Who Killed Scott Guy? (28 page)
Ultimately, though, it came back to the dive boots, an issue King knew was fundamental to the case and one he had to demolish if his client was going to be acquitted.
Thus he reminded the jury that every single pair of Macdonald’s shoes were size 9—but if the prints at the scene were from Pro Line dive boots there was no way they could be this size. The Crown’s own expert, David Neale, had referred in his working notes to the most complete three prints left at the scene having 32–33 rows of waves on the forefoot, King emphasised. But Neale was asked to count the number of rows on the size 9 exhibit in the court, and there were only 29 rows.
‘So what do they fall back on? What does the witness fall back on? “Maybe they weren’t Pro Line dive boots at all” . . . The whole case is about Ewen Macdonald having purchased a pair of Pro Line dive boots in 2004, six years old by the time of the homicide. Well, if they’re not Pro Lines, where the heck does that leave the Crown case? In further tatters.’
King slated suggestions from Neale that the courtroom exhibits might not be representative. ‘We’ve got old ones and we’ve got new ones and we know there’s a consistency there so where’s this suggestion of rogue batches? Well, there is no evidential support for that. We can only decide on the evidence. Obviously anything is possible. Maybe there was a magical batch of size 9s where they changed all the dynamics and all the physics, all of the characteristics of the dive boots to squeeze in for whatever purpose another four or five rows. Maybe that’s possible, another three or four, who knows? But where’s the evidence for that, members of the jury?
‘We’ve got a brand-new size 7 that has 25 rows in the forefoot. We’ve got a brand new size 9 that has 29 . . . We’ve got a size 10 that’s probably got 30 or 31. The suggestion from my friend to say, ‘Oh, it could have been a size 10,’ well, that doesn’t work either. Thirty-two to 33 rows—it’s more likely to be a size 11 or size 12.’
Efforts by Vanderkolk to suggest that toe-roll or wear on the boots could explain the extra number of rows were ridiculed by King as rubbish that stretched credulity. But King reserved his greatest criticism for David Neale—not just his evidence, but his apparent lack of fairness. It was a calculated gamble, given that Neale, like all expert witnesses, was supposedly independent, despite having been called by the prosecution.
What irked King most was Neale’s readiness to consider possibilities that supported the Crown theory, but his reluctance to do the same when pushed by the defence. An example, King said, was Neale accepting a Crown suggestion that it was possible to wear dive boots that were too small because the material they were made from was flexible. But when the defence suggested that Macdonald’s feet, which measured 262 to 264 millimetres could fit a size 7 Pro Line which was 273.4 millimetres long, King claimed Neale refused to proffer an opinion.
King said expert witnesses were allowed to do what most witnesses weren’t—express opinions—but with this privilege came responsibility. He contrasted Neale’s performance on the stand with fellow Crown witness Kevan Walsh, whose evidence was given in a ‘reasonable and sensible and unabashed and unbiased way—whereas Mr Neale fudged the evidence, members of the jury’.
His final fusillade regarded the fact that Neale, despite having ink impressions of Macdonald’s feet, which he said could have fitted into a size 9 dive boot, had never actually measured the impressions for length, merely overlaying them on reference boot prints. ‘My client is on trial for murder. The only thing, the only thing the Crown say can physically link him to this crime are dive boot impressions. We’ve got photos from fishing trips and hunting trips in 2004 and 2005 with him said to be wearing them—and he didn’t even measure my client’s feet when he was given the impressions. He didn’t even bother to count the rows on a size 9. It’s a murder trial. My client deserves better. And you, having the burden of the Crown saying you should convict him, deserve better.’
King also reminded the jury that representatives from the companies that made Pro Line boots had told police that the wavy-lined sole was very popular on footwear in the 2000s and widely used in diving, surfing and fishing boots. But even if the boots that left the prints at the murder scene were Pro Lines and even if Macdonald’s feet could have fitted into them despite the boots being at least two sizes too big, King turned back to the crucial point that the evidence showed that by 2010 Macdonald didn’t even own a pair of dive boots. ‘The honest-to-goodness reality is not a single witness in this trial claims to have seen him with a pair of dive boots after 2008. That’s the reality.’
Despite Callum Guy being a keen diver and living in the sleep-out behind Anna and Ewen’s house until early 2010, he couldn’t remember seeing them. Even Anna hadn’t seen them after they shifted house to 147 Aorangi Road in April 2008. And while, ultimately, she said she couldn’t remember physically throwing out the boots, she was clear that her last recollection of them was when they were cleaning up the old house during the shift and she held Ewen’s ‘tatty . . . scungy’ boot up and said to him, ‘We’re not taking this.’
Her belief, King said, was that she threw the boot out because it was old and they didn’t need it at the new house to hide the key as there was a hollow rock specifically for that purpose.
The premise that Macdonald somehow kept the boots secretly hidden for more than two years just in case he needed them to murder Scott was illogical, King said. ‘Look, if you’re thinking in those terms why not go to The Warehouse and spend $25 cash and buy a pair of shoes and use those for the homicide? If your planning is that meticulous, why would you do anything to link it back to you?’
The final issue King covered in his closing was Simon Asplin. It might have seemed strange that he didn’t finish with the resounding debunking of the dive boot theory, which was evidentially so powerful. But King wanted to reinforce his argument that police had chosen Macdonald as their main suspect and then twisted all his actions to look malevolent. And to do this he sought to illustrate his point using a real-life comparison—Simon Asplin.
