Who Killed Scott Guy?

by Mike White

  During Anna’s second appearance, Greg King fired one of the biggest shots he had—and in doing so took one of the biggest risks of his defence. It was virtually the first issue he raised that day when he rose to cross-examine Anna—what happened to her husband’s dive boots?

  King had commented before the trial that there were going to be times when he’d have to ask questions he didn’t know the answer to—despite it being a supposed maxim among lawyers that you never do this because you risk being caught out by an unexpected answer. ‘Whoever said that never did many trials, because the reality is there’s just no way of knowing what the answer is till you ask the bloody question. So you have to take a calculated risk at times.’ This was one of those times.

  Because Anna was a Crown witness, King had been barred from speaking to her before the trial, but he had spoken to Ewen Macdonald many times. And Macdonald had told King that the only pair of dive boots he had owned had been thrown out around April 2008 when they shifted from the farm cottage at 213 Aorangi Road to Anna’s parents’ house at number 147. Macdonald had used the dive boots on hunting trips as hut boots. They were useful for putting on after hunting if you had to go outside to get water, have a pee at night or go fishing. Hunters liked them because they were light and packed down easily. While some people hunted in them, Macdonald never did, preferring a sturdier pair of leather boots.

  Armed with the claim by his client that he didn’t even own a pair of dive boots at the time Scott was gunned down, King knew he had to question Anna on it. This was because Macdonald had told him it was Anna who threw them onto a trailer full of rubbish they had outside the cottage as they were clearing up. The risk was that Anna’s recollection would be different from Macdonald’s. If she said he still had a pair or didn’t recall disposing of them, she would have sunk a crucial defence argument and added weight to the Crown contention Macdonald used the boots for silence and stealth when shooting Scott.

  But she didn’t. ‘The last time I saw [one] it had a lot of cobwebs on it and it looked old and falling to pieces a little,’ she told King without prompting. As they were clearing out the boot cupboard by the back door at the cottage, she recalled holding it up and saying to her husband, ‘What the hang have you got this boot for? I’m not taking that with us.’ She said neither she nor Ewen were hoarders and if they didn’t need something they got rid of it. Her last memory of the boot was throwing it onto the rubbish trailer that day and she never saw it again. The boot had actually been used as a hiding place for the cottage’s spare key, but Anna said that when they shifted to 147 Aorangi Road they hid the key in a hollowed-out rock in the garden.

  The revelation that at least one of Macdonald’s dive boots had been thrown out more than two years before Scott’s shooting was stunning. If Macdonald didn’t own dive boots, there was no way he could have been responsible for the footprints at the murder scene. Remarkably, the importance of this evidence seemed to pass by most media. In the following day’s Dominion Post it rated just one paragraph at the end of their story, which twice found room to note that Anna wasn’t wearing a wedding ring. The New Zealand Herald didn’t mention it at all.

  Their muted reaction to this development wasn’t shared by the Crown, who were completely blindsided by the news that the dive boots on which their case hung had been thrown out. Somehow, in all their lengthy discussions and formal interviews with Anna, they’d not gleaned this basic information. Behind the scenes, they immediately applied to the judge to reinterview Anna, pulling her back in and grilling her for several hours the following day.

  That weekend, Greg King was ecstatic about the hit he’d landed on the Crown over the boots. But when Anna appeared in court on the following Friday, she backtracked slightly on her previous recollection, saying she now ‘thought’ she had thrown the boot out but couldn’t be absolutely certain. Vanderkolk also elicited from her that it was her husband who had reminded her about throwing out the boot, probably during one of her trips to visit him in prison. Anna said this filled in the blank for her about what had happened to the dive boots.

  When Greg King cross-examined her about this, the pressure she was under to remember exactly what had happened to a piece of footwear more than four years earlier was clear. ‘I’ve been thinking about it because it’s been blimmin’ doing my head in,’ she said.

