Who Killed Scott Guy? (33 page)

But perhaps the most fatal flaw in the investigation and Crown case regarded the dive boots Macdonald was supposed to have owned and worn when he shot Scott. It bears repeating that this evidence was the only thing that supposedly directly linked Macdonald to the crime scene—in many ways the Crown case hinged on the dive boots. Yet Greg King was able to dismantle this accusation by doing the simplest of things—showing that the number of wavy rows on the boots exhibited in the court didn’t match that on the prints found at the scene. Not only did he do this dramatically and forcefully, but the Crown expert, David Neale, was left looking startled and floundering for reasons why this might be the case. Again, it appeared as if the Crown had been caught unawares, despite the differences being so obvious.

Even after the trial, King remained unsure if the police and Crown simply overlooked this most basic evidence, or were aware of it but simply hoped it wouldn’t be noticed or raised by the defence. The first answer indicates ineptitude. The second suggests cynicism, that police knew the boots wouldn’t have fitted Macdonald but proceeded with the case against him anyway.

Reference to the number of rows on the imprints left at the scene appeared in Neale’s copious working notes of nearly 1000 pages. ‘He was onto it,’ said King. ‘Why wasn’t it in his final report? I don’t know.’ Whatever the reason, the failure by police to fully compare the soles of their reference boots with the prints found at the scene opened the floodgates for one of the most damning attacks on their case.

And it wasn’t just the number of waves that scuppered the Crown boot theory. It was also Anna Macdonald’s recollection that she threw out Ewen’s dive boots when they shifted house in 2008. Astonishingly, the Crown was blindsided by this revelation. Somehow police hadn’t asked Anna clearly what eventually happened to the boots, something Ewen Macdonald had told King. The fact that police and prosecution were stunned by this evidence was shown when they obtained permission from the judge to take Anna back in for several more hours of questioning on the evidence she’d given.

From that point on, the thinness of the police case against Macdonald was terribly exposed, along with the disturbing prospect they’d actually got the wrong man.

Of course, any criticisms of police must be prefaced by the recognition that hindsight is a cynic’s best ally. Police were confronted with extraordinary amounts of information to follow up, including puppy sightings the length of the country, psychic visions and deliberately false statements, all of which had to be sifted.

Even Greg King, who spent four weeks in court trying to undermine and deconstruct the police case, said there was no lack of effort by investigators. ‘At the end of the day the evidence just wasn’t there. It wasn’t as if there were fingerprints at the scene that they missed. If there’s no evidence you can’t blame the police for not finding it.’

That said, King wondered if police focused too much on the link between the arson and vandalism to Scott and Kylee’s property, and Scott’s murder. ‘It’s a natural enough thing to do but the problem was that you don’t do it at the expense of everything else.’

Crown documents reveal police pinpointed Macdonald as the likely murderer in early 2011—well before they discovered he was responsible for the crimes against Scott and Kylee. Their investigation had hit a wall, the team was being downsized because very little information was coming in, and they had come to the conclusion there must be a link between the arson and vandalism, and the murder. Macdonald had been on their radar because of talk of his differences with Scott. As soon as his role in the arson and vandalism was proven, they immediately moved to charge him with Scott’s murder, despite having no compelling evidence connecting him with the crime.

And here it’s useful to pause and consider what that meant. Having charged Macdonald in April 2011 with Scott’s murder, there was no turning back. Any evidence they collected after this event was likely to be viewed in only one way—through the myopic lens of the presumption of guilt, as Greg King described it. Having already made up their mind and in effect publicly declared who’d committed the crime, the police were faced with enormous difficulty if evidence subsequently surfaced that pointed to someone else, or suggested Macdonald was innocent. This raised the possibility that only evidence contributing to their theory of Macdonald’s guilt would be sought, allocated resources or analysed—and any other information might be ignored or simply explained away. Once the investigation’s direction was set, objectivity seemed difficult to maintain.

It’s important to note the police investigation didn’t end with Macdonald’s arrest—an enormous amount of information was gathered, assessed and reconstructed in the 14 months between him being charged and the trial commencing, including much of the dive boot analysis, the only thing supposedly connecting Macdonald with the murder scene.

By charging Macdonald when they did, police and the Crown painted themselves into a corner. It would seem extraordinary, if not inconceivable, that, after arresting Macdonald, they would later say, ‘Oh, well, actually, we’ve discovered a whole lot of other stuff and we’re not so sure he did it after all.’

Well, almost inconceivable. In July 2011, three months after Macdonald’s arrest, police officers on two separate occasions walked into Kerry Macdonald’s shop and casually mentioned the lack of evidence against his son. The discussions were such that Kerry strongly believed they were sounding him out as to what the reaction would be from him and Ewen’s lawyers if the murder charge was dropped. Whatever the police thinking had been, whatever the reason for these visits, they continued to trial with the evidence they had, limited as it was.

