The following is an early partial draft of the successful 2017 Royal Prerogative of Mercy plea by Scott Watson to have his convictions for murder overturned. Whilst this draft is strong the final draft was more so and even that has had further telling advances that show once a case cracks open it continues to do so:
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From: Joe KaramSent: Sunday, March 19, 2017, 2:10 PM
To: 'Brian McDonald'
Subject: RE: Uncompleted, rough RPOM draft March 2017 for comment and
detail if possible, please. Any help is much appreciated.
What’s the intention here – is it to seek a judicial review of
Mcdonald's report or file a second Petition?
From: Brian McDonald
Sent: Sunday, 19 March 2017 9:48 a.m.
To: 'Joe Karam'
Subject: FW: Uncompleted, rough RPOM draft March 2017 for comment and
detail if possible, please. Any help is much appreciated.
Hey Joe, trust you are resting up. A little
exercise below upon which you may be able to comment.
Original start here:
Subject: Watson RPOM application (2)
Introduction; Following the previous application by Scott Watson
(SW), also referred to here as the applicant, for an exercise of The Royal
Prerogative of Mercy (RPOM) in December 2008 rejected on July 2013 is herein a
second application for a fresh exercise of the RPOM.
Para 1. This application asserts that the declined application was
handled inconsistently with the concept of Mercy, due process, and the Bill of
Rights Act for the following reasons:
Para 2. Proper weight was not given to the alibi evidence provided
by Guy Wallace that SW was not the person whom he dropped off onto a ketch with
Ben Smart and Olivia Hope. Instead, Wallace's evidence was exclusively
criticised because of errors in his placement of the Ketch to the point no
proper weight was afforded his critical evidence as to the description of the
Ketch.
Para3. Proper weight was not applied to evidence of a ketch and
the police failure to investigate all that evidence, some of which, supports
this application and provides a clear alibi that could result in an acquittal
if he was re-tried. New evidence suggests that it was improper and wrong for
the Crown to deny the existence of a Ketch at all.
Para 4. The onus of proof was reversed in the matter of the secret
witness who recanted his claim of a confession against SW. And was not anyway,
afforded the proper consideration of the impact of the recantation on a fresh
Jury or on prospective cross-examination of the 2nd secret witness.
This, per the reasoning of the trial Judge and the COA, may also have affected
the admissibility of the propensity evidence of Mr. and Mrs. B whom the Judge
found their evidence as consistent with the now-retracted evidence of one of
the secret witnesses. On this point, and throughout, the R v Bain 2007 Privy
Council (PC) decision is relied upon that evidence should be ‘taken together’
with surrounding evidence and not in isolation.
Para 5. The application was not treated in a manner consistent
with the 2007 PC Decision in Bain where the PC instructed as to the limitations
of a COA assuming the role of a Jury, and is taken further in this application
in terms of the COA treatment of the Watson appeal 2002 where the Court
considered not only the position of a Jury but also the minds of Prosecuting
and Defence Counsel and took a role, as in Bain (PC), as Jurors after which the
appeal was denied. SW has never appealed the 2002 decision on these grounds as
they were unknown, or not fully appreciated by him.
Para 6. That the reviewer of SW’s application for the RPOM in
2009, Ms. McDonald QC, appears to have repeated the same position as the COA in
Bain and taken in SW’s appeal. She took a dual role as both inquirer and Jury
which breached both the Bain PC decision and Watson’s rights under TBORA. It also
extended her role as inquirer beyond the statutory limit of the RPOM which
affords referrals to the Courts, rather than the inquirer adopting the function
of the Court.
Para 7. SW was refused permission to have counsel attend meetings
between Ms. McDonald and witnesses supporting my application in the normal
fashion of transparency. The applicant is aware that Justice Binnie when
investigating whether David Bain was innocent on the BOP, interviewed witnesses
with the option of having counsel present.
Para 8. Although identification was a crucial factor at the trial,
where critical witnesses have withdrawn their identifications Ms McDonald treated
that as insignificant as to what any fresh Jury might consider. However, the
Privy Council has rejected such reasoning by a COA and so it is a distortion
of Justice that an official, albeit a QC, operating in a quasi-legal way, with
rules changeable between one application and another – does not have the legal
authority to overlook what a Jury might consider of a case with key evidence
withdrawn or reduced to disfavour of the Crown. Moreover, the role of
appellant Courts or reviewers considering the minds of a jury or others is
covered in my complaints about the COA judgment later herein.
Para 9. Ms McDonald freely used police resources without notice to
Defence Counsel in the normal way Judicial proceedings take place with
communication to all parties. My application was not a police inquiry as the
result of a crime being reported, it was and is, in fact, an inquiry, among other
things, into police conduct into the treatment of witnesses, and not pursuing a
full investigation in the Sounds Murders. She did this without notice and
acceptance by Counsel. Mr Watson views this as one-sided, and not due process, and also as a breach of his rights to a fair hearing and consideration of the
application. Clearly the police and Crown are party to the complaints he
alleged in his previous application and this new application. While
appreciating that MS McDonald could solicit help from police, other agencies,
or take advice and so on, the applicant believes his counsel should have been
informed throughout for comment and also offered the same opportunities for
specific forensic or legal advice if required as may have occurred to Ms. McDonald, counsel for the police, The Crown, or indeed the applicant. This would
have been a constructive and fair approach to gaining a common purpose.
Para 10. The review had no timetable and no structure, and counsel was
not kept within the loop whereas the police were very much so. There were long
delays that wouldn’t be tolerated in normal legal proceedings before the Court
would intervene. Included in Part 2 of this fresh application are instructions
given to Ms McDonald which Watson maintains were inadequate, and not consistent
with the principle of Mercy or TBORA.
Para 11. The review was unnecessarily long. Some of the delays
were explained as the difficulty in finding the secret witness B, who was in
fact never located and presumed disappeared. This belied a lack of serious effort
applied to my application which should have happened in a timely and
informative manner, not dissimilar to the recent Pora application for
compensation for wrongful imprisonment. It is understood that Witness B
remains in NZ and his whereabouts are known to police. It was open for Ms. Mc
Donald to take the clear position that the secret witness had recanted, as the
result is the same, he is no longer part of the Crown case. Accordingly, the
applicant seeks that this application confirms the same.
Bayesian reasoning and inconsistencies between applications for
exercises of Executive Powers.
Para 12. Ms McDonald in her recommendation to reject the
application completely ignored the use of Bayesian reasoning in her report to
the then Minister, the Honourable Judith Collins.
2 years after the decision by Judith Collins to reject the
application she rejected a claim by David Bain for compensation because it was
said that Bayesian reasoning was not used by the reviewer in that case, retired
Judge Ian Binnie. Without notice to the defence she released information to the
press as to the Binnie findings whilst not disclosing the same to the defence.
It is understood, by public comments made at the time, that the applicant was
the last to know of the decision.
In Watson’s case, Judith Collins on the advice of Ms McDonald
publicly provided the reason for the application being denied as being the 2
hairs found in the ESR laboratory. As the Minister, may know, in this case, the handling of the hair samples fell below standard international practices, were
raised from a Laboratory where DNA evidence collected in Wellington was traced
to a person in the South Island who had never been in Wellington. The
Laboratory in question was situated in Auckland. Clearly, these were not conclusive anchors upon which to reject the application because of the
controversy surrounding the hairs and the safe custody chain of the evidence
could not fairly overcome the recanted confession and recanted identifications,
positive descriptions of an offender, and sightings of a ketch. In the trial,
cross-examination of the ESR Scientist, Ms Vintner, as to possible contamination
she agreed that contamination needed to be considered. It was at the very least
the matter for an informed Jury to consider in a much wider view than that
taken by the then Minister of Justice Judith Collins. It appears neither Ms
McDonald nor Ms Collins considered this point and there is also no mention of
it in the RPOM rejection summary, as indeed there is no mention of the standard
set for the consideration of fresh evidence, and evidence being taken together
as in the 2007 Bain PC decision.
Therefore, rather than seek Judicial Review of the Cabinet’s decision
to reject the original application, the decision is included in this fresh
application to be read with the following:
That the fresh application is treated as part of the original
application with specific Judicial controls and Ministerial direction:
That a High Court Judge oversees all matters including the final
recommendation to the Minister, after which the Judge’s recommendation to the
Minister is made available to the Crown and Watson for comment before the
Minister takes any recommendation to Cabinet. The latter has happened in
applications after Watson’s first and under a different Minister.
Para 13. Additional to points of contention in the first
application are affidavits, statements, videos, or information (contained herein
in Part 2) of people who saw what has been described as the mystery ketch in NZ
waters before, and after, the disappearance of Ben Smart and Olivia Hope,
including some reported sightings, or possible sightings, of Ben Smart and
Olivia Hope on, and after, Jan 1st. Counsel anticipates that all such witnesses
be examined by the presiding Judge under oath where ever practical. This
information is a comprehensive alibi unavailable at the time of the trial and
COA because it was never fully investigated by police. Many of the witnesses
were not interviewed (and then only by private researchers, or news media)
until sometime after the trial and COA hearing, having been ignored by police
when they responded to the public plea for sightings of a ketch. They would
normally have been captured in a comprehensive police inquiry, the result of
which may have been that I would never have been charged. The extent to which
the Police inquiry should have been extended is sought to be scrutinized by the
examining Judicial officer in comparison to police journals' directions of such
events or any other applicable law.
