King had spent endless hours battling with Legal Aid to get funding for Collins’ work, Paul Bass and expert witnesses. He’d also had to turn down a great deal of lucrative private legal work that paid three or four times what he would receive for defending Macdonald.
But there had never been a moment in the past 14 months when he’d regretted taking on the case. ‘No, Ewen’s a good man and I want to be there with him during this trial. He’s not a moaner, he’s not a whiner. You ask him a question, he’ll give you the answer on the spot. He’s polite, well spoken, never heard him swear—which is unusual in this business. He’s been a pleasure to work with. He’s a nice guy and it worries me because it increases the burden, the pressure. It’s much easier to do this job when you don’t like your client.’
But such approving descriptions seemed to jar badly with someone who’d already admitted to violent, hateful crimes way beyond the ken of most people. ‘Yeah, well, obviously we’ve dwelt long and hard about why the hell did you involve yourself in burning this guy’s house down and what were the circumstances and how do you feel and think about that and what madness possessed you to do that? And I guess he just never thought of the consequences. These were spontaneous acts. And I think they are both very ashamed of what they’ve done.
‘It’s never going to look good. It’s never going to be something that anyone’s going to say, “Well done, Ewen, for doing that.” It’s always going to be what it is—a terrible, stupid and unbelievably nasty thing to do. But our point is that it doesn’t make him a murderer. And when you break it down, that’s what it’s about.’
While King felt well prepared going into the trial, he was experienced enough to realise there could be unwelcome surprises. ‘I think it was an old
Rumpole of the Bailey
saying that there’s nothing more unpredictable in the field of human endeavour than the course of a criminal trial. Anything can happen. It’s like the proverbial game of rugby. You can go in there with the best game plan in the world but if the wind changes or the playing conditions aren’t what you expected you’ve got to be able to adapt.’
And for this reason he hadn’t decided if Macdonald would give evidence, despite Macdonald being willing and happy to defend himself. While King had a feeling that juries wanted to hear from the accused, if the defence could undermine all the Crown’s points throughout the trial, then putting Macdonald on the stand at the end only risked the jury not liking the way he looked or spoke or simply deciding they didn’t believe him. ‘I’m not a believer in witch-sniffers. I’m not a believer that someone can look at somebody and say whether this person is telling the truth or lying. But unfortunately a lot of people believe that they are witch-sniffers and that’s the problem.’
Indeed, King hadn’t decided how many witnesses he would call at trial, if any. In his mind, it was better to call as few as possible, as this reinforced that the burden was on the Crown to prove guilt and it wasn’t for the defence to prove Macdonald’s innocence.
The other issue the defence was still weighing up was whether to specifically suggest someone else was the murderer. ‘The basic proposition is this. The Crown say our client did it and you can be sure of that. For that to be the case they have to exclude every other reasonable possibility, because if there is at the end of the day the reasonable possibility someone other than Ewen committed the crime, then Ewen has to be acquitted.
‘The police will give evidence of their list of suspects and why the other people have been excluded. We don’t accept that everybody else has been excluded. Our starting point is that Ewen didn’t commit this crime therefore somebody else did. So we’ve had to look at who. We believe we can create cases against other persons by way of comparison to how the Crown have constructed a case against Ewen. So we believe there are issues of timing, motive, knowledge, accessibility, access to firearms that could apply to other people as well.
‘Do we go to the point of accusing someone else of committing this murder? Everything tells me no. Because our whole case is that the police have rushed to judgement on our client and I certainly don’t want to do that to someone else.
‘No one else is on trial in this case. And this isn’t a commission of inquiry to work out what happened. This is saying, “Have the Crown got this right?” It’s a total murder mystery and the question is whether the police have solved it.’
Hours before Ewen Macdonald’s trial began on Tuesday, 5 June 2012, cameramen were already lining the pavement at Wellington’s High Court. Inside the foyer, reporters formed a huddle outside Courtroom 1, waiting for the doors to open so they could stake out a position on the media benches. After nearly two years, the murder of Scott Guy was finally coming to court.
Sitting on Molesworth Street opposite Parliament, the High Court is an architecturally unlovely building, with heavy geometric design, a vertical glass frontage and a tiled entrance the colour of bread mould. Inside are panels tracing its history, photos introducing the court’s judges and a cramped café in a subterranean corner.
While the new Supreme Court just 200 metres down the road was wreathed in bronze rata vines in an $80 million exhibition of extravagance, the High Court seemed to struggle for light and air. It had been opened in 1993 by then Justice Minister Doug Graham. Ironically, just two months before Macdonald’s trial, Graham, by then Sir Douglas, was sentenced to 300 hours’ community work and a $100,000 fine in the same court he’d opened. This followed his conviction for making untrue statements in advertising and investment documents as a director of Lombard Finance, which had collapsed in April 2008 owing $127 million to 4400 investors.
