Scott Watson: Murder, they said

by Joanne Black / 14 November, 2016
Ben Smart and Olivia Hope.

It’s almost two decades since Ben Smart and Olivia Hope disappeared in the Marlborough Sounds and Scott Watson was found guilty of their murders. Yet speculation continues in some quarters despite the Privy Council upholding the verdict. In 2007, the Listener interviewed the two men who know the case inside out and have no doubt that the right man is behind bars.

This article was first published in the January 5, 2008 issue of the New Zealand Listener.

At a long desk in his downtown Auckland chambers, Queen’s Counsel Paul Davison is telling a story. There are no theatrics. He raises neither his voice nor his arms. His tone is neither hectoring nor pleading. He uses no legal terms that need elaboration or explanation. He is calm and articulate and speaks with the assurance of a man who knows exactly what he is talking about. And on this subject he does, because it was Davison who led the Crown case that, nearly two years after the disappearance of Ben Smart and Olivia Hope, culminated in Scott Watson’s conviction for their murders.

Davison’s closing address at the end of the 11-week trial lasted a day and a half. A transcript of it takes 109 pages and yet much of it was off the cuff. “It was very impressive,” says Deputy Police Commissioner Rob Pope who, 10 years ago, was the detective inspector in charge of the search for the missing pair.

The salient points are well known to anyone who was in New Zealand that summer and autumn. January is normally a quiet time for news, so the mysterious disappearance of two such promising and attractive young people captured the country’s attention. For a brief moment, there were theories about elopement: the summer love that began with the previous New Year’s celebrations at Furneaux Lodge had faded but the couple were again seen in each other’s arms at the lodge’s jetty, as revellers counted in the New Year of 1998. Later, about 1.30am, near the garden bar, they shared a kiss.

But the popular 20-year-old Smart, a former prefect at Christ’s College in Christchurch, and 17-year-old Hope, a talented pianist who had just passed her Trinity College exams, were just not the sorts to take off together without telling their families. And, soon, there came the disturbing reports of their having boarded a ketch with a male stranger, a lone yachtsman. He had offered them a place to sleep on his yacht after the vessel chartered by Hope’s group had become so crowded with tired partygoers that there was no place for her and Smart.

Who was the stranger? Where had the ketch gone? And the question that, 10 years later, remains unanswered: what happened to Smart and Hope?

Scott Watson

In seeking to answer those questions, Davison’s closing address left no stone unturned. No difficulty in the Crown evidence was glossed over. He painstakingly built a case so tight that in the end – even without the bodies and even with no single witness saying that they saw Hope and Smart get on Watson’s sloop – it left room for only one rational explanation for the pair’s disappearance: Watson had murdered them. The jury found that to be proved beyond reasonable doubt.

Watson appealed against the verdict, but in its judgment eight months later, the Court of Appeal said it “would be wrong to describe the case as one which was finely balanced. It was proved to the jury’s satisfaction beyond reasonable doubt, and that finding is not under challenge.”

Indeed, what is telling is that Watson’s appeal did not suggest there had been insufficient evidence to convict him, rather that there had been trial errors that, when taken cumulatively, led to a miscarriage of justice. The court dismissed that appeal, saying it was satisfied that no miscarriage of justice had been demonstrated; nor was it able to see “anything unfair in the way in which the Crown case was finally presented to the jury”.

Yet, a decade after the disappearance of Hope and Smart, a number of articles and books, including Trial by Trickery, by Keith Hunter, have all expressed concern about Watson’s convictions, with a common theme being that the police had “tunnel vision” and that once they had Watson in their frame, they focused on him to the exclusion of all other possibilities.

Pope has not the read the book. Davison has read some of it.

“I’ve read the parts of it in which I think he has directed his criticisms against me,” says Davison, “in suggesting that the Crown and the police had deliberately misled and tricked Mr Watson’s defence. That is total nonsense and I have responded to Mr Hunter in those terms. But it illustrates that Mr Hunter and others who adopt that type of journalism really have not gone to the trouble of getting into the detail of the case or, if anything, have adopted the tunnel vision that the Crown or police have been criticised for adopting.”

For his part, Pope thinks that some of the questions about the case now are a legacy of the unprecedented media interest at the time, and he still bristles slightly at the suggestion, made by some critics, that the media were mishandled.

“It’s not the police’s fault that the murder scene was a boat,” retorts Pope, “and it’s not the police’s fault that we couldn’t quietly remove it from the harbour without the public commenting on it … Many of the allegations of tunnel vision around Watson were fuelled by speculative media comment early in the piece.”

Davison does not seem angry about the stories and speculation that, in effect, impugn his professional integrity.

