by Mike White
It was an understandable but extraordinary appeal, assuming politicians might try to influence the outcome of a criminal case or pressure a judge. As a spokesman for Attorney-General Chris Finlayson said, it would be improper for the government to involve itself in court decisions, which were a matter for the judge.
Paul Murray said that taking into account all the crimes and the fact Macdonald was the instigator and lead offender, the judge should use a starting point of seven years’ jail. But Greg King compared this with the starting point for Callum Boe of four years when he was sentenced in Queenstown the previous year. King said Macdonald was genuinely remorseful and had taken profound steps at reconciliation. ‘He hated the person he had become.’ When reductions for an early guilty plea and remorse were considered, King argued that a sentence of three years was appropriate.
Justice France had a number of other representations to take into account, from victims, family members—and Macdonald himself. In a three-page letter to the judge neatly handwritten in blue biro on A4 refill, Macdonald offered to work for free on the Guy, Hocken, Sexton and Barber farms to in some way compensate for the loss he’d caused. ‘My challenge for myself and my children’s sake is to put all of this behind me and one day reearn some respect and be a great and productive worker and the best father I can be to my four beautiful children.’
His parents also wrote a long letter supporting him. ‘Marlene and I know he is remorseful. This shouldn’t be confused with feeling sorry for himself. He has never complained about his situation. He knows he has done the crime and must pay the time. He just wishes he hadn’t done any of these crimes because of the expense, anguish, violation and heartbreak he has caused to the victims and those closest to him. He has lost everything except his four children—his home, career, marriage, Guy family and reputation. Ewen knows only too well that he must now lead an exemplary life to try and rebuild those things in life.’
The Macdonalds also referred to people criticising them for continuing to support their son. ‘They don’t see our equally strong support for Anna and the grandkids, of course. There is no handle on our family tap—it is on and running all the time.’ Turning to his future, they said they looked forward to Ewen getting out of prison so he could ‘take up the challenge of citizenship’, and provided details of a job Ewen had been offered with a rural contractor. ‘His image has been in the media that often his face is more identifiable than most All Blacks, which is a fact he will have to bear whilst trying to get on with his life. Whether he has paid his debt to society for the crimes committed will be decided by you and this court. So we leave it to you.’
Arranged against these were victim impact statements from those affected, detailing the personal and financial damage Macdonald’s actions had caused. There was a probation report too, which said Macdonald spoke candidly about his offending ‘yet presented as unemotional throughout the interview’. It assessed him as being at medium risk of reoffending and medium risk of harm to the community.
When it came time for a decision, Justice France again detailed Macdonald’s crimes, referring to victim impact statements and describing his acts with a string of pejoratives: ‘Callous . . . brutal . . . nasty . . . cruel . . . senseless . . . malicious.’ He noted Macdonald had written of his remorse, but said he didn’t accept it because he had seen Macdonald’s arrest video and initial denials of the crimes. ‘I saw and heard no signs of remorse. Indeed, if anything there were statements consistent only with continuing indifference.’ Nor did he agree with King’s submission regarding the length of sentence, saying it didn’t adequately capture the seriousness of what Macdonald had done.
After a series of calculations, including treating the crimes against Scott and Kylee separately from the other offences, Justice France calculated a starting point of five years and six months, reduced to five years because Callum Boe was a co-offender. Individually Macdonald received: nine months for shooting Craig Hocken’s trophy stags; nine months for dumping the Sexton family’s milk; 12 months for killing the calves on Paul Barber’s farm; two years for burning down the whare; two years for the intentional damage to Scott and Kylee’s home; and three years for the arson of the old McKinnon homestead. The sentences for the two acts of arson were cumulative—thus the final five-year sentence.
