Who Killed Scott Guy? (12 page)

Bass knew that Adobe software couldn’t search the files the police had given them and became increasingly frustrated at his inability to cross-reference material. While the defence could search within a page, they couldn’t search across the entire file—and there were more than 60,000 pages. He paid $700 for software that supposedly converted pdfs to searchable format but after nearly 50 hours had only managed to convert 20 per cent of the disclosure, and even that was incomplete.

On 26 April, Bass was at the end of his tether and wrote an angry email to Peter Coles saying that while police had a fully searchable electronic format, the defence had the equivalent of a whole lot of photocopies put onto a CD: ‘No disrespect, guys, but frankly I am over this one!’ Bass said the unfairness of the situation had to be brought to the judge’s attention and the trial needed to be delayed. ‘The police and Crown have shown a clear bias [against] the defence and have not provided disclosure impartially.’

In the following week Peter Coles wrote to Ben Vanderkolk twice, asking for assistance with searching material and for other crucial material that was missing from the police files. Greg King, halfway through his American study tour, was alerted to the problems and also emailed Vanderkolk. ‘Unless a searchable electronic version of disclosure is provided immediately I will have no option but to file an application for an adjournment of the trial date,’ he wrote. ‘This is obviously a last resort but we are facing an insurmountable hurdle trying to manually manage disclosure with the changes to the Crown case being made at this late stage.’

Vanderkolk replied, offering police assistance with searching but maintaining it was an issue for the defence to sort out. ‘It seems to be [a] problem in your search function not in the format of the disclosure.’

By this stage, a month out from the trial and still without a way to adequately search the mountain of police information, Coles, Collins and Bass were beyond frustrated. On 2 May at 4.30 pm, Vanderkolk and Detective Sergeant Grayson Joines arrived at Coles’ central Palmerston North office to discuss the problem. Paul Bass joined Coles for the meeting in the boardroom, convinced the police were just trying to hinder the defence and make their job as difficult as possible.

When Joines suggested they had actually been very helpful, Bass became incandescent. ‘Helpful? Fuck off!’ he yelled. ‘I know what you’re doing—I used to be one of you. You’ve been anything but helpful and you know it’s a blatant breach of the Bill of Rights and equality of resources.’

Coles told Bass to shut up and sit down, worried that Joines would just walk out, but remembers almost having to restrain Bass. ‘I thought he was going to climb over the boardroom table and actually physically take to him. He was just so angry.’

Eventually, Joines agreed that what the defence had been given was substandard, little more than scanned photocopies of the paper files they already had. It was then agreed that Vanderkolk and Joines would provide the police file in searchable format within two days. In the end, it wasn’t until 7 May that this was completed.

Coles remains convinced that the Crown and police were consciously trying to stymie the defence in preparing its case. ‘There’s no other way of looking at it. There was a deliberate attempt by the police not to give us disclosure we were entitled to and there was a deliberate attempt to give us disclosure that was initially no more use to us than the hard copy.’

Paul Bass believes if it wasn’t purposely obstructive, the police and Crown actions were utterly unprofessional. In 15 years as an investigator, he had never experienced a case where a month before a major trial, the defence still hadn’t got adequate, searchable files from the police. ‘Unfortunately, the police on occasions do lose sight of what their role is and the fact they’re the investigative arm of the judiciary. At times they get a tunnel vision approach. And having that tunnel vision means anyone that disagrees with you they consider to be the enemy. So they’re not overly helpful towards the enemy, as they perceive it to be.’

Difficulties obtaining all the information police held about the case continued until the trial—even during it there was still material being disclosed. But one glaring example of police withholding information demonstrates the problems the defence faced when preparing for the trial.

In late April, the defence got wind that police had bugged all Ewen Macdonald’s phones. To do so required a search warrant from a judge and is a fundamental part of any inquiry that must be disclosed by police. Coles was incredulous that this information wouldn’t have been made available to them and scarcely believed it could be true. But on 27 April he wrote to Ben Vanderkolk asking him urgently to advise them if any electronic interception had been carried out during the investigation and, if so, asking for an explanation as to why this information hadn’t been released to the defence.

Four days later, Vanderkolk admitted that police had bugged Macdonald’s phones but hadn’t told him about it—somehow hadn’t advised the man who was about to bring the police case to life in court.

On 30 March 2011—more than a year before—Sue Schwalger had applied to the High Court for permission to intercept Macdonald’s phone calls. Justice Gendall approved it the same day for a period of 30 days. The phones bugged were Macdonald’s cellphone, his home phone, the phone in the farm office and one in the milking shed.

