Steve Braunias: The wait to clear Scott Watson

Scott Watson's boat, Blade and Ben Smart and Olivia Hope background with Scott Watson inset. Composite Photo / NZME

OPINION

Three men in their 70s, sitting in their homes in Auckland, Hamilton and Picton, and waiting for the same thing, holding out a bit of hope it will work out right, all of them wary but not, or not yet, weary. A fortnight ago they attended the Court of Appeal hearing in Wellington in the matter of Scott Watson. One of them was present every second of the five days of submissions: Chris Watson, 76, father of the man convicted of the double-murder of Ben Smart and Olivia Hope somewhere on the waters of the Marlborough Sounds or Cook Strait on New Year’s Day, 1998. Mike Kalaugher, 77, was there for most of it; he was really the first person to raise questions about the conviction, and has pursued it with relentless passion ever since. Brian McDonald, 71, flew down for the closing address of defence lawyer Nick Chisnall. The hearing was essentially his handiwork. Like Kalaugher, he felt the case against Watson was rotten to the core, and decided to file a Royal Prerogative of Mercy – an old, quaint, creaking piece of criminal law, seldom successful, widely regarded as no longer fit for purpose, but McDonald’s submission was so cogent and so reasoned that it led to the case coming before the awesome seriousness of the Court of Appeal, which has the power to quash the conviction. But first, the wait.

The appeal judges reserved their decision. The defence has ruled out wanting a retrial. Either Watson will be released, or remain in prison.

Chris Watson lives in Picton. “Well,” he said, “it’s probably too early to say a hell of a lot about it. We did our best and got the message across.” Mike Kalaugher lives in Hamilton. “Well,” he said, “things seem to happen in November in this case. So I’m betting they’ll come back with a decision in November. I wouldn’t put too much on it. $1.50.” I phoned Watson and Kalaugher, and visited McDonald at his house in Panmure. “Well,” he said, “it’s up to those three wise ladies on the bench there.” He meant the three judges who presided over the appeal court hearing. Juries are always hard to read; judges are even more opaque. They didn’t ask an awful lot of questions in the Watson hearing. They seemed indifferent to the prosecution case, led by deputy solicitor general Madeleine Laracy. Their attitude towards the defence case, led by Nick Chisnall, sometimes appeared to resemble deep irritation.

The defence of Scott Watson is something that interferes with the signal that the police know what they are doing and that justice is a system of fairness. It scrambles the message, distorts it; Watson’s claims to innocence are essentially based on the belief that the police staged an incompetent investigation, and that the Crown were equally callous, dishonest, shabby. Its focus is so intent on Watson not being the person who killed Smart and Hope that the last thing it ever refers to is Smart and Hope. Their bodies have never been found. They disappeared from the face of the earth around 4am on New Year’s Day. They have disappeared, too, from the Watson defence; I don’t know if I even heard their names mentioned in the two days I attended at the appeal court in Wellington. You wouldn’t know they were close to their parents, that she wearing a greenstone pendant that her Mum and Dad gave her at Christmas, that he spent hours talking with his Mum and Dad. You wouldn’t know anything about them. As ever, they were erased.

They were last seen leaving a New Year’s Eve party at Furneaux Lodge and catching a water taxi with a man who invited them to sleep on his boat. The water taxi driver – eventually, after four months, and massive pressure - picked out Watson as that man. Two hairs belonging to Olivia Hope were later found on a tiger rug that came from Watson’s single-mast sloop, Blade. The defence were given leave to submit two grounds of appeal in June: that the witness identification was so flawed and unreliable that it ought to have been dismissed, and that the two hairs may have got there in the lab, perhaps from a torn sample packet containing hair taken from Olivia’s hairbrush, or that hair was transferred to his shirt as they passed each other at the New Year’s Eve bash. Both grounds were presented with evidence from expert witnesses. Both sets of expert witnesses were challenged by the Crown as lacking balance, that they were biased. It was a provocative tactic, the sort of thing that might play well in a jury trial.

Nick Chisnall KC who is representing Scott Watson in his appeal at the Court of Appeal in Wellington. Photo / Mark Mitchell

“The Crown were a little…what’s the word I’m looking for…odd,” said Chris Watson. He felt that prosecutors routinely swerved away from the two grounds, to remind judges that there was plenty of other incriminating evidence against Watson. “They were constantly doing the old ‘strands of the rope’ argument, saying that even if these two strands are be taken away, there was plenty more strands in the rope.”

