Early Draft of the Successful Scott Watson plea for Mercy.

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:

                                                ------------------------------------------

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 2^nd 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 31^st Dec 1997 and 1^st 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 2^nd 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:

 

1. 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 6^th, 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 31^st 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 2^nd trip. This appears to have slipped through the net?)

 

Additional points to be considered (1)

 

The argumentative nature of the Wallace/Tom video dated 11^th 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 6^th 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 27^th 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 31^st 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 2^nd 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 2^nd 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 3^rd 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.

 

 

		Tom Watson January 22 at 1:21pm
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

((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...