Steve Braunias at Scott Watson appeal: The state’s power and fact vs outrageous fiction

OPINION

Steve Braunias was there as Scott Watson got his long-awaited chance to appeal his conviction for the Marlborough Sounds double-murder.

The empire strikes back. There is no rage quite like the entitled,
no-expenses-spared rage of the most powerful institutions in the land, and the low growl of the Crown was heard all day long on Monday in the beautifully wood-panelled Court of Appeal in Wellington, where Scott Watson has finally had a chance to appeal his conviction for the New Year’s Day 1998 double-murder of Ben Smart and Olivia Hope somewhere on the waters of the Marlborough Sounds.

Watson was found guilty just down the road from the appeal court on Molesworth St at the High Court in 1999.

Twenty-five years in prison for a crime that his supporters and advocates have patiently, rigorously defended, in an often devastating investigation which has made the cops look deceitful and the prosecution look just as cruel. In all that time the feeling has grown that the Watson case is a spectacular and sickening injustice. Prosecution went so low as to rely on jailhouse snitches, that low little species with about as much credibility as sightings of the Loch Ness monster. Police refused to believe witnesses who said Smart and Hope were taken to a long, graceful two-mast ketch on the night they disappeared, and not Watson’s tiny single-mast sloop that he knocked up at home. Judges, too, have been viewed by Watson’s supporters as complicit, part of the machinery of the state.

Throughout, Watson’s father Chris, who took a front-row seat at the appeal on Monday, has stood by his son’s claims of innocence. Another of Watson’s supporters, Mike Kalaugher, author of the meticulously detailed The Marlborough Mystery, arrived in court from his home in Hamilton. Both present as good Kiwi jokers, as fighters. It’s easy to sympathise and connect with those who want Watson’s conviction thrown out. All of which only strengthens the Crown’s resolve to hold firm and stick to its case that Watson killed a teenage girl (Olivia was 17, about to study law and English literature at Otago) and a guy who liked to wear his baseball cap backwards (Ben, 21, worked for his Dad’s engineering firm), then disposed of their bodies that summer last century.

There is one thing harder to remember than the past: the present. The fresh memory of things that had just happened was the theme of Monday’s hearing. One of the grounds of Watson’s defence is that eyewitness evidence against him was compromised and manipulated to the point that it was hopeless. In the days that followed the couple’s disappearance, police questioned Guy Wallace, the water-taxi driver who was the last to see them alive. He had transported them from a New Year’s Eve party at Furneaux Lodge – along with a man, the key figure in the entire case. He dropped the three of them at the man’s boat. He described someone long-haired and kind of feral. Watson was short-haired (police gave media the impression during their investigation that he was more than just kind of feral). Wallace rejected a photo of Watson as the man he had seen. Later, though, shown another photo, he identified Watson, and repeated it in the High Court.

Watson’s lawyers commissioned a report from two experts in the field of eyewitness memory. Both gave evidence at the appeal court on Monday. Both concluded that Wallace’s incriminating identification was “unreliable”. Both were questioned, at length, by Crown lawyer Stuart Baker. It was here that the quiet rage of powerful institutions manifested itself, from 10am until 4pm, as Baker attempted to rip their report to shreds.

Certainly he made small perforations. Dr Gary Wells, appearing on screen from a room in Florida, conceded the report had minor flaws. “That might not have been better worded as well as it should have,” he said of a sentence about a police line-up. “Maybe it was an oversight,” he said of failing to include in his report that another eyewitness had only seen the back of the man’s head.

Wells rambled a lot. There was a painting behind his head of a sparkling ocean. He got up at one point to turn on a lamp; it was getting dark in Florida. Baker continued to press upon him the idea his report was just as dim and murky, a report from the twilight zone. His contempt for it was constant, measured, hostile. He said, over and over, that it was “speculative”. He expressed disbelief, four times, that it was genuinely “independent”. He asked, “Isn’t the report misleading?” Wells often answered direct questions with waffle in his not unpleasant Iowan accent. But this time he simply said, “No.”

Wells kept returning to his central thesis that Wallace’s memory was “contaminated”. He had gone from outright saying Watson looked nothing like the man he took onboard with Smart and Hope, to saying that it was Watson. In between, said Wells, Wallace had seen Watson on TV multiple times (“plastered all over the media”), and that influenced his crucial decision to name Watson as the man on the boat – essentially, explicitly, to name Watson as the killer.

Baker kept returning to the idea that Wells’s report was inept, contradictory and lacked balance. Things came to a sharp point late in proceedings when Wells said Wallace had “wavered” in identifying Watson; this was significant, because true recognition should have been within seconds.

“Recognition memory is rapid, and tends to be automatic,” he said.

Baker replied that Watson’s photo was included in a line-up – and then referred Wells to a study which showed that identifying someone in a line-up after 30 seconds was considered quick.

This time Wells simply said nothing. He looked gobsmacked. He was as still as the blue sparkling sea in the painting behind his head.

Baker leaned into the silence, and said, “My point is, are you trying to be independent, or are you advocating for Mr Watson?”

The lamp had made Wells’s nose look red. It glowed a deeper red as he replied, “I am not advocating for Mr Watson. I don’t care! I didn’t know anything about this case. It doesn’t matter to me one way or another! This is about science!”

The examination was over. He was free to return to whatever remained of the Florida night. Stuart Baker then turned his attention, and his paper-shredding, to the report’s co-author, Dr Adele Quigley-McBride. It was a painful examination, but mainly because of her exaggerated vocal fry that was harsh on the ears all afternoon, and her insistence on beginning sentences with the adolescent preface, “I mean – “, as in, “I mean – it’s hard to say. I mean – we don’t know much about that. I mean – I don’t know, because my memory is contaminated.”

Things came to a sharp point when she said, “I mean – it doesn’t matter.”

Baker was a terrible figure of wrath as he faced the witness, and lectured: “It does matter. Getting these details right, about a man charged with two murders, is important.”

Getting the details right about such matters as whether the couple were last seen dropped off on a two-mast ketch, or a single-mast sloop, are also quite important. The appeal is set down for four more days. Time, and opportunity, to sort out fact from outrageous fiction.