Who Killed Scott Guy? (29 page)

Anyway, there was nothing more he could do now, King said, their job was essentially over and it was up to the jury now to decide if he’d persuaded them sufficiently. He’d been slightly worried before his closing address—not because he lacked confidence, but ironically because his customary nerves were missing, though he put this down to how well prepared he was. In the end, it had gone as well as he could have hoped for.

Ewen Macdonald felt so, anyway. In his diary he’d written, ‘Fantastic summary. Put all the Crown points to bed. The evidence proves them incorrect. Greg was awesome. Doesn’t get any better than that. Wow!!!’ Peter Coles described King’s closing as seamless. ‘I sat there through it and was mesmerised. He’s gifted.’

King knew Justice France well enough to expect a summary that wouldn’t obviously favour either side. Years before, the pair had been opposing lawyers during Peter Ellis’s appeal against child sex convictions. In one of the country’s most controversial cases, France was the Crown solicitor while King was junior counsel to Judith Ablett-Kerr. But now France was on the bench and well known for his acuity and equanimity, with no grudges held nor favours granted.

And so it was on Monday morning when the court reconvened at 10 am, with France commencing a considered summation for the jury, reminding them how best to weigh evidence and arrive at a verdict. He stressed that the case was not a whodunit, but merely an allegation that Ewen Macdonald shot Scott Guy. They weren’t a commission of inquiry or detectives or scientists—their only job was to decide if the evidence satisfied them beyond reasonable doubt that Macdonald was the killer. And that standard, he indicated, was a high one—greater than ‘likely’ or ‘probable’. In essence, they had to be ‘sure’ Macdonald killed Scott Guy.

Justice France also stressed that the jury shouldn’t read anything into Macdonald not giving evidence. He was not required to by law and it wasn’t fair to expect him to, given he had the right not to.

While the case against Macdonald was circumstantial, this wasn’t uncommon in trials and didn’t make the Crown argument any weaker. It did require the jury to be disciplined, though. While each strand of the Crown case didn’t have to be proven beyond reasonable doubt, they had to be satisfied the facts had been established. Nor did they all have to agree on each strand—only the final question of guilt.

And given they had lost one juror early in the trial for personal reasons, Justice France said unanimity was vital and they all had to agree on the verdict. In doing so, they had to put aside all feelings of sympathy for the Guys and avoid thoughts of giving the family certainty or closure via their verdict.

Nor could they be swayed by the actions they knew Macdonald had committed and assume he was a bad man who therefore committed murder. While the previous crimes could have relevance to motive or his ability to carry out the murder, it wasn’t a trial about Macdonald’s character and thus these events had to be assessed very carefully.

So, too, did the fact that Macdonald had lied about committing the crimes—this didn’t mean he did so to prevent being connected to the murder. A lie shouldn’t be assumed to be a sign of guilt, and in this case there were many other obvious reasons why Macdonald might not have confessed to his previous actions.

Some time was spent on the dive boot evidence and various measurements, and the jury was reminded that the boots were the only thing to arguably link Macdonald to the crime scene.

Even the gun evidence had to be treated carefully. The ammunition used was so common not much could be read into the fact that similar shells were found on the farm. And there was no evidence Macdonald had access to another shotgun, so if they didn’t believe he used the farm shotgun, then it weakened the Crown case. On the other hand, Macdonald’s previous crimes had shown he had the ability to act at night with stealth and not be observed or traced.

The arson, and the damage to Scott and Kylee’s almost-finished house could be interpreted in two ways. Either they were attacks on empty property and very different from killing someone, or they could be seen as the result of personal bitterness, intended to hurt and intimidate Scott and Kylee and drive them away.

There were also competing analyses of what happened between the last of Macdonald’s crimes in January 2009 and Scott’s murder, with the Crown arguing Macdonald’s hatred grew and reached breaking point, while the defence insisted he had turned over a new leaf and healed his rift with Scott.

Justice France’s final reminder to the jury was that the burden of proof was on the Crown. And then he asked them not to shrink from returning a verdict, whatever that may be, despite the pressure on them. After he finished, court registrar Sarah Perano swore in the court crier, who pledged to keep the jury apart from anyone else during their deliberations. She then asked the jury members to retire to consider their verdict.

At 11.35 am they stood, scooped up armfuls of documents and folders, glanced at Ewen Macdonald one last time and filed out to decide his fate.

Greg King didn’t expect a quick verdict. He hated this part of the trial—the nervous waiting and continual wondering if he should have done things differently or said something else in his closing address. Until then there was always something he could work on—preparing for the next witness, planning his closing speech, keeping busy and positive. ‘I never do jury deliberations well. I just analyse and get very pessimistic and downtrodden. It’s not even glass-half-empty stuff—it’s completely empty and smashed. For me it’s always the time that I have the most understanding of what your client has been through.’

He predicted a long deliberation by the jury because there was so much evidence to sift through and every point had vastly differing arguments to weigh. But just as importantly, King felt the jury wouldn’t rush their decision because the stakes were so high. His greatest concern was that even if the jury thought the evidence didn’t prove Macdonald was the murderer, they would consider his other crimes so serious that they couldn’t let him go free, back out into the same community he’d abused so badly.

At times like this, King suggested, proof could become almost a trifle. ‘But beyond reasonable doubt isn’t a game, it’s not a technicality. It’s a constitutional safeguard against the risk of an innocent person being convicted. My feeling on these big ones is that the pressure is just too immense, the notion is just too immense, and the easy thing to do is just say, “Oh well, they’ve got a few problems with a few aspects of their case but basically, who else would have done it?”’

