The Telegraph
31st July 2004
The day the music died
The death of Kirsty MacColl in a diving accident off the
coast of México made shocking headlines around the world. Now,
nearly four years later, her mother is fighting for the man whose
boat crashed into her in what she says was an act of criminal
recklessness to be brought to justice.
By Alix Kirsta
Twelve miles off the Yucatan peninsula, the island of Cozumel,
part of the state of Quintana Roo, is known as México’s crown
jewel. Its spectacular coral reef chain, the second largest in
the world, forms the core of one of the most richly diverse ecosystems
on the planet. It is ranked among the world’s top five diving
destinations, attracting thousands of visitors annually. Among
these was the English pop star and songwriter Kirsty MacColl, who,
like many celebrities, enjoyed the island’s laidback atmosphere.
In December 2000, after 18 months of uninterrupted work, Kirsty
MacColl needed a break. Passionate about water sports, she chose
Cozumel. This trip, her third, would be especially enjoyable since
she planned to introduce her sons, Jamie, 15, and Louis, 13, to
scuba diving.
On Sunday December 10, the evening before their departure, Kirsty
MacColl’s mother, Jean Newlove, a choreographer and teacher,
dropped by for supper. They had to make plans for Christmas, which
the family would, as usual, spend with friends at MacColl’s
house. ‘She
made out a list of groceries for me to buy. There were mince pies
to make, presents to wrap, the tree to put up,’ Newlove recalls.
Later MacColl dropped her mother home. ‘We hugged goodbye.
I said, “I love you,” as she walked away, and without
looking back she called, “And I love you.”’ That
was the last time Jean Newlove spoke to her daughter. On the night
of Monday December 18, two days before MacColl was due to return,
Newlove had just arrived home from the Old Vic and was making tea
when the telephone rang. It was MacColl’s partner, the
musician James Knight, who had also gone on the trip to México.
At first he was incapable of speech; after a long pause he choked
out the words, ‘Jean, there’s been an accident. Kirsty
is dead.’
Reports from Cozumel
The death of Kirsty MacColl at 41 made world headlines. She was
at a peak in her career, following the release of an acclaimed
new album, and tributes poured in from showbusiness colleagues,
friends and fans; obituaries stressed not only her unusually
wideranging gifts as a singer and lyricist, but also her warm,
unpretentious, outspoken nature, which made her a controversial
and much loved figure in the music business.
At the time of the accident James Knight had been relaxing at
their rented villa, so he was able to give Newlove little information.
Numb with grief, she could only scour press and television reports
for news of what had happened. No one from the British consulate,
from the local police or from Méxican authorities in Cozumel or
in London contacted her or anyone in the family with an explanation
or offers of help. In what was reported as an ‘unavoidable’ and ‘freak’ accident,
MacColl had been hit by a speedboat just as she, her sons and their
divemaster, surfaced after exploring the famed Chankanaab
Reef, about 300m offshore, an especially safe and popular site.
She died instantly.
Although Jamie sustained minor head and rib
injuries, both children and the divemaster had, apparently
miraculously, survived. But the more details were released
by the press — many of them conflicting or incomprehensible — the
less Newlove was convinced by accounts of the tragedy. The
Percalito, the powerful 31 ft motorboat that crashed into MacColl,
belonged to a Méxican tycoon who, at the time, was on board with
his family, including his baby granddaughter. According to some
witnesses, the boat was travelling at high speed and had trespassed
into the waters of the National Marine Park, a 67,133 acre site
protected since 1996 by federal laws that permit access only
to swimmers, divers and their support boats, and prohibits all
other motor vessels. The speed limit in the exclusion zone is four
knots.
The Percalito
According to local newspaper reports, the Percalito’s captain
and owner, 67 year old Guillermo Gonzalez Nova, who owns one of
México’s largest supermarket chains and hundreds of
other stores and restaurants, had allegedly admitted to being at
the helm when MacColl was hit. Local television coverage showed
him being led away by police for questioning. However, hours
later José Cen Yam, a 26 year old deckhand employed by Nova,
claimed to have been the driver, although he had no licence to
handle such a powerful craft as the Percalito. In his defence Cen
Yam insisted he was driving at one knot and denied seeing divers
or dive boats at or near the accident site, which he claimed was
not Chankanaab Reef but further out to sea.
