Who Killed Scott Guy?

by Mike White

  But when he’d got past that he began to make notes about the charges against him and the claims being made by others. One of the first things he pointed out was that he and Scott were getting on better than they had for ages when Scott died and he had absolutely nothing to gain by killing his brother-in-law. The hours worked by the pair were fairer, as was their pay, he had more time for Anna and the kids and their activities, and he’d just been successful in the regional farm manager awards. ‘I’m the first to admit I’m a workaholic and put Anna and the kids second,’ he wrote. ‘But it almost came with the job of being dairy manager of such an intensive operation.’

  When Scott died, however, he and Anna had just been to Fiji for a long-overdue holiday and had a fantastic time. ‘There is absolutely no reason why I would want to kill Scott and have to go back to doing all the work on the farm myself, long hours, same wage, have no time for the kids or Anna—I wouldn’t want to throw all that away. Financially there was nothing for me to gain with the demise of Scott. Kylee would continue to be the beneficiary of his estate and the shares they held in the farm—I was never going to be gifted their 10 per cent share.

  ‘There was absolutely nothing for me to gain but everything to lose. Bryan talked early on after Scott’s death that he might sell the farm which would have left me out of a job and I hadn’t paid for my shares and we still owed $250,000 for the house so Anna and I would have owed Bryan and Jo $500,000 which would have bankrupted us. So really I have had everything to lose from the demise of Scott—and that’s where I find myself now.’

  Macdonald admitted he’d had ups and downs with Scott and felt Scott cut corners to get the job done as quickly as possible. ‘My feelings towards Scott, I wouldn’t describe them as animosity. I certainly didn’t hate him or want him dead. I guess it was more frustration, annoyed and a bit of jealousy. Also, I think our work ethics, communication and personalities affected our relationship.’

  However Macdonald acknowledged he generally bottled up his concerns. ‘Being the son-in-law I didn’t want to sound like I wasn’t grateful for my opportunities and how could I tell Bryan I thought Scott wasn’t pulling his weight?’ he wrote. ‘Then when Scott and Kylee had Hunter that was his main focus which I didn’t understand because Anna had managed on her own and I assumed Kylee should do the same. I guess I needed to understand that Anna and Kylee are different but to me it was like Kylee wasn’t even trying to cope with bringing up Hunter without Scott there every minute of the day. So in effect I had to pick up his slack again.

  ‘I think I matured a lot though and after the criminal damage I realised I wasn’t going to fix things that way and started to improve the communication between Scott and me. We started having meetings once a week with the staff and monthly with Bryan—things were really good. Then Scott and I went down to Invercargill to the dairy conference which was great—we were on the same page and really pumped to try new things on the farm. It was always difficult with families, and Scott and I being competitive.’

  The crimes he committed stemmed partly from his sense of inequity on the farm, but also from his friendship with Callum Boe, who he’d got on well with at the farm. ‘Then we got into hunting together which led to the poaching. We became addicted, we were so determined to find that great trophy stag, it just takes over. I think it’s called stag fever.’

  How things grew beyond that was a matter of circumstances and frustration. ‘The night of the arson of the farmhouse, we had organised to go for a hunt down at Sextons but when Callum turned up I had changed my mind—he was late and I had the weekend off so didn’t want to go out all night and be tired all the next day and neglect the kids and Anna. We got on to talking about the old house being up on the trailers ready for moving and the idea came up about setting fire to it. Callum is a builder and had said it will be full of native timber and it will be tinder dry. As far as I knew, Bryan still owned the house at that stage—it wasn’t an act of intimidation against Scott and Kylee. I think Callum and I still had a streak of fire bug in us from burning down the whare at Sextons.’

  But when it came to the vandalism at Scott and Kylee’s new house, Macdonald was clear it was more than a spontaneous act of stupidity. ‘That was my idea. I was frustrated at the time so suggested we do the damage of the new house to annoy Scott and Kylee and make them feel frustrated. Afterwards I didn’t feel better. I felt sick and knew it was a big mistake.’

