I've written about the '2 hair's theory in the Watson case before. Between a prisoner and their freedom can be just the smallest piece of evidence and so it is in the Watson case at least since 2013. It was then when Justice Minister of the time, Judith Collins, claimed they were all that was needed to keep Scott in prison after other aspects of his case were weakened evidentially and in the established process of Law.
The first of weakened aspects of Law or evidence, related to the '2 trip theory' (this is a case where '2' features a lot.) On appeal the Court of Appeal (COA) referred to 'extensive cross examination' on the '2 trip theory' which the had Crown pulled from the coals of the fire of their burning case when there was no proof that Ben and Olivia ever went aboard the Blade. In fact, there had been no cross examination of the '2 trip' theory at all because it was only raised after all the evidence was heard and the Crown got away with it assisted by a helpful Judge. Part of the expression of Defence Counsel at trial is captured in the Doco 'Doubt,' and is worth watching as the defence team shake their heads in one of the worst abuse of the trial system seen in a NZ major trial takes place. It sits alongside the communications 'caravan' police parked outside the High Court during the Thomas retrial when police also socialised with jurors.
Kristy McDonald QC, the reviewer of Scott's first Royal Prerogative of Mercy (RPOM) application (submitted in 2009 and rejected in 2013) acknowledged the COA's 'mistake.' However, rather than send it back to that Court as was the onus on her under the legislation, she instead said it didn't matter overall because of the strength of the '2 hairs.' The Minister agreed with that publicly without securing her position by asking for an update on the forensics testing which move rapidly in the modern times. That would have been a prudent decision and allowed Scott to be freed over a decade ago. What is less appreciated was that McDonald when summarising the 2009 RPOM application referred to early 2000s COA decisions in the Bain case to dismiss the application. By then however both Bain decisions had been overturned by the Privy Council and so the reviewer was relying upon Judgements that had been overruled. She chose the older judgements which were found faulty instead of the PC judgement that had superseded them. The essence of the difference between the overturned Judgement and the fresh evaluation was to look at points for and against exercising the RPOM in isolation as the NZ COA had done in Bain, when compared to the Privy Council ruling that such points needed to be looked both in isolation and in continuity of the overall evidence. The difference being in Watson that the 2 hairs were looked at alone and not with their invariable and proper connection to a 'fact' which was that not one witness confirmed the couple going aboard the Blade or even seen, or heard with Scott. That is a big and critical difference. For Scott to be guilty according to the primary evidence, the hairs had to be shown to be beyond reasonable doubt Olivia's, backed up by proof of the couple ever being aboard the Watson boat Blade.
But back to the 2 hairs, the 'miracle evidence' 2 long blond hairs found in a lab after many previous searches. The only long blond hairs out of nearly 400 shorter dark hairs, one 15 cm long and the other 25 long. But there happened to be another 'miracle' discovered in relatively recent times - the police who investigated the case knew that Olivia had her coloured with peroxide just weeks before her disappearance (peroxide lasts up to 2 years in the hair). That information was required to be submitted to ESR and indeed eventually to the Jury. The reason for that is the international recognition of the damage peroxide does to hair and the exclusion of it being analysed in the majority of testing labs worldwide (certainly NZ's as we had no specialist tester at the time or even an appropriate dedicated laboratory). The reason for that is basic, to ensure time and money are not wasted on hairs from which a test result was unlikely, or indeed prove unreliable. Strike 1: on the '2 hairs' easily seen but not found after multiple searches, no disclosure about peroxide, NZ didn't have a specialist DNA unit or hair-testing facility staffed by competent and accredited personnel, in fact ESR at the time was working toward overall accreditation but had not achieved that standard.
Somehow that information was hidden, kept from the Jury and Court. There is a reason for that, is the 'mitochondrial' DNA found on the '2 hairs' whereas there is international agreement that only the FBI could manage such tests on hairs treated with peroxide, and with potentially poor to unreliable results. There is a lot of other information relevant to the '2 hairs' not able to be encompassed here because of the volume of international peer reviewed science on the subject. The most striking being an admission by the FBI in recent years that something over 93% of their cases which relied upon 'subjective' hair analysis as sole evidence were faulty. That within an organisation that is well funded and the biggest of its type in the world, and which has a standard rule that any use of 'hair peroxide' having been rendered on suspect hairs needed to be notified. So much for ESR.
Clearly that notification was somehow hidden in plain sight in the file. Furthermore 'our' tester used 'subjective comparison' testing with its 93% failure rate but our 'tester' wasn't an expert and had 'help' from another scientist who just happened to be in the lab that day. This is the brief version of events, but what isn't in anyway brief is that police knew that Olivia had peroxided her hairs, and we know that peroxide hairs were unlikely to give a result in 93% plus cases where examiners knew of the presence of peroxide, or indeed where no peroxide was present but where the ESR type of 'hair comparison' method was used. Strike 2 a process of high un-reliability even when in the hands of accredited experts which ESR did not have. Next we need to connect again to a hallmark of miscarriages of Justice worldwide: 'further searches.'
As set out above the 'suspect hairs' took many searches to find. However, 'sample' hairs (to match the suspect hairs by super dooper scientists whose failure rate was 93%) were taken from the home of Olivia once, then again. Just like the search of the flower bed in the Thomas case and the 3 searches required of Lundy's car to find a bracelet which, when found, was too small to have fitted Christine Lundy, or the 'lens' found in Bain household after hours in a room, already grid searched.
The officer who did the hair collection broke the accredited standards for uplifting and storing the hair - no doubt because ESR didn't know the correct procedure themselves or didn't bother to tell him. What is certain is that at least 3 others in the Hope household, or who visited the home were more likely than Olivia to have been the hair 'donors' if there was in fact a reliable mitochondrial DNA match (maternal DNA line, not specific to an individual). Strike 3 - multiple sample hair collections and searches, specimens not properly handled, specimens not photographed in situation, specimens not collected, handled and stored according to accredited standards, and highly likely to have been contaminated as a result, no peroxide allegedly found in the hairs, never mentioned in the Court by the scientist but found recorded in the file - an important issue itself, perhaps not understood or more than likely hidden but not 'cleaned up' after properly. Detectives did take a record of the peroxide treatment of Olivia's hair for a reason that is not known, however that record never reached the Court.
3 Strikes for already controversial evidence is broken enough. Certainly not reliable evidence to keep a man in prison for killing a couple no one has ever said he ever met, let alone that they went aboard his boat. The '2 trip' theory has other major problems in itself, not firmly appreciated until this year but now backed by witnesses.