Who Killed Scott Guy?

by Mike White

  The third piece of evidence King highlighted was the mystery sedan Matthew Ireland had seen driving along Aorangi Road as he arrived at work. The car had been coming from the direction of the murder scene just after police said Scott was shot but had never been traced, despite exhaustive appeals to the public. ‘Surely with all the publicity, with all of the police inquiries, someone would’ve come forward and said, “Well, actually, I was out for a drive that morning, at 4.45 am along Aorangi Road, beautiful winter’s morning, just went out for a cruise and I didn’t see anything. Didn’t see that there was a utility with its lights on and in the lights was a dead man.” The Crown would just have you dismiss that.’

  In addition, King said, there were unidentified car tyre tracks found near the murder scene, which were also close to a clump of cut grass found on the road that had a wavy-lined boot print on it. ‘My friend tries to say it was a car doing a three-point turn. That is speculation. Where is the evidence of that? . . . But oh, despite the fact there is absolutely no evidence, not one iota of evidence to place a bicycle anywhere near the scene—you can rely on that. So when you’ve got actual hard evidence at the scene, you can ignore it. And when there’s none, it’s because [Macdonald] has concealed it.’

  The jury had diagrams of the murder scene showing the location of all wavy-lined boot prints, some of which were next to the fence by the driveway where ESR forensic scientist Kevan Walsh suggested the killer probably fired from. King drew the jury’s attention to a cluster of boot prints just to the right of this spot. This pattern, he suggested, was consistent with someone using a semi-automatic shotgun that ejected its cartridges after firing and the killer moving to his right to retrieve the shells and remove the evidence, then making off. ‘I’m not trying to say it’s the answer to the case but it’s consistent, I submit, with the evidence of three bangs, with the evidence of the location of the gunman using a semi-automatic shotgun.’

  King’s final attack on the Crown theory was to do with the other suspects police had ruled out. He again referred to one well-known local criminal who’d been involved in a burglary just hours before Scott was killed, who stole cannabis and Winfield Gold cigarettes—the same type of packet that was found discarded near 293 Aorangi Road. Although this man was known to use shotguns during his crimes, police accepted an alibi for him from his partner who thought she heard him come home about 4 am, despite admitting she was also wasted on methamphetamine.

  King also reminded the jury how prevalent burglaries had been in the area before Scott’s murder and the number of shotguns that had been stolen along with large amounts of ammunition. ‘What do you think they were stolen for? Do you think they were stolen so that people could use them for lawful purposes?’

  Again and again, King brought the jury back to the issue of evidence that had been uncovered but remained unexplained versus the police theory, which ignored such evidence but instead relied on supposition. ‘This is not a game, this is about as real as it gets. It’s all right for my learned friend to approach this case on the presumption that my client is guilty and to tie everything back to that. But you must approach it on the presumption of innocence, you must question critically all of these strands. If it’s at 5 am, he could not have done it. If there were three bangs he could not have done it. If there is a mystery sedan . . . how can you exclude that, how can you say, “I am certain that Ewen Macdonald is the killer and I’m just going to ignore Matthew Ireland’s confirmed sighting of a sedan at exactly the approximate time”?

  ‘In my respective submissions, members of the jury, it’s a matter for you. But these are submissions that are based on the evidence and it’s the evidence that you have sworn, that you have affirmed to base your verdict solely on. Not on prejudice, not on photos of beautiful puppies, not on tears, not on emotion, not on terrible photos of terrible injuries—but on the evidence.’

  Despite the clear gaps in the police case that the defence could highlight and the doubt around evidence, King’s biggest challenge was to overcome the impression Macdonald was so full of hatred and revenge that it led to him killing Scott. ‘There’s no doubt that Ewen Macdonald and Scott Guy had problems in the past,’ King acknowledged. ‘And the culmination of that were these dreadful acts that Ewen Macdonald committed against him. But you need to be careful. You cannot do what the police did and jump from A to Z. There are lots of other things in the middle that need to be taken into account.’

