Steve Braunias at day two of Scott Watson’s appeal in Wellington

Scott Watson maintains his innocence. The Crown maintains his guilt. Photo / NZME

OPINION

What the jury did – and did not – hear in the trial of Scott Watson, convicted of double murder.

Day two of the Scott Watson appeal against his conviction for the appalling New Year’s Day 1998 double murder of Ben Smart, 21, and Olivia Hope, 17, somewhere on the waters of Marlborough Sounds, and more slow analysis of whether any evidence could be described as new or revelatory in the latest defence of a man who was described by the head of the police investigation at the time – his sentiment has long been widely regarded as accurate – as “a vile little toad”.

Watson maintains his innocence. The Crown maintains his guilt. Smart and Hope have never been found. Their tragic disappearance is no mystery to those who believe the jury got it right in 1999, and who regard this week’s Court of Appeal hearing in Wellington as an insult to their grieving families. I was reminded of this feeling by an email from a reader who said he was a close family friend of Smart. He disliked my report of day one of the hearing. He wrote: “The Smart family lost a son and a brother and for over two decades the New Zealand media has turned coverage of his and Olivia’s murders into a type of sport where everyone gets to pick a side.”

He is right to be angry. It is not a sport. It is the plainly awful deaths of two young people all set to enjoy a great life, and it is also an investigation and a prosecution full of loose ends and serious doubts and the no less plainly awful possibility that someone got away with it, some psycho, some actual toad, at the expense of a guy who says he woke up alone on his boat on January 1 and celebrated New Year’s Day with a feed of bacon and eggs.

The defence has submitted two grounds to appeal the conviction. Monday’s hearing was about an eyewitness who identified Watson with Smart and Hope on New Year’s Eve, and whether the jury were properly informed that his memory might have been unreliable. Experts were called. Tuesday’s hearing was about the discovery on Watson’s boat of two blonde hairs belonging to Olivia Hope, and whether the jury had been fully briefed the hairs might have fallen out of an evidence bag or got there some other way. Experts were called.

Scott Watson. seen here in 2015, is appealing against his conviction for double murder.

Forensic evidence, possibly contaminated; an eyewitness’ memory, possibly contaminated. To Watson’s supporters, including his dad Chris, who travelled from Picton with his partner Lynn to take a front-row seat at the appeal hearing, so much of the case against Watson feels diseased with some kind of contaminant, some serum made up of lies and manipulation. But the Crown holds firm to its own meticulous investigation and its own core belief that it caught, prosecuted, and convicted the right toad.

Its team of five counsel includes deputy solicitor general Madeleine Laracy, who quietly masterminds its case from her command seat, and Robin McCoubrey, flown in from Auckland to contribute his distinctive examination style that combines good manners, hostile assertions, and a readiness to laugh. He brought all three qualities to bear on Tuesday as he questioned experts on the crucial issue of Hope’s two strands of hair.

“Your report,” he asserted to Sean Doyle, author of a report about the possibility the hairs were contaminated, “is designed to scare the reader, isn’t it?”

“I was asked to review the science,” replied Doyle, startled that his work was being compared to Stephen King.

“You’re trying to portray the scientists who examined the hair as chaotic, as sub-standard, and needing people to help them out,” McCoubrey said, bristling with Auckland hostility. “It’s an unfair portrayal.”

The bodies of Ben Smart and Olivia Hope have never been found.

“I’ve tried to be as fair as possible,” Doyle replied. His voice gave out. He was fairly gasping for water. The registrar poured him a glass. Doyle continued to wilt under the Siege of McCoubrey, and drank deep.

Doyle’s essential criticism in his report is that the hairs might have been transferred to Watson’s boat. McCoubrey’s essential criticism of Doyle’s report is that it was old news, that the 1999 jury had been made aware of the risks. He repeated the line to another expert witness, Paige McElhinney. “It was put before the jury, wasn’t it?”, he asked, after she had spoken at length about how a detective collected Hope’s hair from her bedroom in her family home, but some of it might have “inadvertently” got onto his clothing, and was later transferred to Watson’s boat. This time McElhinney gave a short answer. “Yes,” she said.

Up until then, the Crown had done all the talking, all the challenging, all the inquisitioning. But the next witness was their own: forensic scientist Susan Vintiner, who examined the hairs and presented it as evidence at the 1999 trial. It was time for defence lawyer Nick Chisnall to step up. He stepped up. Surely everyone in the courtroom thought: “Gee he looks a hell of a lot like Hollywood actor Jonah Hill, who was so funny in The Wolf of Wall Street.” But this was Hill in one of his serious roles, and he quickly challenged Vintiner on what she did – and did not – tell the jury in 1999. She said the jury should have been given the opportunity to consider that the accidental transfer of Hope’s hair was a reasonable explanation. “I could,” she conceded, “have been more transparent.”

There are three more days in the hearing. It is held before Justices Patricia Courtney and Susan Thomas, with Christine French presiding. Justice French has the most amazing resting face. It’s the resting face everyone should be so lucky to possess. She smiles, with open lips, and looks absolutely delighted, and delightful, too, a happy customer glowing with kindness. The case is dark and disturbing. It has no sport to it. It may have one of the most disgraceful verdicts in New Zealand criminal justice. It ended the lives of a 17-year-old and a 21-year-old who were still just kids, really. Justice French brings something rare and precious to the case: graciousness.