[2025] NZCA 455
French, Courtney and Thomas JJ
CA450/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Procedure — Governor-General's reference — DNA evidence — visual identification evidence
N P Chisnall KC, K H Cook, J Ding and H Z L Krebs for Appellant
M F Laracy, S C Baker, R M A McCoubrey, T R Simpson and L C Hay for Respondent
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A The application to adduce further evidence is granted in respect of the evidence of the witnesses listed at [85] and the evidence in the first part of the Report by Drs Wells and Quigley-McBride.
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B The application to adduce further evidence is declined in respect of the evidence of Mr Ruhfus and the second part of the Report by Drs Wells and Quigley-McBride.
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C We find there was no miscarriage of justice. We accordingly decline to exercise the Court's jurisdiction under s 406(1)(a) of the Crimes Act 1961 to quash Mr Watson's convictions for the murders of Olivia Hope and Ben Smart.
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D We make an order prohibiting publication of this judgment, the media release, and any information therein, until the judgment is made publicly available at 12.00 pm on Wednesday 10 September 2025.
(Given by Thomas J)
| Introduction | [1] |
| CROWN CASE/OVERVIEW | [6] |
| A circumstantial case | [6] |
| An overview of the evidence | [7] |
| The water taxi ride on 1 January 1998 | [7] |
| Mr Watson's movements on 31 December 1997 | [12] |
| Blade's movements on 1 January 1998 and Mr Watson's alleged efforts to destroy incriminating evidence | [18] |
| The two hairs | [26] |
| The “Three Es'” evidence | [27] |
| The prisoners' evidence | [28] |
| The defence evidence at trial | [30] |
| MR WATSON'S APPEALS AND APPLICATIONS | [31] |
| The 2000 appeal | [31] |
| The IPCA Report | [37] |
| Mr Watson's second application for the exercise of the Royal Prerogative of Mercy | [42] |
| THE REFERENCE | [43] |
| Reason for the Reference | [45] |
| THE VISUAL IDENTIFICATION GROUND | [50] |
| THE COURT'S TASK | [52] |
| The admission of new evidence | [57] |
| Structure of the judgment | [64] |
| PART I – THE TWO HAIRS | [65] |
| What happened? | [66] |
| Approach | [84] |
| Evidence at the appeal | [85] |
| Trial counsel evidence | [88] |
| The experts instructed on Mr Watson's behalf for the trial | [91] |
| ESR's quality management system | [95] |
| Accreditation | [99] |
| General compliance with quality standards | [102] |
| Labelling | [107] |
| Storage and sealing | [114] |
| Record-keeping and Ms Vintiner's use of personal judgement in extracting hairs from ST05 | [117] |
| Ms Vintiner's part-time role | [122] |
| Sharman report | [125] |
| Our assessment | [132] |
| Hair Comparison | [138] |
| Mr Doyle's concerns | [138] |
| Trial evidence | [142] |
| Appeal evidence | [152] |
| Our assessment | [166] |
| nDNA evidence | [172] |
| Criticisms of the nDNA evidence | [175] |
| Reagent blank | [178] |
| Likelihood ratio | [188] |
| Other issues | [196] |
| Our assessment | [209] |
| Mitochondrial DNA analysis | [213] |
| Evidence at trial | [216] |
| Mr Doyle's concerns | [231] |
| Appeal evidence | [238] |
| Submissions | [266] |
| Our assessment | [270] |
| Testing methodology | [279] |
| The Hairs and the possibility of transference | [290] |
| The possibility of transference from Olivia to Mr Watson (directly or indirectly) during the events at Furneaux Lodge | [293] |
| Trial evidence | [293] |
| Appeal evidence | [298] |
| Submissions | [314] |
| Our assessment | [316] |
| The possibility of transference of the Hairs from the Hope family home to a police officer and from there to Blade and the tiger blanket | [320] |
| The scene examination of the tiger blanket | [327] |
| Receipt of the tiger blanket at ESR | [342] |
| The IPCA Report | [348] |
| Our assessment | [351] |
| The possibility that on 7 March 1998 the questioned hairs were contaminated by Hairs 12 and 13 which were reference hairs | [355] |
| Trial evidence | [359] |
| Appeal evidence | [369] |
| Submissions | [401] |
| Our assessment | [403] |
| Relevance of ESR's examination of the questioned samples on 22 January 1998 | [408] |
| Submissions | [415] |
| Our assessment | [420] |
| Admissibility of new expert evidence relating to the Hair evidence | [427] |
| Admissibility of Ms Crawford and Ms Thirkell's evidence | [432] |
| The Judge's directions on the Hair evidence | [437] |
| The prosecutor's closing and alleged fair trial issues | [439] |
| Did the Crown at trial unfairly address the issue of transference? | [447] |
| The Judge's directions | [457] |
| Was this a case where the provenance of Hairs 12 and 13 had to be proved beyond reasonable doubt? | [466] |