Included are the links to the Bain, Lundy, and Pora Privy Council
Judgements relating to fresh evidence and additionally to the limits of a COA
(or as it follows here, a reviewer of an application under the Statutory
enactment of the ROPM acting in a quasi-legal way) to assume the role of a
Jury. Additionally, these decisions make it clear that evidence need not be new
or fresh if indicating a potential miscarriage of justice.
Evidence in an affidavit or statement form unheard by the Jury and
not investigated at all, or fully by police, as to a ketch in Endeavour Inlet
on the 31st Dec 1997 and 1st January 1998)
The link to a 2016 report to the POTUS regarding standards of
forensic evidence, handling, safe custody, and information passed to testers by
authorities or first testers of samples. Of emphasis is this extract, from
26/174 “hair – microscopic hair comparisons alone cannot lead to personal
identifications and it is crucial that this limitation be contained both in the
written report and in testimony,” which could have influenced the Jury
along with other details of the 2-hairs raised here later. Also, there
is an analysis of forensic procedure in NZ post-2005 prepared by Sean Lundy for
the Lundy retrial, along with an earlier Ministerial Inquiry paper which
reflects directly upon the circumstances of the ‘discovery’ of the 2 hairs.
None of this material was available to the Jury, or COA.
That of note in the inquiry/consideration by the High Court of
this application the Petitioner formally requests that the Minister fixes at
least the forgoing and following points and others which the Minister by
consultation might decide are necessary to ensure a fair and just consideration
of the application, along with any points which might be necessary to be raised
as the inquiry continues. This would avoid a recommendation of application
that did not display in any way a BOP, BRD, or Bayesian reasoning. Points
should be linked together, a sound argument to the reasoning of the ‘hairs
found on the Blade’ was neither mentioned nor analysed in the previous report,
it was simply accepted against other evidence which found no mention. There is
no BRD fairness in the report claiming that the ‘2 hairs’ hold the fractured
pieces of the case together. They do not and never have as will be set out
throughout.
#That there is and has
never been unimpeachable evidence of the couple being dropped off with Watson
onto The Blade. In fact, there is total evidence that they were not from Donald
Anderson and those aboard vessels which The Blade was rafted alongside.
#That there was no
forensic evidence catalogued as being found on The Blade confirming the couple
had been on board. The 2 hairs were found in a laboratory in unknown, and in a
forensically unsafe situation. They are not the glue binding this case together,
they bind together a miscarriage of justice.
#That the police did
solicit sightings of a ketch, and then refused to investigate all reports from
the public. The timing of this switch is important because dates show that
Watson and The Blade became primary targets of investigators and other
information from the public was deprioritised. Lost to the jury was, as time
has shown, a complete alibi for Watson because the investigative resources
continued to be utilised in the search for the couple and perpetrator but
excluded looking for the ketch which should be recognised (considering the
attached affidavits, statements or reports) to have completely missed the
opportunity for an inquiry into the ketch that it has taken members of the
public to solve.
#That late in the trial
during the closing addresses Counsel for the Crown claimed that Watson had made
a 2nd trip to the Furneaux Lodge after being dropped off to the
Blade. but were unable to provide evidence of this – because there simply is
none contained in the entire file (check here the jersey referred to by
Davidson and COA). This happened in the manner of a blindside that prevented
a thorough defence to that point (the 2-trip theory) in the normal manner of depositions hearing, along with witnesses providing proof of the claim during
the Crown case. No written notice was given of this.
# Ms. Vintner of the ESR
gave evidence that potential contamination of the hairs needed to be
considered, something which the COA, Ms. McDonald, and Ms Collins overlooked
without a single comment. In view of best practices throughout Britain and the
United States, and the compilation prepared for the POTUS, these decisions were
regretful and unjust. What may have sufficed in Ms. Collin's decision was an
instruction to apply Bayes testing to the probability of the hairs being able
to be relied upon to turn down the application. The very least was a full and
considered analysis of all the matters raised here in respect of the 2
hairs and what information any new Jury would have to consider on the subject
should there be any retrial in which the ‘hair evidence’ remained
admissible.
Underpinning facts:
#That executive powers
are reviewable by the Court.
#That executive powers
even where reviewing criminal convictions or offending utilise both criminal
and civil standards, being both guilt or innocence beyond a reasonable doubt or
on the balance of probabilities.
.
#That the Minister of
Justice has the primary role in applications for an exercise of Prerogative
Powers.
#That the Minister of
Justice conducts a role between the Crown on the one hand and the applicant on
the other and ultimately makes a recommendation to Cabinet and that during
that disposal of any application, the Minister is open to both parties by
correspondence or contact in any other formal way, along with requests by both
parties in the knowledge that the Minister’s decisions are reviewable by the
Courts, and may be referred to the Courts on matters of Law, precedent or
procedure, before, during, and after a decision is made.
#That there can be an
expectation by any applicant that the Minister whilst holding regard to due
process and the TNZBORA, shall also observe the traditional meaning of Mercy
and in particular to those imprisoned or convicted of crimes where Justice
available to the applicant may be exhausted apart from the principle of Mercy
enshrined in Law and elucidated by Lord Diplock of the PC contained within the
text following text by M. Travis:
- Some
material from M. Travis, May 1998 on the RPOM in NZ.
The whole
thing is worth reading, however, in the excerpt below is what seems to be the
answer in Pora – no limits apparent on ‘the discretion’ to exercise. And in the
final sentence, what now appears to be a ‘prophetic’ observation regarding a
current Judicial Review as, hopefully, the Courts and The Executive will ensure
that ‘Executive Powers’ are consistent with Statute, due process, and Natural
Justice – all things which must have been included in the original concepts of
the Royal Prerogative. Great observation by Lord Diplock included.
‘The
prerogative of mercy seems limited only by the discretion of those who have the
power to exercise it – the Sovereign, and the Governor-General by way of
delegation in the Letters Patent 1983. Fortunately, a precedence has been set by
the practice of successive Home Secretaries that, in the words of Ivan Hare,
“a free pardon should only be granted in cases where it was established that
the convicted individual was both technically and morally innocent.” Although
only a precedent and in no way binding, this is most compelling and surely to
be followed by successive Governors-General.
The only
major mechanism that has been suggested for controlling the use of this
prerogative is the possible threat of judicial review. So far there has not
been a successful appeal for review, but there are many arguments on either
side of the issue.
In de
Freitas v Benny [1976] (Court of Appeal in Trinidad), Lord Diplock observed
that “mercy is not the subject of legal rights [but] begins where legal
rights end.” Christopher Gelber considered this a ruling that “the exercise
of the prerogative of mercy was inherently extra-legal in nature and therefore
not justiciable,” as did Lord Roskill in the G.C.H.Q. case [1985] A.C. 374.
Furthermore, it cannot be denied that the Crown’s ability to pardon displays
the necessary characteristics of a true prerogative; yet there are those like
Watkins L.J. who reject the test of justiciability “in favour of an examination
of the court’s capacity to weigh the competing issues of principle in each
case.” Watkins considered the courts to be competent enough to review the
prerogative of mercy.
Nonetheless,
a judicial review of the prerogative has never been undertaken in a New Zealand
court. The closest thing so far was the ‘review via invitation’ in R v
Secretary of State for the Home Department, ex parte Bentley [1993] 2 W.L.R.
101; where the Divisional Court did not order a formal review but “[invited]
the Home Secretary to look at the matter again.” Ivan Hare saw this invitation
as attempting to “impose narrower parameters on the discretion of the Home
Secretary” via the informal mechanism of invitation, but he seems dubious as to
its ability in having any real effect. This is because it is beyond the role of
the courts to suggest a particular result and because any purported limitation
on the role of the Home Secretary is illegitimate.
The issue
is also a live one in Burt v Governor-General [1989] 3 NZLR 64, (1987-89) 7
NZAR and [1992] 3 NZLR 672, and some very important contributions to the
argument are made. In these cases, Mr. Burt sought a judicial review of the
Governor-General’s refusal to exercise the prerogative of mercy in granting him
a free pardon. Although unsuccessful, Cooke P said that:
“It would
be inconsistent with the contemporary approach to say that, merely because [the
prerogative of mercy] is a pure and strict prerogative power, its exercise or
non-exercise must be immune from curial challenge.”
He states
that the Courts’ wish to review the refusal to exercise the prerogative is not
“absurd, extreme or contrary to principle” as it is at the very least
attempting to ensure that fair procedure has been followed. Moreso he adds that
the prerogative of mercy is not “an arbitrary monarchical right” but “an
integral element in the criminal justice system…a constitutional safeguard
against mistakes.”
In
conclusion, the prerogative is not to be touched by the Courts or judicial
review, yet the concept is one that is winning favour amongst the Judges. It is
possible that in a few years, there will be mechanisms like judicial review to
control the use of the prerogative, but it is very unlikely that it should ever
become part of a statute.’
