Photos, freshness and finality - Scott Watson appeal

Thursday, 13 June 2024

When cameras were invented nearly 200 years ago, they were celebrated for freezing time, bringing certainty to memory, lending clarity to confusion.

On day four of Scott Watson’s appeal against his convictions for murdering Olivia Hope and Ben Smart in the Marlborough Sounds, the limitations of those excited expectations were laid bare.

Three different photos were highlighted, with their contentious roles in a controversial police investigation, questioned by Watson’s lawyers.

Hope, 17, and Smart, 21, disappeared from a New Year’s party at Furneaux Lodge in 1998. Their bodies have never been found.

Despite insisting he is innocent, Watson was found guilty of murdering them, and has served 26 years in prison.

On Thursday, Watson’s lawyers again probed the crucial identification of Watson as the last person seen with Hope and Smart.

Key eyewitness, water-taxi driver Guy Wallace, initially denied Watson was the mystery man he took to a mystery yacht with Hope and Smart.

But he later picked out Watson from a police photo montage, saying he was most likely the mystery man, and repeated this at trial. (He later retracted his identification, claiming he had been pressured into making it, and believed Watson was innocent.)

Watson’s lawyers said by the time Wallace identified Watson, nearly four months after the New Year’s party, his evidence had been compellingly tainted.

Nick Chisnall, KC, said it was “indisputable” police showed Wallace a photo of Watson early in January 1998, and that Wallace denied the person in the photo was the man he took to the mystery yacht.

The photo was from 1990, but other witnesses identified Watson from it, Chisnall said.

A few days later, Wallace was interviewed by Detective Tom Fitzgerald, who repeatedly mentioned Watson, and made it clear he was the main suspect, or at least a suspect, Chisnall said.

“It’s an extraordinary interview, in my opinion.”

Chisnall said Fitzgerald made it clear he thought Wallace was lying, questioned his connection with Watson, and urged him to tell the truth, for the sake of the Hope and Smart families.

“Detective Fitzgerald primed Mr Wallace to identify Mr Watson.”

The following day, Fitzgerald interviewed Watson, but insisted he was only a witness, and not a suspect, so didn’t caution him.

Chisnall alleged it was “an inescapable conclusion that Detective Fitzgerald misled the court” when he later testified he didn’t know Watson was a suspect on January 12, just a day after indicating to Guy Wallace that he was.

However, it was another photo of Watson that later became the most controversial of the case.

Police prepared a photo montage of eight photos, including Watson, early in the investigation. Despite a police jobsheet stating this was also shown to Wallace, police and the Crown deny it happened.

Of 43 people shown this “Montage A”, only eight positively identified Watson from it.

In March, police created another montage, but changed the photo of Watson.

Despite saying their aim was to include a more accurate photo of Watson, the three senior officers in the investigation chose a photo of him mid-blink, taken by Fitzgerald, even though there was another photo of Watson taken at the same time with eyes fully open.

The “blink photo” mimicked the description of witnesses at Furneaux Lodge of a mystery man with hooded eyes.

Watson was the only person from the montage depicted like this, and the only one who had been at Furneaux Lodge.

Of the 57 people shown “Montage B”, 27 picked Watson from it as the man they described.

It was this montage that Wallace eventually chose Watson from, as likely the man on the water-taxi with Hope and Smart, indicating his eyes were one of the reasons he was drawn to Watson’s photo.

Chisnall said Wallace’s memory had been contaminated by other photos he’d been shown of Watson, and the blink photo further predisposed him to pick Watson, rendering it an untrue identification.

But Wallace’s identification became a crucial plank in the Crown’s case at Watson’s trial.

This was despite Wallace’s description of the mystery man having long hair and considerable stubble, differing from Watson’ appearance on the night.

Chisnall pointed to a photo of Watson late on New Year’s Eve.

Watson has short hair and is clean-shaven.

The Crown has previously argued the photo may not be accurate, given lighting and the use of flash.

However, Chisnall said it had been reviewed by a photo expert who stated it showed Watson accurately.

Another of Watson’s lawyers, Kerry Cook, outlined why the judges shouldn’t employ the “proviso”, which would mean they could accept the points Watson was raising at the appeal, but conclude there is still enough other evidence to remain convinced he is guilty.

“This was an unfair trial, and the proviso can’t be applied,” Cook said.

“Simply put, if it was not Mr Watson, Ms Hope, Mr Smart, and Mr Wallace in the water-taxi, then he would have been acquitted, end of story.”

Pre-empting likely Crown arguments that evidence Watson was now pointing to could have been raised at his trial, Cook said this mustn’t govern the appeal’s outcome.

“This Crown chorus of ‘freshness, freshness, freshness,’ is not determinative.

“The value that we place is not on freshness, the value we place is on justice.”

Cook said this Court of Appeal was in a much better place to assess all the evidence than it was in 2000, when it dismissed Watson’s first appeal.

“And for [Watson], the overarching submission is simple, but the effect is profound.

“That submission is that this case is a miscarriage of justice, and the convictions should be quashed, with no order for a retrial.”

The Crown will present its submissions on Friday, the appeal’s final day.