Who Killed Scott Guy?

by Mike White

  That morning, Greg King had bounced into court with even more enthusiasm than normal, full of coffee and quips. Partly it was caffeine, from the small espresso machine he’d brought to court from his home, but partly it was the knowledge that today was the day when he could deliver one of his most telling blows to the Crown case, not just further discrediting the Crown’s dive boot theory but potentially blowing their entire case out of the water.

  When he rose to cross-examine Neale he carefully took him through all the measurements of the reference boots. Then he turned to the length of the impressions preserved at the scene, and Neale admitted one imprint was calculated to be 305 millimetres—and could be even longer—but was ruled out because of uncertainty about exactly where the heel ended. He stressed that all the measurements made from the scene footprints were approximate but pretty accurate.

  Then King referred Neale to three casts and asked how many rows of waves there were in the forefoot—from the label in the middle of the boot to the tip of the toe. Neale, who had noted this in his extensive working notes, replied that there were 32 to 33 rows but there could have been more, given the imprints couldn’t be guaranteed to be precise.

  Pointing to the size 7 boot exhibited in court, King asked Neale, ‘Can you count for us the number of rows of waves in the forefoot?’

  ‘I make that 25,’ Neale replied.

  ‘Can I now ask you to look at the size 9 Pro Line boot, the actual exhibit? Again, can you count the number of waves from the forefoot?’

  ‘Certainly—29, approximately.’

  King asked Neale to perform the same task with the size 10 and 11 reference boots, which were handed to him in turn by court crier John Conley. Everyone waited in expectant silence as Neale completed his calculations. The size 10 was very worn so he could only count 29 to 30 rows, but there could have been more rows, he said. And the size 11 had 30 full rows and a partial row, according to Neale.

  King pointed out that with each size increment, it seemed two rows of waves were added in the forefoot to accommodate the extra length. It was logical and seemed to be supported by the exhibits the Crown had brought to court. Reminding Neale that three casts from the scene had revealed 32 to 33 rows, King emphatically challenged the scientist: ‘So, if your calculation was accurate, there is no way in the world that [the boot that made the scene imprints] can be a pair of size 9 Pro Line dive boots.’

  The scientific certitude and measured analysis that Neale had until then exhibited began to slip into hesitation and equivocation as he raised issues of the rubber’s type and design. King became more and more exasperated as Neale flinched from accepting King’s rationale and the fact that the boot that had made some impressions at the murder scene was much more likely to have been a size 11 or even 12 than the size 9 police believed Ewen Macdonald wore.

  ‘Why would you discount the rows of waves? Why would you discount it?’

  Neale refused to be pinned down. ‘The rows of waves on the cast from the scene are from a boot which I have not seen,’ he answered. ‘I cannot say the exact design of that boot. It may not be a Pro Line boot. It may be a Pro Line boot,’ he stated, radically widening the evidential possibilities and substantially undermining the Crown theory in a sentence.

  King continued to pursue Neale, who was struggling to retain his methodical demeanour: ‘What possible basis have you got for speculating that Pro Line had a size 9 boot with 32 rows of waves in it?’

  ‘Because I have not seen every Pro Line boot that’s ever been manufactured at size 9,’ Neale responded with what appeared to be a large scientific sidestep.

  Eventually King forced Neale into an inescapable corner. ‘So on the basis of what you have seen, could that Pro Line boot that’s been produced as an exhibit, size 9, have made an impression leaving 32 to 33 waves in the forefoot area?’

  ‘No, no it could not,’ Neale admitted.

  At that, with a glance to the clock, King suggested the court take its morning break, leaving the denial that a size 9 boot was responsible for the imprints at the scene ringing in the jurors’ ears.