#That all RPOM
applications looked at since the year of the Watson convictions it is revealed
that there is no consistent pattern by which any application under the RPOM, or
application for compensation, has been handled. Rules have changed from one to
another. In Bain, as mentioned above, Binnie’s recommendation was not accepted
because it was claimed he did not use Bayesian reasoning. In Mr. Bain’s next
application, considered by retired Judge Callinan, Callinan refused to use
Bayesian reasoning at all, yet his report was accepted. There cannot be a
better (or worse) example of the perils before any applicant than this. In
Watson’s case, Bayes's reasoning was not used in such a fashion so that any
strengths of application, arising from the evidence or the inquiry were
measured together, one supporting the other. This allowed Ms McDonald to rally
points in support of the Crown case which were already controversial for not
being sound evidence. By this, the applicant refers to the 2 hairs, which the
Minister of the time, Judith Collins, repeated to the public as the reason the
application was declined despite the known controversy regarding the hairs.
Using Bayes reasoning the Crown could no longer rely on identifications of the
couple with Watson on the water taxi driven by Guy Wallace, and therefore not
being dropped off along with Watson to The Blade – in fact the essence of the
case. A point made by Justice Heron to the Jury in his closing address – if, in
the Jury’s opinion, the couple did not go aboard The Blade then the hairs were
of no moment.
#That there is a high
public interest In the Watson case. The public is aware that over 50 people
saw the ketch, some of whom identified what clearly could have been the couple
on board after their disappearance, thereby corroborating the testimony of Guy
Wallace. A full RPOM inquiry is in the public interest.
#That the nature and the
very use of the word ‘Mercy’ be applied in a way with the principle set down by
Lord Diplock of the Privy Council that Mercy begins where Justice stops. It is
the overriding submission that ‘Justice stopped’ in the investigation of the
disappearances when Inspector Pope, on January 6th, 1988, suddenly
halted the search for the ketch which had featured in all advice to the public
to that point. Whether Mr. Pope had good reason to believe there was not a ketch
involved, due process required that all reports were investigated relating to
the disappearance of the couple, while this may not have produced any help for
Mr. Pope’s theory, his duty was to the victims and public interest to
investigate all information and pass it on to the Courts and defence counsel in
the event of any arrest. Indeed, it is the police's role to investigate all
evidence, not selective evidence to suit a case they may be building. That this
clear oversight was compounded when Counsel for the Crown suddenly, and without
notice or evidence in support, introduced a new theory for which the defence
was unable to fairly respond. Therefore, Watson could never have possibly had
a fair trial.
COA Issues which it is considered were dealt with in an unfair,
unjust, and discriminatory way by the Court.
Para 14. Interruptions by Judge Heron of my counsel Mr
Antunovic. A careful reading of the passages cited in the COA judgment
reveals an ongoing exchange between the Judge and Mr Antunovic. When discussing
this, the COA at no point considered what the impact may have been on the Jury.
It may well be unprecedented that such an argument has occurred In a murder
trial previously, or since in NZ, particularly during an opening or closing
address where protocol has meant an acceptance that is solely the time of
counsel, their opportunity to speak on behalf of the Crown or indeed a client,
statements that are often referred to by the Judge in his or her address to the
jury. Despite Mr. Antunovic making an opening address as to the witnesses he
would call and where their evidence fitted into the 14 weeks or so of the Crown
case. This was an extremely important and sensitive moment in the context of
the trial. This is the period after a time where there had been a lot of public
interest, statements by police and so on, an arrest, a depositions hearing, an
opening by the Crown, and in this case, 100s of witnesses. In fact, the first
time and opportunity for Counsel to speak on Watson’s behalf. This was a time
of anticipation, of what evidence the defence would call in response to a
sensational case that was in the public mind and had been so for a long time,
as it remains today. No doubt the Jury was also anticipating this opening because
until that point Defence counsel had been solely able to cross-examine Crown
witnesses as in the normal trial procedure. Here, on top of that anticipation, the Judge argued with the lead Defence lawyer in open Court and spoke to him in a
manner that clearly warned him, an experienced counsel and member of the bar,
as though he were committing some offence or indeed being offensive or
dishonest. This was the start to the defence and it must be considered to have
made a lasting impression on at least some of the Jury, some of who could even
have decided regarding guilt or innocence later in the trial if influenced by
the exchange. It could have been interpreted as an endorsement of the Crown case
and a criticism of the defence. While the COA may have chosen to intellectualise
responses by a Jury or consider what they may or may not think or have
thought, one thing which is clear is that a jury, by its nature, comprises
people of different backgrounds, social status, wealth, education, and so on.
But a jury remains subject to the thoughts or attitudes of each of its members
and in this case, an attitude may have formed in one or more of the jurors as to
Defence Counsel’s conduct in a negative way, which may have reflected in their
deliberations. This application submits that nobody can say with any certainty
otherwise. The COA was silent on this aspect, it appeared they too engaged in
the ‘battle’ to some degree and lost sight of the fact that the jury had been
present. If there is a cautionary point here, it is that the matter should have
gone to chambers, this was overlooked by the COA.
Para 15. The propensity evidence by Mr. A, and Mr. and Mrs. B,
this relates to evidence that Judge Heron wavered on, firstly ruling the
evidence inadmissible to only later ruling it as admissible. He conceded to allow
the Crown to have more than one application which may be unusual. From the
position of a defendant, it meant that the Judge was at times inconclusive if
looking at it in a benign way, on the other hand, another defendant in a
relatively weak circumstantial case could see it – as a call for help from the
Crown who knew their case was weak particularly so because of the Donald
Anderson evidence. The Judge (as was the COA) was silent on the period that passed
between the first and previously unreported allegation by Mr and Mrs. B,
somewhere approaching an entire year the second on the 31st of December
1997. Despite the seriousness of the allegations and the lapse between them,
one appears to take up precisely where the other finished 12 months previously.
Mrs B’s evidence was that Watson hated women in her opinion, yet in the same
breath said Watson offered to kill someone for her, a woman herself. Common
sense would say that it is certain that had Mr. and Mrs. B has been so concerned, as
they justifiably would have been if the allegations were true – that they would
not have taken celebratory drinks with Watson on New Year’s, let alone
socialise with him again. This was not traversed by either Judge Heron or the
COA, in fact, it was overlooked. In any event, this point was held by both Judge
Heron and the COA being unaware that the evidence of a secret witness had been
recanted and therefore reduced the corroborative value of both prison witnesses
in the decisions of admissibility of the propensity evidence. None of this
evidence puts a couple of Watson’s yacht nor dismisses the reports of a ketch
and should be set aside when considering this application as its prejudicial
extent is plain if but inconsistent with the surrounding known evidence.
Para 16. In the 2-trip theory, to this aspect the COA
and the trial Judge made an unintentional error as they were unaware and
therefore unable to consider new evidence ignored in the police inquiry.
Additionally, the consideration given (by Heron and the COA) that the
defence must have known that the trial was going to move in a new
direction (without witnesses or notice,) remains the indisputable fact if the
Crown had appreciated their witness could give evidence helpful to the defence,
as the Court says – then it remains that the Crown did absolutely nothing about
that until after all witnesses had been called. On this point, the minds of the
COA may have unwittingly gone into the minds of counsel, in a manner warned
about by the PC in respect to the minds of a jury. By any measure going into
the minds of a jury, or alternatively, officers of the Court, differs in at
least one substantial way. Both counsels were before the Court (and subsequently
the COA) and may have simply been addressed as to exactly what they had
thought. In the case of Mr Antunovic an affidavit is attached(?) with
information the COA could have asked for, without troubling its imagination.
This oversight afforded a position to the Defence which has proven to be
entirely inaccurate, clearly favoured the Crown with an unprecedented right of
not introducing evidence or speculative theories during any trial, but which
they could rely upon in its closing address. With counsel present, the Court
did not have to rely upon distant and speculative, reasoning – it should have
simply asked counsel as to their positions and their minds on the subject of
the exculpatory evidence of Anderson during the relevant times of the trial,
depositions hearing, and so on. It is submitted that would have been the only
possible fair way for the 2-trip theory to be considered as possibly admissible
in the closing address. This must be measured against the evidence of Wallace
and Anderson, Watson himself in his statement to police, and the entire
visibility that no such evidence exists.
oooooooo
(Included here are possible jersey details although the denim
shirt seen by many others is far more certain at the time allegedly after a 2nd trip. This appears to have slipped through the net?)
Additional points to be considered (1)
The argumentative nature of the Wallace/Tom video dated 11th
Jan 1998. In this interview, Detective Tom Fitzgerald is essentially arguing
with Wallace over Wallace's description of Wallace dropping off the couple
with a stranger onto a Ketch which he describes in detail. Police were unhappy
about the description of the Ketch which follows the January 6th
shift of the inquiry away from searching for a Ketch, indicating a departure
from prioritising finding the Ketch Wallace and others had seen. This is despite
that Wallace was the primary witness who had dropped the couple and a stranger.
Redacted, at the time a prison inmate and ex-redacted, was
interviewed in Paparua prison on the 27th of March 98. He had
called the police as he knew of a Ketch that he had seen in the Sounds prior to
1998. He also could describe a man who was either the owner or a crewman on the
vessel. The description appears to be very like that given by Wallace in
various interviews. Redacted also states that the man told him that he sailed in
the Pacific. An investigator has spoken to him and recorded that he said there was more to the interview than recorded in the unsigned
statement. The investigator says that redacted was told by police that there was
no interest in the Ketch anymore (and therefore the suspect) but that he, the
police officer taking the statement, Constable McDaniel, was aware that he was a friend of Watson's, that they had drunk together at times and Watson had a hate-talked woman. Redacted at this point terminated the interview without
signing the statement as shown in Part 2.
