Nick Chisnall KC who is representing Scott Watson in his appeal at the Court of Appeal in Wellington, 10 June, 2024. Photo / Mark Mitchell
Nick Chisnall KC who is representing Scott Watson in his appeal at the Court of Appeal in Wellington, 10 June, 2024. Photo / Mark Mitchell
Double murderer Scott Watson’s lawyer has slammed the police tactics used to identify his client as the killer of Blenheim friends, Ben Smart and Olivia Hope in 1998.
Nick Chisnall, KC told the Court of Appeal it was clear that police exerted significant “interrogative and moral pressure” to get the key witness - water taxi driver Guy Wallace - to change his story.
Smart, 21, and Hope 17, haven’t been seen since getting out of the water taxi and on to a yacht moored in Endeavour Inlet in the early hours of New Year’s Day, 1998. Their bodies and possessions have never been found.
Chisnall said despite the critical nature of Wallace’s identification, some 25 years ago, this was the first time the court has been asked to “square up to the manifold defects in the procedures adopted by police to secure the evidence”.
Police showing Wallace a photo of Watson in early January - which neither Watson’s trial lawyers or the jury were allegedly told about - only reinforced why Wallace’s identification was inadmissible, he said.
“Police concertedly and repeatedly used suggestive practices ... to secure Mr Wallace’s identification of Watson” he told the court today.
“The evidence unequivocally proves that police showed a single photo of Mr Watson to Mr Wallace in the investigation in January 1998. And given that a single photo was shown to other key witnesses, this was plainly an investigative strategy, rather than a misstep by an overzealous officer failing to follow instructions”, he said.
Then, three-and-a-half months later the police showed Watson in a photo montage, known as montage B.
Chisnall said the photo police used of Watson half-blinking made him stand out and was shown to Wallace after there had been “media saturation” of Watson’s image.
Yet he suggested that without Wallace identifying Watson in montage B, there was no identification at all and Wallace’s evidence would have lost its “vigour”.
Chisnall told the court Watson’s team were asking the court to allow the appeal, but in doing so not to order a retrial.
‘Overstated evidence’
Earlier in the day Watson’s other lawyer Kerry Cook questioned DNA expert Professor Mitchell Holland from the University of Pennsylvania, who gave evidence by audiovisual link.
The defence says the DNA evidence used to convict Wallace was overstated at trial. They argue the absence of a New Zealand DNA database means the methods used at trial to compare Hope’s DNA, taken from hairs on a blanket found on Watson’s boat Blade, with one from an overseas database, means that it can’t be relied upon.
Cook asked Mitchell if the fact the DNA database didn’t represent the New Zealand population and the limitations of that should have been put to the jury.
“To be confident of the match probability and the match numbers that you’ve given, would the fact-finder (jury) be required to assume that mitochondrial DNA (which is inherited from the mother) are equally distributed in New Zealand ... and other geographic locations that have been used in the databases.”
“I think the term equal distribution is a term that’s somewhat absolute,” Mitchell said, adding it could end up inflating the rarity of the DNA. But he said he would be more concerned if the DNA sample came from someone in an isolated population group, rather than from someone in the general population.
Asked later what he meant by isolated population group, Mitchell said he was referring to a group that didn’t move or mate outside its group - citing the example of the Armish people in the United States.
Mitchell also told the court that mitochondrial DNA - which was used to link one of Olivia’s hairs on the blanket - provided strong circumstantial evidence, but it wasn’t a positive form of identification.
And he agreed with Cook that a suggestion by the Crown prosecutor at the trial that the scientific process led to the conclusion that the hairs were Hope’s was an “embellishment”.
Christchurch barrister Kerry Cook at the Scott Watson appeal. Photo / Mark Mitchell
The latest appeal is the result of a royal prerogative of mercy, applied for in 2017 and granted in 2020. The grounds for the appeal are two-fold:
The reliability of DNA evidence, specifically hairs that were thought to belong to Hope and were recovered from Watson’s boat.
Mistakes by the police in using a photo montage as a means of identifying Watson. The montage contained a new photo that showed Watson caught halfway through a blink. This gave the appearance of hooded eyes, a characteristic of the mystery man’s description.
Watson is not attending the Court of Appeal hearing, which is before Justices Christine French, Patricia Courtney and Susan Thomas.
Tomorrow Watson’s team will continue making their submissions to the court, before the Crown makes its case.
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media advisor at the Ministry of Justice.
