Inside the dark web that is the Scott Watson case in 2022.
August
2022
To whom
it may concern
Response
to the affidavits from Vintiner and Robertson submitted to the COA
Ms Vintiner
(MV) has made an extensive new submission; her affidavit is in part a defence
of evidence that the Jury heard without further explanations. She has not
meaningfully addressed her agreement in front of the jury that “contamination
should be considered” as a factor in the hair evidence, or how it should be
considered, and so forth. She now appears to have reversed her position arguing
she was surprised by questions from the Defence which apparently made her
forget other facts she re-visits in her affidavit. That is a concern that she
did not have the presence of mind to appreciate a hole in a sample bag would be
of interest to the Court and require a full explanation. The fact she stumbled
for an explanation in front of the Jury and says the cause of that was defence
counsel’s question re the bag cut indicates her shortcomings in understanding the
role of a forensic examiner. The bag cut needed a full explanation for the prosecution
file, the Court, the defence, and the Jury when it was recorded as being first
noticed etc. This new response from MV would have been a question put to Sean Doyle
when Watson supporters twice fund-raised for independent reports. It is hardly
an assumption that ESR must have protocols for such situations to be investigated
and catalogued.
As to
foundation issues around the questioned hairs being found on the Blade it remains,
they were not found in the searches there or indeed on the blanket it is said
transported the hairs to the lab where they were initially bagged collectively
by Ms. Costello and an assistant but still not found. The recitation of the
claim of the hairs being found on the Blade is misleading. MV nor anyone else
(including the Court) can say with certainty that the 2 hairs were found on the
Blade or even on the blanket. It is a disservice to Scott Watson and Justice
that any expert attempts to qualify the hairs as being found on the Blade as a
fact when it is not. This claim is in its 3rd decade when the truth
of it is even less convincing than in the past as alleged confessions and other
evidence against Scott Watson falls away. It is Scott Watson’s position that
the Court clearly notes the factual data of the hair discovery with complete accuracy
not more or less.
There were
glaring mistakes by both police and ESR in understanding how to control the
alleged crime scene which now gives rise to a situation where neither party freely
admits that the crime scene process was flawed. If the hairs existed on the
Blade, then they must have been able to have been found there to be carefully
photographed in situ, but they were not. No Court should easily move forward on
speculation in this case unable to be supported by factual evidence of quality.
In para 126 MV says it would have been “a near impossible task due to the space
restrictions and the size of the blanket.” A process she says, “could cause
hairs to transfer from one place to another on the blanket or be lost from the
blanket.” To be clear hairs “lost” from the blanket in situ would remain on the
bunk or nearby – even as MV agrees, to another part of the blanket, not
suddenly disappear. The perils of hairs going to “transfer” is overstated in a small,
contained environment. There was a lot of confidence in the way the Blade was
taken from the water in full public view which may have caused some certainty of
powerful inculpatory evidence being found as described in the search warrant,
“bodies or body parts.” That was the unproven legal proposition in support of a
search warrant to Heron who would later Judge the case.
There was
the time demands MV claims that prevented her attention from searching for the
hairs, it shouldn’t be forgotten that working in a lab would have been clearly
more comfortable for an elite forensic examiner who lived and worked in
Auckland at the time. I may be incorrect but there appears to be no evidence
that MS herself ever boarded the Blade before the hairs were found in the lab.
Or indeed acted or encouraged police to act promptly in gathering hair evidence
despite what she now says of expected DNA degradation of DNA if not tested
promptly. (Photos?)
On this
point she quotes Robertson in para 113 “Managing the Forensic Examination of
Human Hairs in Contemporary Forensic Practice” 2017:
“at the earliest opportunity select
hairs suitable for nuDNA analysis.”
As a
relevant aside in terms of searching the blanket while still on the Blade in
Para 16 she says, “that many of the hairs on the blanket would be background
hairs”, that is hairs accumulated over time. That statement is inconsistent
with Prosecution's claims at trial that the Blade had been cleaned down according
to early observations by police informing both their own searches of the boat
and those of ESR. In that case, there
might be expected to be no hairs on the blanket or certainly only a few
“background hairs,” accumulated over a short time post New Years to delay or
make “difficult” searches of the blanket. That particular “difficulty” is later
expunged by the comments of Dr. Robertson in his affidavit to the Court.
