by Mike White
The fact there were no witnesses to the act was hardly surprising and shouldn’t be an impediment to a guilty verdict, Vanderkolk suggested—killers don’t usually invite an audience to a murder. He also attacked the defence, saying their claim that Scott may have watched the revolving news on the last website he brought up, MSN NZ, was an elaborate theory, an attempt to compress the time Macdonald had to kill Scott and return home. This, and other claims by the defence, ‘offend your common sense’.
And was the defence’s ‘crude reasoning’ of proposing Simon Asplin as a suspect just a distraction and straw man, he asked, given Asplin had never committed any crimes against Scott and Kylee? He told the jury they could discount car tyre prints found near the scene, as well as the empty cigarette packet if they thought it was too old. And even Matthew Ireland’s memory of seeing a car as he arrived at work might not need to be considered, given only Ireland recalled seeing it. ‘You just have to be careful whether you use that as a fact.’
Macdonald, Vanderkolk suggested, had failed in his previous plans to displace Scott and Kylee from the farm and was left with only one final, desperate act. He made his move when talk began about the farm’s structure being altered, which would have eroded his security. The upcoming birth of Drover only added to Scott and Kylee’s permanence on the farm.
Scott had previously written, ‘My goal is to take over the family farm that my grandfather and father have worked hard for over the past 40 years. I want to continue to keep it within the family.’ These words, Vanderkolk mused, ‘may have been his death warrant’.
Vanderkolk repeatedly pointed to Macdonald’s nature, the depth of his resentment towards Scott and Kylee, his deceit and abuse of Anna’s trust. ‘No one really knows the mind of the accused. He’s given to limited self-expression . . . No one knows at any time, really, what Ewen Macdonald is thinking, what’s going through his head and how he’s processing information which affects him and his family.’
Despite the dive boot evidence having been strongly undermined, Vanderkolk had to return to it and try and reconstruct it as a cornerstone of the Crown case. The jury could be sure Macdonald purchased a pair of the boots just before going hunting on Stewart Island in March 2004, Vanderkolk said. While there was no receipt or proof of what he bought at Hunting & Fishing that day, the $35 on Macdonald’s Visa bill was equivalent to the boots’ wholesale price.
The damning recollection of Anna throwing out the boots when they moved house could be discarded, Vanderkolk argued, as it was contaminated by Macdonald’s suggestion from prison that this was what happened, and was unreliable given the pressure she was under. Moreover, Marlene Macdonald’s memory of the house key still being hidden in a boot at the new house, after Anna recalled throwing it out, proved Anna was mistaken.
But given the evidence King had raised about the number of rows of waves on the dive boots, Vanderkolk was forced to alter his stance on what sized boot Macdonald may have worn—it could have been a size 9 or 10 or even 11, he now said, despite having insisted throughout the trial that Macdonald was wearing a size 9 Pro Line boot and frequently reminding the jury that Macdonald’s footwear was uniformly size 9. Vanderkolk claimed he told the jury in his opening that it could be a size 9, 10 or 11 boot that made the impressions, but the court record shows he only mentioned a size 9 boot. Anyone who sat through the trial noticed this shift to accommodate the wave evidence—even though the approximately 29–30 rows of waves on the size 10 boots exhibited in court still didn’t match the 32–33 rows found at the scene.
At the same time, Vanderkolk also attempted to discredit the defence’s wave evidence, calling it a theory and claiming it was based on just three imprints from the dozens at the scene. He claimed the number of waves could be infinitely variable, depending on the manufacturer ‘and can change for heel strike, toe strike, ball of foot twist, overlaying impressions, soil type, substrate type, moisture and whether or not it’s whole or partial’. He pointed to some of the sample boots being worn down, suggested the defence had used convoluted calculations to come up with its theories and insisted it was impossible to say with precision how many rows of waves there were.
But it all seemed to be slightly desperate and, at times, a clumsy attempt to counter the defence evidence or at least confuse and cloud the issue. Despite being delivered in Vanderkolk’s assured and reassuring tones, it ultimately seemed insufficient and unconvincing.
