Watson v The King - [2023] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA450/2020
[2023] NZCA 552

BETWEEN	SCOTT WATSON Appellant
AND	THE KING Respondent

Hearing:	26 October 2023
Court:	Cooper P, French and Collins JJ
Counsel:	N P Chisnall KC, K H Cook and H Z L Krebs for Appellant M F Laracy, S C Baker and L C Hay for Respondent
Judgment:	6 November 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe Crown’s application to exclude the evidence of Ms Crawford and Ms Thirkell is declined.
BMr Watson is to file and serve an affidavit that complies with r 12B of the Court of Appeal (Criminal) Rules 2001 by 1 December 2023.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

The Crown challenges the admissibility of reports from two forensic scientists filed in support of Mr Watson’s appeal, which is scheduled to be heard in June 2024. We shall explain the reports at [11] to [15].
The Crown’s objections to the reports are based upon its concern that the reports are not relevant, fresh, or cogent and that the interests of justice do not require the Court to consider the reports.

Background

Ben Smart and Olivia Hope were last seen alive in the early hours of 1 January 1998 near Furneaux Lodge in the Marlborough Sounds.
Following a five-month investigation, Mr Watson was charged with having murdered Mr Smart and Ms Hope. After an 11-week trial Mr Watson was found guilty and sentenced to life imprisonment, with a requirement that he serve 17 years before he could be considered eligible for parole.[1]
[1]R v Watson HC Wellington T2693/98, 26 November 1999.
Mr Watson’s appeal against his conviction and the length of the non-parole term was dismissed by this Court in 2000,[2] and an application for special leave to appeal to the Privy Council was declined in 2003. A first application for the exercise of the Royal prerogative of mercy was declined in 2013. Mr Watson has been denied parole and remains in prison for the murders.
[2]R v Watson CA384/99, 8 May 2000.
An important aspect of the Crown case against Mr Watson was strands of hair found aboard Mr Watson’s yacht, the Blade. The Crown case was that Mr Watson’s yacht had been scrubbed clean soon after Mr Smart and Ms Hope disappeared. Nevertheless, the Institute of Environmental Science and Research (ESR) scientists found human hair on a blanket aboard the Blade. Ms Vintiner, a forensic scientist from the ESR, told the jury that DNA testing showed one of the hair samples came from Ms Hope. At the trial, Mr Watson’s counsel questioned the chain of custody of the hair samples and suggested the hair samples recovered from the Blade may have become mixed with a sample of hair known to have originated from Ms Hope. Counsel also pointed to a 1-centimetre hole in the evidence bag containing the hair. It was submitted this could have increased the…

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 [2023] NZCA 552
Case: [2023] NZCA 552
Decision Date: 6 November 2023 at 9.30 am

CaseChat Overview and Summary

In the case of Watson v The King, the legal dispute centres around the admissibility of expert opinion evidence in relation to the potential contamination of crime scene hair samples. The matter was brought before the court by the defendant, Watson, who sought to challenge the validity of the evidence used against him in his criminal trial. The court was required to determine whether the expert opinions of Ms Crawford and Ms Thirkell on the procedures designed to prevent or minimise contamination of crime scene samples were admissible and substantially helpful in understanding the evidence and ascertaining facts relevant to the appeal. The Crown argued that the evidence was not fresh and could have been obtained for the trial with reasonable diligence. The court found that the expert evidence was admissible as it was likely to provide substantial assistance in understanding the procedures in place to prevent contamination and in determining whether there was a substantial risk of contamination of the hair samples in question.

The court examined the admissibility of the expert evidence under section 25(1) of the Evidence Act, which requires that expert opinion evidence be substantially helpful in understanding other evidence or ascertaining facts of consequence to the proceeding. The court considered that the expert evidence in this case was intended to help understand the procedures designed to prevent or minimise contamination, an issue raised by the reference from the Governor-General. While the test for admissibility of expert opinion is higher than that for other evidence under section 7(3) of the Evidence Act, the court found that the expert reports from Ms Crawford and Ms Thirkell could substantially assist in understanding the evidence in the case and in determining whether there was a substantial risk of contamination of the hair samples. The court also considered the Crown's argument that the evidence was not fresh and could have been obtained for the trial with reasonable diligence. However, the court found that the overall interests of justice trumped issues of freshness, and the strength and potential impact of the evidence on the safety of the conviction were factors to be considered in determining admissibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The reports prepared by Ms Crawford and Ms Thirkell have been tendered as expert opinions and therefore must also comply with s 25 of the Evidence Act. It is only necessary to set out s 25(1) of the Act:25 Admissibility of expert opinion evidence(1)An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.… Thus, in order to be admissible, the opinion evidence from Ms Crawford and Ms Thirkell must be “substantially helpful” in enabling this Court to either:(a)understand other evidence; or (b)ascertain a fact that is of consequence to the determination of the appeal. Ms Laracy, for the Crown, submitted that the issue in the reference from the Governor-General is whether there was a real risk of contamination of the crime scene hair samples. Ms Laracy submitted that in order for opinion evidence to be relevant it must be substantially helpful in proving or disproving whether or not contamination occurred in relation to the hair samples taken from the Blade. Expert evidence is admissible when it is substantially helpful in understanding other evidence in the proceeding. It is not necessary that the experts proffer an opinion that there was contamination. As we understand it, Ms Crawford and Ms Thirkell’s evidence is intended to help the Court understand the establishment and evolution of procedures designed to prevent or minimise contamination. This is an issue raised by the reference from the Governor-General and the expert evidence on this topic complements other evidence relating to whether or not there was contamination. Although the test for admissibility of expert opinion is higher than the test for admissibility of other evidence under s 7(3) of the Evidence Act, we cannot at this juncture say that the reports from Ms Crawford and Ms Thirkell will not substantially assist this Court in understanding the evidence in the case, or in determining whether or not there was a substantial risk that the hair samples seized from the Blade were contaminated either at the time they were located or when they were examined in a laboratory. The Crown submits that Mr Watson and his legal advisors have completely failed to explain how the evidence from Ms Crawford and Ms Thirkell is fresh in the sense that it could not reasonably have been obtained, with reasonable diligence, for the trial. Ms Laracy points out that it is clear Mr Watson’s trial counsel had access to experts on evidence contamination and that persons with qualifications similar to those of Ms Crawford or Ms Thirkell would have been available to give evidence. Mr Chisnall KC, for Mr Watson, submits that the overall interests of justice now trump issues of freshness. We accept that credible evidence that is not fresh may be admissible depending on the strength of that evidence and its potential impact on the safety of the conviction. This point was explained in the following way by the Privy Council in Lundy v R:[5][120] … the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.[5]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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