In the eight days the bugs were in place until Macdonald was arrested on 7 April, 204 calls were intercepted but the police claimed no relevant information was gathered. While this might not have helped their case or perhaps seemed unimportant to them, the fact Macdonald hadn’t said anything remotely incriminating was of potentially great significance and assistance to the defence. With this information it could honestly claim in court Macdonald had never in any way indicated he was involved in the murder, despite police secretly listening to his private conversations.

Coles was livid. While he took Vanderkolk at his word that he didn’t know about the bugging, it showed the police had material they weren’t even going to let the Crown know about—let alone the defence. It also raised serious questions about what other information or evidence hadn’t been handed over.

Discovering such a crucial part of the investigation, just a month out from the trial, reinforced for Coles and Collins, who were holding the fort while King was in America, just what they were up against. Paul Bass, a veteran of police investigations, was blunt about the failure to disclose the bugging: ‘Anyone with half a brain knows it’s a requirement to provide that information.’ It was yet another part of the case that had left Bass exasperated by police tactics.

An arguably more serious example occurred while Bass was conducting interviews to support the defence’s request to have the trial moved from Palmerston North to Wellington. Bass interviewed 13 people to see what they’d heard about the case and what rumours about Macdonald were doing the rounds. But when he went back to them with their typed-up affidavits, three declined to sign. One was someone who had spoken to the Guy family to make sure he had their permission and was previously prepared to sign the document. He later told Bass that a police officer who had become aware he’d been approached by the defence had phoned and persuaded him not to sign the affidavit.

In Bass and Coles’ view, the police were trying to keep the trial on their home patch to give themselves an advantage. ‘It’s very disconcerting that police should be ringing and trying to dissuade people from expressing an opinion when it comes to justice being done,’ said Bass. ‘That’s bordering on perverting the course of justice, in my view. And it surprised me. But in the years I’ve been out of the police it’s very hard to surprise me now in regards to what lengths some officers will go to.

‘There’s a definite mindset in the police,’ he added. ‘There’s a them and us attitude because they are always working in a negative environment, often talking to people who’ll sit there and look them in the face and tell them something and then a couple of hours later they’ll finally admit they’re lying. So you get a mindset that nobody can be trusted—everyone’s an arsehole, everyone’s a liar, if we lock somebody up, they’re as guilty as sin.’

For Bass, who’d seen the system from both sides, it had become increasingly clear that anyone accused of a crime was immediately at a huge disadvantage merely because of the resources the police had and the tactics they employed to gain a conviction. ‘I liken it to a blue juggernaut running you over. When you’re charged by the police it’s a very daunting situation to be faced with. Unless you have the financial means, where do you turn, what do you do?’

As the trial neared, Kerry and Marlene Macdonald encouraged their son to try to forget what was happening at home and just concentrate on himself and helping his defence team. But it was hard. Anna had broken up with the man she’d been seeing, who’d gone back to his wife, but there was another boyfriend on the scene, and while Ewen knew his marriage was over, it was still unsettling. He tried to focus on his children and spoke to them most days by phone. They’d all been told what was about to happen and that everyone would find out if Daddy shot Scotty.

Kerry and Marlene would sometimes take the children to the prison to visit Ewen, but most of the time they went by themselves, taking in a bag of magazines and newspapers for him each time. They had organised to come to Wellington for the trial and one of Blair’s friends had offered them a house to stay in. But the problem was that as prosecution witnesses they couldn’t actually attend court until they had given evidence.

So Kerry decided he would go to Hamilton for a work conference in the trial’s first week, knowing he would be of little use in Wellington. ‘I’d just be pacing up and down. Marlene and I would either drive ourselves to drink or I’d be over in the park opposite the blimmin’ house smoking cigars every five minutes.’ The events of the last year had taken peculiar and individual tolls—Kerry had started smoking again after 20 years. Some days would be worse than others. As they counted down to the trial, more and more people would come into the shop and wish him and Marlene well. One Monday evening he arrived home and was ‘twitchy’, as Marlene described it. She could tell something was up so asked him what had happened.

‘Just a bad day today,’ Kerry had said, as he made himself a gin and stepped out onto the deck with a cigar. ‘It all just sort of got to me,’ said Kerry later, ‘and you end up feeling like shit.’ Still, in a strange but understandable way, they were looking forward to the trial, Kerry said. ‘Yeah, get on with it—it’s been a long time coming.’

‘I just want it to be over,’ added Marlene. ‘Even Ewen just keeps saying, “Bring it on, I’ve got nothing to hide.”’

On Wednesday, 30 May, six days before the trial started, Greg King organised for Macdonald to be brought to Wellington’s High Court from Rimutaka Prison. Macdonald had been shifted to Rimutaka from Manawatu Prison three weeks earlier, his life now able to be packed into five banana boxes. Somehow prison authorities managed to mislay them in the transfer, and when his parents first visited he was in ill-fitting pants and jandals several sizes too large for him.