  Just as he claimed Boe had been an active participant in all the other crimes, Macdonald said his friend had taken an equal part in this attack, despite what Boe later told police. ‘When we went round behind the house Callum and I painted the tagging on the house then I smashed the back door to gain access. Callum then went down the hallway putting the holes in the walls. I used the axe to put two cuts in the front door then Callum said, “Give me the axe, I’ll break the plumbing fittings in the bathroom because that will be more difficult to fix and expensive.”

  ‘Then when we went outside and I said we should smash a window so I swung the axe but it didn’t smash the window. Callum said to me, “They’re double glazed—you need to hit them in the corner,” so he took the axe off me and showed me how to do it. He had this knowledge from being a builder. Then we left for our journey to Ruakaka. We painted tagging low on the house so it looked like teenagers had done it because they wouldn’t be as tall as Callum and me.’

  He was aware, however, that trying to lay blame on Boe was pointless, no matter how deserved he felt it was. Nobody, least of all the jury, would give him credit for finger-pointing.

  It was a difficult situation for Macdonald as he read through statements from witnesses raising any negative aspect of his character, taking events out of context and reconstructing facts in the light of his arrest. ‘Once I’m charged with murder,’ he wrote, ‘I’m instantly guilty and people start making up scenarios and circumstantial evidence.’

  Kerry and Marlene Macdonald were well aware of this and tried to get their son to trust that the system was fair and that eventually he’d be proven innocent. But this belief was undermined by the fact that their relationship with the police, which had been strained from the evening of Ewen’s arrest, remained fractious. Partly this stemmed from the obviously different perspectives they held—police were convinced Macdonald was Scott’s killer and Kerry and Marlene were equally adamant they’d got the wrong man.

  Despite their other son being a senior officer, Kerry felt the police were one-eyed and insular, gaining their confidence that they were on the right track from each other. ‘They all get in a huddle and go, “How much have you got?” and they go, “I’ve got two” and “I’ve got two” and “I’ve got two”—“That’s five twos—shit, we’ve got 15.” And they couldn’t stand back and say, “We didn’t get the bastard today, we think he’s done it, let’s go away and try and find some more evidence.” They just went ahead with it—to their peril.’ But part of his concern was that the system put so much pressure on police to get a conviction, seemingly at any cost. ‘It’s good to be determined and thorough and all the rest of it in order to get a result—but there’s a real mob mentality.’

  Marlene’s biggest worry was that this blinkered attitude would prevail in court. ‘I quite often say to Blair, “What if Ewen goes down for something he didn’t do?” and Blair just keeps saying, “Mum, that won’t happen.” And I say, “How do you know it won’t happen? It’s happened before.” But that’s me—“cup half-empty”, that’s what Kerry calls me.’

  Indeed, despite his concerns with the police approach, three months out from the trial, Kerry retained resolute confidence in the court and judicial systems. ‘I think the truth wins out in the end. I’m a believer in that. And I’m an optimist and I just want the truth to come out. And yeah, I’ve got 100 per cent confidence in the court and that might be a little naive, but that’s the attitude I take. One of my favourite sayings has always been, “Common sense will prevail.” And I believe it does.’

&nbs
p; CHAPTER 7

  Hurdles and hindrance

  Ewen Macdonald’s defence team faced an enormous battle to rebut what appeared to be an overwhelming case against their client—and it had to do this with a fraction of the resources available to the Crown.

  This inequality was an issue that had long rankled with Greg King. While police and prosecution had near-limitless access to investigators and experts, those defending the accused—who is supposedly presumed innocent until proven otherwise in court—had to scrimp and beg for every hour or dollar.