The applicant draws attention to the timing of these interviews
being both before Watson’s arrest, and both ignoring a description of a
suspect and a ketch. The first was within days of the couple’s disappearance and
the second was approximately 8 weeks later.
Furthermore,
the OIC of Operation Tam co-operated in the writing of the book Silent Evidence
about the case researched and written by John Coulter. In this book, a Ketch
named Mea NZ is described as not being at Endeavour Inlet on either the 31st
of November 1997 or indeed the following day. These claims appear inconsistent
with police files of the time contained in Part 2 of this application.
Additional
points to be considered (2)
Justice
Heron used alleged details of an alleged conversation between Watson and Mr and
Mrs B to deal with a possible motive at trial, he also used the same alleged
conversations to ‘support’ the 2-trip theory and it appears all to be related
to his decision to first rule the evidence inadmissible before reversing the
order. The Judge clearly did not know that Peter John Firman ex-soldier and
prison inmate had a conversation with Constable McDaniel during the taking of
a statement about a ketch Firman had seen in the Nelson Bays area in the
mid-1990s. Or that included in this conversation was a description of a crewman
of the vessel. A conversation during which Firman says it was put to him that
he was a friend of Watson's, that they had drank together, and Watson had made
comments like that alleged by Mr. and Mrs. B. Nor did Justice Heron know, Firman
denied the allegation and refused to sign the statement.
It’s clear
that the decision to allow Mr. and Mrs. B's evidence was a difficult decision
for the Judge, Firman’s evidence, had it been available, could have influenced
this decision. What was likely to follow from that was that the Judge may not
have considered using the evidence of Mr. and Mrs. B to introduce a potential
motive which the Judge also extended to use as support for the 2-trip theory.
Firman can attest to witnesses being invited what to say by police and is
supported by the video of the Wallace statement made on 7/1/88. In the minds of
a Jury, this may also reflect in the changing positions of time offered by the
Eerie Bay caretaker who appears to have been given a lighter sentence for
commercial cannabis growing, and on different charges, after delaying the time
he first indicated as the day Watson visited him on 1/1/98.
For this to
be fully considered in context is the evidence of Mr. and Mrs. B. themselves that
the couple was willing to socialise with Watson on their own boat with others
a year after the first alleged statements made by Watson that he was a hitman.
No other persons aboard Mr. and Mrs. B’s boat supported their story.
It takes no
imagination that witnesses prepared to say that Watson had spoken about killing
people shored up a case in which the naiad driver Anderson had put Watson on
his own boat alone, something established by other witnesses, whilst Wallace
had put the couple aboard a ketch with a lot of rope work along with a man
Wallace recognised from the bar and which wasn’t Watson.
|
Both Firman and are Wallace material
witnesses in any attempt to highlight the weakness or total unreliability of
the remaining secret prison witness, along with the recantation of
Witness B.
|
|
|
|
|
Para 17.
Heron Summing up.
Judge Heron
after considering Vintner’s evidence should not have referred to blond hairs
being found on The Blade. He should have referred to her evidence providing,
the Jury might think, reasonable doubt that the hairs had not come from the
blanket but rather from the hair brush. The weight that could be provided to
that, the Jury might think, was the previous unsuccessful searches of the bags
for blond hairs. Also, the reconciliation by Ms. Vintner of the longest hairs
taken from the blanket on the earlier searches of the blanket and the sample
bag.
He referred
to ’possibilities of some mix at the time of re-examination’ of the hairs. But
he does not quote directly the answer of Vintner to defence counsel regarding
contamination ‘that it would have to be considered.’ The Judge also directed to
Jury to consider a ‘mixup or inadvertent exchange’ of the hairs whereas Ms. Vintner had specifically confirmed to defence counsel that contamination would
need to be considered.
He also
spoke ‘of all the steps that are normally taken to prevent this happening’
without being aware that the ‘normal steps of the time did not address the
British standards as pointed out in by Sean Doyle in a report commissioned for
the 2014 Lundy retrial and repeated similarly by researchers in a p cast to
the office of POTUS in September 2016. What happened in the lab in the Watson
case would not happen today, something highly relevant to a Jury’s
consideration.
Para 18. Motive
and the 2-trip theory Justice Heron:
Heron used
alleged details of a conversation between Watson and Mr. and Mrs B. to deal with
a possible motive, he also used the same alleged conversations to ‘support’ the
2 trip theory and it appears all to be related to his decision to first of all
rule the evidence inadmissible before reversing the order. At this time the
Judge was not to know that redacted the prison inmate
was yet to reveal details of a conversation had with Constable McDaniel during
the taking of a statement about a ketch Redacted had seen in the Nelson Bays area
in the mid-1990s including his conversation with a crewman of the vessel. A
conversation during which Firman says it was put to him that he was a friend of
Watson's, that they had drank together, and Watson had made comments similar to
that alleged by Mr. and Mr. B. However, Firman denied the allegation and refused
to sign the statement.
As written
earlier, it’s clear that the decision to allow Mr. and Mrs. B evidence was a
difficult decision for the Judge, Redacted's evidence, had it been available,
could have influenced this decision. What was likely to follow from that was
that the Judge may not have considered using the evidence of Mr. and Mrs. B to
introduce a potential motive which the Judge also extended to use as possible
support for the arguably improperly admitted 2 trip theory. The Firman
statement is explicit as to witnesses being invited what to say by police, and
is supported by the video of the Wallace statement made on 7/1/88. It may also
reflect in the changing positions of time offered by the Eerie Bay caretaker
who appears to have been given a lighter sentence for commercial cannabis
growing, and on different charges, after delaying the time he first indicated
as the day Watson visited him on 1/1/98.
For this to
be fully considered in context is the evidence of Mr. and Mrs. B themselves that
the couple was willing to socialise with Watson on their own boat with others
a year after the first alleged statements made by Watson that he was a hitman.
No other persons aboard Mr. and Mrs. B’s boat supported their story.
It takes no
imagination that witnesses prepared to say that Watson had spoken about killing
people shored up a case in which the naiad driver Anderson had put Watson on
his own boat alone, something established by other witnesses, whilst Wallace had
put the couple aboard a ketch with a lot of rope work along with a man Wallace
recognised from the bar and which wasn’t Watson. The Jury ought to have known
that police clearly preferred witnesses who had not seen a Ketch or who would
confirm that Watson allegedly hate-talked women.
The
cumulative results of the changes to the Wallace, McNeilly evidence and how
when considered in the overall evidence of the case they would have affected
all these crucial aspects, the Ketch, the stranger, the conduct of Watson, the
alleged motive, the 2-trip theory.
The
Supplementary Advice (as to complaints arising from her recommendation to
decline the 2011 SW application for RPOM) from K McDonald QC dated March
2013.
Again, in
this subsequent report, as there was in the first, there is silence on the role
Mercy is to play in its finding as there was in the original. There is no
explanation as to what Mercy entails for an applicant making an Application under
The Royal Prerogative of Mercy. On the basis that the supplementary report
seeks to answer criticisms of the report proper and shares the same lack of
observation to the Bain PC reports dealing in principle with the sanctity of
the role of Jurys compared to appellant Courts (or therefore, inquiries or
reviewers of RPOM application – the full report is not dealt with here in
detail, although it may be in the event of Judicial Review)
Each
point in answer to the criticisms of her report does not refer to the view a prospective
Juror might have reacted had the new evidence been heard, nor does she look to
see the points from the Defence Counsel's point of view, and what indeed that may
have led onto. She also, in contradiction of the PC report ignores the
continuity of the evidence, in original form or in changed form taken as a whole.
She also
does not clearly set out her role on each topic as to what was required by her
brief to do, whether or not that was achieved, or if in fact, the points in her
brief ought to have been extended or restricted in the interests of due process and the
overall capacity of S406 being capable of recommending extensions of Mercy to
an applicant.
There is
concern that Ms. McDonald reflects upon new evidence in a manner that seems to assume the role of the COA, when the COA is, accordingly to the
legislation, an option for the RPOM where 3 Judges rather than a reviewer
consider the matter. At times the lines are blurred between the reviewer and
the functions of the COA. This appears to lead to a Judgement role of the
reviewer beyond the role envisaged by the Legislators or per the common Law and
The BORA but already limited in extent by a brief from the Ministry that has not
been discussed with the Defence or presumably the Crown.
Indeed, Ms
McDonald refers to this situation in her supplementary report in para (24)
where she refers to her instructions to consider:
‘only
information relied upon and submitted by Mr. Watson and his representatives it
was not appropriate for me to embark upon a wide-ranging inquiry as now seems
to be suggested by Mr. Watson’s advisors.’
Clearly, Ms. McDonald is saying that she was restricted as to what she could do and that
there appeared to her from her brief that she had no alternative. In fact, Natural Justice for any applicant would not preclude someone in Ms. McDonald’s
position from writing to all parties on some matters she thought important but which
extended, in her opinion, outside her brief. While apparently this approach may
have been viewed as novel in the year of 2013 such procedures of open
communication between all parties was beginning in the Bain case as it would
later in Pora.
This
appears to be the crux as to why the McDonald RPOM was not treated as a potential
inquiry that begins ‘where Justice stops’ Lord Diplock of the PC. Whether Ms
McDonald saw herself as somehow prevented from addressing the new evidence as
something likely to have been of assistance to defence counsel, or the jury, at
trial must be confirmed by her having not done so. That is ultimately a matter for
the MOJ, the Minister, or Judicial Review, as time has now shown.
