by Mike White
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.
CHAPTER 21
Leaps of logic
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 c
onfirmed 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.’
But perhaps the most fatal flaw in the investigation and Crown case regarded the dive boots Macdonald was supposed to have owned and worn when he shot Scott. It bears repeating that this evidence was the only thing that supposedly directly linked Macdonald to the crime scene—in many ways the Crown case hinged on the dive boots. Yet Greg King was able to dismantle this accusation by doing the simplest of things—showing that the number of wavy rows on the boots exhibited in the court didn’t match that on the prints found at the scene. Not only did he do this dramatically and forcefully, but the Crown expert, David Neale, was left looking startled and floundering for reasons why this might be the case. Again, it appeared as if the Crown had been caught unawares, despite the differences being so obvious.
Even after the trial, King remained unsure if the police and Crown simply overlooked this most basic evidence, or were aware of it but simply hoped it wouldn’t be noticed or raised by the defence. The first answer indicates ineptitude. The second suggests cynicism, that police knew the boots wouldn’t have fitted Macdonald but proceeded with the case against him anyway.
Reference to the number of rows on the imprints left at the scene appeared in Neale’s copious working notes of nearly 1000 pages. ‘He was onto it,’ said King. ‘Why wasn’t it in his final report? I don’t know.’ Whatever the reason, the failure by police to fully compare the soles of their reference boots with the prints found at the scene opened the floodgates for one of the most damning attacks on their case.
And it wasn’t just the number of waves that scuppered the Crown boot theory. It was also Anna Macdonald’s recollection that she threw out Ewen’s dive boots when they shifted house in 2008. Astonishingly, the Crown was blindsided by this revelation. Somehow police hadn’t asked Anna clearly what eventually happened to the boots, something Ewen Macdonald had told King. The fact that police and prosecution were stunned by this evidence was shown when they obtained permission from the judge to take Anna back in for several more hours of questioning on the evidence she’d given.
From that point on, the thinness of the police case against Macdonald was terribly exposed, along with the disturbing prospect they’d actually got the wrong man.
Of course, any criticisms of police must be prefaced by the recognition that hindsight is a cynic’s best ally. Police were confronted with extraordinary amounts of information to follow up, including puppy sightings the length of the country, psychic visions and deliberately false statements, all of which had to be sifted.
Even Greg King, who spent four weeks in court trying to undermine and deconstruct the police case, said there was no lack of effort by investigators. ‘At the end of the day the evidence just wasn’t there. It wasn’t as if there were fingerprints at the scene that they missed. If there’s no evidence you can’t blame the police for not finding it.’
That said, King wondered if police focused too much on the link between the arson and vandalism to Scott and Kylee’s property, and Scott’s murder. ‘It’s a natural enough thing to do but the problem was that you don’t do it at the expense of everything else.’
Crown documents reveal police pinpointed Macdonald as the likely murderer in early 2011—well before they discovered he was responsible for the crimes against Scott and Kylee. Their investigation had hit a wall, the team was being downsized because very little information was coming in, and they had come to the conclusion there must be a link between the arson and vandalism, and the murder. Macdonald had been on their radar because of talk of his differences with Scott. As soon as his role in the arson and vandalism was proven, they immediately moved to charge him with Scott’s murder, despite having no compelling evidence connecting him with the crime.
And here it’s useful to pause and consider what that meant. Having charged Macdonald in April 2011 with Scott’s murder, there was no turning back. Any evidence they collected after this event was likely to be viewed in only one way—through the myopic lens of the presumption of guilt, as Greg King described it. Having already made up their mind and in effect publicly declared who’d committed the crime, the police were faced with enormous difficulty if evidence subsequently surfaced that pointed to someone else, or suggested Macdonald was innocent. This raised the possibility that only evidence contributing to their theory of Macdonald’s guilt would be sought, allocated resources or analysed—and any other information might be ignored or simply explained away. Once the investigation’s direction was set, objectivity seemed difficult to maintain.
It’s important to note the police investigation didn’t end with Macdonald’s arrest—an enormous amount of information was gathered, assessed and reconstructed in the 14 months between him being charged and the trial commencing, including much of the dive boot analysis, the only thing supposedly connecting Macdonald with the murder scene.