For everyone entering court on the morning of Macdonald’s trial, the emotions veered between expectation, excitement and enormous responsibility. There were other issues before the High Court that day: Maori groups and environmentalists challenging petrochemical exploration; and the curious case of Cloudy Bay Business Park Ltd v. Ice Ice Baby Ltd. But it was The Queen v. Ewen Kerry Macdonald that virtually everyone was here for.
When the courtroom opened at 9 am the media streamed in, setting up cameras, flipping open laptops and snaking cables across garish green carpet that looked like fish scales crossed with pohutukawa leaves. Around the walls, hanging on dark oak panelling that had come from the Old Bailey in London, were huge portraits of former chief justices. Bewigged, austere, aged and all men, they held books or wore white gloves, and strained to convey gravitas and wisdom to the artist.
The lawyers trooped in and set up their desks, Ben Vanderkolk and Paul Murray for the Crown, and King, Collins and Coles in a row behind them for the defence. Collins brought in more than 20 lever-arch folders of evidence then donned his black robes like the rest of the lawyers. So new was he to this game that he didn’t even have his own robes, so had borrowed his from King’s wife, Catherine, also a lawyer. Collins was armed with his laptop and smartphone, his technical skills juxtaposed with Coles’ writing pad and pink pencil case. Though fit and belying his age, Coles was older than King’s father and had been practising for 37 years—more than a decade longer than Collins had been alive.
In front of the lawyers was a long table laid out with exhibits, looking like a jumble sale at a church fair. King and Coles picked up a board that had two dive boots attached to it, turned it around to examine the boots from all angles and ambled back to their seats with a mixture of anticipation and impatience to get underway. King rearranged his desk, telling Collins beside him to keep the water jug beyond arm’s length as he was bound to knock it over in a moment of exuberance.
To his left sat investigation head Detective Inspector Sue Schwalger in black jacket, trousers and short boots, her dark hair pulled back and clipped in place, a simple green pendant on a gold chain around her neck, and gold earrings. Beside her was Detective Sergeant Grayson Joines, who was in charge of all the documentation required from police during the trial.
At 10 am court crier John Conley, a veteran of trial proceedings with a wonderful head of pure-white hair, ordered the doors opened so the pool of prospective jurors could be brought in to sit in the public gallery at the rear of the court, separated from the courtroom itself by a glass partition. Bearing satchels and scarves, burly and skinny, with beards and buzz cuts, they were a complete cross-section of society, all ages and ethnicities—New Zealand in a goldfish bowl. Nobody smiled, nobody talked with their neighbour. Everyone knew they were here for a trial that was set down for six weeks and would be one of the biggest judicial events in years.
‘All stand for his honour, the Queen’s judge,’ Conley cried, and Justice Simon France entered, bowed briefly to counsel and sat on the vast bench at the front of the court. The Queen, in the midst of her Diamond Jubilee carnival, of course remained regally and serenely oblivious to what was taking place in her name at the other end of the realm.
Then Macdonald was brought in from a door marked S8, flanked by two prison guards, and stood in the dock at the back of the courtroom. He looked thinner, his face more angular than in the photos when he was arrested—perhaps a result of stress, perhaps just a function of prison food. His brother Blair had bought him a dark suit and six shirts with matching ties, and down the side of the folder he clutched was written what tie to wear with what shirt. Each Friday, King would take the shirts home to wash and iron in readiness for the next week.
The charge of murdering Scott Guy was read to him by court registrar Sarah Perano and he was asked how he pleaded.
‘Not guilty, Your Honour,’ he stated—the only words he would speak during the entire trial.
The process of what they call ‘empanelling’ a jury is a slightly curious one, as tactical as it is democratic. With around 60 potential jurors sitting at the rear of the court, the registrar called names, one by one. The person stood and made their way into the courtroom proper, turned right past Macdonald who was still standing, and entered the jury box, two rows of six seats facing across the courtroom. The names were called at random until the jury box was filled.
At any time during their brief passage between public gallery and jury box, the Crown or defence lawyers could call out ‘challenge’, meaning they didn’t want that person on the jury, and they were forced to return to their seat. Each counsel had a maximum of four challenges. And unless they had vetted the names on the jury pool beforehand, they had at most ten seconds to size up a potential juror and make a decision to challenge or not.
King never vetted jury lists in advance to weed out those with criminal convictions or choose those with a certain occupation or from a particular suburb. His aim was always for a demographic cross-section, and so he would only challenge if he thought the jury was becoming heavily weighted in one particular area—not because he didn’t like the look of someone.