  During the adjournment, King, Coles and Collins discussed what had just occurred. The revelation that there was no way the boots police claimed Macdonald was wearing could have left the telltale footprints at the murder scene had enormous impact. For months, armed with the knowledge that the number of wavy lines at the scene didn’t match a size 9 boot, the defence had wondered how the Crown was going to explain this. They’d thought that perhaps the Crown would claim Macdonald actually owned a size 11 pair of boots and maybe wore thick socks with them. But at trial, the Crown had stuck to the claim Macdonald wore size 9 boots, thus completely opening themselves up to devastating attack from Macdonald’s lawyers over the number of waves on the imprints.

  It’s impossible to know what the Crown’s approach was. Possibly, it was so sure that the overall measurement of the footprints showed it was a size 9 or 10, that they didn’t even consider the number of waves on each boot or realise that the size 9 exhibit wouldn’t match the prints found at the scene. But Neale had long been aware that some of the casts made at the scene showed 32 to 33 forefoot rows—he had detailed it in his working notes. Greg King was at a loss to understand why Neale didn’t mention it in his final report.

  Even if Neale hadn’t mentioned it in his advice to the Crown, it seems inconceivable, given the importance of the boot evidence, given it was the only forensic link police had between Macdonald and the crime scene, and given how many hours had been spent poring over the boots, that nobody had thought to compare the number of rows on the size 9 boot police had obtained with the prints at the scene. If they hadn’t, it leaves only a conclusion of incompetence.

  The other possibility, of course, is that police and Neale did realise the size 9 boot they had couldn’t have made the prints found at 293 Aorangi Road because the number of rows were different—and simply hoped the defence wouldn’t notice it. This would suggest police and the Crown knew their argument was built on a lie—knew that Macdonald’s foot size or boots could not have made the prints—but continued with this as a fundamental element of their case. Such a scenario potentially raises issues far more serious than ineptitude.

  When the court resumed, King asked Neale if he had measured Macdonald’s foot size from the ink prints made of them. Neale said he hadn’t, leaving King astonished that such a fundamental test hadn’t been done to ascertain what boots Macdonald’s feet might have fitted—or not fitted—into.

  King said Macdonald’s feet were 262 to 264 millimetres long—which actually fitted within the 273.5-millimetre size 7 reference boot the police had—but which Neale had said was too small for Macdonald to wear. Neale suddenly appeared reluctant, however, to say whether Macdonald’s foot would fit in a certain-sized boot, despite having been willing to do so when answering earlier Crown questions.

  Eventually, King returned to the comparison of the reference boots with the imprints around Scott Guy’s body. After prolonged questioning, Neale agreed that, ‘The size 9 dive boot that I examined couldn’t have produced the impressions from the scene.’

  When Ben Vanderkolk rose to re-examine Neale, he suggested forceful heel strike or ‘toe roll’ could have accounted for longer impressions at the scene—seemingly ignoring that this still couldn’t explain the extra rows of wavy lines found there. Neale also proffered that variations in the number of rows could be explained by different manufacturing processes or the way the sole cutter was positioned.

  While anything was possible, it seemed like clutching at straws given the logical increment in rows of waves as boot size increased, to which King had pointed. Moreover, it wasn’t for the jury to make assumptions like those Neale and Vanderkolk were positing—they had to deal with the evidence the Crown had presented or, in this case, had failed to present.

  One thing they didn’t hear, however, was evidence from a podiatrist the Crown had consulted, relating to estimates of a person’s height
based on the length of their foot. From the impressions left at the scene, he calculated the height of the person making them to be between 1.87 and 1.94 metres. Macdonald is 1.82 metres tall.

  CHAPTER 16

  Closing time

  The prosecution case, with 77 witnesses and 106 appearances, took more than three weeks, so it wasn’t until day 17 that Greg King finally got to launch Ewen Macdonald’s defence and make his opening speech.

  He informed the jury the defence was only calling two witnesses: Peter Shelton, the electrical engineer who would give evidence Derek Sharp’s clock couldn’t have run fast because of high-tension wires; and Mitchell Maxberry, the American shooting champion, who described reloading times for shotguns. And almost immediately, King let jurors know he wouldn’t be calling Macdonald to give evidence, stressing they had already heard or read reports of more than 40 hours of police interviews that Macdonald had freely given before he was arrested.

