Weekend Did the cops get it wrong?
Ten years after Feilding farmer Scott Guy was gunned down in his driveway, no-one has been convicted for his murder. Police claimed Guy’s brother-in-law, Ewen Macdonald, was the killer, saying he had 19 minutes to kill, but he was acquitted after a dramatic trial. But did police charge the right man? Or was there someone else they ignored, who got away with murder? Mike White investigates.
David Berry’s 44-tonne Volvo was barely warm by the time he passed Scott Guy’s driveway just after 7am on Thursday, July 8, 2010. He’d noticed the headlights from Guy’s ute, 300 metres across the paddock, when he wandered out to his truck and set off for work along Aorangi Rd, on Feilding’s outskirts.
They were still shining as Berry worked his way through the gears and reached his neighbour’s property, where the Hilux sat idling, a few metres from the road. In that instant, Berry glimpsed Scott Guy, spreadeagled in front of the ute, arms thrown back, motionless. When he knelt beside Guy, Berry couldn’t feel a pulse. All he could see was a massive wound to his throat, and blood everywhere.
The first flecks of dawn were creeping across Manawatu¯ ’s sky, picking out the daffodils lining the driveway leading to Guy’s house, 100m away, when Berry stabbed at his phone and called 111. ‘‘My neighbour has had his bloody throat cut!’’
Scott Guy had, in fact, been shot, hit by at least two blasts from a shotgun, fired from just metres away. He’d died instantly.
Guy was 31, a farmer who’d grown up on Byreburn, the family farm he now worked on, a man with no obvious enemies. He’d married Kylee Bullock in 2005 and their first child, Hunter, was born three years later. When Scott was murdered, Kylee was seven months pregnant with their second son, Drover. The randomness and inexplicability of the murder immediately attracted enormous public attention, which was mirrored by the police investigation, with over 100 officers, and 2500 people interviewed. But month after month passed with no arrest, and pressure mounted on Operation Yellow’s head, Detective Inspector Sue Schwalger.
But then they got the break they’d been desperate for. After releasing photos of vandalism on Scott and Kylee’s house in 2009, including abusive graffiti, someone thought it looked like the handwriting of one of their former employees, Callum Boe. Boe had worked on the Guy family farm and been mates with Ewen Macdonald, who had married Scott’s sister, Anna, and ran Byreburn’s dairy operation. Police were already aware of tension between Macdonald and Scott Guy over the farm’s future, and Macdonald had become the investigation’s main focus by early 2011.
When detectives visited Boe, he spilt his guts: Boe admitted he and Macdonald were behind the vandalism, and a string of other crimes, including burning down an old house on Scott’s property; shooting a neighbour’s stags; dumping milk and killing calves on other farms, and torching a historic duck-shooting lodge. Then he stammered he had a gut feeling Macdonald had shot Scott Guy.
It was all police needed – confirmation Macdonald had a vendetta against Scott and Kylee, confirmation he could commit violent acts and get away undetected, assurance the teetotal father of four was the murderer they suspected he was.
Four days later, on April 7, 2011, two detectives arrived at Macdonald’s house as he ate Weet-Bix for breakfast and took him in for questioning. After hours of lying about his involvement in the other crimes he’d committed with Boe, Macdonald crumpled, and finally fessed up. But he swore he hadn’t killed Scott Guy.
‘‘You can see the finger points at me. I’m in a bad situation, but I had nothing to do with that . . . I’m not the murderer . . . I am not guilty.’’
Police didn’t believe him. That night they visited him in the police cells and, despite having nothing actually linking him to the crime scene, charged him with his brother-in-law’s murder.
The following year’s trial in the High Court at Wellington was extraordinary: four weeks of ceaseless public and media attention, as family, friends and farmworkers gave evidence. In the dock, Macdonald stayed silent.
The police case was this: resentful at Scott’s laziness and sense of entitlement about the farm, worried about his future, Macdonald believed the only solution was to murder the man who’d been best man at his wedding.
So, early on July 8, Macdonald biked the 1.5km between his house and Scott’s driveway, closed the gates, and waited till Scott arrived, on his way to work. At 4.43am, he killed Scott with the farm shotgun when Scott got out of his ute to open the gates.
At some stage, police claimed, Macdonald stole three labrador puppies Scott and Kylee were raising, from a shed near their house, to make it look like a burglary gone wrong.
