In a hardhitting examination of how a flawed justice system may have played a role in the conviction of Scott Watson in the infamous Sounds Murders, author Keith Hunter debunks specific claims made by the prosecution and the generic weaknesses of our courts system. Hunter's book Trial by Trickery outlines what he says are techniques and misinformation which helped to convict Watson for the murders of Ben Smart and Olivia Hope. He finds key prosecution claims wanting - not true, is his consistent belief - and calls for an overhaul of a justice system which he maintains comes up short when it comes to distilling the truth and which, he says, raises many questions for our courtrooms.
KEY POINTS:
Tomorrow night it will be 10 years since Ben and Olivia disappeared, and 10 years minus a few days since the police decided Scott Watson was responsible for their disappearance.
In recent weeks the police inquiry into the Watson case has come under long overdue press scrutiny,
due mainly to the Herald on Sunday's efforts and North & South magazine. Now it's time for the next step - public inspection of Watson's treatment in the High Court and Court of Appeal.
While the police inquiry may have been as tunnel-visioned as a police inquiry can be, it was in the courts that the cracks in our adversarial combat system of criminal law were crowbarred into a chasm by what I now consider to be the justice system's determination to achieve a conviction.
Victim throughout was Watson, the handiest suspect, or non-suspect as the police had it then, the one in the wrong place at the wrong time.
While it may not have been apparent at the time, the first signs of concern can be recognised in the transcript of the Crown's opening speech to the jury in the High Court. Among the first things the Crown led the jury to believe was that the water taxi driver Guy Wallace had described the mystery man last seen with Ben Smart and Olivia Hope in terms that matched Watson.
The claim was untrue, in my opinion. The jury was told Wallace had described the mystery man as having "short brown hair" like Watson, and had been "wearing a Levi shirt". But after initially recalling that the mystery man had "short dark, wavy hair", Wallace was adamant throughout that his hair was "wavy and medium length", and this was the description the police had circulated and based their identikit pictures on.
He had always recalled that the man wore a "green Levi" shirt while Watson had worn, and was always described as wearing, a "blue denimn" shirt.
Omitting the colour in the speech to the jury converted a description which distinguished Watson from the mystery man into one which linked them.
Then the Crown told the jury that "no such ketch" as the one the missing pair were last seen boarding had been sighted or reported to the police. Again, the claim was untrue - there have been literally scores of reported sightings.
The Crown told the jury that "all such sightings were considered by the police or followed up by them". I do not believe this to be true. The police deliberately ignored them, as referenced by former detective Mike Chappell, who told the Herald on Sunday recently that the police took hundreds of calls about the ketch but had been told not to follow them up.
In the context of hiding signs of murder, the Crown told the jury Watson had wiped down all the hard surfaces and all the music cassettes on Blade.
But I do not believe that was correct. The Crown's own fingerprint expert said, in evidence, that only about 30 per cent of the hard surfaces had wipe marks and only 50 per cent of the cassettes were fingerprinted - and then only 50 per cent of that half had wipe marks on them.
The Crown said the wiping left only fingerprints from Watson and his sister to be found on Blade. But there were two unidentified prints found on the boom.
Where Blade's maximum speed was important to the prosecution case, the Crown told the jury Watson had lied about it and had lied in saying Blade's hull was covered in speed-impeding weed. Both claims were wrong, in my opinion - in evidence it was clearly stated that there was weed on the bottom of Watson's boat and that it would cause loss of boat speed.
These opening comments were a warm-up for a Crown case which seems to me to have been founded in misinformation and underpinned by an invincible argument.
The Crown told the jury that Watson "went to great lengths to avoid leaving anything on his boat that would indicate a connection to Olivia Hope and Ben Smart". What this meant was that no sign of Ben and Olivia was found on Blade.
It was a win-win argument for the Crown because the absence of evidence had become evidence of murder. If any sign of the missing pair had been found aboard, it would have shown there had been murder because the evidence of it was there to be seen. But when there was no sign aboard it showed that there had been murder because the evidence had been cleaned up. It was a Catch 22 situation - guilty both ways for Watson.