Again, in
para (25) Ms McDonald emphasises that in her instructions she was not asked to:
‘embark upon a wide-ranging inquiry
as to an overall miscarriage. It is important that distinction be understood,’
she says.
While
perhaps the words ‘wide ranging’ overstate the case the distinction is
understood and it is neither Merciful nor to the benefit of an applicant who may
have no other alternatives open to him or her. Furthermore, there is a high
public interest in this case which has never been far from the everyday news,
there are many victims directly as a consequence of everyday New Zealanders
with evidence on the case being shut out. There is also undoubtedly public
concern over other high-profile cases which would be benefited in endorsing public confidence that indeed the RPOM works as a safety net to ensure that
Courts continue to be available for extraordinary cases such as that of Watson.
It would not be unkind to describe Ms. McDonald’s response as that she either
did her job properly or was restricted from doing more.
Moving to
para (30) Ms McDonald displays (we're talking about ‘the fresh evidence of
McNeilly and Wallace’ what some may feel as considering if the material should
be referred to the COA as:
‘reasonable
prospect the COA would uphold the appeal.’
Obliquely,
there is enough doubt about this case – as revealed by Ms. McDonald and the
previous Minister of Justice, Judith Collins, to hold the 2 laboratory hairs
alone as capable of upholding the conviction. Accordingly, Ms. McDonald was
wrong to hang the 2 hairs over the entire case in its weakened state to ignore
the changes in the evidence of the two primary witnesses. Indeed, in para (32)
Ms McDonald does not reflect upon the gravity of a long trial where some jurors
might well have relied upon the ‘most important’ witnesses, those that
allegedly put Watson with the couple. This in fact was the core of the Crown
case. If jurors had not heard evidence allegedly putting the group together,
coupling that with the testimony of Donald Anderson it is an incredible
assertion to claim their deliberations would not have been affected. This
however, does not stand alone because it is supported by the Wallace video in
which he refuses to deny that there was a ketch, and the Firman statement that
he was ‘invited’ to tell police that he knew Watson and when drinking with him
had heard Watson making comments that would corroborate the evidence of Mr and
Mrs B. Not one plank of the prosecution case was under pressure, but several
and Ms. McDonald, when assuming what the COA might think of it, ignored the
co-relation. Further into this point is the consideration that any new Jury
would hear from witnesses who did see the Ketch the Crown continue to deny
existed. This is the heart of the Watson case – a 2-masted Ketch did arrive in
Endeavour Inlet around 5.30 pm on 31/12/98 and left the next morning
according to witnesses now available.
In paras
(32 and 33) Ms. McDonald wholly concentrates on the identification or
non-identification of Watson to the exclusion of his major evidence – the
ketch, of which he was never in doubt. It is highly unlikely the COA would not
have appreciated this point. It was a serious mistake for Ms McDonald to overlook
this aspect and for the MOJ not to have included in a thoughtful and open
brief that allowed flexibility to deal with important issues as they may have
occurred.
Paras (34
to 35) deal with identification aspects also, none of these reflect upon the statement
from Wallace dated? in which he swears
‘that he was honestly mistaken,’ something material for a Jury to consider –
that Wallace as id witness acknowledges honest mistakes in identifications of
people at the outset, but that he was forthright and clear as to his
identification of a ketch with extensive rope work to the rear. This statement
dated is attached in Part 2.
Soon after
in the supplementary report Ms McDonald asserts she was correct on various
issues in the first report including the timing of Watson’s departure from the
Lodge Wharf. Again, even where it is true, that departure puts Watson, according
to Anderson, and those aboard the rafted-up vessels alongside the Blade, alone
on his own yacht as he said in his first police interview. Unfortunately, Ms. McDonald appears to be Judging her own work in a manner that isn’t consistent
with due process or natural justice. This appears to demonstrate the
bureaucratic failure of the exercise of the RPOM in NZ. It may well follow that
the very complaints raised by the late and very experienced Greg King,
the equally experienced Kit Hall and ought to have been referred to the COA for
directions rather than Ms. McDonald being asked to look at it again. This would
have possibly allowed the narrowness of Ms McDonald’s brief set out in her 2nd
report into the way she had handled the RPOM application, to also have been
considered by the COA. She Judged herself and ought never to have been asked to.
The same consideration was never afforded to Justice Binnie who was in fact
publicly ridiculed. The COA is recognised in the statute as the place of
referral, an exercise that should have been employed by the Minister to answer
the criticisms.
Judicial
Review remains available to Watson, fresh evidence and procedural matters
beyond that potentially able to uphold the first report of Ms McDonald, are
included here, making it opportune for a fresh single report to cover all
the Watson matters to date, including the COA Judgement.
In (Para
60) Ms. McDonald says that she has dealt with new evidence using a test that
excludes the possibility that evidence, even if not fresh, but which may go to
the heart of conviction is admissible – Lord Kerr PC in Lundy:( Noting also the
reference to ‘bad science’, arguably the result of working within an unsafe
from the possible contamination laboratory environment.)
Lord Kerr PC
120. The Board
considers that the proper basis on which admission of fresh
evidence should be decided is by the
application of a sequential series of tests. If the
evidence is not credible; it should not be
admitted. If it is credible, the question then
arises whether it is fresh in the sense that
it is evidence that could not have been
obtained for the trial with reasonable
diligence. If the evidence is both credible and
fresh, it should generally be admitted unless
the court is satisfied at that stage that, if
admitted, it would have no effect on the
safety of the conviction. If the evidence is
credible but not fresh, the court should
assess its strength and its potential impact on
the safety of the conviction. If it considers that there is a risk of a
miscarriage of
justice if the evidence is excluded, it should be admitted, notwithstanding
that the
evidence is not fresh.
121. The
requirement that evidence be fresh can be of less critical importance in
cases involving scientific evidence. In
Wallace v R [2010] NZCA 46, a case in which
Page 34
it was sought to introduce new forensic
evidence, Hammond J touched on this
question in para 48:
“Before we approach the particular scientific
concerns in relation to the
DNA evidence, we must also consider the
appropriate principles to
apply on a miscarriage appeal. An appropriate
starting point is Lord
Judge CJ’s recent restatement of the bedrock
principle for the criminal
justice process: “The objective of the
criminal justice process is that
after a fair trial, there should be a true
verdict”. In an imperfect world,
something may go wrong with a trial. It
follows that, with respect to a
miscarriage appeal, the focus has to be on the
safety of the verdict,
however, a miscarriage has been caused. It must
also follow that, in
principle, a critical reliance on “bad
science” could lead to an unsafe or
wrong conviction. That seems to have been
recognised, at least in
principle, by the Supreme Court in granting
leave to appeal in R v
Gwaze. The present point is that, on a “bad
science” argument, the door
can never be closed even if the “better
science” is not “fresh” in the
conventional sense.”
122. The reference to “bad science” in this
passage prompted some debate on the
hearing of this appeal on whether various
elements of the scientific evidence given at
the trial on behalf of the prosecution could
be so characterised. The Board does not
consider it helpful to make a pre-emptive
judgment as to whether the scientific
evidence led by the Crown (or, for that matter
the evidence which the appellant wishes
to adduce) can be described as “bad science”.
In the Board’s view, Hammond J was
doing no more than to indicate that where a
case against an accused rested exclusively
or principally on scientific evidence when on
an appeal, the application is made to have
admitted new scientific material which
presents a significant challenge to that
evidence, the court should not be astute to
exclude the new material solely because it
might have been obtained before the trial.
This is the approach that the Board
would endorse.
She makes
no reflection upon the fact that Counsel was taken by surprise with the 2 trip
theory to the extent they were not afforded the opportunity to reconsider
evidence that they may have decided not to call, or questions put to witnesses,
once the evidence of Donald Anderson had been heard. It wasn’t the role of Ms. McDonald to determine what the defence case may have been and who they may have
called had they known, as the COA wrongly accepted in the Watson appeal, that
the surprise 2 trip theory must have been logically known to them – the defence.
Furthermore, the new evidence not considered by Ms. McDonald because of its
unavailability at the time, extends beyond the ‘not material’ tag Ms. McDonald
has placed on the Wallace and McNeilly identity retractions. Moreover, the
evidence of McNeilly and Wallace as to how they were either mistaken or tricked
would highly be relevant to any jury. As would new potential sightings of the
missing couple after New Year’s Day. An attempt is made to hide a narrative of
innocence by treating each part in isolation.
In (Para 61
and 62) Ms. McDonald quotes the following to put aside complaints by Watson that
the appeal point that the verdict was against the weight of evidence. Sungsuwan
[2006] 1 NZLR (SC)
[66]
There will be cases in which acts or omissions of counsel may in retrospect be
seen to have possibly affected the outcome but they were deliberately judged at
the time to be in the interests of the accused. In some cases the accused will
have agreed or acquiesced - only to complain after conviction. Where the
conduct was reasonable in the circumstances the client will not generally
succeed in asserting miscarriage of justice so as to gain the chance of
defending on a different basis on a new trial. Normally an appeal would not be
allowed simply because of a judgment made by trial counsel which could well be
made by another competent counsel in the course of a new trial.