  King had scrupulously sought not to bring the character of Scott or Kylee into question throughout the trial. He’d steered away from denigrating their actions or personalities, knowing the jury would likely react negatively to it. But in trying to put Macdonald’s acts in context, he flirted with criticising Scott, pointing out that the genesis of the ill-feeling on the farm actually came from him. It was Scott who begrudged Ewen having shares in Byreburn, it was Scott who claimed he had a hereditary right to take over the farm, it was Scott who was angry that Anna and Ewen had moved into the family home at 147 Aorangi Road in 2008.

  ‘The resentment was from Scott Guy, not from Ewen Macdonald . . . And yet at the time of the murder we know that there was no animosity, there was no resentment, there was no problem. You see, the concern of the defence is that you simply be seduced by the false logic that the police demonstrated in the course of their interview with Mr Macdonald by suggesting that whoever had done the damage must be the killer.’

  Before he closed for the day, King also raised the issue of Callum Boe, Macdonald’s co-offender in the other crimes. Why, King asked, would Macdonald commit such a blatant murder knowing a major police investigation would inevitably lead to Boe being questioned and the possibility he would point the finger at Macdonald? Wouldn’t it be easier to construct a farm accident if he wanted to kill Scott? ‘Why not sneak up behind him in a milking shed and whack him over the head? Why not push him off a tractor and under a wheel? There are a million things you can do on a farm to create a farming accident. Why would you run the risk that your past crimes against him would be detected, solved, that Callum Boe would draw a link and dob you in?’

  King went on to pose other scenarios—a quad bike accident or a slip when putting down a cow. And he finished by asking whether Macdonald would inflict an unsolved murder on his wife, children, nephews and in-laws. ‘So that your children would spend the rest of their lives wondering, looking behind their shoulders? So that your wife would forever wonder? It just does not make sense.’

  King was never going to be able to gloss over the other crimes Macdonald had committed, least of all the attacks on Scott and Kylee’s houses. There was no mileage in minimisation or shifting the blame onto Boe. So he had to front the issue and describe it for what it was. ‘Stupid . . . cowardly . . . gutless . . . mindless . . . idiocy . . . appalling, disgraceful behaviour,’ were just some of the ways he portrayed it to the jury. Although the crimes were all against property, there was no denying their severity, he acknowledged, and Macdonald should have owned up long before he did.

  All King could hope to do was put them in some kind of perspective, and put as much distance as he could between the crimes and Scott’s murder. Thus he pointed to the many ways Macdonald had changed his life after the vandalism of Scott and Kylee’s new house. How he’d largely ended contact with Boe, how he’d spent more time at home with Anna and the kids, how he’d been elected to the local school board and been successful in a regional farming competition. Moreover, he’d sworn to stop moaning about Scott, and the evidence showed the two of them had got on fabulously at the conference in Invercargill just days before Scott was murdered.

  And there were many small but important signs that Macdonald’s anger towards Scott and Kylee had dissipated after that last attack. He’d called in a family member to bless Scott and Kylee’s house, given them cuttings from his garden, helped with landscaping and bought Kylee a silk tree for her birthday. ‘I am not trying to trivialise what he has done but you know the real steps, tangible steps t
hat have happened afterwards and they can properly, in my submission, be interpreted as a person who realises he has gone completely off the rails and has worked hard to get himself back on.’

  The Crown contention that insecurity over his future drove him to murder was risible, King argued. Not only had Macdonald and Scott come back from the Invercargill dairying conference excited by the future opportunities for the farm, but Macdonald’s reputation as a top farmer meant he had received offers of other lucrative jobs as a manager. This would have meant he wasn’t tied to Byreburn or having to work with Scott on a daily basis.

  Any plans for diversifying and altering the farm—such as subdividing it or putting in a wakeboarding lake, an idea Scott was particularly keen on—were far down the track and due to be discussed at a meeting in September. ‘There was no insecurity, there was just positiveness and options. All of the evidence is, members of the jury, from everyone you have heard, is that the problems of the past were just that—in the past, ancient history.

