Watson lawyer attacks ‘suggestive practice’
Wednesday, 12 June 2024
The critical importance of making the right decision was highlighted with the final words on the third day of Scott Watson’s appeal against his convictions for murdering Ben Smart and Olivia Hope in the Marlborough Sounds.
After a day where discussion ranged across complex matters such as single nucleotide polymorphisms, hypervariables, haplogroups, phenotypes, reagent blanks, and mitochondrial DNA, it was left to one of Watson’s lawyers to distil what was at stake.
Nick Chisnall, KC, said it was so plain what had gone wrong in the case, with the key evidence against Watson now being fundamentally undermined, and it was crucial the array of investigation errors were considered in totality.
“It’s an important matter, not just for Mr Watson, and for Ms Hope’s family, and Mr Smart’s family, but also for the integrity of the criminal justice system.”
Watson, 53, was found guilty of murdering Hope and Smart after a New Year’s party at Furneaux Lodge in 1998, and has served 26 years in prison.
The bodies of Hope, 17, and Smart, 21, have never been found, but the police theory was that Watson murdered them on his yacht, Blade, and dumped their bodies in Cook Strait.
Watson has always insisted he is innocent, and this week the Court of Appeal is hearing Watson’s second appeal against his convictions.
On Wednesday, Chisnall began submissions which laid out why Watson’s convictions were unsafe, and why they should be quashed.
He recapped the two main points of the appeal: that the crucial identification by eyewitness Guy Wallace, one of the last people to see Hope and Smart alive, was so tainted it should have been excluded at trial; and that two hairs linked to Olivia by DNA, which were found on Watson’s yacht, could have got there by other means or were caught up in forensic bungling.
Wallace was the driver of a water-taxi that dropped off Hope and Smart at a mystery yacht with a mystery man.
He insisted the yacht was nothing like Watson’s, but eventually picked out Watson from a police photo montage as most likely being the mystery man, and repeated this at trial. (Wallace subsequently reversed his opinion and maintained Watson was innocent.)
“It is clear police exerted significant interrogative and moral pressure on Mr Wallace to change his story,” Chisnall said.
He said it was “incontrovertible” police showed Wallace a photo of Watson, within the first days of the investigation, which contaminated any later attempts at an unbiased identification. (Wallace said the man in this photo didn’t match the mystery man. He later identified Watson from another photo, which the three senior investigators in the case decided to use for a montage.)
Police also showed this photo to other key witnesses, Chisnall said.
“This was plainly an investigative strategy, rather than a misstep by an over-zealous officer failing to follow instructions.
“When that attempt failed Detective Thomas Fitzgerald, as he then was, told Mr Wallace on 11 January 1998 that Mr Watson had been identified by others as the sleazy man in Furneaux Lodge, and told him that Mr Watson matched the compusketch that Mr Wallace had provided.
“This, in my submission, is arguably the most overt suggestive practice to secure an identification of a suspect that is possible.
“The suggestive practices adopted by the police in this case beg the question, if the appellant was anyone other than Mr Watson, would the Crown be so vigorously resisting the conclusion that an error capable of affecting the result of the trial, occurred?”
Chisnall said the two hairs, which were the most powerful aspect of the Crown case against Watson because they appeared to place Hope on Watson’s yacht, could plausibly have got there by secondary transfer, or as the result of accidental contamination when collected, handled, and forensically examined.
He also alluded to the third strand of the Crown case against Watson, which was the use of two prison informants who claimed Watson confessed to them while in jail.
“Each of these men were incentivised to lie, with criminal justice rewards.
“The disheartening regularity with which the Crown puts faith in such an inhererently unreliable category of witnesses, in the past, and unfortunately in the present as well, explains the presence of these two men at Mr Watson’s trial.”
Earlier in the day, forensic expert Professor James Robertson from Australia agreed that some of the forensic examination related to the crucial two hairs was “not best practice”.
Yesterday, ESR scientist Susan Vintiner revealed to the court that one of her technicians sorted through hairs found on a tiger-patterned blanket on Watson’s boat, and not her, as she had previously indicated, and there were no notes of this fact.
Robertson said Vintiner’s records of what happened in the laboratory, “are not the best notes I’ve ever seen.”
Regarding the fact Vintiner examined the tiger-blanket hairs and reference hairs from Olivia Hope taken from her home, on the same day, on the same ESR work bench - which raised the possibility of accidental contamination - Robertson said, “I don’t think it’s best practice”.
Robertson pointed to several other things Vintiner did that he would not have, and were “not ideal”.
The detective who collected the reference hairs from Hope’s bedroom, Richard Rolton, admitted to the court he didn’t count the number of hairs he took, which were then sent to ESR.
Watson’s lawyers have always said this meant it couldn’t be known if any of these hairs, became mixed with the hairs from the tiger blanket, while at ESR.
The appeal will end on Friday.