| Answers to the questions posed by the Reference | [483] |
| PART II – THE IDENTIFICATION EVIDENCE | [485] |
| The challenge to Mr Wallace's identification of Mr Watson | [485] |
| Setting the scene | [487] |
| Guy Wallace's trial evidence | [489] |
| Overview | [489] |
| The lone man | [502] |
| Guy Wallace's depositions hearing evidence and statements to the police | [512] |
| Statements on 3 January 1998 | [513] |
| Statement on 5 January 1998 | [516] |
| Statement on 6 January 1998 | [521] |
| Police job sheet dated 8 January 1998 | [523] |
| Statement on 9 January 1998 | [524] |
| Video interview on 11 January 1998 with Detective Fitzgerald | [528] |
| Police job sheet dated 20 January 1998 | [538] |
| Police job sheet dated 3 February 1998 | [539] |
| Statement on 6 February 1998 | [541] |
| Statement on 7 February 1998 | [542] |
| Police job sheet dated 6 March 1998 | [544] |
| Police job sheet dated 31 March 1998 | [545] |
| Statement on 3 April 1998 | [546] |
| Statement on 20 April 1998 regarding Montage B | [548] |
| Police job sheet dated 27 April 1998 | [550] |
| Job sheet dated 25 July 1999 | [551] |
| Statement on 26 July 1999 | [552] |
| Depositions hearing beginning 24 November 1998 | [553] |
| Media coverage | [563] |
| References at the trial | [566] |
| IPCA Report | [570] |
| The single photograph and Montage A | [573] |
| Was Mr Wallace shown a single photograph of Mr Watson? | [574] |
| Was Mr Wallace shown Montage A? | [585] |
| Evidence on appeal | [609] |
| First part of Report — the science of eyewitness identification | [613] |
| Second part of the Report — analysis of Guy Wallace's identifications and non-identifications of Scott Watson | [627] |
| Limitations of the Report writers' evidence | [662] |
| Is Drs Wells and Quigley-McBride's evidence admissible? | [700] |
| May 1999 pre-trial hearing as to the admissibility of Montage B | [721] |
| Was Mr Wallace's identification of Mr Watson admissible? | [728] |
| The law | [728] |
| Submissions | [743] |
| The structure of our analysis | [746] |
| Did Montage B predispose witnesses to select Mr Watson? | [748] |
| What about the fact Mr Wallace was shown the single photograph? | [754] |
| What were the circumstances relevant to Mr Wallace's identification evidence? | [764] |
| Analysis of other supporting evidence | [776] |
| A ketch? | [846] |
| The two-trip theory | [878] |
| Did the Judge's summing up adequately address the issues on identification? | [913] |
| PART III — THE OVERALL CASE AGAINST MR WATSON | [935] |
| Introduction to Part III | [935] |
| The case against Mr Watson at trial | [941] |
| The other circumstantial evidence relied on | [949] |
| Mr Watson's behaviour post New Year's Eve | [950] |
| The “Three Es” and the prison informants | [1024] |
| The Three Es | [1025] |
| Mr J and Mr K | [1044] |
| The adequacy of the directions as to the burden and standard of proof | [1059] |
| Overall assessment | [1062] |
| Decision | [1081] |
| APPENDIX A | |
| Governor-General's Reference | |
| APPENDIX B | |
| IPCA Report Extract |
It is a case that has gripped but troubled the nation. On 31 December 1997, Olivia Hope, aged 17, and Ben Smart, aged 21, attended a New Year's Eve celebration at Furneaux Lodge, Endeavour Inlet, Marlborough Sounds. Olivia and Ben were last seen boarding a boat in the Endeavour Inlet in the early hours of 1 January 1998 in the company of a lone man. They have not been seen, dead or alive, since. Following a three-month trial in the Wellington High Court in 1999, a jury found Scott Watson guilty of the murders of Ben and Olivia. Some 26 years later, Mr Watson remains in prison. He maintains his innocence. The Governor-General has referred the convictions to this Court to decide whether a miscarriage of justice may have occurred (the Reference). 1
Although it was not conceded at trial, there was no serious challenge and it is now accepted that both Olivia and Ben died at the hands of the lone man in circumstances which amounted to murder. 2 The issue at trial was whether Mr Watson was the lone man with whom Olivia and Ben boarded a boat on the last occasion of their sighting.
Olivia had arrived at Endeavour Inlet on a charter yacht called Tamarack. She met up with Ben, whom she knew, at Furneaux Lodge in the late afternoon or evening of 31 December 1997.
Mr Watson had arrived at Endeavour Inlet on 31 December 1997 in his sailboat, Blade. Blade was a sloop which is a sailboat with a single mast. He rafted it to two other vessels, Mina Cornelia (a 36-foot sloop) and Bianco (a 26-foot sloop) a short distance out from Furneaux Lodge's jetty. He then attended the New Year's Eve celebration at Furneaux Lodge.
This decision addresses the issues raised in the Reference as to the reliability of forensic evidence given at Mr...