  ‘You’ve seen Mrs Macdonald, you’ve seen photos of their idyllic country home. Why would you give it up? Why would you throw that away? Because someone wasn’t pulling his weight on the farm? Someone [who] in the future may not even be working together anyway? When you’ve got all these other options for financial security? Ladies and gentlemen, it just doesn’t add up.’

  CHAPTER 18

  Facts or fantasy

  Frequently during his closing address, King charged that the Crown had looked at Macdonald and all his actions ‘through the myopic lens of the presumption of guilt’, contrasting that with ‘the telescopic lens of the presumption of innocence’—the fundamental right to which Macdonald was entitled.

  The way the Crown interpreted Macdonald’s every action as sinister and betraying his guilt was perfectly illustrated by its interpretation of the Fonterra awards ceremony held at Awapuni Racecourse in Palmerston North the evening of Scott’s death. Byreburn was one of dozens of farms due to receive a certificate for its milk quality and Bryan, Jo, Scott and Kylee had arranged to go to the dinner. Macdonald, however, had decided not to attend, tired after several trips away and not seeing it as a major event—the farm achieved the milk standard every year and had known for some time it would receive a certificate. The Crown characterised this as Macdonald not being a team player and knowing Scott would be murdered by then, so opting out.

  This curious rationale was skewered by King. ‘Now look, if you’re going to kill the guy, if you’re going to kill Scott Guy, and you are plotting and planning it and you have put in place a number of mechanisms so that it’s not going to be traced back to you, why would you be saying, “I’m not going to go to an event,” the night before? Why don’t you say, “Yeah, it will be fantastic. Scott and I have never got on better. I’m going to go along to this Fonterra award tonight. It will be great, it will be just like Invercargill.”

  ‘If you are a cold-blooded murderer, that’s how you’d think. You don’t create anything which can then be twisted and turned to try and look as if there was some sort of deep-seated problem. You would say, “Yes, that would be great.” You know you are not going to have to actually go.’

  Equally, the exaggeration of the Reve birthday party incident was indicative of the Crown’s attempt to portray deep-seated animosity where there was none, King said. ‘It’s an absolute storm in a teacup. It didn’t come to blows. There was one swear word in the entire incident, when Scott said, “I’m not going to listen to this shit,” and he walked out.’ Moreover, King stressed, Macdonald had freely admitted to the disagreement when interviewed by police after Scott’s death and well before others raised it as an example of antagonism between the two.

  Apart from denying his previous crimes, King argued Macdonald had been utterly honest with police throughout all his interviews. And even blameless people can lie, King noted, alluding to Bryan Guy who for nine months claimed the farm shotgun had been locked away in gun safes on the morning of the murder, only to admit to police after Macdonald was arrested that it was actually hidden inside and behind a cabinet in the office. ‘Frankly I cannot recall seeing a more honest, fair and truthful witness in my entire career as a criminal defence lawyer,’ King said of Bryan Guy. ‘He has my absolute admiration how he was able to come back day in and day out and never once was anything other than scrupulously fair and honest. But it demonstrates, doesn’t it, that innocent people can lie to the police . . . I admire him immeasurably for his honesty and his candour in that, but doesn’t it show that you can’t jump from “He’s lied to the police” to “He must be guilty”?’

  King said Macdonald lying about his other crimes was simple human frailty, the same as Bryan Guy who didn’t want to be found out for having done something wrong. ‘If Ewen had fessed up to destruction of the house by fire and damaging the new house in the wake of his brother-in-law’s killing, where would that have left the family? How would he have been able to support them, to work hard on the farm, to keep everybody going, to keep it ticking over, to keep the family together? He had an awful big role to play in the wake of that and, in my submission . . . it might show a weakness, it might be foolish, but it is most certainly not demonstrative of guilt.’