  The issue had been brought home to King in 2006 when representing Daniel Moore, who was accused of the bloody killing of Tony Stanlake, whose handless body had been found near Red Rocks in Wellington. While King was struggling to get assistance for Moore’s defence, a photo was published in The Dominion Post of a line of close to 20 police in protective clothing searching the beach where the body had been found. To King, it encapsulated the inequality of arms and the inherent unfairness of the court battle. And Macdonald’s trial was very similar. ‘This is the David and Goliath battle that anybody faces. How can we compete with that? If it was a game of rugby, these murder trials are like the All Blacks playing Vanuatu.’

  Added to this disparity was a further complication. Greg King, the man who Macdonald was putting all his faith in, was going to be away from New Zealand for two months just before the trial, which was set to begin on 5 June 2012. In late 2011, King had been awarded a prestigious Eisenhower Fellowship, given to one New Zealand leader each year. The fellowship allowed him to travel to the United States and study different court and judicial systems for two months. So on 29 March he flew out and was scheduled to arrive back in New Zealand barely a fortnight before the trial began.

  From the outside, this appeared a virtually impossible situation. In a case with so much detail, which required such exhaustive study, King’s absence seemed a seriously debilitating issue for the defence. But King remained confident it wouldn’t affect them. He had already spent hundreds of hours on the case and insisted he would be working on it every day while in America. In his view, cases like this were marathons and it was all about peaking at the right time.

  With King away, Peter Coles took charge of overseeing the daily tasks needed to prepare their case. But assisting him was a novice lawyer, Liam Collins, who King had employed less than a year before. While Coles qualified as a lawyer in 1974, Collins was admitted to the bar only in August 2011. Collins, the son of Napier Crown solicitor and now District Court Judge Russell Collins, had completed his law degree at Victoria University then spent a winter managing a bar in Wanaka and honing his snowboarding skills at Treble Cone before returning to Wellington to job-hunt.

  In May 2011, Collins sent a speculative email to Greg King asking if he could sit in on one of his trials. King said no, but mentioned he had 160 folders of disclosure from the police about Scott Guy’s murder needing punching and filing that would take him a week, if he was interested. Collins did it in two days and so impressed King he was asked to stay.

  Ewen Macdonald’s defence was Collins’ first real trial, and King gave him the enormous task of going through all the police evidence and collating it. But more than that, Collins had to understand it, work out how it fitted together, compare witness statements and see how they differed from each other. He read and absorbed details tirelessly, working 13 hours or more most days, including weekends. Despite his inexperience, 26-year-old Collins became the defence’s reservoir of knowledge about the case.

  But ordering and understanding the case was severely hampered by how the police had presented their material to the defence. As well as the hard-copy paper files, the Crown had given the defence several CDs containing electronic copies of all documents. These, however, were in a pdf format that couldn’t be searched or even, initially, printed. In a case with so many witnesses and so much detail, not to be able to carry out a search for a word or name or topic across all the disclosure was a huge impediment.

  On 12 March 2012, King asked Crown prosecutor Ben Vanderkolk for a copy of the entire police file—not just the initial disclosure of material until Macdonald’s arrest—and also asked for help with searching software. Three weeks later he repeated the request. Vanderkolk replied that they had provided what was required, and normal Adobe software would search the files they’d provided—‘I remain of the view that there is no obligation to provide you with the Insys [sic] search engine or any other search engine’—and added they would continue to provide disclosure in paper and pdf form.

  King and Coles had employed licensed investigator Paul Bass from Whanganui to help them with inquiries and sorting the police disclosure. Bass was a former cop who’d risen to acting detective sergeant and been at the 1990 Aramoana siege where David Gray killed 13 people, but had left the force in 1996. Since becoming an investigator in 1997, he’d worked on many cases, including the defence of Mark Lundy, who was accused of murdering his wife and daughter in Palmerston North in 2000.

  Bass knew that Adobe software couldn’t search the files the police had given them and became increasingly frustrated at his inability to cross-reference material. While the defence could search within a page, they couldn’t search across the entire file—and there were more than 60,000 pages. He paid $700 for software that supposedly converted pdfs to searchable format but after nearly 50 hours had only managed to convert 20 per cent of the disclosure, and even that was incomplete.