The Crown had sought reparations, itemising the financial loss caused by each attack: $7500 for Craig Hocken’s stags; $5000 for the milk; $5700 for the calves; $462,537 for the house trailers destroyed in the McKinnon homestead arson and $6000 that was owed to Bryan Guy on the house; and $13,500 for damage to Scott and Kylee’s new house. The total was $500,240, and they asked that Macdonald pay $250,000 as his half-share of the total loss. However, Justice France said Macdonald was not in a financial position to pay anything so there was no point in raising expectations.
After the sentence was delivered and the judge had exited, reporters streamed out to file stories and try to elicit comments from those involved. There had been no members of the Guy or Bullock families present this time, but there was a strong group of Macdonald family supporters, just as many friends and relatives had come to Wellington to support them during the murder trial.
Satellite dishes had been set up for TV reporters to give live broadcasts, and cameramen and journalists clustered on the pavement at the bottom of the court’s steps. Investigation heads Sue Schwalger and Grayson Joines walked towards them and wheeled left without comment. Kerry and Marlene Macdonald barely broke their stride as they headed back to their vehicle. A prison van with Macdonald in it pulled out from a back entrance and drove slowly down the road. It was followed by Simon France in the back of a chauffeur-driven Crown BMW.
Despite nobody commenting, the stories of Macdonald’s sentencing were the most read on news websites that day, even pushing aside revelations that Kate Middleton had been snapped topless at a French chateau.
Back in Peter Coles’ central Palmerston North office, Macdonald’s lawyers were resigned about the sentence.
‘It can always be worse, can always be better,’ mused King, ‘but it’s certainly within the range we’d discussed. To be honest, I was disappointed the judge didn’t accept Ewen as being genuinely remorseful. That’s the judge’s prerogative, obviously, but I thought there was strong and clear evidence of a real change in attitude and real steps he’d taken to turn himself around.’
Coles questioned whether it was fair to assess if Macdonald lacked remorse, based on his arrest interview—given he was in the midst of realising his whole life was about to collapse. As Coles noted, if Macdonald had been uncooperative, refused to answer any questions and called for a lawyer, he would probably have got the 25 per cent reduction for remorse available to the judge.
While King believed there were grounds for appeal—the marked disparity with Callum Boe’s sentence of two years (reduced to 19 months on appeal) for exactly the same crimes, and the judge’s refusal to accept remorse—he knew there was little point. Macdonald himself had always said he would accept whatever punishment he was given and King realised there was real danger of an enormous backlash if he was released too soon.
There would be parole hearings in the future as the authorities wrestled with when Macdonald should be released, but for the defence this was the final legal scene in a case they’d worked on for 18 months. The small team had done a remarkable job in a case that initially appeared unwinnable. But beyond the astoundingly high profile of the trial, they all knew that what they’d done was just their job. There would be new cases next week with new people needing their skill, experience and help.
Their ultimate reward was perhaps best summed up by a card that sat in the corner of Coles’ office on top of a pile of files about Macdonald’s case. It was a thankyou note from Macdonald to Coles and his wife Karen. ‘I feel like the happiest man in the world. I got to tell those four beautiful children of mine that “Dad is an innocent man and will be coming home soon.” I feel very privileged that you both belie
ved in me and helped me fight to prove my innocence. I have been given a 2nd chance at life and one that I will not stuff up. You have my word.’
So King, Coles and investigator Paul Bass said their goodbyes and headed off. King had a barn dance to go to that night at his elder daughter’s school and had to organise his cowboy outfit—complete with a sheriff’s badge he’d been given from Suffolk County on his recent study tour to the United States.
While there he’d been interviewed on TV and said that the media often made a soap opera out of people’s misery during trials. As he drove south on his way home his phone rang continually with calls from reporters wanting comment, but King ignored them, happy for the last episode to have played out.
CHAPTER 23
The future
Two weeks later Greg King sat in a backroom of Wellington’s District Court, chatting with another lawyer, waiting while the jury deliberated in his latest case. His client was up on 11 charges of sexual assault and it was the second time the case had been heard, the first trial having ended in a hung jury.