He was right. The Crown had a lot to go on in its case against Watson. Example: it produced evidence that he had time and opportunity to dump the bodies. Example: it also produced evidence that he painted and scrubbed his boat on New Year’s Day. In his report on the Royal Prerogative application made on Watson’s behalf, Sir Graham Panckhurst wrote, “Watson’s conduct from daybreak….was sinister and strongly consistent with the actions of someone intent on concealing incriminating evidence and avoiding detection.”

Chris Watson was also right about the Crown’s tactic in the appeal hearing. In my two days in court, I watched prosecutors routinely admonish expert witnesses that they hadn’t read the entire transcript of the 1999 trial which found Watson guilty. The only way to test Watson’s conviction, they said over and over, was to view it in its entirety. The same argument has been used by police and the Crown to combat specific claims that the witness ID was unreliable, that the two hairs might have been contaminated evidence, and, as a further example, that Watson’s boat completely failed to match the description that witnesses gave of the two-mast ketch that Hope and Smart were taken to. These and other grounds have been extensively researched in Mike Kalaugher’s book The Marlborough Mystery (2001), and Keith Hunter’s 2003 documentary Murder on the Blade? Hunter later self-published a book about the case. He sent a copy of Trial by Trickery to police lead investigator Rob Pope. The package was returned unopened.

Brian McDonald spent about four years preparing his Royal Prerogative of Mercy on behalf of Watson. Curiously, though, he didn’t submit the witness identification as one of his grounds, even though that seemed to play out in the Court of Appeal as potentially the most acute example of a miscarriage of justice. McDonald went his own way. He challenged the forensic credibility of the hair samples. He called on the services of expert witness Sean Doyle, who duly appeared to give evidence (and be accused of bias) at the appeal court.

McDonald’s maverick approach was already evident in the mere fact of filing the prerogative in the first place. He said other supporters of Watson’s innocence argued it was a waste of time, that it was better to apply to the newly created Criminal Cases Review Commission [CCRC]. “They said I was on the wrong track, basically, because the CCRC was going to solve all this stuff. So they went down that track. Well, of course, as it turns out, [the CCRC has only made one decision], and they seem to be struggling.”

I said, “You can see why they placed more faith in the CCRC. The dear old royal prerogative is like a stagecoach and the CCRC is an automobile. But you preferred the stagecoach.”

“Yeah,” he said. “I preferred the stagecoach because I thought it’s possibly, hopefully, grounded in common sense.”

Scott Watson's boat, Blade, at its Waikawa Bay mooring. Photo / Mike Scott

Also, he had form with the prerogative. He had attempted to file it on his own behalf. McDonald was convicted of murder in 1979. He had earlier served time in prison for killing a man in a fight, and he was found guilty of manslaughter. And so his experience of criminal justice was entirely first-hand, was lived; when I asked him to describe Scott Watson, who he visited in prison, I was asking him as an ex-con.

He said, “I think he’s been hammered by a bloody nightmare. I was thinking about it this morning, you know, that when he went to prison it was into maximum security. You’ve got people in there that don’t like rapists. It’s a tough environment, you know, and, this is my point, he’s not only there as an innocent person in prison, but he’s got this terrible crime attached to him.

“So Scott - I know the Scott that I met. I never saw the younger man. But I think those years in there with this hanging on him would have been very, very difficult. But I just….. I haven’t really given you an answer there. I’m reserved about it. I just don’t think I’ve seen the real Scott.”

I asked, “The Scott that you did meet, what was he like?”

He said, “I think he was wary, and bit wounded. You can’t really live independently in a prison environment. And it’s going to rub off on you in some fashion.”

Scott Watson, too, has been erased. He has spent 25 years in prison. He was jailed at the age of 26. His father Chris Watson talked about the police investigation, and said, “It just shows the character assassination that was done on the kid.” He paused, and continued, “Yeah. Well. He’s not a kid anymore.”

Scott Watson’s latest parole board hearing is due sometime soon. In May, the board signalled to his family that it would be due in about 11 weeks. That was 14 weeks ago. “Business as usual,” said Chris Watson.

The fate of Guy Wallace – the water taxi driver who was the last to see Ben Smart and Olivia Hope alive, before whatever violent and dismal event happened that night – is another erasure in the case of Scott Watson. He killed himself on March 2021. He was facing charges of indecent assault against a teenage girl. But there was the sense that he was never able to achieve happiness or equilibrium after his role in the police investigation into the deaths of Smart and Hope.

