Who Killed Scott Guy? (24 page)
Eventually King forced Neale into an inescapable corner. ‘So on the basis of what you have seen, could that Pro Line boot that’s been produced as an exhibit, size 9, have made an impression leaving 32 to 33 waves in the forefoot area?’
‘No, no it could not,’ Neale admitted.
At that, with a glance to the clock, King suggested the court take its morning break, leaving the denial that a size 9 boot was responsible for the imprints at the scene ringing in the jurors’ ears.
During the adjournment, King, Coles and Collins discussed what had just occurred. The revelation that there was no way the boots police claimed Macdonald was wearing could have left the telltale footprints at the murder scene had enormous impact. For months, armed with the knowledge that the number of wavy lines at the scene didn’t match a size 9 boot, the defence had wondered how the Crown was going to explain this. They’d thought that perhaps the Crown would claim Macdonald actually owned a size 11 pair of boots and maybe wore thick socks with them. But at trial, the Crown had stuck to the claim Macdonald wore size 9 boots, thus completely opening themselves up to devastating attack from Macdonald’s lawyers over the number of waves on the imprints.
It’s impossible to know what the Crown’s approach was. Possibly, it was so sure that the overall measurement of the footprints showed it was a size 9 or 10, that they didn’t even consider the number of waves on each boot or realise that the size 9 exhibit wouldn’t match the prints found at the scene. But Neale had long been aware that some of the casts made at the scene showed 32 to 33 forefoot rows—he had detailed it in his working notes. Greg King was at a loss to understand why Neale didn’t mention it in his final report.
Even if Neale hadn’t mentioned it in his advice to the Crown, it seems inconceivable, given the importance of the boot evidence, given it was the only forensic link police had between Macdonald and the crime scene, and given how many hours had been spent poring over the boots, that nobody had thought to compare the number of rows on the size 9 boot police had obtained with the prints at the scene. If they hadn’t, it leaves only a conclusion of incompetence.
The other possibility, of course, is that police and Neale did realise the size 9 boot they had couldn’t have made the prints found at 293 Aorangi Road because the number of rows were different—and simply hoped the defence wouldn’t notice it. This would suggest police and the Crown knew their argument was built on a lie—knew that Macdonald’s foot size or boots could not have made the prints—but continued with this as a fundamental element of their case. Such a scenario potentially raises issues far more serious than ineptitude.
When the court resumed, King asked Neale if he had measured Macdonald’s foot size from the ink prints made of them. Neale said he hadn’t, leaving King astonished that such a fundamental test hadn’t been done to ascertain what boots Macdonald’s feet might have fitted—or not fitted—into.
King said Macdonald’s feet were 262 to 264 millimetres long—which actually fitted within the 273.5-millimetre size 7 reference boot the police had—but which Neale had said was too small for Macdonald to wear. Neale suddenly appeared reluctant, however, to say whether Macdonald’s foot would fit in a certain-sized boot, despite having been willing to do so when answering earlier Crown questions.
Eventually, King returned to the comparison of the reference boots with the imprints around Scott Guy’s body. After prolonged questioning, Neale agreed that, ‘The size 9 dive boot that I examined couldn’t have produced the impressions from the scene.’
When Ben Vanderkolk rose to re-examine Neale, he suggested forceful heel strike or ‘toe roll’ could have accounted for longer impressions at the scene—seemingly ignoring that this still couldn’t explain the extra rows of wavy lines found there. Neale also proffered that variations in the number of rows could be explained by different manufacturing processes or the way the sole cutter was positioned.
While anything was possible, it seemed like clutching at straws given the logical increment in rows of waves as boot size increased, to which King had pointed. Moreover, it wasn’t for the jury to make assumptions like those Neale and Vanderkolk were positing—they had to deal with the evidence the Crown had presented or, in this case, had failed to present.
One thing they didn’t hear, however, was evidence from a podiatrist the Crown had consulted, relating to estimates of a person’s height based on the length of their foot. From the impressions left at the scene, he calculated the height of the person making them to be between 1.87 and 1.94 metres. Macdonald is 1.82 metres tall.
The prosecution case, with 77 witnesses and 106 appearances, took more than three weeks, so it wasn’t until day 17 that Greg King finally got to launch Ewen Macdonald’s defence and make his opening speech.
He informed the jury the defence was only calling two witnesses: Peter Shelton, the electrical engineer who would give evidence Derek Sharp’s clock couldn’t have run fast because of high-tension wires; and Mitchell Maxberry, the American shooting champion, who described reloading times for shotguns. And almost immediately, King let jurors know he wouldn’t be calling Macdonald to give evidence, stressing they had already heard or read reports of more than 40 hours of police interviews that Macdonald had freely given before he was arrested.
It was a sign of confidence from King. Before the trial he’d stated he’d make up his mind whether to call Macdonald only after the Crown had concluded its case. Despite believing juries inherently want to hear from those in the dock, there was too much danger, King felt, that it could rebound on them. ‘If we can dismantle the key threads against him in a compelling way, then that will weigh heavily on me to say, let’s not risk all that good work by one or more of the jurors simply saying, “I don’t believe him.”’