Here it is
noted that the NZ and Australia Forensic communities jointly voiced opposition
to the American reports of criticism and misuse around “hair examinations” in
the 2015 to 2017 period but now (according to MS’s affidavit and other sources)
agree that comparison methods are used less in both countries because of
improvements in DNA analysis. In Para 114 MV acknowledges that ESR no longer
undertakes high-power microscopic examination of hairs, a cornerstone of
comparison methods.
Dr. Robertson
(DR), whose book is quoted above, simplified one of the largest issues in terms
of the hair evidence, he said the brown hairs should have been separated out.
This could have happened on the Blade, or in the pre-screening and could for a
Jury indicate a lack of experience or forensic discipline by ESR. Taking no
sample hairs from Mr. Watson complicated the process and increased time demands
that MV now says are at a premium to avoid DNA degradation. She also now says she requested hair from police
more than once. Para 75 “it is likely that either me or Mr. Peter Wilson, as the
case manager, suggested to the police that a second sample should be submitted….”
MV overlooks mentioning that any further hairs taken from the Hope household,
like the original hairs, may well have been aged and DNA deteriorated. The
“relaxed” lack of appreciation of who exactly requested further hairs, why, and
how it was recorded is another alarm bell in this case.
There was no
more important case of the era, yet the public is expected to accept that
other work was prioritised over this case. MS says in her affidavit that time
is important because DNA can degenerate. It was ESR’s decision not to direct
other resources to parts of the screening leaving hairs without further
re-examination for many weeks. Yet in para 68 MV says the microscopic screen
took 5 hours, several months wait to do 5 hours of work seems extraordinary in
such an important case where it is claimed by the primary scientist that DNA can
degenerate making testing times a priority yet took part in speeding the
process along. It would be up to a new Jury to decide on those delays and in
fact, if the hairs were in fact searching for, not found, as it fully appears,
before further searching was initiated in the historical way many NZ injustices
show “success” after “re-searches” for evidence.
In para 127
MV says the recovery of the blanket was undertaken in accordance with the SWGMAT
Trace Evidence Recovery Guidelines, 1999.
· 5.5.5. Small or manageable items at a
crime scene that bear visible firmly attached trace evidence should be documented,
packaged intact, and transported to the laboratory for examination.
· 5.5.6. Items at a crime scene that
bear visible but easily lost trace evidence or items that are impractical to
transport should be documented and the trace evidence collected by an
appropriate technique.
Whilst there
is no dispute that “firmly attached” does relatively apply to hairs held to plastic
by static electricity as MV agrees, the tiger blanket was not plastic, and
whilst blood, semen, food spill or spittle might attach firmly attach hairs to
a blanket there was no evidence recorded of that in this case.
In para 128
MV says she did not receive reference hair samples from Mr. Watson and is not
aware of the reason they were not supplied, but unlike the earlier para where
she suggests she may have asked for more sample hairs from the home, there is no
evidence she asked for hair samples taken from SW. Without researching the date
of the relevant law allowing samples to be taken from suspects it is without a doubt that any refusal by SW to supply a hair sample would have been used
against him, if not directly to the public, then by leaks to the press which
were frequent in this case.
Ms. Penny
Costello and her assistant did sort hairs and could have been used to separate
out the brown hairs as DR suggests as an expedient. We see demonstrations at
some points throughout MV’s statement of being proactive in requesting items
from the police and in the next claiming not to know why certain things were
not supplied to her, as the example of sample hair from Scott Watson. A Jury
would today have to accept trained ESR staff asked to sort or remove hairs into
a bag simply ignored that job as not being part of a search for blond hairs
which few people in NZ at the time would not have appreciated was the colour of
Olivia’s hair or indeed as MV now says she knew at the time of her tests possibly
shaded with peroxide. MV never told the Jury about the peroxide or the objections
by the FBI in peroxide contacted hairs to not be tested.
MV diverts by
claiming that it is difficult to measure the hair length, a lay person could do it
with ease using tweezers – which would be something for a Jury to consider from
their own experience. She simply could have taken the hairs out of the bag
using tweezers and measured them end on end against a stationary rule. Again,
MV in one breath speaks of her proactive activity while in another presents as
passive in gathering material and accurate information.