By charging Macdonald when they did, police and the Crown painted themselves into a corner. It would seem extraordinary, if not inconceivable, that, after arresting Macdonald, they would later say, ‘Oh, well, actually, we’ve discovered a whole lot of other stuff and we’re not so sure he did it after all.’
Well, almost inconceivable. In July 2011, three months after Macdonald’s arrest, police officers on two separate occasions walked into Kerry Macdonald’s shop and casually mentioned the lack of evidence against his son. The discussions were such that Kerry strongly believed they were sounding him out as to what the reaction would be from him and Ewen’s lawyers if the murder charge was dropped. Whatever the police thinking had been, whatever the reason for these visits, they continued to trial with the evidence they had, limited as it was.
Police tunnel vision is an issue frequently raised when arrests and convictions are challenged. While police, often correctly, dismiss these accusations, in this case it is difficult to view the latter part of their investigation in any other way. Few would have qualms with this approach if all the necessary evidence had been amassed by the time of Macdonald’s arrest or the evidence they had already was utterly convincing. But as became very clear during the trial, this wasn’t the case here. Police had evidence—very strong evidence—of motive and a wealth of prejudicial testimony regarding Macdonald’s relationship with Scott and events on the farm, as well as a possibly plausible scenario on the morning of the murder—but they still lacked anything directly linking him to the murder.
At Macdonald’s final interview before his arrest, Detective Laurie Howell told him, ‘You’re the only logical person,’ betraying the police’s own logic and investigation trajectory.
Police had unquestionably explored and discarded other motives, including the missing puppies, other thefts in the area and the common rumour of a drug connection.
But their readiness to rule out that Scott’s murder resulted from a burglary gone wrong deserves consideration. At trial, Detective Sergeant David Thompson outlined why they decided against a burglary scenario. Firstly, he said the building would not stand out to burglars and there were more attractive rural options. Really? Here were two adjoining sheds close to the road, on the property of a nearly new, expensive house, but far enough away from it that a thief wouldn’t be heard. Why wouldn’t burglars have considered it potentially prime pickings?
Secondly, he said nothing, other than the three puppies, had been taken, despite the door to the building being open. But what’s to say the burglar didn’t just take the thr
ee puppies on an initial foray and was intending to return to the sheds when he was disturbed by Scott going to work? Maybe the puppies were their target anyway, given there had been other thefts of dogs in the wider area and the labrador pups were valuable, had been advertised widely and could well have come to a burglar’s notice.
Thirdly, Thompson suggested the sheds were a good vantage point for a burglar to keep an eye on Scott and Kylee’s house and if they saw some activity there, they could remain undetected in the shed. But that makes no sense at all if the burglar has driven to the property and has a car parked at the end of Scott’s driveway or nearby. The burglar is hardly likely to stay hidden in the shed if they suddenly see lights on in the house and someone coming outside who will naturally discover the strange car and probably call police.
Finally, Thompson posited that a real burglar would have stolen or raided Scott’s ute, which was sitting idling in the driveway. But why would you do this, having just killed a man, knowing the ute is the single most obvious thing that will lead police to you? A ute with MR GUY licence plates? And if you’re on your own, are you going to steal Scott’s ute and leave your own vehicle there for police to find with all its incriminating information and leads?
Police insisted the murder was premeditated and always claimed the gates had been shut deliberately to trap Scott and force him to get out of his vehicle and open them. Both gates were open when Scott’s body was found. But if you were the killer, hoping to remain undetected in the dark just a few metres away beside the fence, would you wait until Scott had opened both gates—one of which needed to be physically lifted back out of the way, before you sprang forward and shot him? After opening the second gate Scott would have been heading back to his ute—probably not in the position where his body was found. It brings into question whether in fact both gates were actually ever closed or whether something else caused Scott to stop and get out of his vehicle—perhaps the sight of somebody, or a strange vehicle. Because remember, the other gate, to the horse and sheep paddock, was also found open. Why would this be the case unless you wanted either to drive a vehicle closer to the shed or were intending to return there by foot and opening this gate allowed the easiest access? Of course, there are arguments that can counter all suggested scenarios and innumerable uncertainties—but the grounds for police so readily discrediting the culprit being a disturbed burglar do not seem incontrovertible.