King’s phone rang and his face fell slightly. ‘Yep . . . okay . . . thanks,’ he said, before flipping his mobile shut and standing up. ‘God, that’s not good—the jury’s coming back. That’s not good at all. That means we’re going down.’ Given that the jury had only been out for a few hours, King was certain it was a sign they’d glossed over his arguments and were about to find his client guilty.
Walking back into court he limped a little, complaining about the pain in his feet from nerve damage, a symptom of the diabetes with which he’d recently been diagnosed. He had squeezed in a neurosurgeon’s appointment among the seemingly endless trials that filled his diary well into the future.
As he slipped his robes back on, King was still repeating that he was sure he’d lost this one. The celebrity that followed the Ewen Macdonald trial meant he was well recognised now. The way he figured it, if jurors thought Macdonald was guilty and King had helped get him off, they would likely take any opportunity to give him a kicking. In this trial, he was sure one of the women on the jury scowled whenever he rose to speak. But when the jury forewoman was asked for their verdict she replied, ‘Not guilty’—on all 11 charges.
It was another remarkable victory for King. In homicide trials and appeals alone he’d won six in a row, including Macdonald’s case. But this was worlds away from Macdonald’s trial, with its ceaseless media coverage and public scrutiny. This time, there wasn’t a single person in the public gallery—no friends, family, reporters or supporters. The swift acquittal had only court staff and jurors for an audience: justice done but unobserved.
King shook hands with his client as he stepped out of the dock, slapped him on the back and wished him luck. He doubted he’d ever see him again, despite having saved the guy’s skin.
It was nearly three months since Macdonald’s acquittal and although King was already one of the country’s most high-profile lawyers, the trial had defined him in many ways. He’d taken the cases of Scott Watson and John Barlow to the Privy Council, helped represent Peter Ellis, and had been pilloried for his role in defending Clayton Weatherston who brutally murdered Sophie Elliott.
‘But this one was at a level and scale that I didn’t expect,’ King said. In public it was all anyone wanted to talk to him about and, more often than not, they wanted to have a go at him about it. The week before, in Hamilton at a speaking engagement, a bloke had bailed him up at the bar and let rip for an age. King had become public property.
In many ways he felt the case’s legacy was one of infamy rather than fame, because many thought he truly had been the devil’s advocate in getting Macdonald acquitted. ‘It’s not just people recognising you, it’s that most of them probably think you’re a total bastard.’
But he had never had any regrets about taking the case—he remained flattered that Macdonald and his family had chosen him and trusted him and had faith in him to deliver. ‘It’s one I think I’ll always remember. And for me it was another step in my legal career. I doubt very much whether I’ll ever do a bigger trial. I’ll do longer trials, I’ll do more complex trials, but in terms of all the aspects of dealing with the media and the public and everything else, this was a big learning curve for me as well. There’s no such thing as the perfect trial and there’s a lot of things that I probably would do differently.’
Equally, he thought there were things the police and Crown would change, given a second chance. ‘The old saying that hindsight is 20/20 is never truer when it comes to a police investigation. Police construct a case, the defence look at deconstructing it, and the obvious way to do that is to point to everything they didn’t do and say they should have done it, and everything they did do they didn’t do well enough.’
But the ability to do this, to examine and challenge the prosecution case properly, was becoming increasingly difficult, King warned. In Macdonald’s case, with its enormous amounts of evidence from a police investigation that stretched nearly two years, Legal Aid initially approved only a junior counsel for King—something that would have been an insult to Peter Coles, who’d been a barrister for nearly four decades. Eventually, after an appeal from King, funding was granted for Coles at a co-counsel level, allowing Coles to spend the time necessary to unpick the police investigation into other suspects.
But King was still trying to get funding for a small portion of the hours junior counsel Liam Collins had worked, and Legal Aid still hadn’t paid for Paul Bass’s work. Until this happened, the cost had to be borne by King and Coles, something King described as ridiculous given all the expert help and officers on which the Crown was able to call.