Macdonald then biked back home, hid anything incriminating, cleaned himself up, and walked to the nearby farm workshop to unlock it at 5.02am and begin the day’s work.
Nineteen minutes to kill. That was the police theory.
The only evidence linking Macdonald to the murder were footprints left at the crime scene, which they claimed matched dive boots Macdonald purchased six years before.
But, in a dramatic twist at trial, Macdonald’s wife, Anna, recalled those dive boots being thrown out two years before. Moreover, Macdonald’s lawyer Greg King showed the prints at the scene most likely came from a size 11 or even 12 boot – while all Macdonald’s footwear was size nine.
Macdonald was found not guilty. As the verdict was delivered, Kylee ran from the courtroom, clutching Scott’s cowboy hat, screaming, ‘‘He killed my husband’’.
And that’s what possibly most New Zealanders think – that Macdonald was guilty, but got lucky and got off. Some of that is based on slivers of evidence, but most comes from the other crimes Macdonald committed, and the sense it’s a short step from bludgeoning calves to shooting your brother-in-law point-blank.
Gut instinct is seductive and satisfying in such cases. It’s also fickle and fallible.
And at the heart of resolving this conundrum is a basic question, often overlooked in an emotion-laden case: was it actually possible for Macdonald to have killed Scott Guy?
The police and prosecutors argued Macdonald had from 4.43am to 5.02am to commit the crime – those 19 minutes affording him ample time to kill Scott and cover his tracks. But it was never that simple.
After Scott Guy got up that morning, he made a coffee, and checked his computer. His last keystroke was at 4.41am. Nobody knows what he did after that, and what time he actually left the house and began driving to work. At the very earliest, he arrived at his gates at 4.43am.
Scott was due to start at 4.50am, at the workshop behind Macdonald’s house, 1.5km, or about a minute, away. So, if he arrived at the gates at 4.43am, he was unusually early, therefore it may have been later. (Interestingly, in letter seen by Stuff, written shortly before the trial, prosecutor Ben Vanderkolk put the time of death at ‘‘about 4.47am’’.)
Macdonald was meant to start work at the same shed at 5am. So, if he was the murderer, he had to be sure he could kill Scott and make it back to the workshop by this time. If he was late, the other farm workers waiting there would have told police and suspicion would have immediately fallen on Macdonald.
He couldn’t control when Scott left his home, and would have expected him to be driving to work around 4.48am, perhaps. That gave him just over 10 minutes to shoot Scott and do the following:
■ walk over to him and check he was dead (the killer’s footprints were found beside Scott’s body)
■ collect the shotgun shells which were never found
■ retrieve his bike (no bike tracks were ever found anywhere)
■ cycle home (a police test suggested this took around four minutes)
■ dispose of the puppies if he hadn’t done this already, and the shotgun shells
■ return the bike to his garage without leaving any traces of mud or water (it had been raining) that would be noticed
■ clean the gun and break it into three parts, storing them separately in the adjoining farm office
■ check he didn’t have any tell-tale marks on himself
■ get rid of his clothes, particularly his boots, and change into his milking gear.
All this by just after 5am, when he was seen coming from his home looking as if he’d just got up, retrieving the farm workshop key, unlocking the door, and deactivating the alarm at 5.02am.
There’s one more complication to the police theory of 19 minutes to kill: farmworker Matthew Ireland.
The exact time Ireland arrived at the shed behind Macdonald’s house, ready for work, is impossible to pinpoint, but it was likely between 4.40am and 4.50am. He waited in his car for some time before seeing Macdonald emerge from his house at 5am.
It’s unlikely Macdonald could have sneaked back after killing Scott Guy and stashed his bike and gun and clothes, without tripping a security light or Ireland noticing him.
So even if Ireland’s arrival is at the extreme end of estimates – 4.50am – and Scott Guy’s murder occurs at the earliest time possible – 4.43am – then the 19 minutes police claimed Macdonald had to carry out the murder suddenly shrinks to just seven. And in any scenario involving Macdonald, minutes matter.
Prosecutor Ben Vanderkolk claimed Macdonald could have hidden everything from his killing trip and dealt with it later that day. But Scott’s father, Brian Guy, checked the farm shotgun almost immediately after he reached the farm office that morning, and found it just as he’d hidden it.
Moreover, Macdonald was with family and farmworkers nearly all day, affording him little opportunity to clean up his crime.