As one of New Zealand’s top appeal lawyers, King was also aware that a defendant’s best chance to be acquitted was at trial. Appeal courts were limited in the issues they could consider and were notoriously reluctant to overturn a jury’s verdict, treating it as almost sacrosanct. Thus he knew how important the jury’s current deliberations were.

Unsurprisingly, at the end of that Monday, after being ensconced for five hours, the jury hadn’t reached a decision and asked to break for the evening and return the following day.

The waiting wasn’t easy for anyone. At their temporary Wellington home, Kerry and Marlene Macdonald struggled to keep occupied that night. Kerry paced the house. There was nothing on TV and he’d run out of whisky. It had been a long year for them, waiting for the trial, listening to a month of evidence and now coping with a final limbo of uncertainty as the clock counted down.

The next morning, the 21st day of the trial, Greg King was at court early, and stood outside with a cup of coffee warming his hands. He’d not slept well and still let his doubts conquer any optimism. ‘We should win—but we probably won’t. My feeling is we’re up against it. And if it goes against us—I’m out of here. I just want to sneak out of here and switch my phone off and disappear for a couple of days.’

The celebrity King garnered during the trial wasn’t always comfortable. Although in truth he enjoyed much of it, like anyone in the limelight, he sometimes struggled with his inability to avoid this public interest away from work. During the trial he’d often been accosted and berated by strangers who considered him plain wrong or even evil for representing Macdonald. But others, like a young woman who came up to him as he took a walk across the road in Parliament’s grounds later that day, just wanted to say well done.

‘I don’t think he did it,’ she told King.

‘Where were you when they were picking the jury?’ he responded with as much of a laugh as he could muster.

King spent much of the waiting time in court, flicking through car magazines to see if there was anything irresistible, joking with the media contingent and entertaining his daughters, Millie and Pippa, who bounced in to see their father, two pink princesses who proceeded to play hide and seek under the defence counsels’ desks.

But just after midday, while King was in the defence room, all hell broke loose and King raced into the courtroom demanding that the registrar get the judge immediately.
The Dominion Post
’s veteran court reporter, Deborah Morris, had been listening to the midday news on Radio New Zealand National. She was stunned to hear an item regarding Callum Boe, Macdonald’s accomplice during his other crimes. It outlined all the offences they’d committed together and that Boe had already admitted—including the crimes that had been suppressed during Macdonald’s trial for fear they would prejudice the jury.

Inexplicably, this information had been broadcast, despite clear and continual warnings not to make it public. The item had also been put up on Radio New Zealand’s website. King was incandescent, demanding the jury be sequestered and saying that if the jury had somehow had access to the item, he would demand a retrial. Liam Collins was in complete despair. ‘Seven months’ work, down the tubes,’ he repeated, astonished a reputable media organisation hadn’t realised what it was broadcasting. The mistake apparently occurred when a reporter obtained the record of Boe’s court appearance in Queenstown and failed to understand that it was still covered by the suppression order from Justice France.

Justice France was equally furious and made arrangements to put the jury into a hotel that evening so nobody could pass on the information to them. The only fortunate element anyone could dredge from the disaster was that it occurred at the very end of the trial. If it had happened during the trial’s witness phase, there would have been a much higher chance a retrial would have been necessary, as the possibility someone had heard the news and subsequently told a juror and prejudiced their view of Macdonald couldn’t have been discounted. The logistics of restaging the trial and obtaining an untainted jury were simply too great for anyone to consider.

Ultimately, luckily, these fears of calamity weren’t realised.

Just after 3 pm, the jury knocked on the courtroom door, indicating they wanted to speak with a court official. Everybody tensed, thinking they may have reached a verdict, but registrar Sarah Perano breezed back in saying they just wanted to go upstairs for some fresh air and wanted someone to escort them. Everyone relaxed once more.

But then at 3.35 pm another knock was heard on the door and this time Perano swept in, announcing the jury had reached a verdict after ten hours of deliberation and was ready to come back in.

Suddenly, all the media who’d been lounging on the press benches leapt to life and court staff bustled to prepare the courtroom. Many news organisations already had a plan for how they would report news of the verdict instantly. The judge had barred live filming of the verdict and had also ruled nobody could leave the courtroom until formalities had been concluded, meaning reporters couldn’t leave as soon as the verdict was announced. So some organisations stationed a reporter in the court who would text their newsrooms with a simple letter—‘n’ for not guilty or ‘g’ for guilty—as the verdict was delivered, so the news could be instantly broadcast or put up on websites. Other reporters would remain outside to wait for reaction and to catch family members as they left.

Many of the seats in the public gallery had been reserved for family, the Macdonalds sitting on the right-hand side facing the judge, just behind Ewen, the Guy and Bullock families on the left. Kerry and Marlene Macdonald had with them their son Blair, Rilma Sands the minister at Marlene’s church, a Wellington friend Paul, and Peter Coles’ wife Karen for support. Anna Macdonald sat opposite them, between her father and sister Nikki. Behind them was Kylee Guy. The remaining seats were quickly taken by members of the public who’d queued for hours.

Ben Vanderkolk and Paul Murray walked back in with the same calm they’d displayed during most of the trial. Only a few times throughout the evidence had testiness shown through, when they’d become frustrated at King’s line of questioning. Disagreements between the sides or contentious points had usually been amicably decided, and when King finished his closing address, Vanderkolk was the first to come and shake his hand in a gesture of collegiate cordiality.

As King, Coles and Collins took their seats, court crier John Conley muttered to them, ‘Taken your nerve pills?’ Across from them, Sue Schwalger sat silently, jiggling her feet as she waited.