  It was a sign of confidence from King. Before the trial he’d stated he’d make up his mind whether to call Macdonald only after the Crown had concluded its case. Despite believing juries inherently want to hear from those in the dock, there was too much danger, King felt, that it could rebound on them. ‘If we can dismantle the key threads against him in a compelling way, then that will weigh heavily on me to say, let’s not risk all that good work by one or more of the jurors simply saying, “I don’t believe him.”’

  Macdonald was happy to give evidence at trial and had willingly answered everything his lawyers had asked him, but in the end, given the defence had succeeded in creating considerable doubt about most aspects of the Crown case, King’s decision not to call Macdonald was relatively straightforward. And his choice to call only two witnesses was underpinned by his staunch belief that the onus was on the Crown to prove Macdonald was guilty, not on him to demonstrate Macdonald’s innocence.

  But before calling those two witnesses, King gave the jury a short lesson in history, the law and jury trials, which he labelled ‘a strange beast’. He recalled the systems other cultures had used to decide trials in a globe-spanning overview that included references to Socrates, 18th-century British statesman William Pitt and Pope Innocent III. And he told jurors that the modern jury system ‘has its origins last Friday, 797 years ago, the 22nd of June 1216 [sic], when a King was made to give up his absolute power—the signing of the Magna Carta—explicitly accepting that no free man could be punished except through the law of the land, a right which of course is enshrined to this day.

  ‘It can seem to the uninitiated that it’s a bit of a game, with brinkmanship and with silly rules, but all I can say about that is the rules of law by which jury trials, by which this trial was conducted are tried and true . . . and no matter what else you can say about our criminal justice system in 2012, the one thing we can say with absolute certainty is it’s the best we’ve ever had. It provides the greatest guarantee that people are not convicted wrongly and we hope it provides a great guarantee that guilty people are properly held to account.’

  King also alluded to Sir Richard Wild, New Zealand’s ninth chief justice, whose life-sized portrait hung behind him, and who had ironically been the dux of Feilding Agricultural High School, which both Macdonald and Scott Guy had attended. It was Wild, King explained, who had saved the oak panelling from London’s Old Bailey that now adorned the jury box in which they sat. ‘[Yours] is an onerous task. It is the most onerous task that a peacetime nation can ask of one of its citizens, to sit in judgment on a fellow citizen and that, I suggest, is especially true when you are dealing with the most serious crime in our statute books, the crime of murder.’

  King then reminded the jury of the four most fundamental principles of criminal law that had evolved over the preceding 800 years: the presumption of innocence; the onus of proof being on the Crown and the defence having to prove absolutely nothing; the standard of proof having to be beyond reasonable doubt; and a defendant’s right to silence. He stressed that the principle wasn’t ‘innocent until proven guilty’, as that implied inevitability of guilt—it was innocent unless proven guilty. And ‘beyond reasonable doubt’ meant they had to be sure and certain Macdonald was Scott Guy’s killer based on the evidence, not on any gut instinct.

  ‘It’s not enough to say, “I think he might’ve done it.” It’s certainly not enough to say, “I think he could’ve done it. He could’ve somehow miraculously worked within this timeframe that we’ve got. He could have miraculously known where this shotgun was and used it and concealed it back. He could’ve miraculously worn shoes two sizes too big for him. He could’ve miraculously recovered his dive boots from the fire pit, disposed of two years earlier in April 2008.”

  ‘It’s not even enough to say, “I think he probably did it or I think it’s very likely that he did it or even very, very likely.” [It] doesn’t matter a damn what the public think, or what the media portray, or what anybody else in this room or anywhere else in the world thinks about it, you are charged with that onerous task, the most onerous task of deciding this matter. And you do it as much for our system of justice and, I suggest with respect, for your own peace of mind—and that’s what the standard of proof relates to—beyond reasonable doubt.’