[67]
But there will be cases, rare cases, as was recognised in Pointon, where the
conduct of counsel, although reasonable in the circumstances in which it
occurred, nevertheless can be shown to have given rise to an irregularity in
the trial that prejudiced the accused's chance of acquittal (or conviction of a
lesser offence) such that the appeal court is satisfied there was a miscarriage
of justice. The court will always reserve the flexibility to identify and
intervene to prevent a miscarriage of justice however caused.
[68]
Often these cases will be able to be analysed without examining the quality of the counsel's conduct. For example, where the effect was that vital evidence was
not placed before the jury it might be appropriate to enquire directly whether
that gave rise to a miscarriage of justice, although that will need to be
considered in light of principles governing the admission of further evidence
on appeal, including any explanation for its absence from the trial.
It is
argued that this is in fact not material to only the alleged instructions and
counterclaims regarding the weight of the evidence plea but that it is materially
more important that the COA when considering the 2 trip theory that it might
have been more appropriate for the COA to enquire directly from defence counsel
as to whether or not they considered the Crown would introduce a new theory
after the close of evidence, and be allowed to do so by the Judge. And that
approval by the Judge happened to rely on the Judge himself later saying in his
closing address that Mr. and Mrs. B's evidence which he had admitted after first
rejecting it, was used by the Judge to show propensity and motive after Mr. Anderson had effectively sunk the Crown case as it was. So, in here
abandoning the complaint about the weight of evidence question as an Appeal
point, Watson says the appeal point should in fact now be as above, again
concentrated on the 2-trip theory and the COA not enquiring directly from
counsel if they anticipated such a move.
The next
heading is ‘Secret Witnesses’ In (para 65) and subsequent paras Ms McDonald
records that ordeal the 2 secret witnesses were afforded by the Defence
counsel. She says that Mr. Watson is wrong when he says there has been a
retraction from witness ‘A.’ She asserts this despite not speaking to ‘A,’ and
therefore being able to confirm that he maintains or disavows his evidence,
this leads to the unfair assumption that the evidence still stands when the
only person who can verify that has refused to do so. Looked at objectively, if
‘A’ is unwilling to stand by his evidence in the event of any retrial, the 2nd
witness’s credibility is lowered, if he indeed chose to repeat his evidence.
In (para
67) Ms. McDonald asserts
“I am satisfied that had Secret
Witnesses A and B not given evidence it cannot be fairly said the jury would
have likely reached a different verdict in view of all of the other strands of
evidence including the DNA evidence.”
From the
petitioner’s point of view, one which members of any Jury might share. ‘All’
the other strands of evidence, including the DNA evidence are shown over the
passage of time in many cases as being insignificant and no longer held
together. There is now a ketch, potential sightings of the couple alive when it
was claimed by the Crown that they were dead. The evidence of McNeilly and
Wallace support Watson in his claim of not having met the couple, and going
aboard his yacht by himself. Along with a potential explanation of why Mr. and
Mrs. B actively socially engaged with Watson a year after he was said to have
badly frightened Mrs. B. Just a few sentences show that Ms. McDonald has not
grasped the failure of the Crown case to maintain itself under public interest
and critical scrutiny.
Up to 68
(check 68 to 83 again)
Paras
80 -83
Ms. McDonald
says ‘undeniably an important aspect of this concerned the correctness of the
identification of Mr. Watson made by Mr. Guy Wallace as the man with whom and
onto whose yacht Ms. Hope and Mr. Smart boarded.”
And later
in para 83, she repeats that both Mr Wallace and Ms McNeilly impressed her as
genuine in what they now say is of importance.
Time has
shown that both the COA and Ms. McDonald are mistaken on this point. First, by
overlooking that Wallace was at all points in time adamant and steadfast in his
description of a ketch, he never wavered from this and does not know. With the
certainty, any Jury could now take from both Wallace and other witness evidence
(attached in Part B herein), the ketch, and not the identification of SW
becomes the most important aspect of the case. Not only is a complete alibi
raised for Mr. Watson, but it also raises the credibility of both witnesses
(McNeilly and Wallace) for any future Jury. There is no longer a missing link.
Wallace becomes arguably the most important because he is now putting the
couple on board a ketch along with a stranger that was not Watson. Ms. McNeilly
is confirmed as being correct that Watson was not the stranger in the bar with
hooded eyes.
Ms. McDonald
says while important that the evidence (identifications) ‘was but part of the
case.’ However, the case is now tangentially transformed with SW completely off
the suspect list. He, as Anderson, attested was alone on the Blade. This is the
reason no occupants of the other boats the Blade was rafted alongside
heard the couple even though importantly, by time, they were awake (details
from Mike here.) Suddenly, there is a Ketch in Endeavour Bay arriving around
5.30 the previous evening, its position located clearly on a map taken from
witness descriptions offered at the trial. This ketch was seen by Wallace and
by the late Ted Walsh, his wife, and many others as sworn or referred, in Part 2
of this document. The Crown maintained there was no ketch only the Blade upon
which the couple boarded, now there is not a single person saying that the
couple were anywhere near the ketch, the truth is out. The 2-trip theory is
proven completely baseless and a critical oversight of the Trial Judge to even
consider its proposition after all evidence had been heard. The 2-trip theory
establishes, along with other oversights, including an incomplete
investigation, an actual miscarriage of Justice. In the event of the Crown
considering a retrial against the complete alibi Watson now has, could cause
the Judge to dismiss the case or to at least direct the Jury that Watson has,
as he always said, a complete alibi – the couple was never aboard the Blade
and he had never met them. Where Ms. McDonald says:
‘that
both Mr. Wallace and Ms. McNeilly impressed her as genuine in what they now say
is of importance..’
That
‘importance’ is critically a matter for a Jury.
(Para 84)
concerning the trial defence to not push the identification issue of Watson or lack
thereof from Wallace or McNeilly, now there would be no hesitation. This is a point
very significant for the Jury and for this application.
(Para 85): Forensic
Examination. Repainting of the vessel and damage to the squabs, missing
squabs and an alleged clean-up. Firstly, the trial evidence alone of Watson's
former girlfriend shows that the girlfriend in statements and evidence in chief
spoke about the interior of the boat when she was on board. She attested to
making the bed she shared with Watson in order presumably to provide evidence
that there were no damaged or missing components, however under cross-examination when it became plain to her that she had been recorded by the police
(when she was aboard the Blade in dry dock) she said she had never made the
bed, but that Watson had always done so. Ms. McDonald overstates this peripheral
evidence to apparently shore up reasons to deny a positive recommendation to
the previous RPOM. However, any new Jury would not only hear this same
evidence repeated but they would know that a Ketch had been pinpointed in the
inlet as to where the couple were dropped off. With this, they would also
realise that Watson, far from the false propensity evidence allowed, was not a
danger to women. In fact, had enjoyed a loving relationship with his former
partner as he now does with his partner of over a decade. Furthermore, and
importantly, a careful reading of the trial transcript reveals that the harbour
master waved out to SW after the Blade had been repainted, and Watson waved
back. This evidence shows 2 points.
!/ The
Blade was recognisable to those on the water with or without new paint, as was
Watson himself.
2/ That if
Watson somehow had fooled himself into believing he and his vessel with not
known around the local waters his behaviour in waving out to nautical officials
was hardly consistent with hiding himself or his yacht.
(Para 86).
Ms. McDonald deals with the 2 hairs said to be found on the Blade. This was
for her, and the Justice Minister of the time, evidence that held together the
Crown case weakened in many ways since the trial, before a positive position
for the Ketch could be submitted. Unfortunately, Ms McDonald completely omitted
from her first report and supplementary that ESR changes post the Watson trial
include samples and exhibits not to be housed together let alone examined
contemporaneously. In addition:
The
hairs were not found on The Blade at all.
The
hairs were not sighted by any witness who examined The Blade for forensic
evidence, noting that ‘blond hairs,’ blood, and semen samples, would have been a
priority for searchers.
The
hairs were also not confirmed as found on a blanket taken from the Blade as Ms
McDonald and the Minister state.
In the first searches of the hairs bagged, having said to have come from the blanket
the longest were 3 inches (75mm). 11 were chosen including both brown and yellow
blond hairs for DNA testing, none of which returned a positive result from the
DNA test.
In
modern times the hairs from the blanket would have been counted and the number
recorded. Unfortunately, that did not happen in the Watson case. However, the
length of the longest hairs was recorded, allowing a specific reference point
that follows.
The
‘2 hairs’ were found after the plastic bag was emptied onto a table in which
‘samples’ from a hairbrush just delivered by police from the home of Amelia
Hope were examined.
The
first of the 2 hairs found was 6 inches (150mm), and the second hair was 8 inches
(200mm.)
The
length of any hairs not being found before the sample bag was brought to the
laboratory was consistent with no longer hairs being found during the cabin
search of the Blade.
The
searches both on The Blade and in the Laboratory, would both of necessity be
looking for long blond hairs as Amelia Hope had long hair which was dyed blond.
No New Zealander would not have seen the released photos of her and Ms Vintner
would not be an exception. This presented potential ‘confirmation bias’ as set
out in the Sean Doyle report and the PCAST, which if known may have been reason
to reject the evidence or provide a warning to the Jury that the contemporary
model is that the blanket and hairs would be sent to a laboratory as being from
an anonymous source. The same would apply to the brush hairs being sent to a
different laboratory without historical evidence of source resulting in no
opportunity for confirmation bias or contamination.