Vanderkolk then returned to safer ground, to Macdonald’s personality, his sense of resentment towards Scott after he returned to the farm in 2003 and usurped some of Macdonald’s roles, and his sense of entitlement with regard to the farm, including his use of equipment for his own purposes. He pointed to Macdonald’s moods, his suppressed discontent and his ‘missions’ with Boe, often after a bad day on the farm. The poisonous notes he alleged Macdonald left for Kylee and the graffiti on her new house showed his intense personal hatred for her ‘and a message: “Go, go away”’.
The fact that Macdonald only admitted his other crimes when confronted with them, with no chance of denial, showed the jury couldn’t trust his claims to be innocent of leaving the notes or murdering Scott. Time and again, Vanderkolk stressed the line that Macdonald ‘just got it into his head’ to commit random, violent acts. Here was a man nobody understood, a man nobody could predict.
The prosecution’s strongest argument—as it had been from the time of Macdonald’s arrest—was the crimes he’d previously committed. And thus Vanderkolk kept these until near the end of his address, then reinforced what had been gone over relentlessly during the trial—Macdonald’s malicious, vengeful, vicious character. Shooting Craig Hocken’s deer demonstrated Macdonald’s proficiency with firearms, his skill hunting at night and his ability to hide the evidence of his criminality. The smashing of Scott and Kylee’s house with a splitting axe showed his ‘deeply embedded bitterness’. Vanderkolk exhorted the jury to go through the photos of the damage caused to the house in the attack—‘the trail of destruction just goes on and on’.
While it was impossible to imagine ‘the deep-seated frenzy and anger’ driving Macdonald, he also invited them to think about the state of mind of anyone who could vandalise a property so forcefully. ‘It’s extreme conduct of the most wanton kind.’
Any suggestion that Macdonald regretted what he’d done or atoned for his acts was dismissed. Arranging a kaumatua (elder) to bless the house afterwards was ‘cultural misappropriation’. His acts of kindness and gifts to Kylee were just a false trail. Instead, his argument with Scott at the Reve birthday party revealed his continued loathing of Scott and the antipathy the men had towards each other.
And while things might have been going well for Macdonald with his farming awards and greater focus on his family, renewed discussion about the farm’s future was what tipped him over the edge, Vanderkolk argued. In Bryan Guy’s draft plans for Byreburn, which Macdonald had seen, there was mention of Scott—but none of him, and this finally brought him to a point where the only answer he could see was killing Scott. And to do this he was prepared to take the necessary risks—as he had done when committing the other offences.
The shooting of Scott Guy, Vanderkolk reminded the jury, was not a drive-by attack, and wasn’t intended for someone else. It was targeted, planned and ‘carried out by a hunter with deadly prowess in the dark’. It was done by a man who could murder Scott ‘with the detachment of someone who euthanases a cow or goes hunting . . . an accomplished and confident gunman—he takes the shot and he makes sure of the kill’.
The murderer was a person Scott knew and recognised, and someone who resented everything about Scott. And that man, said Vanderkolk in a solemn coda, ‘is his brother-in-law, the accused—Ewen Macdonald’.
CHAPTER 17
Greg King
A COURTROOM MASTERCLASS
After Vanderkolk concluded, the court took its regular afternoon break. The judge exited to his rooms somewhere off to the right, the jury filed out in o
rderly procession, Macdonald was led back to the cells, the public spilled out into the foyer to line up for the next session, and media weaved their way through the crowds to grab a cigarette or make phone calls.
About to give one of the most important addresses of his career, Greg King left the courtroom only briefly. Black robes drooping off one shoulder, he walked across to the empty defendant’s box and leant against it, staring at the seat Ewen Macdonald had occupied for the last 18 days. It was as if he was reminding himself of his responsibility, of what he now had to do, of who he was there for.
For King, the trial had taken the course that many do—periods of extreme confidence mixed with moments of gloom and uncertainty. Early in the trial, King had been ebullient. The Crown hadn’t presented anything new and there was nothing he felt his team couldn’t clearly answer or at least cast serious doubt over. ‘I don’t think we could be in a better position than we are,’ King crowed at the end of week two. ‘It’s gone as I imagined it would. I’m feeling really, really good about it evidentially.’