To Jean Newlove the story didn’t add up. ‘Kirsty
was an experienced diver. She had taken courses and would not go
out without a dependable guide. Most of all, she would never
have done anything reckless that might endanger the boys. It was
surprising that this wealthy Méxican would allow his powerful,
valuable boat to be driven by an inexperienced deckhand, especially
with a small grandchild on board.’
Tragedy strikes
MacColl’s sons returned to London almost immediately afterwards,
and over Christmas, although Jamie was unable to discuss the accident,
Louis, Newlove’s youngest grandson, filled in more of the
horrific details. ‘We were going to do two dives,’ Louis
recalled. ‘On the first, about 2pm, we all went down together.
There were wonderful things there. I came up to the surface first,
Mummy was next to me. I said, “Wow!” She smiled and
said, “Great!” Then she suddenly screamed, “Look
out!” and tried to push us out of the way. The boat was already
over us —I could see the propellers.’ Swimming fast
in the direction in which his mother had pushed him, he noticed
the sea becoming tinged with red. ‘I was swimming in Mummy’s
blood. I heard Jamie shout, “Where’s Mummy?” I
screamed that she’d been hit, and to swim the other way and
not look back.’
As the boys were helped by Ivan Diaz, the
divemaster, on to their boat, the Scuba Shack, they saw MacColl
floating face down in the sea, the water turning a deeper crimson.
After slamming through the group, the Percalito drove 300ft
before stopping. A metal bar beneath a propeller, bent by
tubing ripped from MacColl’s diving equipment, had impeded
the propeller’s action. That was when the driver saw that
he had hit something.
In a statement to local police several hours later, Jamie described
graphically his mother’s body ‘with a huge cut... which
almost split her in two’. It wasn’t an exaggeration.
Two autopsy reports, the first carded out in México, the second
by Dr Richard Shepherd of the forensic medicine team at St George’s
Hospital Medical School in London, reveal that MacColl was sliced
open from the back of the neck to her waist; her left leg and part
of her chest were virtually severed. In his report Dr Shepherd
observed that because of ‘a massive amount of missing tissue’ he
wondered if she had previously undergone a mastectomy.
Jean Newlove, who last saw MacColl in her coffin and was struck
by how beautiful and unscathed she looked, did not learn these
horrifying facts until this year, when she visited México
for the first time to talk to witnesses. She is a cheerful, down
to earth 81 year old with apparently limitless energy, despite
a back injury and failing eyesight. As we talk in her West London
flat, the only time she begins to cry is when describing her daughter’s
injuries (and, later, her son’s nonfatal heart attack following
the tragedy). Even then, she insists these are tears of anger,
principally against Guillermo Gonzalez Nova, whose boat killed
her daughter and destroyed the family’s happiness. He has
not contacted her to offer condolences. ‘The full details
of Kirsty’s injuries are too awful for me to describe. Apparently
the paramedic threw up on arriving at the scene. But two boys have
to live with those last memories of their mother for the rest of
their lives.’
Career was on a roll
MacColl died when her career, after numerous setbacks, was on
a roll, and her personal life never happier. Her father was the
l950s folk legend Ewan MacColl, who died in 1989 (he left Jean,
his second wife, after Kirsty’s birth for the American singer
Peggy Seeger), and she saw herself first as a songwriter,
secondly as a singer. She wrote and recorded her first single, They
Don’t Know, aged 17. The song eventually became a hit
for Tracey Ullman. In 1981 MacColl made the charts with the rollicking There’s
a Guy Works Down the Chip Shop Swears He’s Elvis. She
refused to conform to the sweet or glamorous image of female pop
stars, and her most memorable and bestloved songs — including Soho
Square and the beautiful 1987 bit and perennial Christmas
favourite Fairytale of New York, in which she accompanied
Shane MacGowan and the Pogues — reflect a harsh, ironic and
often dark take on life and relationships.