There was the impossible voyage - 11 miles in half an hour against the tide by a yacht with a top speed of two and a half miles in half an hour with no tide. The prosecutors had to have this because otherwise their killer couldn't have disposed of the bodies.
There were the two "secret witnesses", prisoners who said Watson confessed to them in jail, testimony scorned everywhere except in New Zealand where it is a prosecutor's tradition that goes back to the Crewe murders. One later retracted, claiming the police made him say it. The other was let off a serious assault charge.
There was the prosecutors' unveiling of their true case, not at the beginning of the trial nor even during it, but on the very last day, after all the witnesses had given their evidence and gone home.
For three months, the prosecution case had been clear. Watson had partied at Furneaux Lodge and then gone back to his yacht in a water taxi driven by Guy Wallace in which two other passengers were Ben and Olivia.
The defence case was equally clear. Watson had gone back to his yacht at a different time and in a different water taxi in which he was the sole passenger. After the evidence was seen to back the defence, the prosecutors suddenly announced, on the last possible day, that both trips had occurred and Watson had returned to shore between them.
During the three months, the 'two trips' scenario had never been suggested and not one witness had been asked about it. In my view, the evidence does not support the new scenario.
There were witnesses on board the boats alongside Watson's who would have seen or heard any second trip, as alleged by the prosecution. From the statements they gave to police, I believe it is clear there was no such second trip but, as the prosecutors' new claim was only made on the last day of their closing address, these witnesses were not asked about it in court.
Watson was convicted to life in prison for two murders on a case that, in my view, is patently contradicted by evidence that was available but not put to the jury.
Then the judge. Justice Richard Heron had been privy to highly prejudicial accusations against both Watson and his family when he was presented with police applications to bug the Watson family homes. The applications required justification but much of the information provided to support the bugging was false, according to documentation in the possession of the police at the time and now in the hands of the new Independent Police Conduct Authority. So the judge had secret false "knowledge" about the accused man before him. Finally there was the Court Of Appeal, where the conviction was confirmed and ensured Scott Watson would spend at least 17 years in prison for a crime I consider he could not have committed.
The court announced in its judgment that "an examination of the transcript shows that there was extensive cross-examination (about the two trip theory)".
But in my view, there's not a word in the transcript about the theory.
The defence team had made it a ground for appeal that they had not known of the theory until the last day of the trial and they obviously could not have conducted cross-examination on an issue they did not know existed.
If the Court had found that the prosecution's "two-trip theory" was not addressed at any time during the three-month trial, it would have had no choice other than to order a retrial on the grounds that Watson had not been given an opportunity to defend himself. The Court's "extensive cross-examination" claim is the greatest of false statements which litter the justice system's treatment of a man who would have been shown to be innocent had all of the evidence been put to the court. At the end of all this, there must be an open and public inquiry to find out and understand not just what happened, nor just why it happened, but whether it is par for the course, the way the criminal trial process works normally in New Zealand.
The ills are easily apparent - more transparent and unequivocal than was the case with Arthur Allan Thomas. They seem to have come about in the absence of any concern anything unusual was taking place. They may be normal and, if they are, no one in New Zealand is safe from the law, guilty or innocent.
About the author
Keith Hunter, a broadcaster since 1966, won his first award for investigative reporting in 1972 and has extensive experience in television current affairs, documentary and drama. A freelance film-maker since 1986, he has won awards for documentaries focusing on legal issues, notably The Remand of Ivan Curry for 1991-92, about a deaf man imprisoned on remand for two years for an alleged murder which in fact was an accidental death caused by someone else; Out of the Dark, on the brilliant police hunt for the 'South Auckland Rapist', Joseph Thompson, in 1996. His Murder on the Blade? won best documentary for 2003-4. Where the documentary focused on Watson's innocence, Trial by Trickery is aimed more at the techniques used by the prosecution to secure a conviction and point-by-point examination of the weaknesses of the Crown case.