  On 26 April, Bass was at the end of his tether and wrote an angry email to Peter Coles saying that while police had a fully searchable electronic format, the defence had the equivalent of a whole lot of photocopies put onto a CD: ‘No disrespect, guys, but frankly I am over this one!’ Bass said the unfairness of the situation had to be brought to the judge’s attention and the trial needed to be delayed. ‘The police and Crown have shown a clear bias [against] the defence and have not provided disclosure impartially.’

  In the following week Peter Coles wrote to Ben Vanderkolk twice, asking for assistance with searching material and for other crucial material that was missing from the police files. Greg King, halfway through his American study tour, was alerted to the problems and also emailed Vanderkolk. ‘Unless a searchable electronic version of disclosure is provided immediately I will have no option but to file an application for an adjournment of the trial date,’ he wrote. ‘This is obviously a last resort but we are facing an insurmountable hurdle trying to manually manage disclosure with the changes to the Crown case being made at this late stage.’

  Vanderkolk replied, offering police assistance with searching but maintaining it was an issue for the defence to sort out. ‘It seems to be [a] problem in your search function not in the format of the disclosure.’

  By this stage, a month out from the trial and still without a way to adequately search the mountain of police information, Coles, Collins and Bass were beyond frustrated. On 2 May at 4.30 pm, Vanderkolk and Detective Sergeant Grayson Joines arrived at Coles’ central Palmerston North office to discuss the problem. Paul Bass joined Coles for the meeting in the boardroom, convinced the police were just trying to hinder the defence and make their job as difficult as possible.

  When Joines suggested they had actually been very helpful, Bass became incandescent. ‘Helpful? Fuck off!’ he yelled. ‘I know what you’re doing—I used to be one of you. You’ve been anything but helpful and you know it’s a blatant breach of the Bill of Rights and equality of resources.’

  Coles told Bass to shut up and sit down, worried that Joines would just walk out, but remembers almost having to restrain Bass. ‘I thought he was going to climb over the boardroom table and actually physically take to him. He was just so angry.’

  Eventually, Joines agreed that what the defence had been given was substandard, little more than scanned photocopies of the paper files they already had. It was then agreed that Vanderkolk and Joines would provide the police file in searchable format within two days. In the end, it wasn’t until
7 May that this was completed.

  Coles remains convinced that the Crown and police were consciously trying to stymie the defence in preparing its case. ‘There’s no other way of looking at it. There was a deliberate attempt by the police not to give us disclosure we were entitled to and there was a deliberate attempt to give us disclosure that was initially no more use to us than the hard copy.’

  Paul Bass believes if it wasn’t purposely obstructive, the police and Crown actions were utterly unprofessional. In 15 years as an investigator, he had never experienced a case where a month before a major trial, the defence still hadn’t got adequate, searchable files from the police. ‘Unfortunately, the police on occasions do lose sight of what their role is and the fact they’re the investigative arm of the judiciary. At times they get a tunnel vision approach. And having that tunnel vision means anyone that disagrees with you they consider to be the enemy. So they’re not overly helpful towards the enemy, as they perceive it to be.’

  Difficulties obtaining all the information police held about the case continued until the trial—even during it there was still material being disclosed. But one glaring example of police withholding information demonstrates the problems the defence faced when preparing for the trial.

  In late April, the defence got wind that police had bugged all Ewen Macdonald’s phones. To do so required a search warrant from a judge and is a fundamental part of any inquiry that must be disclosed by police. Coles was incredulous that this information wouldn’t have been made available to them and scarcely believed it could be true. But on 27 April he wrote to Ben Vanderkolk asking him urgently to advise them if any electronic interception had been carried out during the investigation and, if so, asking for an explanation as to why this information hadn’t been released to the defence.