After marrying U2’s producer Steve Lillywhite in 1985,
MacColl concentrated on bringing up their two sons, while collaborating
with many artists including Bono, Billy Bragg, Morrissey, Johnny
Marr, Keith Richards and David Byrne. The liner notes written by
many of these for her 1995 album Galore attest to their
admiration. Morrissey called her ‘a supreme original’,
and Bono rates MacColl as ‘one in a long line of great English
songwriters that includes Ray Davies, Paul Weller and Morrissey.
The Noelle Coward [sic] of her generation’. According
to Johnny Marr she had ‘the wit of Ray Davies and the harmonic
invention of the Beach Boys, only cooler’. Divorced from
Steve Lillywhite in 1995, MacColl fell deeply in love with the
musician James Knight a year before the release in 2000 of Tropical
Brainstorm, influenced by the Latin American rhythms she had
come to love on visits to Cuba, Brazil and México. Two weeks before
she died she had completed an eightpart BBC radio series about
the music, culture and history of Cuba. According to Karen O’Brien,
the author of a new biography of MacColl (Kirsty MacColl:
The One and Only, published in September by
André Deutsch), ‘The tragedy is that she was really
beginning to reach her prime.’
Slap in the face
The goal of Jean Newlove’s trip to México in March, apart
from visiting the spot where MacColl died and laying a wreath on
the water, was to submit new evidence to the judicial authorities
in the hope that criminal charges would be brought against the
owner of the Percalito. Backed by her campaign group, Justice for
Kirsty (JFK), whose many supporters include Bono, Billy Bragg and
Tracey Ullman, Newlove’s three year quest for the truth behind
her daughter’s death has gathered momentum, despite major
obstacles such as financial difficulties and, until recently, a
lack of help on the part of both British consular officials here
and in México, and the Méxican authorities in London.
‘I
was originally told, “It was an accident, the case has been
dealt with and is closed.”’ Whether the case was properly
handled is at issue. After being briefly under arrest, freed on
$9,000 bail and eventually tried without a jury (not uncommon under
Méxican law), José Cen Yam, the deckhand, was convicted
in Cozumel’s local criminal court of ‘culpable homicide’.
However, in March 2003, despite being sentenced to almost three
years in prison, he was allowed to walk free after paying a fine
of £61 in lieu of going to jail (amounting to one Méxican
peso for each day of jail time). In addition he was ordered to
pay £1,450 compensation to MacColl’s sons, a sum
calculated on the basis of the minimum wage in the state of Quintana
Roo.
For Jean Newlove it was the final slap in the face. ‘I
was sickened, the boys dumbfounded. Is £61 really what the
authorities consider my daughter’s life to be worth?’ The
derisory sentence strengthened her resolve to fight for justice.
When MacColl’s travel insurers, as well as private investigators
and lawyers hired by Newlove, began digging into the facts of the
case, they unearthed a catalogue of conflicting statements
and unsubstantiated claims. After pursuing independent enquiries
and studying all the existing documents, Newlove’s investigators
and legal advisers concluded that, while MacColl’s death
remains shrouded in mystery, its aftermath raises a number of questions.
Was it a bungled investigation or a flawed judicial process — or
both — that led to an apparent grave miscarriage of justice?
At the heart of the case lies the question: was Cen Yam really
driving the Percalito when MacColl was killed — or was he
a fall guy, taking the rap to allow someone else to escape criminal
charges?
Federal Prosecutor steps in
Although MacColl’s killing — classified as culpable
homicide — was both investigated and tried by the local state
prosecutor, the case is now closed, and, under state law, cannot
be reviewed or reopened. However, a higher judicial authority,
Cozumel’s federal prosecutor, Emilio Cortez Ramirez, is examining
the new evidence and apparent irregularities in the previous prosecution
before deciding whether or not to order a new trial. In the past
two months key witnesses, including Guillermo Gonzalez Nova, have
been subpoenaed to give evidence — for the first or the second
time. How Kirsty MacColl died is beyond dispute. What remains unresolved
is where she was killed (whether in or outside the protected maritime
park), the speed of the Percalito when it struck her, and who under
federal and maritime law carries ultimate responsibility.
In their original statements, used in evidence at Cen Yam’s
trial, Cen Yam, Gonzalez Nova and two of his sons (all of whom
were on board with Gonzalez Nova’s daughter in law and her
10 month old baby), claimed that they were coasting at a speed
of one knot in open waters, far from Chankanaab Reef, outside the
protected zone. This was contradicted by witnesses, including the
captains of three nearby dive boats and MacColl’s sons, who
claim to have seen the Percalito pounding over
Chankanaab Reef at 18-20 knots, its bow high out of the water.