Police tunnel vision is an issue frequently raised when arrests and convictions are challenged. While police, often correctly, dismiss these accusations, in this case it is difficult to view the latter part of their investigation in any other way. Few would have qualms with this approach if all the necessary evidence had been amassed by the time of Macdonald’s arrest or the evidence they had already was utterly convincing. But as became very clear during the trial, this wasn’t the case here. Police had evidence—very strong evidence—of motive and a wealth of prejudicial testimony regarding Macdonald’s relationship with Scott and events on the farm, as well as a possibly plausible scenario on the morning of the murder—but they still lacked anything directly linking him to the murder.

At Macdonald’s final interview before his arrest, Detective Laurie Howell told him, ‘You’re the only logical person,’ betraying the police’s own logic and investigation trajectory.

Police had unquestionably explored and discarded other motives, including the missing puppies, other thefts in the area and the common rumour of a drug connection.

But their readiness to rule out that Scott’s murder resulted from a burglary gone wrong deserves consideration. At trial, Detective Sergeant David Thompson outlined why they decided against a burglary scenario. Firstly, he said the building would not stand out to burglars and there were more attractive rural options. Really? Here were two adjoining sheds close to the road, on the property of a nearly new, expensive house, but far enough away from it that a thief wouldn’t be heard. Why wouldn’t burglars have considered it potentially prime pickings?

Secondly, he said nothing, other than the three puppies, had been taken, despite the door to the building being open. But what’s to say the burglar didn’t just take the three puppies on an initial foray and was intending to return to the sheds when he was disturbed by Scott going to work? Maybe the puppies were their target anyway, given there had been other thefts of dogs in the wider area and the labrador pups were valuable, had been advertised widely and could well have come to a burglar’s notice.

Thirdly, Thompson suggested the sheds were a good vantage point for a burglar to keep an eye on Scott and Kylee’s house and if they saw some activity there, they could remain undetected in the shed. But that makes no sense at all if the burglar has driven to the property and has a car parked at the end of Scott’s driveway or nearby. The burglar is hardly likely to stay hidden in the shed if they suddenly see lights on in the house and someone coming outside who will naturally discover the strange car and probably call police.

Finally, Thompson posited that a real burglar would have stolen or raided Scott’s ute, which was sitting idling in the driveway. But why would you do this, having just killed a man, knowing the ute is the single most obvious thing that will lead police to you? A ute with MR GUY licence plates? And if you’re on your own, are you going to steal Scott’s ute and leave your own vehicle there for police to find with all its incriminating information and leads?

Police insisted the murder was premeditated and always claimed the gates had been shut deliberately to trap Scott and force him to get out of his vehicle and open them. Both gates were open when Scott’s body was found. But if you were the killer, hoping to remain undetected in the dark just a few metres away beside the fence, would you wait until Scott had opened both gates—one of which needed to be physically lifted back out of the way, before you sprang forward and shot him? After opening the second gate Scott would have been heading back to his ute—probably not in the position where his body was found. It brings into question whether in fact both gates were actually ever closed or whether something else caused Scott to stop and get out of his vehicle—perhaps the sight of somebody, or a strange vehicle. Because remember, the other gate, to the horse and sheep paddock, was also found open. Why would this be the case unless you wanted either to drive a vehicle closer to the shed or were intending to return there by foot and opening this gate allowed the easiest access? Of course, there are arguments that can counter all suggested scenarios and innumerable uncertainties—but the grounds for police so readily discrediting the culprit being a disturbed burglar do not seem incontrovertible.

Police had amassed a list of 60 persons of interest, not including family, associates and co-workers, who were investigated. Therefore the only question that remains in this regard is how well they were scrutinised. As the defence suggested at trial, police didn’t seem to thoroughly probe the case against farm worker Simon Asplin, who arguably had motive, means and opportunity to kill Scott.

In another example, they accepted the alibi of a drug-addled crime queen for the whereabouts of her methamphetamine-addicted partner who was out burgling properties that night and was known to use shotguns. Presumably the case against these and other suspects was considered ‘illogical’.

Unfortunately, we don’t know the police reasoning behind all these decisions because they and prosecutor Ben Vanderkolk have declined to comment. But Sue Schwalger’s remarks after Macdonald’s acquittal, that police weren’t pursuing anyone else and there were no other avenues of investigation, were easily interpreted as meaning police still believed they’d charged the right man. And if you take a quick or cursory look at the case against Macdonald and the crimes he confessed to, it’s fair to say things look more than suspicious—they look awful. Even Macdonald in his final police interview admitted as much, while insisting he hadn’t killed Scott Guy. ‘You can see the finger points at me . . . I’m in a bad situation, yeah, but I had nothing to do with that.’

The fact that his crimes were all against property, all done with the encouragement of an accomplice, and the last one committed 18 months before Scott’s murder, count for little in most people’s reasoning. That’s because few of us can imagine setting fire to someone else’s house whether it’s occupied or not, or bashing calves to death. Fewer still can comprehend the thoughts that led Macdonald to take to Scott and Kylee’s new house with an axe, smashing any surface he had the space to swing at, then daubing obscene graffiti on its exterior.

When everything is lined up against Macdonald, it seems a short step from these crimes to murder, merely an increment of anger. Wielding an axe/pulling a trigger. Shooting a prized stag/ shooting a man.