While the defence’s costs for the case were $127,000, more than $200,000 had been spent on the Crown lawyers. Added to this was the nearly $700,000 the police investigation had cost, and over $100,000 for forensic work. Critics will say, ‘More than a million dollars spent and still nobody held responsible for Scott Guy’s death—what a shambles.’ Others, however, will counter that this is the price of justice, and one that must be sustained if we’re to prevent innocent people being jailed.
‘At the end of the day there’s never been any sex appeal in paying lawyers to represent people charged with murder, or any criminal offence,’ said King. ‘A lot of people are quite happy to pay anything to the police or prosecution to put the buggers away and don’t think a cent should be spent on defending them—until they are falsely accused of a crime, of course, in which case their view changes fairly significantly. I think the gap between the resources available to the prosecution and the defence has never been greater in New Zealand than it is today, and the risk of injustices is absolutely raised.’
Despite others’ concerns about the Sensible Sentencing Trust and Kylee Guy seeking to reinvestigate the case, King was positive and had already met with the trust. ‘The defence perspective is that Ewen Macdonald didn’t do this crime. If he didn’t do it, there’s someone out there that did who needs to be brought to justice, so it would be nice to see the police actively pursuing it. But the more help with the process the better.’
King’s enthusiasm to help was partly born from his unlikely friendship with Sensible Sentencing Trust spokesman Garth McVicar. In a 2004 North & South article, McVicar described King as just another defence lawyer with his snout in the trough. Never one to back away from a fight, King responded that he was happy to ‘go toe to toe with Garth McVicar in a public debate any day. Maybe they should use it as a fundraiser.’ McVicar, to his credit, took up the challenge and King spoke twice at Sensible Sentencing Trust conferences. Despite having sometimes widely differing views on justice and criminal rights, they became firm friends.
Their improbable pairing was matched only by King’s relationship with Gil and Lesley Elliott, the parents of Sophie Elliot. Despite King having defended their daughter’s killer in an often-distasteful trial, they were struck by his compassion for them and Sophie. Over time, they too became good friends. Indeed,
King, McVicar and Elliott, along with former ACT Party MP and lawyer Stephen Franks, established the Justice Hot Tub in 2011, a forum for debate on New Zealand’s criminal justice system.
Thus, King was comfortable working with McVicar and had suggested areas where more investigation could be carried out in the search for Scott Guy’s killer. ‘And I can say that my instructions from Ewen Macdonald were to cooperate with that, with the review—he’s encouraged it. Because the ultimate vindication for Ewen Macdonald is for the real offender to be brought to justice.’
For Bryan Guy, there were more important things to do than attempt to retry the case.
The contrast between Kylee’s rage and Bryan and Jo’s efforts at acceptance was illustrated in a statement Bryan made immediately after Macdonald had been sentenced to five years’ jail. ‘Today is yet another reminder of how one person’s actions have affected everyone in our family. The sentencing today does not give us closure or satisfaction. It is simply a reminder that there are consequences for the decisions that Ewen has made.
‘One consequence is that Ewen is no longer part of our day-to-day lives. He has lost our trust and has hurt us deeply and shaken the values which our family hold dear. However, the turmoil we have been through has brought our immediate family closer together and it is our future that we now focus on.
‘Our family is now challenged with building a new life. We are determined to build a future not on anger or revenge, not on resentment or sorrow. We must build a future for our children and grandchildren on love and compassion, on truth and faith.
‘We can only reiterate our heartfelt thanks to all New Zealanders for the support and caring you have shown our family, which continues to give us strength and courage.’
It was an example of the remarkable calm that had earned Bryan the nickname the Dalai Lama of Feilding. He had made mistakes in the past and knew the importance of forgiveness. In an interview with the Manawatu Standard, Jo Guy said she woke up every morning and found something to be thankful for, even if it was just the sunshine.