Yet, during the original investigation, few of these witnesses
were called to give formal statements. At Cen Yam’s trial
in 2002 crucial evidence challenging Gonzalez Nova’s statement
was not presented. However, if evidence is needed to discredit
the version of events given by the Gonzalez Nova family and Cen
Yam, then it lies in the carnage the boat left in its wake: MacColl’s
mutilated body casts doubt on the claim that their boat was travelling
at one knot. One knot equals one nautical mile per hour, and is
approximately 1.7 feet per second: therefore the 31ft Percalito
would have taken more than 18 seconds to pass through MacColl’s
group, merely nudging them aside, allowing the divers —and
the skipper — ample time to avoid impact.
Instead, as Ivan Diaz, MacColl’s divemaster, tells me,
when he surfaced he saw the Percaiito about a quarter of a mile
away bearing down on them at great speed. Initially he assumed
it would swerve. ‘It was coming straight towards us. I thought,
Oh my God, these guys can’t see us, no question they’re
going to hit us. I was very scared, waving and yelling, trying
to get their attention, but no one appeared to be up front looking
out. With all the noise from the engines and the speed, there was
no way anyone could hear us.
Eye witness testimony
A gaunt, weather beaten native of Cozumel, 49 year old Diaz is
one of the island’s most experienced diving instructors,
having clocked up more than 10,000 hours underwater. Although the
driver of his boat, the Scuba Shack, and another dive boat, the
Nazareno, both tried to block the Percalito, it was going too fast. ‘I
could feel the propellers sucking me under, but managed to push
myself away from the side of the boat, helped by the waves, and
pulled aside the eldest boy, Jamie. Then I heard a crack and a
big clang as the propellers hit Kirsty’s tank. I first thought
I’d lost my legs, then I saw blood on my flippers and realised
I was intact, but Kirsty was dead.’
Diaz’s account has been confirmed in recent statements
to the federal prosecutor by the driver of his own boat, and the
captains of two nearby dive boats, the Nazareno and the Bongolis:
their evidence presented to the state prosecutor contradicts claims
by passengers on board the Percalito that the accident happened
in open seas. No responsible divemaster would have taken MacColl’s
two sons to the reefs there, which are 3,000ft underwater and notoriously
unsafe for beginners, compared to the 150ft depth of Chankanaab.
Gonzalez Nova asserts in his original sworn statement to the state
prosecutor that his boat hit MacColl 400m from Chankanaab;
and at the end of his statement he asserts that Red Cross staff
arrived at the scene and took MacColl’s body to ‘the
jetty... that was approximately 400m away’. However, Chankanaab
is about 300m from the shore, and if MacColl was hit 400m further
out, the distance to the jetty would have been 700m.
Who was at the controls?
Also in dispute are claims by Gonzalez Nova’s son Gustavo
that ‘there was no sign whatsoever to indicate that people
were diving.., neither was there a boat nearby, the nearest arriving
about 10 minutes later’. Although Diaz’s boat had not
put out warning marker buoys, it was flying its diveshop flag.
Gonzalez Nova has had a holiday home in Cozumel for nearly 40 years,
and every local recognises that this is a popular diving area.
According to statements made to both the port captain and the state
prosecutor by their captains and crews, the Scuba Shack and the
Nazareno were approximately 165ft from the accident, and the Bongolis
slightly further away; before hurrying to the aid of MacColl’s
group moments later, their captains noticed, as did Ivan Diaz,
that they couldn’t see who was at the controls.
‘After
they ran over us, I saw Cen Yam jump forwards from the back of
the boat, to the controls. I couldn’t see who was at the
wheel because the bow was so high out of the water,’ Diaz
claims in a new statement to the federal prosecutor. Although
apparently no one saw who was driving, Diaz stated in evidence
presented to the state prosecutor that Gonzalez Nova’s two
sons were in the front, nearest the controls; a boatman who was
on the shore has also told the federal prosecutor that he saw the
Percalito set off an hour or two before the accident: at
the helm was a darkhaired man who appeared to be one of the family.
