The Scott Guy murder trial five years on

by Mike White / 07 January, 2018

Scott Guy, who was murdered in July 2010 at his home near Feilding.

Five years after one of this country’s most sensational trials, Scott Guy’s murder remains unsolved. Mike White investigates how it affected those involved, why New Zealanders remain so fascinated by the case, and whether we’ll ever know who the killer was.

On the afternoon of June 28, 2012, Greg King rose from his seat in Wellington’s High Court, pushed his chair aside, turned to his right and faced the jury. The prominent lawyer had been in this situation hundreds of times, summing up at the end of a long trial, but no case he’d been part of had attracted as much attention, or put more pressure on King. In his hands lay the fate of Ewen Macdonald, a Feilding farmer charged with murdering his brother-in-law, Scott Guy, two years earlier. The case had transfixed the country and the trial saw extraordinary scenes, with people jostling to get a seat in the public gallery, and ceaseless media coverage.

With black robe draped over his shoulders and sharp shoes poking from beneath pinstriped trousers, King began explaining it was impossible Macdonald was the person who stepped from the shadows early one morning and shot Scott Guy as he headed to work. His four-hour address was mesmerising, a courtroom masterclass, and as King concluded, he reminded the jury that, “this mystery is not solved. More work, much more work is required. One day hopefully it will be – but it’s not today.”

Five days later, the jury found Macdonald not guilty.

After the lawyers and jurors filed from the courtroom, and the last headlines were written, that’s where this case has remained: the murder of 31-year-old Scott Guy unsolved, unresolved; the weight of public expectation still suspended; the hopes of the families for certainty and finality left unsatisfied; the lives of so many blighted.

Many of those involved have moved on. Most express surprise five years have passed, and for others there has been more tragedy. But one thing that’s never changed, that everyone still wants to know is, who really did kill Scott Guy?

Ewen Macdonald’s defence team: Greg King (centre), co-counsel Peter Coles (left) and junior counsel Liam Collins.

On August 24 this year, the New Zealand Herald’s website flashed a bright red strap across its top. “BREAKING NEWS: Ewen Macdonald, who was acquitted of murdering Scott Guy, has won a club rugby award.”

With the country’s election a month away, Donald Trump’s irrational fingers hovering over missile launch buttons, and the world mourning the Barcelona terror attack, this was deemed news of such proportions that our lives should be interrupted to announce it.

Let’s be clear, Macdonald wasn’t playing for a premier team, but the Belfast Munchers side of weekend lumberers. And the award wasn’t even for being the team’s supreme player, but merely best forward. In an age of shallow news, this seemed to approach a tawdry low. But it hinted at our abiding fascination with this case, despite Macdonald having long been acquitted, and demonstrated that as much as Macdonald wishes it, life will never be anonymous.

Macdonald, of course, had been in jail for much of the time since his trial. He’d been sentenced to five years for other crimes he’d admitted, including smashing up Scott and wife Kylee Guy’s new house, burning down another house and a duckshooting hut, dumping milk and killing calves on other farms, and shooting two prize stags – all crimes committed with his friend, Callum Boe.

Despite having an unblemished prison record, Macdonald was refused parole three times and served all but five months of his sentence before being released in November 2015. Since then he has lived in Canterbury, become a highly valued employee, begun a new relationship and got married in October, and maintained strong contact with his four children, who live in Auckland with his former wife, Anna.

Yet, undoubtedly, some people remain convinced he killed Scott Guy and just got lucky in court.

It’s a view one of Macdonald’s former lawyers, Peter Coles, still comes up against. “There are a lot of people who’ll always believe, irrespective of the evidence to the contrary, that he must have done it. But certainly nothing has come to light since the trial that would in any way suggest there’s room for any question of the verdict. In fact, many people who’ve read more fully about the case since the trial have come to the very firm conclusion the verdict was absolutely right and Ewen Macdonald couldn’t have been guilty of shooting his brother-in-law, and that the matter remains unsolved.”

Another of Macdonald’s trial lawyers, Liam Collins, has never doubted the jury got it right. “Never. Not once have I ever thought he was guilty, or there was evidence to convict him.”

For several years after the trial, Collins, now a lawyer in Queenstown, would spend hours explaining the case to people and why Macdonald wasn’t guilty. Now, he just gives a short summary, “and within 10 minutes people go, ‘Didn’t realise that, didn’t know that’”.

And to those who insist Macdonald simply must be the killer because of the other offences he committed, Collins reminds them that Callum Boe did the same crimes, “and he didn’t murder Scott. You can do all that stuff and not be a murderer.”

