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Watson v The King

Watson v The King

Case [2024] NZCA 170 21 May 2024

Admissibility of Evidence

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA450/2020
[2024] NZCA 170

BETWEEN	SCOTT WATSON Appellant
AND	THE KING Respondent

Hearing:	17 May 2024
Court:	French, Courtney and Thomas JJ
Counsel:	N P Chisnall KC and H Z L Krebs for Appellant M F Laracy and S Baker for Respondent
Judgment:	21 May 2024 at 10.30 am

JUDGMENT OF THE COURT

The application is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

Background

On 11 September 1999, the appellant, Mr Watson, was convicted in the High Court at Wellington of the murders of Olivia Hope and Ben Smart.[1] Mr Watson was sentenced to life imprisonment with a minimum period of imprisonment of 17 years.[2] Mr Watson’s appeal in late 1999 to this Court against his convictions and the length of the non-parole period was dismissed.[3] In November 2003, the Privy Council declined to grant special leave for Mr Watson to appeal his convictions.
[1]Crimes Act 1961, ss 167 and 172 — maximum penalty of life imprisonment,
[2]R v Watson HC Wellington T No 2693/98, 26 November 1999; and Criminal Justice Act 1985, s‍‍ 80(1).
[3]R v Watson CA384/99, 8 May 2000.
Mr Watson has made two applications to the Governor-General for the exercise of the Royal prerogative of mercy in respect of his murder convictions. His first application was declined in July 2013 but his second, made on 20 November 2017, was successful.
The Governor-General’s reference is “the question of the convictions of Scott Watson for murder, entered in the High Court at Wellington on 11 September 1999”. The appeal is set down for a five‑day hearing from 10–14 June 2024.
One of the grounds of appeal is that the identification procedure that resulted in a Mr Wallace identifying Mr Watson when shown photographic “Montage B” did not produce a reliable identification, and it therefore should have been inadmissible.
Mr Watson has adduced affidavits from two experts on eyewitness identification evidence, Dr Gary Wells and Dr Adele Quigley‑McBride, in support of the submission that the identification evidence is unreliable and its admission gave rise to a miscarriage of justice.

The present application

Mr Watson has applied to this Court for orders requiring production of a report by Dr Margaret Bull Kovera dated 20 December 2023 (the Report) pursuant to s 389(a) of the Crimes Act 1961 and, if the Court thinks fit, requiring Dr Kovera to attend the hearing to be examined pursuant to s 389(b).[4] The application asserts the evidence is fresh, credible and cogent,[5] and will assist the Court to determine the appeal. The Crown opposes the application.[6]

The Report

[4]Section 389 of the Crimes Act was repealed, on 1 July 2013, by s 6 of the Crimes Amendment Act (No 4) 2011. It was in force at the time this proceeding commenced so it applies to this appeal: see Criminal Procedure Act 2011, s 397.

[5]Referring to the test for admission of fresh evidence on appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watson v The King

Details

AGLC: Watson v The King [2024] NZCA 170
Case: [2024] NZCA 170
Decision Date: 21 May 2024 at 10.30 am

CaseChat Overview and Summary

Scott Watson, the appellant, sought orders from the Court of Appeal of New Zealand to compel the production of a report prepared by Dr Margaret Bull Kovera, a psychology professor, and to require her to attend the hearing to be examined. Dr Kovera was engaged by the Crown to review case materials and provide a report on the psychological research relevant to the reliability of the eyewitness identification in Mr Watson's case. The Crown opposed the application, asserting that the report was not necessary for the determination of the appeal, as they had already disclosed it to Mr Watson and would not call Dr Kovera as a witness.

The central issue before the Court was whether the supplemental powers of the Court under section 389 of the Crimes Act 1961 could be used to require a document obtained by one party but not intended to be adduced in evidence, in the face of that party's opposition. The Court considered the principles governing the exercise of such powers, which must be necessary or expedient in the interests of justice, and the distinction between the roles of the prosecutor in a trial and in an appeal.

The Court concluded that while the report was connected with the proceedings and had a bearing on the reliability of the eyewitness identification, it was not necessary or expedient in the interests of justice to order its production. The Crown had already disclosed the report to Mr Watson and would not call Dr Kovera as a witness. The Court emphasised that the interests of justice test under section 389 was open-textured but required the document to be directly connected with matters in issue on appeal. The Crown's concessions regarding the content of the report and its alignment with Mr Watson's expert evidence further supported the view that the report was not necessary for the determination of the appeal. The Court held that if Mr Watson wished to adduce the report as fresh evidence, it was a matter for him to call Dr Kovera following the requisite procedural steps.

The application was declined, and no orders were made for the production of the report or for Dr Kovera to attend the hearing.

Orders