Watson v R - [2025] NZCA 455

Criminal law -    Governor-General's reference -      DNA evidence -            Visual identification evidence

On 31 December 1997, Olivia Hope, aged 17, and Ben Smart, aged 21, attended a New Year's Eve celebration at Fumeaux Lodge, Endeavour Inlet, Marlborough Sounds.  In the early hours of 1 January 1998, a water taxi driver, Guy Wallace, took Olivia's sister, Amelia, and her friend, Rick Goddard, to Tamarack in a water taxi referred to as the Naiad. With them was a lone man and a young couple, Sarah Dyer and Hayden Morresey. Mr Wallace dropped Amelia and Rick at Tamarack and Ben and Olivia, who were aboard Tamarack, took their place in the Naiad. They said there was no room for them to sleep on Tamarack and were looking for somewhere to spend the night. The lone man offered his boat. That offer was accepted and Mr Wallace drove to a boat that was moored with other vessels, where Ben, Olivia and the lone man alighted. Olivia and Ben have not been seen, dead or alive, since.

Following a three-month trial in 1999, a jury found Scott Watson guilty of the murders of Olivia and Ben. Some 26 years later, Mr Watson remains in prison. He maintains his innocence.

The key issue at trial was whether Mr Watson was the lone man with whom Olivia and Ben boarded a boat the last time they were seen. It is now accepted that both Olivia and Ben died at the hands of the lone man in circumstances which amounted to murder.

The Court of Appeal dismissed Mr Watson's first appeal against conviction in May 2000. His application to the Privy Council for special leave to appeal was declined in November 2003. However, in 2020, the Governor-General referred the question of Mr Watson's convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred.

The focus of the hearing following the Governor-General's reference was the evidence suggesting two long blonde hairs (Hairs 12 and 13) belonging to Olivia were located on Mr Watson's boat Blade (the Hair evidence) and the evidence that barman and water taxi driver, Guy Wallace, identified Mr Watson as the man with whom Olivia and Ben were last seen (Mr Wallace's identification). The Court considered new evidence concerning the strength of the link between the Hairs and Olivia, the possibility the Hairs were transferred onto Blade other than through Olivia being aboard Blade, and the possibility the Hairs were actually hairs taken from Olivia's home that were mixed up with the hairs recovered from Blade in the ESR lab. The Court was also presented with fresh evidence concerning the reliability of Mr Wallace's identification.

The Court has found there was no miscarriage of justice. The Court therefore declined to quash Mr Watson's convictions for the murders of Olivia Hope and Ben Smart.
 

Did a miscarriage of justice arise in respect of the Hair evidence? Held: No

In addition to the evidence at trial, the Court of Appeal considered evidence relating to the Hairs from numerous expert witnesses (five called by Mr Watson and five called by the Crown).

Having analysed that expert evidence in depth, the Court concluded:

·       The concerns raised with ESR's quality management system do not raise any real issue with the reliability of the Hair evidence.

·       The nuclear DNA testing results in respect of Hair 13 (which provided "very strong support" for the proposition Hair 13 belonged to Olivia), were appropriately presented at trial. The mitochondrial DNA testing results in respect of Hair 12 (which provided "strong support" for the proposition Hair 12 belonged  to Olivia or a maternal relative) were appropriately presented at trial and, given the expanded mitochondrial DNA databases now available, now provide even stronger support for a link between Hair 12 and Olivia.

·       The possibility that the Hairs were transferred to Mr Watson (directly or indirectly) during the events at Furneaux Lodge (rather than because Olivia was herself on Blade) was raised before the jury at Mr Watson's trial. Whether that possibility was a reasonable explanation for the presence of Olivia's hairs on Blade was a matter for the jury to determine, having regard to all the evidence.

·       In the circumstances, the possibility that the Hairs were transferred from the Hope family home to a police officer, then to a different police officer, then to Blade and the tiger blanket, was speculation. Nevertheless, the steps taken to avoid any cross-contamination were explained to the jury and it was for the jury to assess whether such transference was a reasonable possibility, having regard to all the evidence.

·       7 March 1998 was the only occasion when it was possible for any hairs recovered from the tiger blanket to have been mixed with hairs from Olivia's home at the ESR lab (such that Hairs 12 and 13 were actually hairs taken from Olivia's home, not hairs located on Blade). The possibility of such contamination was extremely unlikely, given the method used to extract hairs from the original bag of hairs from Olivia's home (ST05). In addition, the decontamination measures taken by Ms Vintiner complied with the applicable guidelines at the time.

·       When an additional cut in ST05 was discovered during Mr Watson's trial, Ms Vintiner was taken by surprise, but it has since been clarified that the cut likely occurred much later than 7 March 1998 when Ms Vintiner was preparing the samples for use by the defence. Viewed today, it is less likely than it was at trial that the cut in the bag had been made on 7 March and therefore less likely that any hairs from Olivia's home escaped from ST05 and became combined with the hairs recovered from the tiger blanket.