“I just find it rather sad that our community is so unsophisticated both in terms of its fourth estate journalism abilities and in terms of its ability to be manipulated or influenced; and that bandwagons are jumped on readily without any real appreciation of the case. And the sort of notoriety one gets from championing these causes is, in itself, something that is a factor.

“I don’t for a moment criticise someone like Joe Karam and his campaign in relation to the Bain case, for example. It’s a healthy aspect of our society that a citizen can challenge a conviction, and convictions from time to time need to be challenged. There are instances of people being wrongly convicted – but not every conviction is of that ilk.

“Because this was a notoriously public case, it received intense media coverage and this is fertile ground for being pored over again, but to my knowledge you [the Listener] are the first people to come and say, ‘Perhaps you could tell us about the detail of the case again.’ Mr Hunter never did. No one else has, and you would find it difficult to discern this general overview without reading a whole lot of material – not just the evidence but the Crown analysis of it, brought together in a coherent way and which I would say made the case very compelling.”

“Nonsense” is about as strong as Davison gets in condemning his critics. It is also how he describes the implications of one magazine article that canvasses, among other aspects, the fact that water-taxi driver Donald Anderson recalls taking Watson back to his boat at about 2.00am. The implication here is that since Watson was back at his boat at that time, he cannot have been the man who was taken from the shore by another water-taxi driver, Guy Wallace, at about 4.00am – and who, while a passenger on that trip, offered Smart and Hope somewhere to sleep. Or, if he was that man, he had to have got back to shore somehow in between times in order to be taken out to his boat again. That is the so-called “two-trip theory” that is much maligned by critics of the Crown case.

In questioning Watson’s second trip to shore, the article says it seems “bizarre that such a crucial piece of evidence about Watson’s movements wasn’t thoroughly canvassed during the trial. Despite there being 1500 potential witnesses that night, absolutely nobody saw him return to shore …”

It continues:Davison put it to the jury in his closing address thus: ‘Was it just hitching a ride with a passing boat? Who knows? There was a dinghy attached to the back of his boat. There were other dinghies around. It was a short row. It was a short trip in any boat. Does it matter?’ For those who value certainty when someone is accused of something as serious as murder, Davison’s words to the jury are little short of chilling.”

“That’s nonsense,” says Davison. “It’s absolute nonsense. In the nature of criminal activity, a great deal is done by people who wish to avoid detection. They seldom do it in the face of a video camera or under the nose of others if they think there might be some comeback.

“I’m not suggesting Mr Watson made his way to shore in some secretive way – who knows? But the Crown case is based, as of necessity it must be, on the evidence that happens to be available, and there was not a witness who could account for Mr Watson returning to shore. In all these cases there are gaps in the mosaic of the picture you create.”

In any case, says Davison, there is cogent evidence that Watson was ashore at about 3.00-3.30am, because around that time he was involved in an altercation with a man who was wearing his sister’s necklace. Watson himself described the altercation in one of his statements. Davison says how Watson got back to shore is not crucial to the case – what is crucial is that he was ashore, which adds weight, along with Wallace’s identification, to Watson’s being in the water taxi when it left about 4.00am, picking up Smart and Hope on the way.

Guy Wallace claimed, however, that he dropped Smart and Hope (identified by Olivia’s older sister, Amelia, as being the two young people in Wallace’s water taxi) and the man he identified as Watson at a double-masted ketch – a claim that seems destined to haunt the Watson case forever, despite the Crown’s insistence that the ketch simply did not exist. Watson’s yacht, Blade, was a single-masted sloop. Pointing out that Wallace’s description of the ketch became more elaborate each time he was interviewed, the Crown argued that he was confused in the dark.

“Our proposition was that Wallace was right about the man and wrong about the boat,” says Davison. “And people say, ‘That’s cute; the witness is being relied upon when it suits and disregarded when it doesn’t.’ But that’s where one needs to start getting careful about witnesses and approaching witness evidence not simply at face value but looking for confirmation.

“If you look at Mr Wallace’s statements, he first started off drawing a little pencil sketch of the two-masted yacht, and wrote the word ‘ketch’ with a question mark. But in the days following, there came a huge amount of media interest in the disappearance of Ben and Olivia and his role, as one of the last people to see them, was central and he was on television and he seemed to develop his description so that the statements requested of him in subsequent days became more and more detailed.

“I’m not critical of Mr Wallace in terms of his reliability and honesty – this is human nature. Witnesses want to remember. Mr Wallace was in this invidious situation of being central to all of this and wanting to help, and it’s natural to try to recollect as much as one can.