Despite MV’s
silence since the trial it became known that the hair of Olivia was contacted
with bleach/peroxide months before her disappearance, only after that
revelation to her has MV confirmed that information despite important FBI
releases regarding the effect of peroxide on human hair. In para 57 MS reconfirms
she used bleach and or ethanol to clean her bench and utensils. These were
matters for the Jury and the Court. There were videos of the hair colour of Olivia
released to the public after the trial in which her hair appeared fully coloured
in the manner of a woman the late Ted Walsh confirmed seeing on a ketch on the
second of January, there are videos of his description of that and his concerns
about it withheld from him by police even after he pointedly asked the
question.
Public concerns
remain regarding the blond hairs not being found in the searches aboard the
blade or in the 2-person pre-screening at ESR. There are other concerns that a new Jury would
need to consider including MS's own hair pre-screening and her written comments
about how “hard” the process was. ESR invites criticism of itself for the lack
of camera surveillance of work in progress, its inability to manage the work
more thoroughly by screening out the hairs of SW, and for not prioritising a
significant murder or missing persons case of unprecedented public concern. It
appeared not to have an incident report procedure that would have fully
encompassed the discovery of the cut in the bag and any inquiry into that at
the time.
It is not
unfair to say that a Jury might question MV’s ability to be objective in this
case. There has been high public interest in the 2 hairs and the cut in the
plastic bag for 2 decades, and more recently surrounding the peroxide. Despite
that and the 23 intervening years, MS cannot say who gave instructions for the
second gathering of samples or show the attendant paperwork. MV on the issue of
peroxide says she agrees there with Dr. Gunn that there is no lasting impact of
hydrogen peroxide on the DNA which without any qualification differs from the FBI
that any use of peroxide is notifiable to testers. There are many peer-reviewed
scientific papers on this subject.
Para 137 Dr. Gunn…..”I note Dr. Gunn concludes a point 8.4,
that in his opinion, there is no lasting impact of hydrogen on the DNA.”
Any
qualifications to that claim are not clear to the writer, but MV did not answer
the FBI directive regarding not testing hairs that had been contacted with DNA.
From para
150 MV speaks about the packaging of multiple hairs in one sample bag and
concludes that she disagrees with Dr. Gunn that such a process may severely
compromise the quality of the DNA results obtained from the tested hairs. This
is demonstrative of the defensive position taken throughout by MV, underlying
that position is raised the absurdity of her arguments against a cautious
approach not being necessary. Overall, she favours her own opinion and not
established procedure, one method, “separation”, is clearly more risk-free. MV
was the FS advisor in the Lundy case where hairs currently remain controversial.
In that instance, the officer in charge of the process, Detective Oram, collected
each hair separately from the body of Christine Lundy and stored them in that
manner having first drawn diagrams of each hair’s position. MV was the
supervising ESR representative in that case. Overall MV is arguing against a
process conducted in careful crime scene gathering in NZ, she endorses a
different process with risk. That is a matter for a Jury as is much of what MV
now says specifically around who asked for more sample hairs, how the bag cut
was not reported and left untraced, the mixture of hairs in sample bags, and so
on. A Jury would also note MV's preciseness in some areas and vagueness in others,
along with the criticism of her peers.
Secondary
nature of the hair evidence following from the false identification evidence:
One incident
in the bar saw Watson falsely accused of offering trips to Tonga in exchange
for sex and inviting young women onto his “ketch”. The Judge and prosecutor
commented adversely on that situation which can now be seen as a
misidentification and indeed was the behaviour of the skipper who owned a 2
masted ketch rather than a sloop like Watson. There remain, no sightings of SW
with the couple reducing the value of the now seldom used hair comparison even
before its own shortcomings are considered, including that FBI warning. A Jury
would have reason to acquit on the “new” overall identification issues
resulting from the conduct of police surrounding identification procedures, the
Crown itself could most unlikely not wish to proceed to a retrial because of the
hidden and changed evidence far greater in volume than the Alan Hall case with
new evidence exhibiting that.
