Who Killed Scott Guy? (32 page)
As Greg King was quick to point out in the story, none of those surveyed had sat through the trial and heard the 100 hours of evidence presented. Instead, their opinions were based on snippets from media reports, which were often slanted. ‘It’s not informed, it’s not considered and frankly, it’s not rational.’
It was, however, an example that no matter how trivial or tawdry a detail, such was the interest in the case that media made a story of it.
When this author published an extensive feature on the trial in
North & South
magazine, including the first interviews with Macdonald’s parents as well as behind-the-scenes insights from Greg King, the issue isolated by other media from a ten-page article was four paragraphs relating to Anna telling Ewen Macdonald their marriage was over. The stories focusing on this topped news websites all day.
Recriminations about Macdonald’s acquittal had started almost immediately. The day after the trial ended, TV current affairs show
Close Up
’s Mark Sainsbury interviewed Auckland Crown Solicitor Simon Moore, who commented that everyone involved in the trial had done a great job and Ben Vanderkolk’s work had been very competent.
Sainsbury appeared unconvinced: ‘Prosecutors are like lawyers—they’re at different levels. Some would say, “Why didn’t they send in a heavyweight like Simon Moore to prosecute the trial?”’
Graciously restraining himself from explaining that prosecutors were indeed lawyers, Moore defended Vanderkolk as not only more experienced than himself, but someone who had done some of the country’s most difficult and major trials. ‘He did a phenomenal job in this case.’
Sainsbury’s insinuation that the prosecution had been inadequate or led by a provincial chump was unfair but also betrayed a rationale that Macdonald was guilty and if only there’d been a better lawyer in charge of the case, the proper verdict would have been arrived at. This notion that Macdonald was guilty but that the Crown case was weak, the justice system flawed or Greg King’s silver tongue had bewitched the jury, was something frequently returned to by commentators.
Away from the media, gossip about ‘what really happened’ continued to swirl. The most pervasive story doing the rounds was the
Brokeback Mountain
rumour—that Macdonald and Boe had been not only partners in crime but also in bed. The reports were given added detail and zest with the assertion that Scott Guy had found the pair in a compromising situation during the Invercargill conference he and Macdonald attended. The story went that Scott informed Macdonald he had to tell Anna or he would tell her himself—and Macdonald reacted by killing him. Where that rumour originally came from is unknown but it’s gravely told and retold throughout the country and still retains remarkable currency.
Other rumours were variations on the
Brokeback
theme—that Scott and Ewen were in a relationship and Scott had broken it off and the heartbroken Macdonald had gunned him down. Or that Macdonald and Kylee were secret lovers and Macdonald had finally decided to take Scott out. The absurdity of these rumours was matched only by the public’s apparent willingness to give them credence.
But it also demonstrated that many were reluctant, or flatly refused, to take the trial and verdict at face value or even contemplate that Macdonald may have been innocent. Much easier to peddle rumour than reality, innuendo than evidence, to deal in the counterfeit of hearsay rather than sworn testimony and established fact.
In the days and weeks that followed the verdict, some useful issues were raised. They invariably stemmed, however, from concerns that Macdonald was guilty and had somehow got off.
There was a rush of support for a system similar to that used in Scotland, where a jury is able to return a verdict of ‘not proven’ as an alternative to ‘not guilty’. A not proven verdict would still see a defendant acquitted, but make no judgement on guilt, only that the charges hadn’t been confirmed. The underlying suggestion to much of this debate, however, was that the jury probably believed Macdonald was guilty but felt their hands were tied and had to find him not guilty based on the test of reasonable doubt—a reluctant acquittal, as it were. Although in New Zealand, unlike the United States, jurors cannot be quizzed as to their logic and decisions, there was nothing to suggest that their verdict was a reluctant one.
The fact the debate was raised was illustrative of the pervading public opinion on Macdonald’s guilt. If there was acceptance of the verdict, nobody would have been calling for the alternative of ‘not proven’. But an even more obvious example of public disquiet with the verdict came with calls for the right to silence to be abolished. The same UMR survey that pronounced 48 per cent of respondents thought Macdonald was guilty said that 61 per cent favoured removing a defendant’s right to silence.
The call for this dramatic reform had come from the Sensible Sentencing Trust, a conservative justice lobby group that strongly advocates victims’ rights. On the second anniversary of Scott’s death, less than a week after the verdict, its spokesman, Garth McVicar, said the United Kingdom had a system where the jury could interpret a defendant’s silence as they wished while New Zealand’s justice system was mired in the Middle Ages. Our courts needed to evolve to a state where truth and justice were paramount, McVicar said. Instead, ‘it’s about the best man may win on the day—and on this day Greg King happened to be the best man,’ he told TV3.
McVicar said this call was backed by Kylee, whose de facto spokesman he had become at this time. While it appeared that Kylee and McVicar had joined forces after the trial, the reality was that McVicar had been Kylee’s victim support representative well before the trial. McVicar said the fact Ewen Macdonald was allowed to remain silent, with the judge instructing the jury not to lend this any significance, was pivotal in the trial’s outcome. In his view, however, the trial was also a tipping point for reform in New Zealand’s criminal justice system.
But his demand for the right to silence to be abolished wasn’t new. It was the same one McVicar raised at the Sensible Sentencing Trust conference in 2009. A year before that, trust lawyer Stephen Franks had advocated it after the acquittal of Chris Kahui on charges of murdering his twin 3-month-old sons. Greg King said it was a fair debate to have, but he pointed out that when he defended Clayton Weatherston, who was accused of killing his former girlfriend Sophie Elliott, people found Weatherston’s testimony so repugnant they argued it should not have been allowed.