  She outlined how there were countless pairs of boots and shoes thrown into the cupboard at the back door of their old house. ‘The last recollection that I can make, is the one dive boot that I saw that we always kept the key in and I thought it was scungy and we were going to move and I said to Ewen, “We’re not keeping that, we’re not taking that down [the road to the new house],” because we were just having a big clean-out, a big throw-out and I think I remember throwing them out but I can’t physically remember throwing them out. I couldn’t be 100 per cent sure.’ Anna confirmed that was the last time she saw the dive boot and she never saw it at their new house at 147 Aorangi Road after they shifted there in April 2008.

  At Anna’s sixth and final appearance the following week, King returned to the subject. He prefaced his questions by saying he wanted to make sure he’d captured her position on the dive boots correctly. So again Anna recounted what she could remember—how during the big clean-up of 213 Aorangi Road, Ewen was going in and out of the house with things and, as he passed, Anna would ask if he wanted to keep this and that. She repeated that when she picked up the dive boot she told Ewen she wasn’t going to keep it. She was throwing small things into a black rubbish bag and there was a rubbish trailer just outside the door, ready to be taken to the farm’s fire pit. ‘I’m assuming I threw it on the trailer because I wouldn’t want one old tatty dive boot.’ And try as she might, that was as much as she could recall.

  The only other person who recalled seeing Macdonald’s dive boot was his mother, Marlene. While Anna insisted she never saw the boot once they shifted to 147 Aorangi Road, Marlene said she remembered seeing it once at the new house, soon after they shifted, in 2008, when she took round some baking and asked her son where the spare key was.

  However, in June 2010 when Anna and Ewen went to Fiji for their holiday and Marlene moved into their house to look after the children, she insisted the boot wasn’t there in the outdoor cupboard when she went looking for it. ‘I am positive. I would swear on the Bible.’

  The fact Marlene suggested she’d seen the boot at the new house in 2008 didn’t help the defence’s argument that it had been thrown out, but King felt she might have been confused as to where she noticed it, having originally said in a police interview that the last time she saw the boot was at Christmas 2007.

  He also pointed out that far from Ewen Macdonald attempting to twist people’s memories from inside prison—as the Crown suggested he had done by reminding Anna she threw out the boot—Macdonald had demonstrably not tried to influence or correct one of the people who visited him most and was now giving evidence detrimental to his case—his mother.

  The doubt cast over the dive boots’ existence by Anna’s testimony was unquestionable. But as powerful as it was, it didn’t match the next revelation in the mystery of the killer’s footwear.

  CHAPTER 15

  Dive boots

  THE RIDDLE OF THE WAVY LINES

  By the beginning of week four, the Crown was entering the final phase of its arguments. It was also beginning the most important forensic area of the case—the mystery dive boots that left clear prints at the murder scene.

  Right from Ben Vanderkolk’s opening address, it had been clear that this was central to showing Macdonald was the murderer. When he first outlined the Crown case to the jury, Vanderkolk indicated Macdonald had owned a pair of size 9 Pro Line dive boots responsible for the imprints around Scott’s body. Police also had evidence of their purchase and photos of Macdonald wearing them, he said.

  The importance of the boots was also obvious to the defence. By the time the first witnesses were examined on the subject, 23 l
ever-arch folders of evidence surrounded Greg King and Liam Collins next to him, strewn around the floor within easy reach, creating a physical and evidential paperwork battlement.

  The Crown outlined how it had checked footwear stores in the lower North Island to try to find the shoe that left the crucial imprints and also searched international databases and internet sites. Eventually, they came to believe the prints were created by dive boots, and further searching isolated the Pro Line W375 model as having the distinctive sole pattern that matched what they were looking for.

  The boots had been manufactured in Taiwan and imported to New Zealand via the United States in a single shipment of 305 pairs in 2003. They had a zip on the inside of the ankle, rubber covering the toe and heel, and were described as a ‘rock bootie’. Multifunctional, they could be used for diving and fishing and also as a light hunting boot.