“But as the courts frequently remind juries, honest witnesses can be unreliable. And one needs to be careful about that. His recognition of Watson on that night was supported in a number of respects by a number of other witnesses, but not to the same extent. The other descriptions were consistent with the appearance of Mr Watson. All of that was an important part of the case.”

Davison says it is also salient that Watson himself never described seeing a ketch even though his own boat was moored almost exactly where Wallace said he dropped off Hope, Smart and the man he identified as being Watson. Because New Year’s Eve had been a beautiful day, and about 200 boats were moored off Furneaux Lodge, creating a fine spectacle, many people took photographs. The police made them into montages and, for various times of the day, identified every boat. None shows a ketch in the area where Wallace says he dropped off the three people. But Blade is there.

“You can look at it like this,” offers Davison. “This is one of very few cases in which the police can throw a net, in a metaphorical sense, over a group of people which contains the murderer. So, you take out all the people moored off Furneaux Lodge that night in the boats which couldn’t have been the boat where Ben and Olivia were dropped off, because they were in the wrong place, or they were launches, or they had groups of people who were able to account for one another and all those sorts of things. I think there was only one man on a ketch who was alone and he had a beard and he was way up the other end of the mooring area.

“So, if you start eliminating people, you get down to a smaller group and then you ask yourself the question – it’s just an application of logic. Leaving aside identification, look at those who were acting in a certain way and you get down to Mr Watson being identified as offering them a place on his boat, and you’ve got the hair from Olivia on his boat.”

Davison says when you add in the evidence of Watson’s sexually aggressive behaviour towards women on the night – one woman said she went and hid in the toilets because she was so disturbed by his approach to her – plus his statements before New Year that he wanted to kill, and his actions afterwards in changing the appearance of his boat and thoroughly cleaning it, the case becomes compelling.

“And I think that’s what the Crown case did in the end. We told the jury, ‘Don’t get too distracted by the “mystery ketch”’, (which was the phrase used ad nauseam by the defence). ‘Because look at all the rest of the evidence which is actual and compelling and which you can evaluate and which presents a very powerful case against Mr Watson.’”

Pope says the Crown’s critics also gloss over the thousands of hours of painstaking investigation that went into the case.

“Right from the outset we were quite clear that this was a circumstantial case that involved a massive exercise in eliminating every potential other possibility of a non-criminal disappearance of the pair – and, then, also identifying through painstaking police work who may have been responsible for their deaths.

“And that’s the way it unfolded. You were down to Ben and Olivia being alive on a tiny part of Endeavour Inlet that morning, so you were down to quite a small group of people who could be responsible for their deaths. At the end of the day, the inquiry gathered a massive amount of information and through a process of exclusion the police case was that Scott Watson was the only possible person responsible.

“There were thousands of movements of people at Furneaux that night, tracked from where they were at particular points in time, when they were on boats, when they were on shore, who they were with. That doesn’t make good TV or print copy, but it’s the reality of police investigations. It took thousands of man-hours of work to trace everybody’s movements. I’ve publicly said before that we had 130 loosely described suspects and each and every one of those people were inquired into in terms of establishing whether they could or could not have had some sort of involvement with Ben and Olivia.”

Like Davison, Pope is unswayed by the doubters. He has seen nothing to make him doubt the convictions.

And, as Davison says, a national referendum could come up with 100% of people who doubt the verdicts, but the only opinions that matter are those of the 12 jurors who sat through the 11 weeks of evidence, with the opportunity to evaluate each witness on every piece of it. They represented the community, says Davison: “The opinions of those who did not hear the evidence are of no real significance.”

Even his own opinion doesn’t matter, he says, but, for the record, he, too, has seen nothing since the trial to cause him any doubts.

“The sort of media attention the case has been receiving lately is superficial in the extreme and somewhat sensationalist and panders to that level of journalism which seems to attract and excite attention without really having covered the detail and undertaken any sort of analysis at all.

“That’s part of our New Zealand psyche, really. There’s no controversial story in the right man having been dealt with by the system; the only controversial story New Zealanders seem to be interested in is if the wrong person has been convicted. And so we’ve had a series of reports and articles, comments from people claiming to have some knowledge or information that leads them to conclude that the only fair thing to do is to have a retrial. None of them, to my knowledge, has taken the time to actually look at the case against Mr Watson.”

Pope is similarly unmoved by the recent commentaries.

“Every time this case resurfaces, we get a flurry of people commenting on certain things they saw or didn’t see and we record this information and check it against the main file. But nothing has eventuated that changes the facts of the case. Nor do they provide the police team with what we would dearly love, which would be to find the remains of Ben and Olivia.”

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