It’s also worth considering the almost crazy risks Macdonald needed to take, to carry out his plan. His wife, Anna, could have noticed him getting up much earlier than usual. Kylee could have heard the shots and immediately called police, who might have intercepted Macdonald on his bike.
Matthew Ireland could have seen Macdonald cycling home with a shotgun. There were 10 houses between Macdonald’s home and Guy’s, where residents could have been up and noticed something or someone. As could anyone driving along Aorangi Rd that morning.
And there were people doing just that. Ireland clearly remembered a car coming from the direction of Scott Guy’s house, as he arrived at work – at almost exactly the time police suggest Scott was murdered. Ireland also recalled another car coming from the same direction, just after 5am, as they rode to the milking shed. Neither car has ever been identified.
Liam Collins, one of Macdonald’s lawyers, spent months trawling through 40,000 pages of evidence, trying to create a credible timeline that put Macdonald in the frame. ‘‘To this day, I have no idea how they actually think he did it. Second by second.
‘‘What time did he get up? How did he avoid Anna waking up? What time did he get up there? Did he kill the puppies before or after? Why would he cycle back along the main road? Why weren’t there any bike tracks? Tell me how could he do it.’’
Collins says the timeframe is so tight it’s unrealistic. ‘‘Ewen Macdonald plays forward in his rugby team – he’s not Lance Armstrong on a pushbike.’’
He also points to the fact Macdonald did not own a shotgun, and there’s no proof he knew where the farm shotgun was hidden.
‘‘And nobody in 10 years has said, ‘Oh yeah, I didn’t realise this was a big deal, but I gave Ewen a shotgun – now I remember.’ ’’
For Peter Coles, another of Macdonald’s lawyers, the cars Matthew Ireland saw remain utterly critical, and completely unresolved.
‘‘The only way you’d be on that road is if you knew of its existence and had some reason to be there – it’s not State Highway 1. The failure to find either of those cars, despite it being publicised throughout New Zealand, just defies belief, unless that car is connected with the murder – in which case it can’t be Ewen Macdonald.’’
Coles, who knew both the Guy and Macdonald families well, says people still want to talk to him about the case. ‘‘And they say, ‘Gosh, can you say what you really think?’ And I say, ‘Yeah, the jury got it right.’ ’’
He understands why people might think otherwise, especially given how much of the reporting of Macdonald’s trial seemed to paint him as guilty.
‘‘I remember, after the verdict, walking past one TV journalist looking gobsmacked with her microphone in her hand and saying to her, ‘How are you going to sell that to your viewers?’ ’’
Coles also points to the contradiction between the police image of Macdonald as a ‘‘calculating, careful, cunning killer’’, and the innumerable factors that were completely beyond his control in his plan.
‘‘And how do you explain, when you come rushing in the door and Anna’s up, walking round, going, ‘‘Where the hell have you been? What do you mean, you went for a bike ride?’ ’’
Coles is convinced police disregarded more likely suspects. ‘‘Once they found out about the other crimes he was involved in, I think they just closed the door. And after the trial, police simply shut the book and said, the jury got it wrong, we got it right, that’s the end of it, we’ve got no continuing interest in this.’’
Thus, Coles believes it’s unlikely the case will ever be solved. ‘‘I just don’t think there’s any appetite to pursue an alternative outcome.’’
Police say the case is still open, but inactive, with no staff dedicated to it.
Investigator and former detective Paul Bass, who worked on the case for the defence, rates the police investigation as ‘‘very poor’’.
‘‘These things work on a timeline and the timeline never worked for Macdonald to be the perpetrator, but they tried to make it work. It’s the classic case of making the case fit a suspect, as opposed to letting the evidence find you a suspect.
‘‘The forensic evidence they used to try and place him at the crime didn’t fit. And they didn’t really have a motive – all the angst between Scott and Ewen had been resolved and they were working well together at the time.
‘‘The case was all based on the bias of the wilful damage and activities with Callum Boe. And that bias continued even after the jury found him not guilty, with Sue Schwalger stating outside the court that police weren’t actively looking for anyone else – that’s the police tunnel vision on display for the rest of New Zealand.’’
Bass is adamant police deliberately attempted to hinder Macdonald’s defence, including not disclosing for over a year, until the defence suspected it, that they’d bugged Macdonald’s phones. In 204 intercepted conversations, he hadn’t said anything incriminating – an important fact for Macdonald’s lawyers.