·       Hairs 12 and 13 were not selected when the hairs recovered from the tiger blanket were examined on 22 January 1998. This was not surprising given the very short time spent looking at the exhibit, that it was difficult to see blonde hairs when they were in a group of 400 brown hairs, but most importantly, the purpose of the examination on 22 January 1998 was to detect the presence of hairs with intact roots worthy of attempting nuclear DNA testing.

·       The Crown prosecutor's closing submissions and the trial Judge's directions on the Hair evidence were appropriate. The Hair evidence was tested by Mr Watson's senior counsel, who was advised by experts. It was properly before the jury as one of many strands of evidence supporting the inference that Mr Watson is guilty.

This was not one of those rare cases where the Crown had to prove a strand of circumstantial evidence (the provenance of the two hairs) beyond reasonable doubt.

This is not a case where the scientific evidence used at trial has since been undermined and revealed to be unreliable. Indeed, the evidence given at trial has been confirmed as reliable by the experts who gave evidence at the appeal hearing.

The Court answered the questions contained in the Governor-General's reference as follows:

(a)            having considered evidence:

(i)            we have concluded ESR generally adhered to relevant quality standards relating to the collection, handling and forensic examination of the Hairs and are satisfied there is no material issue;

(2)           we have found the results obtained from the DNA testing of the Hairs conducted in New Zealand, Australia and the United Kingdom reliable; and

(3)           we are satisfied as to the fairness and accuracy of the evidence given at trial about the DNA testing and the results obtained from it.

(b)           we conclude that none of the evidence given at Mr Watson's trial should be reconsidered in light of the evidence we have considered; and

(c)            we have determined, in light of our consideration, that a miscarriage of justice did not occur in respect of the Hair evidence.

Did a miscarriage of justice arise in respect of Mr Wallace's identification? Held: No

The key issue was whether Mr Wallace's identification, which was made in April 1998 when Mr Wallace picked out Mr Watson from photograph montage showing head and shoulders photographs of Mr Watson and seven other males (Montage B), was properly admitted at Mr Watson's trial.

At trial, the defence relied on a photograph of Mr Watson taken on New Year's Eve when aboard Mina Cornelia before going ashore. The defence claimed that Mr Watson's appearance was different from the appearance of the lone man encountered by Mr Wallace. This image, along with several others (for example, compusketches, photograph montages and an image showing the boats at Furneaux Lodge on the evening of New Year's Eve) is reproduced in the Court's judgment.

Givens 5(3) of the Evidence Act 2006, issues of admissibility must be determined under the law of evidence that applied at the time of Mr Watson's trial. Admissibility or otherwise of identifications turned on the discretion to exclude admissible and relevant evidence on the ground that its prejudicial effect was out of proportion to its true evidential value, or on general grounds of "unfairness".

In accordance with the law at the time, the strength of the other evidence supporting the identification is relevant to the admissibility of challenged identification evidence.

Drs Gary Wells and Adele Quigley-McBride gave expert evidence on behalf of Mr Watson. The Court considered the first part of their Report was admissible expert evidence, providing a fresh, reliable and cogent discussion of the considerable limitations associated with eyewitness identification evidence and the ramifications of steps taken in obtaining that evidence. However, the Court found the second part of the Report, was not substantially helpful. The Court's concerns fell into five categories: reliance on incomplete material; misrepresenting the evidence; ignoring other relevant evidence; drawing conclusions which were inappropriate for them to draw; and giving evidence which was inconsistent with their position in other forums or papers. The second part of the Report, and the related evidence given by Drs Wells and Quigley-McBride, was therefore inadmissible. Nevertheless, given the way the identification ground was argued before the Court, the Court addressed the comments made by the experts in the course of its own analysis. 

In determining the admissibility of Mr Wallace's identification, the Court considered a number of topics, concluding:

·       Montage B did not predispose witnesses to pick out Mr Watson. Though the photograph of Mr Watson used in Montage B has been criticised because of how it shows Mr Watson's eyes, other photographs on the police file show Mr Watson's eyes with the same appearance. The photographs of some of the other men in Montage B could also be said to show a person with hooded eyes. Looking at Montage B overall, the photographs were sufficiently similar that there was no material risk of Montage B predisposing witnesses to identify Mr Watson's photograph rather than one of the other photographs.

·       The displacement effect arising from Mr Wallace being shown a single black and white photograph of Mr Watson in January 1998, which was taken eight years earlier and showed Mr Watson with a fuller face and closely cropped hair, did not require Mr Wallace's identification to be excluded. The evidence does not suggest Mr Wallace's exposure to the single photograph was anything other than fleeting. Even if evidence of the single photograph being shown to Mr Watson had been before the jury, it was unlikely to have had a material impact over and above the other material before the jury in any event. That material included the fact that, on an earlier date, Mr Wallace had been shown a video of Mr Watson by the media.

·       This was not a case of a fleeting glance by Mr Wallace. Rather, Mr Wallace observed the male at the Lodge for some time throughout the evening, both in the Main Bar and the Garden Bar. He then recognised that male at the jetty before he took him on the Naiad to Tamarack and then to his boat. It was also the defence case that it was the same man.