What happened in the next few hours, after MacColl’s body
was brought back to the jetty of Playa Corona, is equally confusing.
In a statement to the state prosecutor Ivan Diaz claimed that
when he arrived at the dock he heard Gonzalez Nova tell police
that he was at the helm when the accident occurred. When Diaz arrived
at the local prosecutor’s office in the evening to give his
statement, he heard the deckhand, Cen Yam, telling officials that he had
been driving that afternoon. Incensed, Diaz attacked Cen Yam physically,
accusing him of lying. Even if Cen Yam had been at the helm, his
statement, recorded at the state prosecutor’s office shortly
after MacColl’s death, reveals that he produced no official
documents supporting his claim to be a qualified seaman; he was
unable to give the definition of a knot, did not know the
speed limit in the marine park, lacked basic arithmetic skills
or knowledge of boats, engines, charts and instruments, and
admitted being unable to distinguish between left and right. He
described one of Gonzalez Nova’s sons leaning against the
windshield partially obstructing the view, and said that while
driving he had looked away to answer questions from people
behind. The official who took Cen Yam’s statement noted that
he was entitled to bail ‘since the crime of which he is accused
is not considered serious’.
He is the Don - what more is there to say?
Many locals still prefer not to speak openly about MacColl’s
accident, recognising the power that Gonzalez Nova and his family
wield on the island, where they regularly spend holidays. Some
witnesses have moved from the area, while others refuse to be identified,
all of which suggests there is something rotten in the state of
Quintana Roo, whose former governor is now in prison on drugs related
charges. In a forthcoming BBC television documentary about Jean
Newlove’s recent visit to México, Felipe Diaz Poot, the captain
of the Nazareno, admits wrily there is nothing surprising
about the way the case was mishandled. ‘We are poor people.
He [Gonzalez Nova] is the Don - what more is there to say?’ he
shrugs.
Ivan Diaz has moved 1,500 miles from Cozumel to another part
of México. Unable to dive since the accident, he is now unemployed.
When called to give his statement, he was, he claims, given a blank
sheet of paper to sign, but refused. On the way out he passed Gonzalez
Nova and his sons with their lawyers, who, he says, looked at him
with contempt. Diaz endured three days of questioning before completing
his statement.
Controladora Comercial Méxicana
Jean Newlove’s lawyers believe that the case was deliberately ‘fast
tracked’ by
the prosecutor and given no publicity in México in order to protect
the area’s lucrative tourist industry. What is more likely
is that the authorities are wary of tangling with Guillermo Gonzalez
Nova, regarded as a pillar of Méxican society. Head of a long established
retail empire, he is credited with contributing hugely to México’s
recent economic upturn. Now 71, Gonzalez Nova is the chairman of
the holding company Controladora Comercial Méxicana (CCM), which
is the second largest retail operator in México after the WalMart
chain.
The largely family owned business began as a small textile
shop founded in México City in 1930, by Gonzalez Nova’s Spanishborn
father, Antonino Gonzalez Abascal, and his eldest son, Carlos.
In 1962 the family opened the first Comercial Méxicana supermarket.
Today CCM, which has a 50 per cent stake in the Méxican version
of the American warehouse club Costco, owns more than 170 stores,
including mega hyperinarkets, discount warehouse clubs, supermarkets,
chocolate factories and pharmacies. In addition the company
owns a chain of 55 family restaurants around México. CCM, which
was floated on the US Stock Exchange in the late l990s, reported
an increased net income of 15 per cent in the first quarter of
2004; revenue from food retailing alone came to $3.1 billion in
2002. While Gonzalez Nova’s personal fortune is unknown,
he is ranked among México’s
top seven richest men.
Violating the Méxican people's rights
Since 2002 CCM, through its partnership with Costco, has been
at the centre of a bitter controversy over a new millionsquare
foot Costco warehouse store and adjacent shopping mall. The Costco-Comercial
Méxicana complex, which opened last September in Cuernavaca, a
small town 40 miles from México City, stands on what used to be
24 acres of lush forest surrounding a renowned 1 93Os architectural
gem, the hotel and arts centre Casino de la Selva, once a peaceful
retreat for Méxican intellectuals, writers, artists and European émigrés.