So King again used Asplin’s situation and actions to show how anything could be made to look suspicious if viewed in a certain light. Focusing on Asplin had always been a consideration for the defence. But it gained traction several weeks out from the trial, when junior counsel Liam Collins started going through the disclosure and thoroughly analysing Asplin’s movements. Over a weekend, Collins put together a comprehensive document showing that Asplin had the motive to kill Scott, the opportunity and a weapon that fitted the evidence, and that he had subsequently acted in an extraordinary and arguably irrational manner. Above all, he questioned why police had devoted so little time to investigating Asplin—in many cases not taking formal statements from those close to him—when the same arguments being made against Macdonald could also be made against Asplin.
The defence knew it was Macdonald, not Asplin, who was on trial and thus they had to be careful in their approach, for fear they would be seen as desperately trying to hang the crime on someone else, resulting in a backlash from the jury. ‘I want to make it absolutely clear,’ King told the jury, ‘I am not accusing Simon Asplin of being a murderer. It’s not my business to. I’m a defence lawyer—I don’t accuse people of being murderers.’ But he did invite the jury to consider Asplin’s actions in the same way the police and Crown had viewed everything Macdonald had done.
Asplin was 15 minutes early for work and couldn’t explain why; he drove a four-door sedan similar to the one Matthew Ireland saw coming down Aorangi Road around the time of the murder; his sister, who he flatted with, and his girlfriend were both away that morning, meaning he could return to an empty house and have plenty of time during his breakfast break to dispose of anything he needed to; his Benelli M1 shotgun was a semi-automatic that could make the ‘bang, bang, bang’ sequence Bonnie Fredriksson recounted; he had access to ammunition on the farm and had even picked it up from town for the farm; he had size 12 footwear—closer to the prints than any boots Macdonald owned; he’d harboured longstanding grudges against Scott from schooldays and this was aggravated when Scott returned to Byreburn and displaced him from tractor work; he was in a career crisis and the day before Scott was killed had secretly gone to Palmerston North for a job interview as a rural sales representative; and he’d regularly tried to play off Scott against Ewen, only to see the pair getting on well after they returned from Invercargill.
On the morning of the murder he told his girlfriend Scott had been shot—long before it became common knowledge. He subsequently claimed Matthew Ireland told him, but Ireland was adamant he didn’t because he wasn’t told about it until much later. Asplin’s behaviour following the murder was bizarre, King argued, including telling an acquaintance, ‘The one good thing that’s come out of this is I’m back on the tractor where I belong.’
‘All this may be perfectly innocent,’ King continued. ‘But if one was to approach it using that myopic lens of the presumption of guilt, you could paint a pretty sinister picture in all this, couldn’t you? Time, opportunity, location, semi-automatic shotgun, size 12 feet, a customer of Hunting & Fishing’s, been there for years, thought he was going nowhere, deep-seated . . . dislike of Scott over years and years—“I’m just the boy, he’s the farmer’s son.”
‘When you take your man and put him in that dock, things can be made to seem to fit. But when you stand back and you look at the evidence against Ewen Macdonald, members of the jury, and you look at it in a way that divorces it from the emotion, from the prejudices, from the sympathy, when you look at it objectively and you look at not allegation, but you look at the cold, hard evidence, then every strand of the Crown case fails.
‘The motive—superficially, obviously it’s there and it needs to be carefully considered. But you scratch below the surface and it’s old, it’s dated, and numerous events have overtaken and supplanted it, superseded it, and you’ve got to a point where there is no motive on the 7th of July—there is only hope for the future.’
It was the longest closing address King had ever given—close to four hours—but before he sat down he had one final message for the jury. ‘What happened to Scott Guy was an absolute tragedy—he did not deserve it. His family should be with him now, they shouldn’t be sitting in this courtroom. And his kids should know him and his nieces and nephews should know him and it’s terrible, just terrible.
‘When you do these cases you learn about people, you read thousands of statements and you never lose sight of the fact that you’re dealing with the loss of a human life and all the connotations—we’re not immune to this, you know. It’s just awful but you’ve got to, for his kids’ sake as much as my client’s sake, you’ve got to put aside the natural desire to bring closure and to resolve it. In my submission, members of the jury, this mystery is not solved. More work, much more work, is required. One day, hopefully, it will be—but it’s not today.’
Then, channelling US defence attorney Johnnie Cochran’s line during OJ Simpson’s 1995 murder trial that if a crucial glove found at the murder scene didn’t fit his client, the jury had to acquit him, King brought four weeks of evidence and argument to an end. ‘The motive don’t fit, the gun don’t fit, the bike don’t fit, the shoes don’t fit, the risk don’t fit. And if it doesn’t fit, members of the jury—you know the rest.’
The jury had a whole weekend to weigh up King’s words. As the court had customarily finished early on Fridays to allow the Manawatu families and counsel to get home for the weekend, and King’s closing ended shortly before lunch, it was agreed to adjourn for the day and return on Monday for Justice France’s summing up.
King spent the weekend writing applications to Legal Aid for funding for some of the hundreds of hours he and his colleagues had spent on the case. Though he felt they’d been able to present a very persuasive case, it was only through the vast amounts of extra time they’d all put in. It wasn’t the money that concerned him, it was the inequalities in preparing the case. Why did the prosecution and police have virtually limitless access to scientists and experts but payment for defence experts had to be approved by Legal Aid? Why were Crown lawyers paid $198 an hour and defence lawyers only $159 for their court time? And why was there such a disparity when the Crown was essentially given its information by the police, while the defence had to construct a complete case from scratch?