  In total, 281 pairs were sold through Hunting & Fishing stores, including the one Kerry Macdonald part-owned in Palmerston North. Between November 2003 and May 2004, the Palmerston North store ordered 25 pairs of Pro Line dive boots, including five pairs of size 9 boots. Nationally, 54 pairs of size 9 boots had been imported. The boots had a wholesale price of $35 plus GST and sold in Hunting & Fishing stores for $59.95.

  Detective Laurie Howell said in total 5573 pairs of the boots had been manufactured by the Dynaway Industrial Company in Taiwan between 2000 and 2006 for the Pro Line company. He had spent several hours searching internet sites and viewed more than 30,000 shoes but never found anything matching the Pro Line boot’s imprint.

  The Crown’s case was that only the Pro Line boot manufactured before 2006 could have made the imprints and that they were extremely difficult to purchase, so it was almost certain they would have been bought from a Hunting & Fishing store. Given that they claimed Macdonald had purchased a pair from his father’s store, Vanderkolk argued it was simply too much of a coincidence for anyone else to have owned a pair and worn them to murder Scott Guy, when only five pairs of size 9 boots had been sold in Manawatu.

  However, in cross-examination Howell admitted that most of the databases he searched were only for shoes and didn’t include dive boots, thus it was unsurprising he didn’t find a match there. Moreover, while Howell had been giving evidence that morning, Liam Collins had found five internet sites where the same Pro Line dive boots could have been purchased by someone in New Zealand. Howell argued most of these sites linked back to a single supplier. When King pointed out they were available on sites like Amazon, Howell said most of the sites he had tried to source them from hadn’t shipped outside the United States so it wasn’t as easy to get them as it seemed—somehow ignoring the fact that Amazon is one of the world’s leading online sales companies and ships across the globe all the time.

  Collins had also found the boots advertised on Facebook—but Howell admitted he’d never used Facebook so couldn’t comment on this. King then reeled off a list of dive boot manufacturers, asking Howell if he had investigated their boots—half of which Howell had to answer he hadn’t.

  King also called into question just how unique the wavy-line pattern on the boots was. Police had contacted companies involved with the boots’ manufacture in early 2012 and were told that the sole wasn’t distinctive to Pro Line dive boots, but was a design available to anyone who wanted to use it.

  Sandy Lee of Dynaway stated in an email to Howell, ‘This bottom is a common bottom that was widely used in diving/surfing as well as fishing manufacturing. This bottom was popular back in the 2000s and so most shoe factory [sic] opened this mold to sell to their customers.’ Tommy Joe of the Keep Well Company, which vulcanised the soles to the boot uppers, also told Howell, ‘We also use the same type of sole model to other relate [sic] boots so I am not quite sure that is unique or not.’

  The Crown had intended to call representatives from Pro Line, Dynaway and Keep Well to give evidence. But on the Thursday before the trial began, they dropped all four individuals from the witness list, claiming it was too expensive to bring them to New Zealand. It seemed extraordinary such fiscal constraints were only realised or enforced days out from a major trial when witness lists had been prepared for months.

  Greg King was angry, writing to the Crown to say how concerned he was at this development as he didn’t believe Howell could adequately give evidence on their behalf. The defence suspected the real reason the witnesses had been pulled at the last minute was that they would give evidence under cross-examination that the tread pattern found at the murder scene was actually common to a number of dive boots, not just the Pro Line W375.

  Because the witnesses lived overseas, they could not be compelled to attend the trial, so in the end all the defence could do was ask Howell what the company representatives had said in emails.

  Once police had found the type of dive boots they believed had the same tread pattern as the impressions left at the scene, they then turned to trying to find examples of the Pro Line boots. Ultimately, they managed to find either one boot or a pair of sizes 7, 9, 10 and 11, some used, some new. They were unable to source examples of sizes 8, 12 or 13.