Despite public sympathy for Kylee, Prime Minister John Key immediately ruled out a change on the right to silence. As his Justice Minister Judith Collins said, ‘Making someone take the stand does not mean they will suddenly crack under cross-examination and confess to the crime. People may not always tell the truth on the stand.’
The Sensible Sentencing Trust’s lobbying went further than just accusing the justice system of having systemic failures, though. McVicar announced that Kylee had told him the trial wasn’t the final chapter. As far as she was concerned, justice hadn’t been done and she was devastated nobody had faced the consequences for Scott’s death. To this end, he told Radio New Zealand National, ‘our main request is . . . that we want all the players, the Crown, the prosecution, the police and the defence to come around the table with us and just convince us that the answer we’ve got at present is the best we can get, that there was no stone left unturned. I mean, I just think as a nation we can’t just accept this is as good as we can get . . . I don’t believe as a country we should just roll over, wave a white flag and say, “This is the best our justice system can deliver.”’
As well as wanting to convene all parties to the case, McVicar wanted all the evidence disclosed to them so they could see if anything had been missed. While many agreed with the call of Kylee and the Sensible Sentencing Trust for more work to be done and for someone to be held accountable for Scott’s death, it was possible to interpret some of McVicar’s statements as a call for more evidence against Macdonald to be brought forward.
Kylee clearly believed Macdonald was guilty and McVicar did little to dispel this view. When asked by TV3 about the possibility of Macdonald being tried again if new evidence came to light, McVicar volunteered that this could only happen if they found something serious enough to have the original trial declared a mistrial. ‘But that’s one of the areas we’re obviously looking at here, to see whether that can happen.’ McVicar suggested something like perjury could warrant a retrial, ‘So that’s an area we’ll certainly be going down.’
Such statements scarcely gave the impression of any Sensible Sentencing Trust investigation being objective. Indeed, McVicar seemed to confirm that: ‘This is about justice, this is about delivering a verdict that we can all live with as a nation.’ The implication appeared to be that the verdict of Ewen Macdonald being not guilty was not one he could live with.
It is worth stressing that McVicar did not hear all the jury did. He may well have had Kylee as a confidante, but most of her information came from the police—and she sat through little of the trial other than the times she gave evidence. (Her family were, however, frequently present, it should be noted.)
McVicar said the case had struck a chord with him and the country. And with others it seems. Within a few months he announced several private investigators, led by ex-detective Mike Crawford of Auckland, had volunteered to re-examine evidence and reinvestigate the crime. While the investigators insisted the police had done a thorough job and were right to bring the case to court, McVicar claimed police had succumbed to public pressure to charge someone before they had sufficient evidence. ‘When you look back, as the case evolved through the courts, myself and a lot of others involved in the forefront of Sensible Sentencing Trust were very surprised that the police had pressed the charges and gone to court with the evidence they had. The boots, for instance—it didn’t take a rocket scientist to count the tread pattern. So that concerned us.’
Both McVicar and the private detectives offering to work pro bono on the case insisted they wanted to begin with a clean slate and wouldn’t target Macdonald. But given both admitted they were actually working for Kylee and taking instructions from her, and given Kylee’s declaration she believed Macdonald was guilty, concerns continue to be raised about the objectivity of the investigation.
This seemed to be reinforced in February 2013, when Crawford claimed two effluent ponds on the farm hadn’t been adequately searched. Without any evidence, he suggested the sludge in the bottom of the ponds—which police had already drained and searched—could hold the key to the case, perhaps containing items such as dive boots, the murder weapon or the remains of puppies. The fact that very few people other than Ewen Macdonald would have had access to these ponds appeared to further indicate that this investigation was one-dimensional, focused only on Macdonald.
In June 2013, after discussions with the Guy family and Kylee, police spent nine days dredging the silt at the bottom of the effluent ponds. Nothing was found.
It barely needs stressing that police wanted to solve this case as much as anyone. Nobody has ever questioned the determination and dedication of the officers involved. Indeed, the words ‘professional’ and ‘thorough’ are those most frequently reached for when describing the investigation—the same words the officer in charge of the case, Detective Inspector Sue Schwalger, used when she spoke to media immediately after Macdonald’s acquittal.
But how good
was
the police investigation into Scott Guy’s death? Schwalger stood outside the court and insisted no stone had been left unturned and every piece of evidence thoroughly examined. But throughout Macdonald’s trial examples of police mistakes came to light that, while seemingly small, suggested sloppiness or at least a questionable approach.
This occurred from the very first witnesses: Constable Frazer McKenzie, the officer in charge of exhibits, who admitted there were errors in documents about what had happened to a shotgun and ammunition police seized; and Senior Constable Neil Martin, the first officer on the scene, whose times didn’t correlate with evidence from other officers and phone records and seemed completely inaccurate.
Police digital forensic analyst Antony Drake seemed confused over when Scott Guy’s computer was last used, having to readjust his timing and admitting he’d only confirmed that Scott had visited the Hotmail website on the morning of his appearance on the witness stand. Later, it became apparent police had somehow missed finding the second shotgun wad for more than two days, despite poring over the murder scene where it lay.
One blatant omission, repeatedly highlighted by Greg King, was the failure to analyse Derek Sharp’s erratic and unreliable clock. King was scathing that something so elementary had been overlooked or not considered important by police: ‘Don’t do it for my client, but what about Hunter and Drover? Don’t those kids deserve to have them make the one-second inquiry? They should have done it.’