Symbols of hope, pointers to guilt

By Eugene Bingham and Alison Horwood

Each morning of their son's double murder trial, Chris and Beverly Watson walked along the Wellington waterfront and passed a sight more eye-catching to them than the facade of Te Papa.

Among the boats moored at Chaffers Marina throughout the mild winter of the drawn-out case against Scott Watson were two ketches.

To most people walking along the promenade, the double-masted vessels would have been no more noticeable than 100 or so other craft there. But ketches were a symbol of hope for the Watsons.

Water-taxi driver Guy Wallace's resolute insistence that he dropped Olivia Hope and Ben Smart on a distinctive ketch was the Crown's biggest hurdle.

In court, Mr Wallace picked out Watson as the lone man connected to the pair's disappearance, but the boat he described was nothing like Watson's single-masted sloop.

The inconsistency made a difficult, time-consuming problem for the prosecution. They wanted the jury to believe Wallace's account in all regards except one: his vivid description of the ketch.

At the trial, prosecutor Paul Davison, QC, and his team set about one of the most extraordinary tasks undertaken in a criminal prosecution: they called more than 100 witnesses to discount Mr Wallace's ketch evidence.

The aim was to demonstrate that the Crown could account for every boat at Furneaux Lodge. It was no easy task - more than 110 were anchored, moored or rafted in Endeavour Inlet on New Year's Eve, 1997. And dozens visited briefly.

The risk of calling Mr Wallace to the stand - as well as Ted and Eyvone Walsh and Hayden Morresey, a trio whose evidence tended to back up Mr Wallace's account - was huge.

Some crown witnesses, such as Mary Godber and Gerald MacDonald, told of seeing a ketch in the bay that was probably Alliance, a boat with similarities to the one described by Mr Wallace, but ruled out of the inquiry.

Others, like Lee McPhail, described an unidentified ketch heading out to Cook Strait on January 1.

Auckland University senior law lecturer Scott Optican said the Crown's decision to call witnesses such as the Walshes and Mrs McPhail was one of the most interesting tactical moves of the trial.

"The Crown wanted to show they weren't afraid of it. Everybody in the jury knows that's the big debate in this case. They know it already walking in, so why should the Crown play hide the football?"

Mr Optican said the case was fought out on the grounds of reasonable doubt, and central to that argument was the ketch theory.

"People say: 'What does beyond reasonable doubt mean? What's an example of that?'

"The ketch - that could be reasonable doubt right there."

In truth the recollection of Mr Wallace was just one of a bundle of problems for the prosecution.

That no bodies have been found was always going to make the case an uphill battle. "The body is usually a good source of forensic evidence for the trial," said Mr Optican. "The other thing that makes this case unusual is the lack of a prior relationship between the parties. Most murders happen among people who know each other and have a relationship ... and the lack of that makes it tough to explore a motive and connection."

And so the Crown set about establishing that Watson connected with Olivia and Ben on Mr Wallace's water taxi.

The prosecutors also had to call evidence to establish what they believed was the motive for the killings - sex.

While the rules of evidence do not permit testimony that simply blackens the character of the accused, Justice Heron allowed particular evidence from women who told the court they had been hit on by a sleazy man fitting Watson's description.

Nailing home the fact that it was Watson and not someone else was another. The defence contended Watson might well have been sleazy, but surely he wasn't the only one out to "score" that night?

Prosecutors were haunted by two Identikit pictures of the suspect. Like the sketch of a ketch, these were released in early January 1998 - a decision senior officers regret.

The two pictures of a man police now say was Watson showed an unshaven man, yet a photograph of him on the night reveals he was, in fact, clean-shaven.

Crown lawyers had to work hard to prove that Watson was indeed the man who had stood out. The battle was played out over the degree of stubble on the "sleazy man's" face, and the length of his hair. Some said it was long, others short.

A turning point came when Justice Heron inquired of one witness what he meant by long hair. The witness explained the man he saw had long hair at the back and short on top.

Identity had been a live issue from the start of the police inquiry.

Detectives were careful about how they had witnesses identify the man behaving badly at Furneaux.

They had hoped to arrange an identity parade but Watson's lawyers would not agree, so they showed witnesses one of two photographic montages.

Once key witnesses, such as Mr Wallace, picked out Watson, the case was beginning to look sound for Detective Inspector Rob Pope and his team.

But they still needed a thread to tie it all together - and that was the hairs.

While police spent four months making sure their witnesses were solid, forensic scientists were carrying out crucial work at a laboratory in Mt Albert, Auckland.

Other forensic evidence, such as the scratch marks on the hatch, were a useful tool for prosecutors. How could jurors forget the image the gouged hatch conjured up of a desperate Olivia trying to claw her way out? But the hair evidence was the key to the whole case.

Watson's lawyers threw in suggestions of contamination, but they called no forensic specialists of their own.

Even so, the hairs were still only circumstantial evidence, which Mr Optican said could be difficult for juries.

"The thing about circumstantial evidence is it always allows the defence to create an accommodation defence, to say: 'We don't dispute the evidence you've found. We just think there's a neutral explanation for it'."

In the example of the hairs, Watson's lawyers had suggested a secondary transfer: Olivia's hairs had brushed off on to Watson and they fell on to his blanket.

"The reason you have trials is so the jury can decide whose version of events they believe."