PATSY REDDY, Governor-General
ORDER IN COUNCIL
At Wellington this 10th day of August 2020
Her Excellency the Governor-General in Council
Her Excellency the Governor-General, acting under section 406(1)(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers to the Court of Appeal the question of the convictions of Scott Watson for murder, entered in the High Court at Wellington on 11 September 1999.
The background to and reason for the reference appear in the Schedule.
In this schedule,—
applicant means Scott Watson
DNA means deoxyribonucleic acid
ESR means the Institute of Environmental Science and Research Limited.
(1) On 11 September 1999, the applicant was convicted in the High Court at Wellington of the murders of Olivia Hope and Ben Smart, who had attended New Year’s Eve celebrations at Furneaux Lodge, Endeavour Inlet, in the Marlborough Sounds.
(2) They were last seen boarding a yacht at the Furneaux Lodge anchorage in the early hours of 1 January 1998 in the company of a male person.
(3) Neither their bodies nor any trace of their belongings have been found.
(4) The prosecution case was circumstantial and included reliance on—
(a) evidence relating to the applicant’s behaviour on the night in question; and
(b) evidence relating to the description and identity of male persons seen at Furneaux Lodge, including the male person last seen with Ms Hope and Mr Smart; and
(c) evidence relating to the applicant’s behaviour in the days immediately following the last sighting of the pair; and
(d) evidence relating to the number, type, and mooring positions of boats moored in the vicinity of Furneaux Lodge on New Year’s Eve 1997 and movements to and from those boats; and
(e) evidence about the recovery and forensic examination of hairs found on a blanket on the applicant’s yacht and other bodily material.
(5) The evidence mentioned in subclause (4)(e) included evidence that—
(a) two head hairs recovered from the blanket were examined by way of high-powered microscopic comparison, and were subjected to 5 types of DNA testing, conducted by the ESR in New Zealand and by forensic scientists in Australia and the United Kingdom; and
(b) the results of those tests tended to support the proposition that 2 of the hairs found on the blanket were from the head of Olivia Hope.
(6) The defence cross-examined the prosecution witnesses who gave evidence about the matters mentioned in subclauses (4)(e) and (5) but did not call any forensic evidence of its own.
(1) The applicant appealed against his convictions to the Court of Appeal in December 1999.
(2) The Court of Appeal considered seven grounds of appeal, including one submission of fresh evidence.
(3) The fresh evidence related to a ministerial report, dated 30 November 1999, concerning probable accidental contamination of DNA extracted from scene samples at the ESR laboratory in another case.
(4) The Court of Appeal held that the circumstances of the two cases had no common features, and there was no new evidence in the applicant’s case that would tend to throw doubt on the accuracy or reliability of the DNA testing results as they were placed before the jury.
(5) The appeal was dismissed on 8 May 2000.
(6) In November 2003, the Privy Council declined to grant special leave for the applicant to appeal against his convictions.
4. First Application for Exercise of Royal Prerogative of Mercy
(1) The applicant first applied to the Governor-General in 2008 for the exercise of the Royal prerogative of mercy in respect of his murder convictions.
(2) The application was declined in July 2013 on the advice of the Minister of Justice.
5. Second Application for Exercise of Royal Prerogative of Mercy
(1) On 20 November 2017, the applicant made a second application to the Governor-General for the exercise of the Royal prerogative of mercy in respect of his murder convictions.
(2) The Governor-General sought the advice of the Minister of Justice on the application.
(3) The Minister of Justice appointed a Queen’s Counsel to advise him on the application.
(4) Among other matters, the applicant submitted that 2 reports, dated 18 September 2017 and 19 March 2018, by a forensic scientist, Sean Doyle, provide new expert opinion evidence concerning the reliability of the forensic evidence at trial regarding the hairs recovered from the applicant’s yacht that were said to be from Olivia Hope.
(5) In particular, it was submitted that the reports raise questions concerning—
(a) ESR’s adherence to relevant quality standards relating to the collection, handling, and forensic examination of those hairs and other bodily material; and
(b) the reliability of the results obtained from the DNA testing of the hairs conducted in New Zealand, Australia, and the United Kingdom; and
(c) the fairness and accuracy of the evidence given at trial about the DNA testing and the results obtained from it.
Reason for Reference
(1) The matter referred to in clause 5(4) and (5) indicates that evidence has become available since the applicant’s trial and appeal against conviction that may raise doubts about the reliability of an important aspect of the prosecution case, namely the forensic evidence referred to in clause 2(4)(e) and (5).
(2) The question of the applicant’s convictions is referred to the Court of Appeal so that it may—
(a) consider evidence about the matter referred to in clause 5(4) and (5); and
(b) consider whether any of the evidence given at the applicant’s trial should be reconsidered in the light of evidence about the matter referred to in clause 5(4) and (5); and
(c) determine, in the light of its consideration, whether a miscarriage of justice may have occurred.
MICHAEL WEBSTER, Clerk of the Executive Council.