Like Coles, former Crown prosecutor Paul Murray has a photo on his office wall of the lawyers, judge and court staff at the trial, and says he often reflects on the experience. “I mean, people were queuing to get in – it was extraordinary, just absolutely extraordinary. And you’re working in that bubble and you’re driving around in a taxi and talkback radio is talking about it, or you overhear people talking about it in a restaurant – it was quite bizarre.”

While he says he can’t give an opinion on the verdict, given he was immersed in the Crown case, Murray is generous with praise for his courtroom opponents.

“There’s no doubt the defence did a very good job of unpicking the case.”

Detective Inspector Sue Schwalger fronts the media outside the High Court at Wellington after the jury found Ewen Macdonald not guilty.

When the case had been heard and the jury’s verdict announced, the investigation head, Detective Inspector Sue Schwalger, addressed a small sea of microphones and cameras outside the High Court. Insisting no stone had been left unturned by police, Schwalger stated they were not pursuing anyone else, nor were there other avenues of investigation. It was easy to perceive her comments as shorthand for a belief that they’d got the right man, but just hadn’t been able to convince the jury.

And in the weeks and months that followed, there was a sense that this indeed was the end of the matter: despite Ewen Macdonald being acquitted, the case was effectively closed. Kylee Guy enlisted several private investigators to follow leads, effluent ponds at the Guy family farm where Macdonald worked were drained without finding any evidence, and eventually money for the investigators ran out. As years slip by, and memories fade, it seems increasingly unlikely anyone will ever be convicted for the murder.

Ewen Macdonald, who was accused of murdering his brother-in-law.

Detective Inspector Marc Hercock, who’s currently responsible for the case, says Scott Guy’s murder is considered unresolved, open and “inactive” – meaning no officers are working on it.

Hercock says in the last three years, they’ve received information which has been evaluated and investigated. He won’t give details, but says none of this, including that provided by Kylee Guy’s private investigators, has been significant. While police haven’t reviewed the investigation file since Macdonald’s trial, he says it was peer-reviewed by a detective inspector before trial, and elements of it had been looked at by police when new information was received.

Hercock stresses that if there is any reliable, new information, police will thoroughly assess it and “if necessary resume the investigation”.

But many, including Coles, believe police remain convinced Macdonald was the killer and further investigation isn’t warranted. “I’ve got no doubt that in the minds, certainly of the police hierarchy and management, they regard this as a case the jury got wrong – not them. I certainly don’t think there’s anyone with an actively open mind.”

Former police detective and now private investigator Tim McKinnel helped review the evidence for Kylee Guy after Macdonald’s acquittal, and says the case was highly speculative.

“I saw and did enough on the file to realise there were some fairly substantial evidential gaps in the police case. I can understand why Ewen Macdonald was front and centre of the suspects – I think that was entirely reasonable. But I question the decision to charge him based on the evidence police had.”

Teina Pora, who spent 21 years in prison for a crime he didn’t commit.

McKinnel was the investigator largely responsible for freeing Teina Pora, who spent 21 years in prison after being wrongfully convicted of killing Susan Burdett.

And he draws clear parallels between that case and Macdonald’s, in how police acted and reacted. “In Teina’s case, the mindset taken all the way through to his compensation claim is that, ‘we got the right guy’, when unequivocally the independent evidence points elsewhere.”

For years, officers had concerns about Pora’s conviction, “but there was a collective shrug of the shoulders. And I think one of the flaws with police culture is that it’s hierarchical in nature and what the boss says, goes.

“I naively thought at the beginning of Teina’s case, the New Zealand police would see the writing on the wall. The fact that never happened was shocking to me, given the weight of the evidence.”

McKinnel says police don’t consider a not-guilty verdict, like in Macdonald’s case, as a judgment on their investigation. “It’s more common to blame defence counsel. It’s rarely seen as a sign that they might have had the wrong person. There seems to be a real cynicism around the criminal justice process and what acquittals might actually mean.

“[Macdonald’s] acquittal was the decision the jury came to, and the police walked away from it at that point and wanted to have nothing more to do with it – and I don’t think that’s good enough.”

The failure to fully review the case since Macdonald’s trial and consider where they might have gone wrong also reflects a reluctance by senior police to critique investigations, he says. “They blindly follow what they’re told by the person who conducted them. And if you go back to Teina’s case, as far as I’m aware there’s been no independent review, no attempt to learn any lessons from such a grave miscarriage of justice… Why the hell not? If you don’t do that, you’re destined to repeat the mistakes you’ve made, time and time again.”

Chris Gallavin, Massey University’s deputy pro vice-chancellor and former dean of Canterbury University’s law school, says police are human and make mistakes. “Look, most of the time criminal investigation isn’t CSI Miami. It’s actually ‘follow the bouncing ball’: I’ve got a dead guy lying there, I’ve got a guy acting shifty who’s got previous convictions for serious assault, he’s telling people he’s going to kill somebody one day, and he’s got blood on his clothes. I mean, it’s usually like a ‘no-shit, Sherlock’ and he’s the one who did it.”