Macdonald was happy to give evidence at trial and had willingly answered everything his lawyers had asked him, but in the end, given the defence had succeeded in creating considerable doubt about most aspects of the Crown case, King’s decision not to call Macdonald was relatively straightforward. And his choice to call only two witnesses was underpinned by his staunch belief that the onus was on the Crown to prove Macdonald was guilty, not on him to demonstrate Macdonald’s innocence.
But before calling those two witnesses, King gave the jury a short lesson in history, the law and jury trials, which he labelled ‘a strange beast’. He recalled the systems other cultures had used to decide trials in a globe-spanning overview that included references to Socrates, 18th-century British statesman William Pitt and Pope Innocent III. And he told jurors that the modern jury system ‘has its origins last Friday, 797 years ago, the 22nd of June 1216 [sic], when a King was made to give up his absolute power—the signing of the Magna Carta—explicitly accepting that no free man could be punished except through the law of the land, a right which of course is enshrined to this day.
‘It can seem to the uninitiated that it’s a bit of a game, with brinkmanship and with silly rules, but all I can say about that is the rules of law by which jury trials, by which this trial was conducted are tried and true . . . and no matter what else you can say about our criminal justice system in 2012, the one thing we can say with absolute certainty is it’s the best we’ve ever had. It provides the greatest guarantee that people are not convicted wrongly and we hope it provides a great guarantee that guilty people are properly held to account.’
King also alluded to Sir Richard Wild, New Zealand’s ninth chief justice, whose life-sized portrait hung behind him, and who had ironically been the dux of Feilding Agricultural High School, which both Macdonald and Scott Guy had attended. It was Wild, King explained, who had saved the oak panelling from London’s Old Bailey that now adorned the jury box in which they sat. ‘[Yours] is an onerous task. It is the most onerous task that a peacetime nation can ask of one of its citizens, to sit in judgment on a fellow citizen and that, I suggest, is especially true when you are dealing with the most serious crime in our statute books, the crime of murder.’
King then reminded the jury of the four most fundamental principles of criminal law that had evolved over the preceding 800 years: the presumption of innocence; the onus of proof being on the Crown and the defence having to prove absolutely nothing; the standard of proof having to be beyond reasonable doubt; and a defendant’s right to silence. He stressed that the principle wasn’t ‘innocent until proven guilty’, as that implied inevitability of guilt—it was innocent
unless
proven guilty. And ‘beyond reasonable doubt’ meant they had to be sure and certain Macdonald was Scott Guy’s killer based on the evidence, not on any gut instinct.
‘It’s not enough to say, “I think he might’ve done it.” It’s certainly not enough to say, “I think he could’ve done it. He could’ve somehow miraculously worked within this timeframe that we’ve got. He could have miraculously known where this shotgun was and used it and concealed it back. He could’ve miraculously worn shoes two sizes too big for him. He could’ve miraculously recovered his dive boots from the fire pit, disposed of two years earlier in April 2008.”
‘It’s not even enough to say, “I think he probably did it or I think it’s very likely that he did it or even very, very likely.” [It] doesn’t matter a damn what the public think, or what the media portray, or what anybody else in this room or anywhere else in the world thinks about it,
you
are charged with that onerous task, the most onerous task of deciding this matter. And you do it as much for our system of justice and, I suggest with respect, for your own peace of mind—and that’s what the standard of proof relates to—beyond reasonable doubt.’
Knowing the jury would be curious and possibly suspicious that Macdonald wasn’t taking the stand to defend himself, King again impressed on them that Macdonald had in fact been extraordinarily open with authorities. ‘He didn’t have to speak to the police at all. He didn’t have to let them see his shoes. He didn’t have to give them a DNA sample. He didn’t have to take them on tours of the farm. He didn’t have to let them come along with him when he did milking in the morning. He didn’t have to help them calibrate the workshop times.’
Finally, King turned to the need for the jury to return a verdict without being influenced by prejudice, sympathy and emotion. ‘You have a sworn and affirmed obligation to bring in your verdict solely on the evidence, and I emphasise that because of course we’re in the midst of, let’s face it, a media circus, and you’ve just got to be so careful and so disciplined to put all of that emotion from your mind.’
Sitting in the front row of the public gallery, just behind the dock where his son sat, Kerry Macdonald could only admire King’s address. Turning to a friend, a successful corporate lawyer who’d flown to Wellington to hear King, Kerry whispered, ‘We’re watching history here, aren’t we?’
His friend leant his head towards Kerry and quietly replied, ‘Yes, you are.’
When Ben Vanderkolk rose for the last time, he turned the small lectern on his desk away from the witness box, which he’d faced throughout the trial, and angled it towards the jury. His closing address was his final attempt to persuade the jury that beyond any doubt, Ewen Macdonald had killed Scott Guy. And he began by reinforcing what King had stressed during his address the previous day—that to convict Macdonald they had to be sure and certain he was the killer.
But Vanderkolk reminded the jury that each strand of the case didn’t have to be proven beyond reasonable doubt—each circumstance or coincidence was merely an element of the overall case and it was this combination of facts and their flow that would lead to a decision. By themselves, each point may not be convincing, but woven together they would lead to a verdict that was safe and certain. ‘And please, do not be scared or frightened of finding the accused guilty. It’s not about . . . your particular peace of mind,’ he said, referring to King’s mention of this point, ‘because peace of mind is self-interest, members of the jury, not the interests of justice.