Wallace identified Watson in a police collage as the man who left his water taxi with Smart and Hope. The unreliability of his identification formed the central ground in Watson’s appeal this month. Following the 1999 trial, Wallace said he had made a mistake, that he was manipulated and coerced by police into picking out the man they wanted him to pick out – Watson.

He was interviewed by police on January 11, 1998. He had given a description of the man who he had dropped off in his water taxi with Smart and Hope. The identikit drawing did not match the way Scott Watson looked. The police interviewer told Wallace that he was lying.

“You’re not telling me the truth.”

Wallace: “I’m telling you the truth, straight up.”

“You’re not, rubbish. You’re never going to sleep again at night. Trust me, you are never going to sleep again at night.”

Wallace: “There’s nothing more I can tell you.”

“You’re never going to sleep again, mate.”

Wallace: “If that’s the way it goes, that’s the way it goes.”

“The nightmares will kill you.”

The coroner’s report into death noted that Wallace was prescribed medication to help him sleep.

Guy Wallace, the taxi boat driver who delivered Ben Smart and Olivia Hope to their final destination. Photo / Mike Scott

The case obviously haunted him right up until his last seconds: in a suicide note to his father, Wallace wrote his views regarding Scott Watson’s conviction. Coroner Alexandra Cunninghame has prohibited publication of the note. Mike Kalaugher, who spoke with Wallace, has a general idea of what it likely contained. He assumes it was a clear statement of regret that Wallace caved in and identified Watson.

He said, “Guy told me that when he was shown the police montage, he picked out two people that he thought were the nearest to the guy in the Naiad [water taxi]. But one was carrying a bit too much weight, and the other one, the photo of Scott Watson with the half-shut eyes, reminded him of the guy in the Naiad. So the way he expressed it to me was that he didn’t mean, ‘That was the man I saw.’ He was trying to say to the police, that’s the nearest out of those eight people.”

Kalaugher didn’t have anything to say about Wallace’s suicide. Neither did Brian McDonald, or Chris Watson. Again, their only focus was disproving the case against Scott Watson. Nothing else really mattered. They didn’t even show much interest in talking about who they think was the real killer.

I said to Kalaugher, “I guess your essential project this whole time has not been, you know, ‘I’m Detective Mike, and I’m going to find the killer.’ Your project has been, ‘The evidence against Scott Watson is totally unreliable.’ Right?”

“Right,” he said. “That’s basically it.”

The position of Watson’s supporters is that Smart and Hope were most likely killed by the man who took them onboard his two-mast ketch. Who, and what exactly happened, and where and when, and why, is only speculation. “I venture into that territory with trepidation,” said Chris Watson, “because you could very easily make yourself out to be a nutter. And there are a lot of people with conspiracy theories. I’ve heard and stored away every one of them, but I don’t have any real opinion on any of them.”

I asked, “How crazy were some of these theories?”

He said, “There’s one about a ketch going to Mapua to unload the bodies, and then taking them off somewhere. That one’s sort of way out there.”

Yes, said Mike Kalaugher, he’s heard of that story, too. “Supposedly there was a ketch came into Mapua sometime afterwards. After the thing. And they unloaded big packages and took them away in a van. And supposedly there were bodies inside the packages.”

Fair to say he did not place a great deal of store in it. As for the identity of the man they say killed Smart and Hope on his ketch, no names have been put forward. If he exists, he exists no more, has long ago sailed into some distant and unreachable horizon. Not a trace. Gone, erased.

Watson’s crew remain, the three watchers on the shore, waiting. His father Chris, who has not just offered loyalty, but fantastic dedication and a shrewd intelligence: he has read every police job sheet, every document, every report, and can argue every scrap of evidence. Example: he can produce evidence that contradicts Scott Watson had time and opportunity to dump the bodies. Example: he can produce evidence that his son’s attempts to paint and clean his boat was merely the maintenance needed after storm damage. As for Kalaugher and McDonald, they belong to that peculiar New Zealand sub-species of busybodies and activists, like Joe Karam for David Bain and Geoff Levick for Mark Lundy, who take on the slow, ponderous machinery of state law in their mission to correct disgraceful injustices. Old age shall not weary them. You cannot erase faith.