Crown says Scott Watson was the only one with the motive and opportunity to kill Ben Smart and Olivia Hope

Scott Watson has spent 26 years in jail for the murders of Ben Smart and Olivia Hope but protests his innocence. Composite photo / NZME

The Crown says double murderer Scott Watson was the only man at Furneaux Lodge on New Year’s Eve 1997 with the motive and opportunity to kill Ben Smart and Olivia Hope.

Smart, 21, and Hope, 17, haven’t been seen since getting out of a water taxi and onto a yacht moored in Endeavour Inlet. There’s been no trace of the pair since the early hours of New Year’s Day, 1998. Their bodies and possessions have never been found.

Watson was convicted of double murder in September 1999 and sentenced to life imprisonment, with a minimum period of 17 years in jail. He has now spent 26 years behind bars, protesting his innocence.

This week his case has been back before the Court of Appeal in Wellington, for a second time.

Closing the Crown’s case today lawyer Madeleine Laracy took the court back to the closing address at the 1999 trial by then Crown Prosecutor Paul Davison QC.

She said Davison began his closing address not by starting with Watson and the specific evidence against him, but by asking the jury to stand back and look at the necessary characteristics of the person who killed the Blenheim friends.

In that address, Davison told the jury whoever killed the pair was a man, who was alone, didn’t know his victims and had an intent to kill. He also had to have a yacht at Furneaux Lodge and must have been on shore at the time of water taxi driver Guy Wallace’s trip that night, when he collected Hope and Smart off their boat.

Ben Smart and Olivia Hope.

Having outlined the case, Laracy said the question was how many people at Furneaux Lodge fitted those criteria.

“Evidence of Watson’s guilt came from motive, to secure a woman that night. Opportunity, Olivia appeared. Opportunity to kill and time to dispose of the bodies and the criminal intent shown from the deliberate cause of conduct to ensure nothing connected him,” she told the court.

“My submission to this court, is looked at fairly and objectively and in totality, there is overwhelming evidence of Mr Watson’s guilt.”

She said the court needed to consider the original trial, which took three months and heard from 480 witnesses, looked at the totality of the evidence.

“The Crown case [at trial] builds a profile. By a three-month process of methodical elimination at trial, the Crown showed only Mr Watson could have been the lone man at Furneaux Lodge.”

Chris Watson leaving the Court of Appeal where his son Scott is seeking to overturn his convictions. Photo / Mark Mitchell

She said the court needed to consider Watson’s actions and behaviour that night.

“The circumstances to and after daybreak. To daybreak he had the opportunity and inclination to commit the crime.”

“His conduct from daybreak was strongly consistent of someone intent on avoiding detection and concealing incriminating evidence,” she said.

Turning to the basis for the appeal, which includes the methods police used to get Wallace to identify an image of Watson, and doubts over how two blonde hairs came to be on a blanket taken from Watson’s boat, Blade, Laracy said the Crown’s case didn’t rest on two hairs and Watson’s identification wasn’t based on a single witness.

Crown lawyer Stuart Baker told the court Wallace didn’t get a fleeting view of Watson, having seen him at the lodge several times during the night’s festivities, then at the jetty and again on the water taxi.

The photo evidence

In relation to the photos of Watson shown to Wallace by police, first a single photo and then 3 months later montage B, Baker said the police’s actions didn’t prime Wallace to pick Watson from the photo montage.

Infact of the 53 people shown montage B, 27 had identified Watson, he said.

“The evidence doesn’t show the identification was unreliable and should have been excluded,” Baker said.

Crown counsel Stuart Baker during Scott Watson’s appeal hearing at the Court of Appeal in Wellington. Photo / Mark Mitchell

The hair evidence

Addressing the issue of contamination in the laboratory and transference (Watson had picked up the hairs at the party) as a possible explanation for how the two blond hairs came to be on Watson’s blanket, Crown lawyer Robin McCoubrey told the court at the original trial both issues were before the jury, raised in cross-examination, confirmed by expert witnesses and ultimately rejected by the jury.

At this appeal Watson’s team had offered no new evidence on transference, only new assertions about how it could have happened, he said.

He joked the issue of issue of contamination was covered so frequently at the trial, “it’s every second question.”

And he outright rejected the suggestion from Watson’s expert Sean Doyle that in 1998 the ESR was some sort of “wild west.”

Evidence given at trial showed the forensic scientists who collected and examined the hairs wore protective clothing. To suggest forensic scientists weren’t thinking about the issues of contamination and transference when undertaking their work “wasn’t realistic”, he told the court.

Addressing the issue of the hole found in the bag containing the two blond hairs, McCoubrey again said this was raised and dealt with at the trial.

He said finding a hole in an exhibit bag in a contamination case, “It’s Netflix stuff.”

But again, when the issue was put to forensic scientist Susan Vintiner at trial, she agreed that hairs escaping from the bag was something that needed to be considered by the jury.

Laracy told the court it was important the Crown’s case isn’t miscast, adding the Crown had presented a complex picture of hundreds of individual threads.

She said for this appeal the court needed to consider if there was a significant error or errors at trial that could have affected the outcome of the trial and whether there was any fresh evidence that could have affected the outcome.

She said the evidence introduced by Watson’s team only reached the level of possibility.

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.

The Crown case finished on Friday, with the court reserving its decision.

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.