  Action by action, King then took the jury through what Macdonald did on the morning after Scott was found dead. While Vanderkolk had questioned his every move and coloured it with complicity and connivance, King sought to show they were the acts of a completely honest man, going about his working routine as he always did, while reeling from the shock of his brother-in-law’s murder.

  While the Crown said it was extraordinary that Macdonald didn’t phone Scott’s landline when he hadn’t turned up for work, King demonstrated that he’d never done this and had always texted and then rung Scott’s cellphone if he was late, just as he did on 8 July. Even Kylee Guy confirmed this in her statements to police, saying she didn’t recall anyone ever ringing their landline if Scott was late.

  When Vanderkolk questioned why Macdonald had stopped Matthew Ireland from going and getting Scott up, King posited that they were already one man down and it would only drag out milking even further if Ireland left. (In fact, Vanderkolk knew this was normal practice on the farm—Kylee Guy had told police in June 2011 that when Scott slept in ‘they would just keep milking until he got there’.)

  While the Crown seized on the fact Macdonald hadn’t mentioned the mystery sedan Ireland had noticed, King said that was because he was in bed at the time, just as he said he was, and couldn’t possibly have seen it. If he had been the killer, King added, Macdonald would surely have claimed to have also seen the car, as this would have pointed suspicion elsewhere. It would have been his ‘mystery ketch’ said King, slightly mischievously alluding to a key piece of evidence in the disappearance of Olivia Hope and Ben Smart from the Marlborough Sounds in 1998, a renowned case with which King had been closely involved.

  The Crown had also claimed that when Bruce Johnstone phoned Macdonald to alert him to Scott’s death, Macdonald had answered, ‘Scott . . . Scott?’ and that this showed some kind of presumption about Scott’s death or attempt to pretend it was Scott ringing even though Scott’s name wouldn’t have come up on his phone. King suggested that Macdonald was finishing milking and might simply have answered his phone presuming it would be Scott, given that he was late and few other people would phone him at 7.16 am.

  But by far the strongest of the Crown’s accusations that Macdonald exposed his guilt that morning was his supposed disagreement with David Berry over how Scott had been killed. Nikki Guy claimed that while they were still standing at the police cordon, Macdonald twice tried to correct Berry over how Scott had died, insisting he’d been shot rather than had his throat cut.

  King, however, launched one of his most forceful attacks on this supposed ‘fact’, as Vanderkolk portrayed it, claiming it wasn’t even fiction but ‘pure fantasy’.

  ‘Think about it logically, members of the jury, please,’ King implo
red. ‘If you’re the blimmin’ killer, if you’re the person that has shot Scott Guy, then why in the realms of Christendom would you be correcting people? Why would you be there, when people are saying, “Oh, it looks like his throat’s been cut,” [saying] “No, no, no, in fact he’s been shot”? It is ridiculous. It’s absolutely beyond the realms of possibility that you have managed to facilitate and orchestrate this murder so well that you’re not going to be traced by one skerrick of evidence—that your bike is not going to have one skerrick of evidence, that the scene is not going to have one skerrick of evidence of a bike, that there’s not going to be one skerrick of evidence linking a shotgun—no DNA, no fibres to puppies, nothing at all—but immediately afterwards you will be correcting people to say, “Oh no, he hasn’t had his throat cut, he’s been shot,” arguing with them about it. Come on! It’s offensive to your intelligence.’

  Moreover, King noted, by the time Bryan Guy arrived at Kylee’s house shortly after 7.30 am to check on her and Hunter, he assumed Scott had been shot but was clear it hadn’t been Macdonald who’d indicated this to him; Bryan himself believed it must have been someone at the scene.

  Nikki Guy’s comments had been ‘retrospectively reconstructed’, King said. ‘I’m not suggesting any dishonesty, but it’s natural to reinterpret what you think you remember in the light of what has transpired.’ At the time of the crime, Nikki had no concerns about Macdonald’s behaviour or conduct, King reminded the jury. ‘After he’s arrested, of course, everything’s up for reinterpretation.’