Each night, King would review the day’s transcripts to make sure he hadn’t missed anything crucial that he would need to counter. Each weekend he’d go over the week’s events and note the points he needed to raise with upcoming witnesses and include in his closing address. There was a great deal of strategy: when to ask crucial questions, when to bring up important points with witnesses who were making several appearances, how to space his strongest arguments so the jury’s focus was maintained. ‘If you make all your good points on day one then you’ve got nothing left to do for the rest of the trial and the impact of those points can be dissipated by the time you get to the end of the case.’
Such was his confidence they could dismantle the Crown case, after a fortnight of the trial, King was planning to make an application to dismiss the charge when the Crown case ended. Such a move, under section 347 of the Crimes Act, is rarely made, and only in cases where it becomes clear the prosecution’s charges carry no weight.
In King’s view, the Crown’s case had been blown out of the water by Anna Macdonald testifying she remembered throwing out her husband’s dive boots in 2008. ‘Their whole case is built around those prints, and if these prints can’t be traced back to Ewen Macdonald in any reasonable way, what are they left with? They’re left with prejudice, they’re left with the fact he burnt the Guys’ house down and destroyed their property. But that’s years before. It’s all bad but I think we can show that after these acts, all the witnesses have been able to confirm there was a massive change of attitude and heart from Ewen.’
The best the Crown could come up with to prove tension and rancour between Macdonald and Scott were a few hot words at the Reve birthday party. ‘What a total and absolute fizzer,’ King said, sitting in his office reviewing the week’s main arguments. ‘It’s ridiculous. The whole thing is a beat-up.’
A week later, however, King’s mood was considerably less bullish, his strategy significantly altered. The third week had seen the jury presented with hours of video from Macdonald’s arrest interview, where his deceit was laid bare and his crimes chronicled in detail. Moreover, Anna Macdonald had slightly wavered on her recollection of throwing out the dive boots, saying she thought she remembered doing it but couldn’t be sure, and Marlene Macdonald had insisted she’d seen a dive boot with a key in it at the new house, after Anna claimed they’d been thrown out. ‘It wasn’t a great week for us,’ King noted soberly, the usual spark in his voice missing. It was the first time he’d seemed deflated during the whole case. ‘Obviously the emphasis was on the damage that our guy did and they certainly and properly made their point there.’
That week’s events had got to his client as well. When his parents visited Macdonald at Rimutaka Prison on the Saturday, they noticed how quiet he was. They gave him a hug but when they sat down Macdonald looked at them and started crying.
‘It’s going to be okay,’ Marlene said, trying to reassure her son, despite being shocked at how down he was.
‘No, it’s not,’ Macdonald replied. ‘I think they’re going to convict me no matter what.’
Seeing video of himself in his final police interview acting innocent of the other crimes had been excruciating. ‘Fuck, this is hard to sit through,’ he noted in his diary as he watched it in court. ‘Just get it over with—stop lying.’ In his mind, Macdonald wondered how the jury would be able to see past several hours of him confidently pretending to be blameless throughout the interview, when he knew he was guilty of most of the things police were accusing him of.
‘I think your problem is you’ve had your head down for three weeks and you’ve forgotten how to keep it up,’ Marlene told him.
‘Yeah, I probably have,’ Macdonald replied. ‘But I’m just really worried that if I’m convicted, you’re going to be crushed because you’ve always been so positive and kept my spirits up.’ He told his parents that he felt like giving up and just pulling the blankets over his head come Monday morning, because the strain had become too much.
‘He was struggling,’ Kerry Macdonald recalled. ‘A bit overwhelmed—well, a lot overwhelmed.’
‘We love you no matter what,’ Marlene told her son. ‘It’s unconditional and we’ll never turn our back on you. You’ve just got to trust Greg.’
And of course Macdonald did—but he also found it difficult not to be able to speak up and defend himself against accusations he felt were wrong and unjust.