But sometimes police come up with a theory that’s wrong, can’t see the wood for the trees and defend their position despite overwhelming evidence, Gallavin says.

“In Teina Pora’s case, and in others, there’s just a complete and utter denial of having done anything wrong – and not even wrong, but that they could have done it better.”

Gallavin, who helped found the New Zealand Public Interest Project that looks at potential miscarriages of justice, and has used Ewen Macdonald’s trial as an example in his law classes, says admitting errors seems to be considered a weakness among police.

“We’d actually respect the police more if they occasionally said, ‘Do you know what, we’re going to go back and have a look at that because we think we could have done a better job.’”

This issue of being more open to publicly admitting mistakes was put to police, along with questions about whether they accepted their investigations had sometimes led to innocent people being jailed. Despite a request, police did not provide anyone for an interview or answer these questions. However, they provided a written statement from Detective Superintendent Tim Anderson, national manager of criminal investigations.

He says police are trained to avoid tunnel vision and there are regular reviews during investigations to ensure this. All evidence is weighed before prosecuting anyone, and at that point it is up to the judge or jury to determine the outcome. “Police accept the final decisions of the court.”

So why did Scott Guy’s murder and the trial of Ewen Macdonald attract so much attention, and a public fixation that endures today?

Gallavin says there was an element of soap opera to the case and trial that hooked people. “It was a classic whodunit, it’s a classic prodigal son, biblical story. It’s the Shortland Street effect. And as much as that sounds like a scathing indictment of New Zealand society, it’s just human nature.”

Peter Coles draws another analogy. “The farm at stake, the wife of the alleged murderer is the sister of the deceased – I’ve said before, if Shakespeare had written that one as a plot, someone would have said, ‘You’ve gone too far this time, Bill.’

“If this had been a family of non-photogenic people from some less-fortunate urban area, and it had been a trial where the thing at stake was a beaten-up family car of the 1990s vintage instead of a farm, TV3 wouldn’t have had a bar of it. It was one of those cases where everybody was photogenic – except the defence lawyers – and it was just made for TV, full of soundbites, high drama, High Court for a month.”

But this outsized public interest inevitably meant greater attention and heightened expectations on the police, Coles says. “I think some cases get a profile beyond the details of the evidence. And at the end of the day, unfortunately, those are the cases that sometimes are the worst examples of people being charged too soon, because there’s such a public expectation of a result, and there’s sometimes a hope the evidence turns up between then and the trial.”

In this case, police arrested Macdonald just four days after confirming he’d been involved in attacks on Kylee and Scott Guy’s property – without any forensic evidence linking him to the murder.

Ewen Macdonald’s father, Kerry, says his son was charged on “no evidence whatsoever. And how it ever went through peer review before it went to trial is just unbelievable.”

“My personal view,” suggests Len Andersen, president of New Zealand’s Criminal Bar Association, “is the publicity encouraged police to lay a charge far too quickly. The defence case was that they didn’t properly investigate it, and I think you can at least argue they established that during the trial. I mean, the  [dive boot, which the Crown claimed Macdonald wore when committing the murder] was the problem, and the patent ridiculousness of the police theory in terms of the fact nobody saw him.”

In cases where there isn’t overwhelming evidence, the temptation is for police to assume the accused person isn’t telling the truth, Andersen says, “rather than they’ve got the wrong person”. If that person is acquitted, police shouldn’t just turn their back on the case, he says.

“But let’s face it, if you spend all your effort trying to put somebody in jail, could you live with yourself if you were thinking it was the wrong person?”

Hawke’s Bay farmer Jack Nicholas, described as “a top guy, hardworking, conscientious and 100 per cent honest”

The similarities between Scott Guy’s murder and another unsolved New Zealand homicide – the 2004 shooting of Hawke’s Bay farmer Jack Nicholas – are often noted. Both farmers, gunned down early in the morning at their gates, police investigations that went nowhere for months until a crucial witness spoke up, and then a sudden arrest. However, at both trials, huge doubt was cast on the police investigations and theories, and the accused walked free.

The parallels between the two cases were such that police working on Scott Guy’s case consulted colleagues who’d investigated Nicholas’s murder. And for many, the parallels continue, with police appearing reluctant to consider they might have charged the wrong people.

In the Jack Nicholas case, police claimed 49-year-old Murray Foreman had killed Nicholas in retribution for being refused access across his farm while hunting a week before. Foreman, who lived 80km away in Haumoana, supposedly confessed to his neighbour over the garden fence on the morning of the killing that he thought he’d shot someone.