·       The two experts raised a number of issues which they suggested meant various witnesses were not talking about Mr Watson. However, the Court discounted those matters for the following reasons:

o   The evidence demonstrated that Mr Watson could not be excluded from being the man a witness was describing simply because the witness described the man as having facial hair. While the Mina Cornelia photograph suggested Mr Watson was at least close to clean shaven early in the evening, many witnesses  who there is no doubt were talking about Mr Watson - noted Mr Watson having facial hair on New Year's Eve.

o   Similarly, Mr Watson could not be excluded as the lone man based on how the lone man's hair was described by Mr Morresey or by Mr Wallace in his later statements and at trial. Witnesses describing a person we know was Mr Watson gave varied accounts of his hair length, ranging from "short" to "medium length" to "shortish" hair that was "longish at the back".

o   The compusketches must be put in context by considering the totality of the relevant witnesses' evidence. In any event, it appears that the opinion of those with expertise in identification evidence is that composites are unreliable.

o   Amelia Hope's description of the lone man was important and could not, as the experts suggest, be put to one side. Her reference to the lone man having a receding hairline was consistent with evidence of those we know were referring to Mr Watson.

·       The Court considered in some detail the evidence of earlier incidents at Furneaux Lodge in order to analyse whether they involved the same man. The purpose was to ascertain the likelihood that there was another lone man at Furneaux Lodge that night who could have been the lone man on the Naiad. The Court detailed the links which tied the various witnesses' descriptions together and to Mr Watson. This included the consistency of the witnesses' descriptions of the man's clothing and behaviour, in particular his topics of conversation, as well as general consistency in description of skin tone, the presence of tattoos, rolling his own cigarettes and the type of liquor he was consuming. The evidence supported a conclusion that the witnesses were discussing their interactions with the same man, Mr Watson. To that extent, even when the identifications of Mr Watson from Montages A and B were set to one side, the evidence against him was not materially weakened.

·       It was important to consider what the witnesses did not see - the ketch described by Mr Wallace in the location where the lone man, Ben and Olivia alighted the Naiad. Mr Wallace's evidence about the drop-off location was corroborated by the evidence of Mr Morresey and Ms Dyer as to the direction the Naiad travelled when it left Tamarack. When the issue of whether Mr Wallace dropped Mr Watson at a ketch or a sloop is considered alongside all the other evidence, and in particular the evidence as to the drop-off location, the issue falls away in importance. It was simply another example of the vagaries of memory and perception. Based on the Court's review of the evidence, nobody other than Mr Wallace and Mr Morresey said they saw a ketch in the area where Ben, Olivia and the lone man were dropped off, whereas that was the area where Blade was located.

·       In respect of Mr Wallace and Mr Morresey's evidence that the lone man's boat was a ketch:

o   Mr Wallace's first sketch for the police on 3 January included a question mark after "ketch".

o   Mr Morresey's early statements did not suggest that the boat he was describing had two masts. Mr Morresey's first mention of a ketch came immediately after his involvement with the media and exposure to the account being given by Guy Wallace, who was at that time defending his claim it was a two-masted vessel.

o   At trial, extensive evidence was led as to the boats that were at Furneaux Lodge on New Year's Eve 1997, following a police investigation which ultimately identified 176 boats as being in the vicinity and 105 in the immediate vicinity of Furneaux Lodge.

o   A person who we know was Mr Watson, because he accepted his involvement in an incident the witnesses themselves were involved in or witnessed, told a number of those witnesses at Furneaux Lodge that he had a ketch.

·       Mr Watson had returned to Blade on a water taxi driven by Donald Anderson. The Crown case was that he later went back to Furneaux Lodge by means unknown. The evidence of Mr Watson attempting to rouse those aboard Mina Cornelia and Bianco established that Mr Watson wanted to continue partying after Mr Anderson took him to Blade, providing an obvious reason for Mr Watson to return to shore. There is nothing in the timing evidence to discount the Crown's two-trip theory as a reasonable possibility.

·       The Court did not consider exclusion of Mr Wallace's identification was required on unreliability grounds bearing in mind the significant body of evidence supporting the correctness of Mr Wallace's identification. In the Court's view, the cumulative effect of that evidence strongly supported the admissibility of Mr Wallace's identification of Mr Watson from Montage B. Further, the respective Crown and defence closing addresses brought into sharp relief the need for the jury to critically consider, in light of all the evidence presented, which aspects of Mr Wallace's evidence were correct and which were not. Either Mr Wallace was right that the man in photograph number 3 of Montage B was the lone man or he was right about the lone man's boat being a ketch. This is not a case where misplaced reliance on an overconfident eye witness appeared to be the fulcrum on which the jury's verdict turned.

Ultimately, the Court considered the evidential value of Mr Wallace's identification outweighed any unfairness associated with its admission. It was properly admitted at Mr Watson's trial. Its admission did not give rise to a miscarriage of justice.