  Knowing the jury would be curious and possibly suspicious that Macdonald wasn’t taking the stand to defend himself, King again impressed on them that Macdonald had in fact been extraordinarily open with authorities. ‘He didn’t have to speak to the police at all. He didn’t have to let them see his shoes. He didn’t have to give them a DNA sample. He didn’t have to take them on tours of the farm. He didn’t have to let them come along with him when he did milking in the morning. He didn’t have to help them calibrate the workshop times.’

  Finally, King turned to the need for the jury to return a verdict without being influenced by prejudice, sympathy and emotion. ‘You have a sworn and affirmed obligation to bring in your verdict solely on the evidence, and I emphasise that because of course we’re in the midst of, let’s face it, a media circus, and you’ve just got to be so careful and so disciplined to put all of that emotion from your mind.’

  Sitting in the front row of the public gallery, just behind the dock where his son sat, Kerry Macdonald could only admire King’s address. Turning to a friend, a successful corporate lawyer who’d flown to Wellington to hear King, Kerry whispered, ‘We’re watching history here, aren’t we?’

  His friend leant his head towards Kerry and quietly replied, ‘Yes, you are.’

  When Ben Vanderkolk rose for the last time, he turned the small lectern on his desk away from the witness box, which he’d faced throughout the trial, and angled it towards the jury. His closing address was his final attempt to persuade the jury that beyond any doubt, Ewen Macdonald had killed Scott Guy. And he began by reinforcing what King had stressed during his address the previous day—that to convict Macdonald they had to be sure and certain he was the killer.

  But Vanderkolk reminded the jury that each strand of the case didn’t have to be proven beyond reasonable doubt—each circumstance or coincidence was merely an element of the overall case and it was this combination of facts and their flow that would lead to a decision. By themselves, each point may not be convincing, but woven together they would lead to a verdict that was safe and certain. ‘And please, do not be scared or frightened of finding the accused guilty. It’s not about . . . your particular peace of mind,’ he said, referring to King’s mention of this point, ‘because peace of mind is self-interest, members of the jury, not the interests of justice.

  ‘I can say confidently that your verdict of guilty in this case is not about to bring the justice system crashing down around our ears, because your verdict of guilty will be a sure one, a certain one, based on admissible, relevant evidence.’ Vanderkolk asked them not to let go of logic when considering the evidence. ‘You are the guardians and the caretakers of the collective common sense of a community whom you represent.’

  And then
he began putting the evidence against Macdonald in context, reading coolly and evenly from notes in his folder, explaining that all Macdonald had to do after committing the murder was get back to 147 Aorangi Road undetected and before milking time. All he had to do was change his clothes and boots and walk to the workshop to begin the working day. Anything he used in the murder could be temporarily hidden—he had 300 hectares of farm and all the time in the world later on to dispose of it. And the distance he had to cover was just over 1.4 kilometres, Vanderkolk said, a journey he’d done before when committing other crimes, a journey he did in complete darkness. And when he reached his home it was a safe haven.

  Every action of Macdonald on the morning of 8 July was scrutinised sceptically, every action portrayed as seemingly sinister. Why did he tell Matthew Ireland not to phone Scott when he was late unless he knew Scott was dead? Why did he not ring Scott’s landline to wake him up? Was his joke to police that all the farm workers wore gumboots proof that he knew footwear was going to be important to the inquiry? Why did he say something about ‘his face’ when he phoned Bryan Guy, given that he’d not got close enough to Scott’s body to see any injuries? Why did he contradict David Berry about Scott having been shot rather than his throat being cut? ‘The accused knew the cause of the death of Scott Guy before anyone else. He knew that because he was the gunman. He knew because he had taken those two shots.’

  Why did he tearfully tell Jo Guy that he and Scott had so many plans when the reality was their futures were totally divergent? Why did he describe seeing the lights of Scott’s ute through the gates when they were actually open when Scott’s body was discovered? Why did he not ring Anna to tell her what had happened? Vanderkolk claimed only Macdonald had knowledge of when Scott would be coming out of his property and could thus close the gates to stop him. ‘He sets the scene, he places Scott Guy in a cage.’