The
absence of DNA results of 11 hairs should be compared to 2 hairs not found
earlier which did give DNA on a probability basis.
The
2-hairs were found the same day sample hairs taken from a comb in the Hope home
were delivered to the laboratory by police. These hairs were also not counted
but do have a specific reference point in that after the ‘brush’ bag was opened
on the same workspace as the blanket hairs were being re-examined the blanket
hairs were suddenly found to have contained 2 longer hairs than which had been
among those hairs that had been measured previously. The probability of 2 hairs
being found on the same day as a third search of the blanket hairs when it
happens that further hairs from a separate source were taken to the same
laboratory and resulted in a ‘fresh’ find on a 3rd search of the
blanket hairs is also a dominating fact for any probability testing.
The
hairs were never positively identified as coming from Amelia Hope but could
have been from her sister who ‘shared’ the same brush (check this detail) or
any other female in their same mitochondrial line.
Hair
DNA tested is inconsistent throughout the length of a hair and according to the
area from where the hair originated.
That
Ms Vintner of the ESR in cross-examination confirmed that ‘contamination (of
the hairs) would have to be considered.’
It will be
a just, merciful, and meaningful purpose to Bayes test the discovery of the
hairs on the facts above and any others agreed by the Crown and the Defence.
Any Bayes test or fair assessment of the 2 hairs by necessity would need to
also input the following new evidence: It would also be just for the COA to
consider their admissibility considering the following.
ESR
Ministerial Inquiry March 2000: Details of press release attached in Part 2.
Sean
Doyle Report for Mark Lundy Retrial over forensic safety procedures 2015: Full
report attached in Part 2
PCAST.
September 2016. Attached is Part 2.
The
Ministerial Inquiry was case specific, and general, in terms of the handling of
forensic items, samples, and evidence. After the findings, new protocols were
employed in all ESR Laboratories. This shows the acknowledgment at the Ministerial
Level of the importance of safe handling and custody of forensic evidence and
samples. Had this been in force in 1998 there would have been no possibility of
contamination that Ms Vintner (the ESR scientist in the Watson case) stated in
evidence that would have to be considered. The event which led to the inquiry
was the result of DNA found at a Wellington crime scene of a Christchurch man
who had never been to Wellington. In the press release, the Director of the ESR
stated that on the balance of probabilities accidental contamination was most
likely the reason for the scientific ambiguity. Thus, the ESR implemented
the report’s recommendation of sample package handling and laboratory workstation layout. The workstation layout is specific to the situation in the
Watson case as well. This was the same situation in the Watson case and
something unknown to the Jury or presumably Judge Heron.
The Sean
Doyle report investigated forensic science practices from an evidential crisis
in the 1990s in Britain which led to Labs becoming ISO approved from the year
2005 onwards, a standard which NZ later incorporated. It also compared the
American system with that of Britain and NZ. It should be noted that the
improvements and international ratings mentioned in the Ministerial report
preceded the more stringent ISO standards of 2005 later adopted in NZ.
PCAST. A
report to the American president in 2016 by leading American Forensic Experts specifically recommend the exclusion of forensic procedures of the kind
which breached the forensic safety chain in the Watson case and warns 26/174
about evidence from hairs with the specific warning that microscopic hair
comparisons cannot lead to personal identifications and that it is crucial that
this limitation be contained in both the written report and in testimony. The
report also notes that American Supreme Court has stated that Judges must
determine ‘whether the reasoning or methodology underlying the testimony is
Scientifically valid.’
It is clear
from Ms. Vintner herself the problems of the 2 hairs, she cautioned about them.
It is also clear that a Ministerial Inquiry into a similar event brought
changes. The Doyle report categorises more extensive changes to reach the ISO
2005 standards whilst the 2016 PCAST extends the cautionary net. It may be that
the hair evidence in Watson could be excluded in any new trial or could result
in The Crown not proceeding.
Whilst this
information is new it is supported by other new or known evidence which would
be also input to any Bayes Test or arguments that the ‘methodology underlying’ the
collection of the hairs was ‘scientifically’ valid. Based on both the
Ministerial report and Ms Vintners' concession there are strong reasons to
consider the hair evidence would be excluded at retrial. On this point, the
Reviewer of this RPOM must, as the 2007 Bain PC decision and others, consider
the following evidence as a ‘whole’ with the disputed, disrepute evidence
surrounding the 2 hairs.
The
now-established fact of the known position of a ketch in Endeavour Inlet at the
time in Question.
The
possible identity and description of the mystery man seen with the couple.
The
sightings of that Ketch before and after New Year's Day 2008.
The
sightings of a young couple on that ketch.
A
possible sighting of Olivia Hope at a Picton Hotel in the days after her
disappearance.
The
frankness of Scott Watson in his first interview.
The
endorsement is given to both Wallace and McNeilly by the new evidence, most
notably the ketch sighting that police pressured Wallace to exclude but upon
which he would not budge.
The
evidence of Donald Anderson dropping SW off to the Blade alone.
The
harbour master’s evidence of first recognising Watson’s yacht after it had been
painted, and then Watson waving to him.
The
evidence of Firman about being told by police that he had been drinking with
Watson when Watson started hate-talking women.
The
evidence of the unsigned statement made by Redacted on 27.3.98 wherein
he describes a ketch like that as described by Wallace and others which he
sighted in the Pelorus Sounds in 1996. He says the ketch was white, with six
portholes on each side, a distinctive stern of a round shape, 2 masts, and a lot
of ropes hanging from them. He describes the man aboard the vessel as 160-170
lbs, medium build, 5ft 9 to 5ft 10. When speaking with the man the man said he
went around the Pacific Islands.
The
evidence of Mr. and Mrs. B socialising with Watson after Mrs. B’s claim that he
had been hate-talking woman.
The
evidence of Watson’s former girlfriend to the fact that she had never made the
bed on the Blade.
The
absence of any evidence from Watson’s former girlfriend of his hate-talking
women or being violent or threatening to her.
The
situation of Watson has had a long-term relationship with a new partner that
has lasted 12 years.
The
critical unlikelihood of Watson returning to the Blade alone, only to somehow
discover he was alone and head back to shore unseen.
The
decimation of the 2-trip theory which at no point has ever had any material
evidence in support.
The
2007 Bain Privy Council decision, paras 38 (a contention by the Defence that
the NZ COA had wrongly adopted the role of a Jury), 103 (cautions about a
substantial Miscarriage of Justice), 104 (that a COA [and therefore it is
contended an inquirer into a RPOM application] must take evidence together and
not in isolation, 115 (stressing the consideration of evidence is for a Jury
and not an Appellant Court), as do paras 116 and 118.
It is
submitted here that the foregoing under the heading for Forensic Evidence can
only favour Watson’s application. Considering the 2007 Bain PC Judgement
neither the COA (although the Judgement had not been handed down at that point)
nor Ms McDonald should have looked at the ‘2 hairs’ evidence in isolation, not
only because of the points made by the PC but because of the Donald Anderson
evidence placing Watson alone on his boat and the Wallace evidence placing the
couple onto a Ketch with a stranger with hooded eyes. The Trial Judge warned
the Jury that if they did not accept that the couple went aboard The Blade then
they could dismiss the 2 hairs, with the passage of time that warning would
have necessarily been stronger, perhaps the evidence discarded.
This is an
appropriate time to mention again the inconsistencies of the handling of the
RPOM in the 2000s and before in NZ. After the Binnie review of the Bain
compensation application, Justice Binnie was criticised for not employing Bayes's
reasoning despite that it was evident that he did. The next reviewer Justice
Callinan refused to use Baye's reasoning and was not chastised by the current
Minister for not doing so,, despite that a peer-reviewed paper in which Bayes
tested the probability of David Bain or his father Robin Bain killing 5 of the
Bain family was submitted and it concluded a probability of over 99% that the
father was guilty. The reference to the Bayes testing paper by Dimaio,
Molina, and Cave is attached in Part 2.
(Para 89):
Ms. McDonald refers to sightings of a Ketch being led at times by the Defence.
Whereas, with the new evidence, and the freshly understood trial evidence, the
Defence could call witnesses of their own on the matter that were not available
at the trial. The Jury could consider a plan drafted by the Crown (included in
Part 2) drafted from the accounts of Crown witnesses which pinpoint the
certainty of the Ketch thus showing substantial support for the witnesses such
as the Walsh’s thereby offering a complete alibi.
(Para 90):
Ms McDonald gives an unanswerable proposition regarding the secret witnesses
that ‘she was satisfied’ that had the witnesses not given evidence it cannot be
said the Jury would have likely reached another verdict.” First of all the PC
has instructed that it is not for an Appellant Court (and therefore an inquirer
capable of recommending a case be returned to an Appellant Court) to place
themselves in the minds of a Jury. An inquirer would Justly recognise that if
the case never required the secret witnesses to return a guilty verdict then
they ought never to have been called and subject the accused to the real
probability that he or she could be convicted on sensational and dramatic
prejudicial evidence that, according to the reviewer, need not have been called.