Immediately after Foreman was acquitted, investigation head Detective Sergeant Dan Foley said he was surprised by the verdict. “As far as the police are concerned, that is the end of the inquiry. We won’t be taking the matter any further.”

 

Police re-enact the shooting of Jack Nicholas at his garden gate, during their investigation into his murder.

Foreman’s lawyer, Bruce Squire QC, hit back at what the police were implying, describing the investigation as shoddy and selective, claiming they’d “simply picked the wrong man”. He alleged they’d made the fatal flaw that dogged many investigations of choosing a suspect and fitting evidence around them, rather than keeping an open mind.

It’s a view Squire still holds. “I don’t make criticisms of the police lightly, because they’ve got a pretty tough job to do and, by and large, they do it reasonably well. But in that case, police had very clear evidence that it couldn’t have been Murray who was responsible for the shooting.”

Squire sees incredible similarities in how police handled the Jack Nicholas and Scott Guy cases. In the Nicholas case, the trial hinged on testimony from the witness who eventually came forward claiming Foreman had confessed to her. “The police just grabbed that and said, okay, that’s good enough for us, arrested Murray and put him on trial.”

Squire says the police reaction after Foreman’s acquittal was essentially, “We got the right man but the jury got it wrong,” a view that left him angry, and left no scope for finding what truly did happen to Nicholas.

Garth McVicar, founder of justice lobby group the Sensible Sentencing Trust, was a neighbour and friend of Nicholas, and was also closely involved in the Scott Guy case, as a supporter of Kylee Guy. The fact that neither case has been resolved gnaws at him, and McVicar says it’s a huge weight on Kylee and her family. “Their hurt, their pain, hasn’t gone away.”

McVicar points to a number of high-profile murders which remain unsolved and suggests a review of how such cases are handled might be needed. One change he’d like to see is juries being made aware of defendants’ previous offences – in Ewen Macdonald’s case the killing of the calves, dumping of milk and burning of the duckshooting hut weren’t revealed to the jury because the crimes weren’t connected to Scott and Kylee.

McVicar claims such rules are leading to guilty people walking free. “I think we’re overly disposed into ensuring the offender gets a fair trial and I think that’s probably to the point of being out of balance now.”

The claim that if the jury had known Macdonald had killed calves, it would have reached a different verdict is often raised by those who allege he was a cold and brutal killer. But Paul Murray, who prosecuted Macdonald, says such comments have little value. “When evidence is excluded, it’s excluded for good reason, and there’s a legal process that’s gone through. There are all sorts of public misconceptions about judicial decisions just being made on a whim – but they’re not.”

Scott and Kylee Guy.

So will Scott Guy’s murder ever be solved, as Greg King hoped for in that memorable address to the jury?

McVicar remains positive and says other cases where information has recently come to light make him think it could happen. But then he admits this is based on “optimistic, hopeful thinking”, rather than any evidence. And virtually everyone else spoken to by North & South (Scott Guy’s parents, Bryan and Jo Guy, didn’t wish to comment for this story) doubts anyone will be convicted now, more than seven years after the murder.

If it was to be solved, it would perhaps require someone who the murderer confided in falling out with the killer and speaking up. But if it hasn’t happened in seven years, is that likely?

Of course, it can happen. It took police 34 years to convict Menzies Hallett of killing Rodney Tahu at Turangi’s Shell garage in 1979. And earlier this year, police made two arrests for the 1987 killing of Red Fox Tavern publican Chris Bush. The trail is never completely cold.

But Peter Coles doubts Scott Guy’s killer will ever be found because police are so committed to the theory it was Macdonald. He insists there were other credible suspects, but evidence against them was discarded or rejected by police “because it didn’t fit the end result they wanted. At the end of the day, it’s just not a fair outcome for anybody.”

His fellow defence lawyer, Liam Collins, says, sadly, only an admission will solve the case now. “I think it’s really, really horrible that it leaves the Guy family wanting to know, and Ewen’s family wanting to know.”

As for the continued media focus on Macdonald, Collins points to how he’s admitted his crimes, served a lengthy sentence, been a model prisoner and is now working and contributing in his community. “What else do we want him to do?”

Coles agrees, saying Macdonald has been treated much more harshly than others who committed similar crimes. (Callum Boe served just 10 months in jail for exactly the same offences.) And Coles says it’s time people let him get on with his life. “It’s well past that time.”

Even Garth McVicar, who admits he isn’t convinced of Macdonald’s innocence, accepts he’s done his time and kept out of trouble. “I think New Zealanders are quite a compassionate people, they’re quite an understanding people. If the system is open and honest, then it will give these guys an opportunity to get their lives back together.”

This was published in the December 2017 issue of North & South.

 

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