For three weeks he’d barely seen any sunshine, and his face was now noticeably pale when he entered the dock. He was still coming to terms with the break-up of his marriage and struggling to imagine any kind of future for himself, no matter what the trial’s outcome was. He’d not seen his children since being shifted to Rimutaka, relying on phone calls and trying to cope with moments like his 6-year-old daughter Lucy asking him, ‘Will I still be your little princess?’ On trial days the only people he had to talk to were his prison guards, and his lawyers who made brief trips down to see him in the court cells during breaks in proceedings. On weekends he was allowed a single visit from his parents.
But such was his state that weekend, he said he didn’t really want to talk to anyone else and even told his parents not to bother phoning the next day. Try as he might, he felt the jury would just concentrate on the other crimes he’d committed and deem him a bad man—a man who could kill his brother-in-law.
King was just as worried about this and equally sombre that weekend. ‘My concern has always been that the jury will do the simple thing and say, “Whoever did the damage must have done the murder.” I’ve said that from day one. We always knew it was coming but I think certainly it came out that it was obviously serious offending. So in those respects obviously we’re not in the position that we were a week ago—possibly we went backwards.’
The idea of asking for the case to be thrown out had been dispensed with—the Crown had a clear argument and it was too much to expect a judge would override the jury’s role and dismiss the charge against Macdonald.
So here King was, about to give his closing address, leaning against the dock, head down, organising his thoughts and arguments. Eventually he stood up and paced across the courtroom as media and the public began to take their seats. Anyone watching him would have noticed his shoes, spectacularly bold silver-and-black numbers with large stencilled lettering covering much of their uppers. Court staff had been so taken with them they’d taken photos on the two occasions he’d worn them.
King’s wife, Catherine, dashed in to give him a few words of encouragement and Liam Collins cracked a joke about being ready to take over if King couldn’t deliver his closing, like All Black Stephen Donald stepping up in the 2011 World Cup final to kick the match-winning penalty.
Just before court resumed, King walked across the court again and through door S8 to check on Macdonald, knowing that the next few hours and what he said during them would likely determine the verdict and Macdonald’s future.
&n
bsp; ‘If it pleases Your Honour, Mr Foreman, ladies and gentlemen of the jury, everything that you have just heard from my learned friend, of course, would be absolutely true if Ewen Macdonald were the killer. If he wasn’t, then all you have just heard is wrong,’ King began.
‘And in a four-hour closing address you heard about 20 minutes of evidence and three hours and 40 minutes of allegation . . . If you start from a presumption of guilt, then you can make everything else fit retrospectively. If he’s done it, it must have been his boots. If he’s done it, it must have been the farm shotgun. If he’s done it, he must have been able to do it within the timeframe. If he’s done it, he must have been able to get away with it and not be seen. If he’s done it, he’s taken a huge risk and gotten away with it. If he’s done it, everything he said afterwards is contrived and manipulated. If he’s done it, arriving at work exactly on time, looking exactly normal, wearing exactly what he does every morning when he’s not on earlies is all a big trick.
‘But if he hasn’t done it, members of the jury, they are the actions of an innocent person going about his normal and daily routine.’
King then listed four fundamental reasons why the Crown case was completely discredited. Firstly, there were the four people who heard shots or something that woke them at 5 am—a time Ewen Macdonald could not have been at Scott Guy’s gate committing the murder. Derek Sharp’s convoluted explanation for suggesting he heard shots around 4.45 am was mocked by King, who again questioned why the police hadn’t taken a few seconds to check the accuracy of Sharp’s clock and the veracity of his evidence, given that their case hinged on his timing.
Secondly, King raised the issue of the three bangs neighbour Bonnie Fredriksson had clearly heard as she lay awake. If there were three shots in rapid succession as she recalled, there was no way the double-barrelled farm shotgun, which held only two cartridges, could have been responsible. ‘And if it is excluded, there is no alternative theory—the Crown case is fatally undermined. It must be. There is no plan B. It will be pure speculation and guesswork to say, “Well, I think there were three bangs but, oh, he must have somehow got access to a semi-automatic shotgun, disposed of it with the puppies, with the dive boots, with the spent cartridges.” There is just no evidential support for that whatsoever. If the farm gun is excluded because it can’t go bang, bang, bang, then in my submission the Crown case is in tatters.’