Why did the Crown bother calling them? Only because their case was weak and
short of telling evidence. They scrapped the barrel which is evidenced by 1
witness recanting. In any event, the recantation stands and falls at the feet of
the Crown and not the defendant. Chance failed the Crown and not the defendant,
this is submitted as the only Just and indeed Merciful way for the recantation
to be observed, particularly under an RPOM application. This, as the PC has
stated, must be looked at as part of the whole evidence, including the new
evidence, the way the Trial evidence can now be more clearly understood. These
are not single topics in isolation but in the continuity of a case filled with
doubt. A new Jury would be reminded by the Defence of the pressure put on
Wallace to change his testimony, the evidence of Firman, and Mr. and Mrs. B to
say that the surviving secret witness should not give evidence at all, or
alternatively that there no corroboration from any other witness and none at
all from the forensic evidence.
(Para 92:)
Here is an example where Ms. McDonald has not observed the words of Lord Diplock
of the PC. Mr. Watson did not investigate this case, it was not he that informed
the Jury that there was no Ketch in Endeavour Inlet that night when Wallace
dropped off the couple along with a stranger. A ketch with a blue stripe, brass
portholes, and ornate rope work to the stern. Ms. McDonald quotes from R v Bain
COA [2004] quote, ‘the overriding criteria is always what course would best
serve the interests of Justice.’ In fact, for Mr Watson, the public interest
and Justice would be a fair trial where the now identified ketch took shape
through the scores of witnesses who saw it, in fact not be led in cross-examination but in evidence in chief, with drawings and photographs as
contained in Part 2 which show where it was moored. They could also hear the
evidence of the persons who investigated parts of this case ignored by the
police.
OOOOO
Also
from Mike this week: Feb/March 2017:
Hi Brian
The following is relevant with regard to McDonald
interviewing Wallace. They both seem to have been unaware of the following
evidence on Wednesday 28 July 1999 on the Notes of Evidence from line 30 of
page 2019 to line 15 of page 2020...
And
when you got out to the fishing boats that they wanted to go to, what can you
say about the fishing boats, was it one or more boats moored up together….yes
more
More
than, how many do you think were there…3 or 4
Were there
any lights on or any sign of activity on those boats when you took the three to
it….didn’t appear to be any activity when I dropped the three off but I think
there may have been lights on
So the
3 climbed aboard the boat they directed you to….yes
Was it
one of the boats on the outside of the raft or was it one tucked away in the
centre…no it was on the aft, sorry it was on the side on one of the raft up
You
dropped them off made your way back towards the jetty obv and arrived back at
the jetty…that’s rt
On your
way there or back did you see the vessel again that you had dropped the 3
people onto earlier…yes I did notice it
And was
it relative to the track that you took, going out or going back where was it
did you see it on your way out to the fishing boats….no
So you
saw it on the way back to the jetty…that’s rt
Relative
to the track or route that you were taking where was the vessel that you
dropped the 3 people to…well off to my rt
Off to
your rt….yes
And obv
closer towards the jetty than the fishing boats that you had just left from….oh
yes yes
Second point no witnesses identified the couple as going onto the
Blade.
On Tuesday, 28 February 2017 2:51
PM, Mike Kalaugher wrote:
new revised version...
lists for Part 2
Firman
statement
Files
showing Mea NZ being in the Sounds.
References
for Part 2
R
v Bain PC 207
COA
Decision Watson
McDonald
QC report Watson RPOM
McDonald
QC supplementary report Watson RPOM
Ministerial
report dated 2002 as to inquiry of specific case of probable DNA contamination
Sean
Doyle report in forensic safety chain for Lundy retrial 2014
Pcast
report by various authors into forensic safety chain and critical forensic
safety flaws and advancements prepared for POTUS September 2016
Chart
plotting position of Ketch, calculated from the evidence of 3 Crown witnesses,
to which couple were dropped off with a stranger identified by witnesses
McNeilly, Wallace, and Firman as not being Watson.
File
notes indicate a ketch Mea NZ was in the Pelorus Sounds at the time of the
couple’s disappearance.
Homicide
or Suicide? Gunshot Wound Interpretation:
A
Bayesian Approach:Rowena
Cave, BSc(Hons),* Vincent J. DiMaio, MD,Þ and D. Kimberley Molina, MDÞ
MRG videos and witness lists.
Mike Kalaugher interview with Reg McManaway and
witness lists.
Keith Hunter’s book The Blade.
Keith Hunter’s documentary.
Mike Kalaugher’s book The Marlborough Mystery.
The show from last year was introduced by the Law Professor.
Other material etc.
Ends-----------------------------------------------------------
Additional matters.
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Brian McDonald Here is the description in court from Oliver
Perkins, he is the only one of the group who mentions a dark fisher rib
jersey, other only mention a blue shirt: Can you remember anything about
what he was wearing….I rem a blue, light blue denim kind of denim, you know
shirt, with a fisherman rib jersey, dark and dark jeans as well
Where was the jersey….well the first time I spoke to him before leaving I
am pretty sure it was on him I can rem the shirt from the collar and the
cuffs, and then when I came back he may have taken the jersey off becos I
def rem the shirt
This from Mike refers to McDonald on the rejected
RPOM:
When
she talked to Wallace about the position of the ketch she focused solely on
whether his memory of seeing the ketch on a later Naiad trip made any
difference. Her point was that it was the position of the ketch at the
particular time when Ben and Olivia were dropped off at a yacht that is
relevant. It was not deemed relevant that the yacht might have been at a
different position at a later time.
So
the fact that Wallace's evidence about the position of the yacht was not
corroborated by anyone else was not considered The fact that it might just
be plain wrong was not considered. The fact that it was effectively
contradicted by Dyer and Morresey was not considered The fact that Wallace
gave a number of different positions was considered The fact that Dyer's
evidence about the timings of all three legs was not heard by the jury was
not presented to her either. The fact that Dyer and Morresey's evidence as
to position was consistent with each other was not considered. The fact
that the position established by Dyer and Morresey was corroborated by Ted
Walsh, Eyvonne Walsh, Bruce O'Malley, the diagram of Robin Mullen, the
original evidence of Rachel Veitch, and the evidence of Mr and Mrs McNoe
was not considered. The fact that Wallace firstly gave an erroneous
position of the yacht in the context of an erroneous description of two
Naiad trips, which was a garbled account of what was in fact one trip, was
not considered. The fact that Wallace first went part the Spirit of
Marlborough after he had dropped off all his first passengers was not
considered.
She
has not considered the point that there are no witnesses that give a
description of the yacht that is remotely like Watson's yacht.
There
are now no witnesses who identify Watson as being on that naiad trip.
Two
of the three remaining people on the Naiad give a different position from
that given by Wallace.
Wallace
signed an affidavit for me for the rpom that conceded that he had been
"honestly mistaken" about the position of the yacht
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((First they were bleached blond, one was 6 inches
long 150mm, the other 8 inches 200mm. In previous searches of the hairs and
tiger skin blanket, the longest hairs found were 3 inches 75mm. 11 were chosen
including both brown and yellow blond hairs for DNA testing, none of which
returned a positive result from the DNA test.
The only DNA test that tied the hairs to Olivia was the $70,000
mitochondrial(mDNA) tests done in the UK but it only proved the hair came from
one or other of the two girls no more. The nuclear DNA testing was useless and
in spite of some junk science, the multiplying of two totally separate tests
both with out reagents to confirm results meant the hairs could have come from
Amelia or Olivia or any other person sharing the same mDNA.
The other test done, one of the hairs was microscopic comparison where the
scientist would claim that hairs matched the sample hairs from the Hope home.
Again, this is now totally discredited as DNA has resulted in exoneration's
where hair comparison was a major factor in the conviction.
Tests done by the NAS for the US Dept of Justice revealed that the
"experts" could not even reliably match two halves of the same hair,
and could match hairs from totally unrelated people from different parts of the
Country. Microscopic comparison can identify between races and parts of body
hair, but head hairs vary depending on the part of the head they are from.)))
Also
from Mike this week: Feb/March 2017:
Hi Brian
The following is relevant with regard to McDonald interviewing
Wallace. They both seem to have been unaware of the floowing evidence obn
Wednesday 28 July 1999 on the Notes of Evidence from line 30 of page 2019 to
line 15 of page 2020...
And
when you got out to the fishing boats that they wanted to go to, what can you
say about the fishing boats, was it one or more boats moored up together….yes
more
More
than, how many do you think were there…3 or 4
Were
there any lights on or any sign of activity on those boats when you took the
three to it….didn’t appear to be any activity when I dropped the three off but
I think there may have been lights on
So the
3 climbed aboard the boat they directed you to….yes
Was it
one of the boats on the outside of the raft or was it one tucked away in the
centre…no it was on the aft, sorry it was on the side on one of the raft up
You
dropped them off made your way back towards the jetty obv and arrived back at
the jetty…that’s rt
On your
way there or back did you see the vessel again that you had dropped the 3
people onto earlier…yes I did notice it
And was
it relative to the track that you took, going out or going back where was it
did you see it on your way out to the fishing boats….no
So you
saw it on the way back to the jetty…that’s rt
Relative
to the track or route that you were taking where was the vessel that you
dropped the 3 people to…well off to my rt
Off to
your rt….yes
And obv
closer towards the jetty than the fishing boats that you had just left from….oh
yes yes
Second point no witnesses identified the couple as going onto the
Blade.
On Tuesday, 28 February 2017 2:51
PM, Mike Kalaugher <mikekalaugher@gmail.com> wrote:
new revised version...