Scott Watson allowed to challenge controversial identification evidence
Wednesday, 25 May 2022
Scott Watson will be allowed to challenge crucial eyewitness evidence when he appeals his conviction for murdering Ben Smart and Olivia Hope in the Marlborough Sounds in 1998.
In a decision released this morning, the Court of Appeal has ruled Watson can argue whether an identification of him as a mystery man last seen with Ben and Olivia, was properly obtained and should have been heard by the jury at his trial.
The identification was made by one of the last people to see Ben and Olivia, water taxi driver Guy Wallace, when he was shown a photo montage by police during their investigation.
The montage has always been controversial, as it included a photo of Watson caught during a blink, which matched other descriptions of the mystery man having hooded eyes.
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Watson and his supporters have always argued the photo was unnatural and unfair, as none of the others in the montage were blinking, and was included by police in an effort to get Wallace to identify their prime suspect.
Guy Wallace told police the photo of Watson in the montage looked most like the mystery man but with some significant differences. He subsequently denied Watson was the man he dropped off to a mystery yacht with Ben and Olivia.
Watson has always denied meeting Hope and Smart, having them on his yacht, or killing them, and his case remains one of the country’s most controversial.
Now 50, he has spent 24 years in prison, and remains there after being denied parole four times.
The case against Watson relied most strongly on two hairs found on a blanket on Watson’s yacht, Blade, which were matched to Olivia Hope.
However, continuing concern about the reliability of the forensic testing of these hairs resulted in Watson’s case being referred back to the Court of Appeal by the governor-general in August 2020.
But Watson’s legal team sought to have the photo montage identification evidence also included in the appeal grounds, as it had not been heard by the Court of Appeal previously.
This morning, the Court of Appeal ruled it could be heard, saying its decision was necessitated by the interests of justice.
“If there is one lesson from the history of miscarriage of justice in the context of criminal appeals, it is that no good is done by the procedural suppression of a tenable ground of appeal which has not yet seen the light of day in an appellate court, while other grounds of appeal are nonetheless allowed to proceed,” wrote former Court of Appeal president Stephen Kos.
“As Lord Atkin once wisely observed, ‘finality is a good thing but justice is a better’.”
Scott Watson’s father, Chris Watson, said he was pleased the court recognised it was important to hear all the crucial evidence.
“I have always had the impression that they had rather it was the end and we go away. But I never really wanted to do that.
“The hairs and the identification are the only really tangible things the police had – the rest really just boiled down to character assassination.”
Watson’s appeal will be heard by the Court of Appeal on August 31.
Background
Guy Wallace described a man inviting Olivia Hope and Ben Smart to stay on his yacht about 4am on New Year’s Day, 1998.
Wallace said the yacht was a 38-40-foot wooden ketch (two masts) with portholes, a blue stripe along its hull, and lots of ropework.
Watson’s yacht had only one mast, and was a 26-foot homebuilt steel vessel, with no portholes, no stripe on its hull, and no extensive ropework.
Wallace once said the only similarity between the yachts was that “they both floated”.
Early in the investigation, police showed Wallace a photo of Watson and Wallace said he did not recognise him, and he was not the man on the water taxi with Hope and Smart.
He also denied Watson was the mystery man when shown video and photos of Watson by media.
Police prepared an initial montage of photos of men, including Watson, in January 1998, but no key witnesses identified Watson as the mystery man they had seen, from this “montage A”.
In March 1998, police changed the photo of Watson in a new montage, to one of him caught halfway through a blink, with his eyes half-closed.
When this “montage B” was shown to Guy Wallace the following month, he cautiously identified Watson as the mystery man, based on the appearance of his drooping eyes, which were similar to the mystery man he had seen at Furneaux Lodge – though he noted there were also differences in appearance.
Watson was the only person in the montage shown with half-closed eyes.
Later, at a pre-trial hearing, and at Watson’s trial, Wallace denied or equivocated on whether the man he had identified in montage B was the person he had dropped off on a yacht with Hope and Smart.
However, his earlier identification of Watson was used as a crucial piece of evidence by the Crown.
After the trial, Wallace, who died last year, consistently denied Scott Watson was the man he last saw with Hope and Smart, and said he felt he had played a part in sending an innocent man to jail.