‘‘Anyone with half a brain knows that should be disclosed. And, to me, that borders on perverting the course of justice – it’s a blatant breach of their duty.’’ (Police refused to answer any questions about this.)
Bass, who was in the armed offenders squad and commended for his actions during the 1990 Aramoana shootings, stresses he’s not anti-police.
‘‘I’m anti-abuse of power. I’m anti-unprofessional investigations. I was proud to be a detective. But I believe the public deserve a level of professionalism that certainly wasn’t on display in this case.’’
Another former detective who’s looked at the case, Tim McKinnel, insists non-disclosure of such fundamental evidence wouldn’t have been an oversight. ‘‘It’s deliberate. You don’t forget to do it. You make a conscious decision not to disclose it. And I think it harks back to an archaic attitude that police will determine what’s relevant and what’s not. And I’m sure it’s happening many, many times that we still don’t know about.’’
McKinnel, the investigator who exposed Teina Pora’s wrongful conviction, says he wasn’t at all surprised Macdonald was acquitted. ‘‘I was surprised they charged him, and, as it played out in court and the prosecution unravelled, it became clear they didn’t have the evidence. They were running on theories that weren’t supported by any evidence.’’
The fact that, on the very eve of the trial, Vanderkolk sought to introduce a jailhouse snitch who claimed Macdonald confessed to him in prison, perhaps suggests even the prosecution considered its case was thin. (The judge refused the snitch’s evidence.)
Even Paul Murray, the other prosecutor at Macdonald’s trial, has admitted the defence did a very good job unpicking the police case. And Kylee Guy supporter Garth McVicar, the Sensible Sentencing Trust founder, said after the trial that he believed police succumbed to public pressure and charged Macdonald before they had a strong case.
So, if not Ewen Macdonald, who else might have murdered Scott Guy on that bleak and brutal morning? Police had a list of 60 persons of interest, and at trial, the defence suggested farmworker Simon Asplin had motive and opportunity to commit the crime
But Peter Coles, who investigated the alternative suspects, has always believed a much more likely line of investigation was the violent local criminal who was out burgling that night. He has name suppression, but it’s known he was involved in a robbery before midnight, and what was stolen was swapped for 2 grams of methamphetamine. He then went out again for a long time.
His alibi, apparently accepted by police, came from his partner who thought he came home ‘‘maybe around 4am’’ but admitted she was ‘‘pretty wrecked’’ on meth herself. The woman, a well-known criminal who’d been charged with threatening to kill a police officer’s family, thought he stayed home after that. The next day, the man refused to discuss his activities, in front of her.
Numerous people told police the man – we’ll call him K – was behind the murder. One described raiding a cannabis operation with K.
‘‘That was really full on. If the guy hadn’t done what he was told, there were going to be gunshots. K was going hard out. K had two 12-gauge shotguns. He held on to one and D had the other. K has got lots of balls ... He’s hard out into the meth. He’s always on it, and gets real aggro.’’
In addition, part of the loot from his first burglary that night were Winfield Gold cigarettes. An empty packet of these, with a distinctive sticker showing it had been available only since June 21, 2010, was found near Scott Guy’s driveway, along with mystery car tyre tracks that have never been identified.
‘‘Given who he was, and what he was out doing that night,’’ says Coles, ‘‘and what he did the next day – I mean, that’s just alarm bells sort of stuff.’’
Police have always insisted the man had nothing to do with Guy’s murder, but have provided no reason – other than his crackaddled partner’s claims – why they ruled him out, apart from denying the murder was a burglary gone wrong, though their logic here has been questioned.
Nor will they answer any questions about whether they stand by their decision to charge Macdonald with murder.
Prosecutor Ben Vanderkolk won’t even say if he saw the investigation file before Macdonald was charged or gave advice whether there was sufficient evidence. Police refuse to comment on this also.
But police do admit they’ve not reviewed the entire investigation file since Macdonald’s acquittal.
Tim McKinnel says it seems regular practice by police after such cases to ‘‘do not much. And it’s not good enough. It’s not good enough in respect of victims and their wha¯ nau.
‘‘They have an ongoing duty with an unsolved homicide to do all they can to solve it, and Scott Guy’s case is no different.’’
‘‘Given who he was, and what he was out doing that night, and what he did the next day – I mean, that’s just alarm bells sort of stuff.’’ Peter Coles One of Ewen Macdonald’s lawyers, on another possible suspect in the case