Chris Gallavin: Scott Watson case based on 'unsound' evidence

Scott Watson in High Court Christchurch May 20, 2015. Photo / John Kirk-Anderson / FairfaxNZ

Criminal law specialist Chris Gallavin has called for Scott Watson's case to be reheard in the aftermath of Watson’s North & South magazine interview with journalist Mike White.

Sentenced to life imprisonment for the double murder of Ben Smart and Olivia Hope in 1998, Scott Watson has served more than 16 years in prison for a crime he says he not only did not commit, but that he never met or saw the victims on the night in question.

Although nothing particularly new has come to light this week, the raised public awareness from Watson's published interview reminds New Zealand that we have someone in prison who is there as a result of an unsound trial.

The published comments of retired Detective [John] Rae just fill me with further dread about the conviction. I really do not give any weight to what the retired detective says he "believes implicitly". To then call in aid the fact that Watson has only now spoken out and was in the detective's words "evasive" when interviewed in 1998 illustrates what may have been classed then as good policing, but what we now know as dangerous predetermination.

The retired detective goes so far as to state that if he [Watson] had nothing to hide, why was he evasive? Such an attitude is incredible. Watson's previous interactions with the police may have made him very apprehensive about talking to them.

What's more, we have a presumption of innocence in New Zealand, and it is for the Crown to prove its case without recourse to trickery. This is the theme of Keith Hunter's book Trial by Trickery, in which the flaws of the Watson case are explained in depth. Evasive answers to questions by police are not proof of a double homicide.

Whether one believes Watson's trial to be a case of police manipulation or not, the fact remains that his conviction now rests on unsound evidence after key witnesses changed their story. It is not just that witnesses have questioned their own evidence given at trial in 1998, it's also concerning some have said they felt pressured by police when giving their statements.

What's particularly disappointing is that the Crown in such cases seems to dogmatically adhere to the line that "we did nothing wrong" and therefore that the conviction was sound. I'm not sure what they think will happen. It seems to me that it takes incredible humility and a real and honest commitment to the rule of law for authorities to say, "hey, with the benefit of hindsight some things in this investigation could have been done much better".

North & South Magazine cover December 2015 issue. Image / supplied

The public of New Zealand - and ultimately those prisoners in Watson's situation - will think more highly of police and the office of the Solicitor-General if there was a culture of ownership and not one of passing the buck as sometimes seems to exist in these cases.

Take Teina Pora, for example. It was clear to the entire nation that Pora had been the subject of a miscarriage - even retired police officers were uncomfortable with his conviction - yet there existed a them-and-us mentality within the Crown that led to the worst, not the best, side of the adversarial system coming out.

The legal fraternity needs to realise that while the adversarial style might be profitable within the court room, cases and the interests of justice are better advanced through co-operation, openness and a the de-politicisation of high-profile cases. There are also lessons for the public. With the pressure placed upon police to "find their man" it is no wonder that on occasion "blue vision" occurs.

"Blue vision" was coined by Dr Jarrod Gilbert and refers to the tendency of the police to sometimes work back from a pre-determined outcome rather than to work toward a theory from the evidence gathered.

Professor Chris Gallavin is the deputy pro vice-chancellor for the College of Humanities and Social Sciences at Massey University.

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