  All Macdonald’s footwear was size 9 so the Crown case was built around him wearing this size of Pro Line boot. But first they had to prove he owned them. The assumption was that Macdonald would have bought his dive boots from his father’s shop, Hunting & Fishing Manawatu. And by trawling back through his bank records, police found a purchase made on his Visa card at the store on 18 February 2004 for $35. While there was no record of what the goods actually were, police believed it was Pro Line dive boots. The boots were stocked at the time; it was just before Macdonald went on a hunting trip to Stewart Island in March 2004 where colleagues remembered him wearing dive boots around the hut; and $35 was the wholesale price of the boots—and Macdonald usually got goods at this cheap rate from his father.

  But when Kerry Macdonald sat down in the witness box, proudly wearing his Macdonald clan tartan tie and lapel badge, he put the purchase in context. He told the court that when either of his sons bought something from the shop, they paid the wholesale price plus GST and then rounded the price up to the nearest dollar, in order to cover freight costs. At that time GST was 12.5 per cent, so the final figure would have been $40 rather than $35.

  Again, without definitive proof, the Crown’s version of events became dogged by uncertainty. Detective Laurie Howell, who had done much of the work on the boots and was the man who finally arrested Macdonald, appeared to feel the strain of being questioned closely about his thoroughness.

  One day during the trial, Liam Collins happened to stumble across a woman’s magazine at the court with a headline ‘Sole Searching—50 Hot Footwear Picks for Summer’. Seeing the irony, he ripped it out and put it in his pocket. Two days later, when passing Howell outside the courtroom, Collins pulled the article from his pocket and, with the impishness of a rookie lawyer, said, ‘Oh, hi, detective, you told us how you checked 30,000 pairs of footwear—did you check this one out or search this database?’

  ‘No,’ Howell sternly replied, unable to see the joke, and stalked off.

  Late on day 15, Monday, 25 June, the Crown called its crucial expert witness to give evidence about the dive boots. David Neale, a forensic scientist at ESR in Porirua, arrived in the court armed with a brown cardboard box of lever-arch folders of analysis and notes that he arrayed around him.

  He had visited 293 Aorangi Road on the day of the murder and then again two days later. While he had examined the driveway, Scott’s ute and other items, it was the impressions left at the scene by the dive boots that the Crown concentrated on when questioning him. He said there were no complete footprints, but many were clear enough to show whether they were left or right feet and in which direction they were pointing.

  The Crown produced a succession of casts taken from imprints at the scene and proffered them in front of the jury, like failed cakes at a children’s baking competition being brought up for judging. Neale gave evidence o
f how Scott’s blood had seeped into one of the footprints, supposedly after the killer walked up to check his victim was dead. As the casts were paraded and pored over, an image of savagery gradually accumulated, the murderer’s path being outlined to the jury, step by bloody footstep.

  Neale’s appearance spilled over into the following day as he described the distinctive characteristics of the boots’ soles. They had a wavy-line pattern, with 8 millimetres between the peaks of the waves and 5.5 millimetres between the individual rows. In the midfoot area there was a label with no wavy lines. Around the side of the boot was a strip of foxing with a small diamond-shaped pattern.

  After examining databases and testing other dive boots provided by the police, Neale became convinced the shoe they were looking for was a dive boot. When police brought him Pro Line boots, he told them that all the characteristics of the scene imprints were present in the required configuration in those boots.

  He tested the sample boots by making impressions in mud and then casting them as had been done with the footprints found at Aorangi Road. This suggested the boots that made the scene imprints had worn soles, as the ridges of the wavy lines were less distinct than those from tests with new boots.

  In association with podiatrist Greg Coyle, Neale had ascertained that the overall length of impressions left at the scene ranged from 283 to 303 millimetres. The length of the sample boots police had obtained were: 273.5 millimetres for size 7, 285 millimetres for size 9, 292 millimetres for size 10 and 306.7 millimetres for size 11. Thus, Neale said, he believed a size 7 or 11 boot could be ruled out as having made the imprints. Consequently, he suggested the person who left the crucial prints at the scene was wearing a size 9 or 10 boot. In addition, he said that, based on imprints of Macdonald’s feet taken after his arrest, his foot would fit within the limits of the impressions taken from the size 9, 10 and 11 boots he had been supplied with—but the size 7 would be too small.