After buying the land in 2001 from the Méxican government for
the knockdown sum of $10 million, Costco promptly devastated the
area, destroying 46 rare plant species, cutting down more than
700 thousand year old trees, and concreting over the unexcavated
archaeological remains of a 3,000 year old Olmec site. Despite
peaceful protests from thousands of local residents and other campaigners — many
of whom were violently attacked, arrested and imprisoned by the
state police, and, on another occasion, allegedly harassed by Costco’s
security guards and dogs — the company demolished Casino
de La Selva, along with most of its extensive historic collection
of murals by many of México’s leading 20th century painters.
As a result, environmental and human rights organisations — including
Amnesty International and a United Nations Commission — have
condemned Costco-Comercial Méxicana for gross violations of a
wide range of basic rights. In a damning
indictment the UN High Commissioner’s Report on Human Rights
in México recently accused the company of civil rights abuses and
of violating the Méxican people’s right to a healthy environment
and depriving them of their artistic, historical and cultural heritage.
Although Méxican, American and Canadian NGOs and environmental
and human rights groups have called for a boycott of Costco
and CCM stores, and one Méxican artist whose murals were destroyed
has filed a $15 million lawsuit against Costco, the threat
is unlikely to be taken seriously by the Gonzalez clan who make
up the majority of CCM’s board of directors.
Nemesis What is more
probable is that Gonzalez Nova’s nemesis has arrived in the
person of Jean Newlove. According to her Méxican lawyer Demetrio
Guerra, the federal prosecutor is likely to order a second
trial on the basis that the Percalito, by trespassing and speeding
within an exclusion zone, violated maritime laws — a federal
crime already investigated by Cozumel’s port captain,
whose March 2001 report was disregarded by the state prosecutor.
‘The most serious aspect of the original case is that it
really should have been investigated and dealt with by a federal,
not a state prosecutor,’ explains Guerra, who claims that
Gonzalez Nova and his sons are also likely to be indicted for perjury
if a new trial proceeds. Who was at the wheel when MacColl died
may therefore eventually be established; but whoever was driving,
it is possible that Gonzalez Nova, as captain of the Percalito,
may face the ultimate responsibility for allowing his boat to enter
the protected zone at five times the legal speed limit and allowing
an incapable, unlicensed seaman to drive. In fact, none of those
on board was licensed to drive the Percalito in coastal waters.
The £127,000 Percalito, registered in Guernsey, has a top
speed of 33 knots and two 315 horsepower engines: although Gonzalez
Nova was certified as a yacht captain in 1976, his licence permits
him, in coastal waters, to operate a vessel with engines up to
only 100 horsepower.
Influence of Casa Alianza
Another reason why the federal authorities are taking an unusual
interest in this case may be thanks to the clout of Fred Shortland,
the UK director of the leading human rights organisation Casa
Alianza. Shortland is the chief coordinator of the JFK campaign,
and he persuaded senior British Foreign Office representatives
to arrange meetings for Newiove with, among other authorities,
México’s Ministers of Tourism and Foreign Affairs, the Attorney
General and one of President Fox’s aides. None of them had
any knowledge of the case and expressed apparently genuine shock
and regret — the first time Newlove has received an apology
from a public official. All these authorities have encouraged Newlove
to persist with her appeal to the federal prosecutor, and the Attorney
General has stated that he wants to be kept informed of the progress
of the new investigation.
‘For a private individual like
Jean to gain access to leading political and judicial figures was
an unprecedented and major accomplishment for the campaign. If
we have done nothing else, we have succeeded in raising awareness
at the highest levels of what happened to Kirsty, and what needs
to be done to implement tougher laws to protect the safety of tourists,’ Shortland
says.
It has been impossible, despite repeated attempts, for anyone
to contact Gonzalez Nova either personally or through his lawyers.
The federal prosecutor’s decision on whether to open a new
case is expected by the end of this year or early 2005. Whatever
the decision, or the eventual outcome of a new trial, it cannot
assuage the family’s tragedy. But it can help to ensure that
justice is seen to be done.
A BBC4 documentary about the case will be shown in the autumn.
Alix Kirsta's website |
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