Who killed Ben and Olivia?

Ten years after the Sounds murder, rival publications have printed polarised, contradictory accounts of the case. So is Scott Watson guilty or innocent? Anthony Hubbard attempts a dispassionate analysis of the evidence.  

1: THE IDENTIFICATION OF SCOTT WATSON

There were always problems with this. A police identikit picture of the "mystery man" suspected of the murders was done for Wallace only a week after the disappearance. It shows a man with lots of stubble and bushy, longish hair. But this did not match Scott Watson's appearance on New Year's Eve. Photographs of him on that day, taken aboard the yacht Mina Cornelia in Endeavour Inlet and by a Picton supermarket security camera, show him as clean-shaven with short hair.

An identikit picture produced for bar manager Roz McNeilly was an equally poor match. It showed a man with stubble and shoulder-length hair.

At about the same time police showed Wallace photographs of Watson. He did not recognise him. A month later he was shown a montage including a photo of Watson with his eyes half-closed. This time Wallace did pick Watson out, saying the eyes were correct but that the hair was too short and he looked too tidy. McNeilly made the same identification but with the same qualifications.

At the trial, Wallace told prosecutor Paul Davison QC he was "pretty definite" that the man in the montage was the same person he had served at the bar at Furneaux Lodge and had later dropped off at a yacht. But he also agreed with defence counsel Mike Antunovic that at a depositions hearing earlier he ruled out Watson as not matching the photo taken on the Mina Cornelia.

If this seems a somewhat confused identification, Wallace has now disowned it entirely. Scott Watson was "definitely not" the man he took in the water taxi that night, he told Keith Hunter, maker of the 2003 television documentary Murder on the Blade.

This recantation McNeilly has similarly changed her mind is very damaging for the prosecution case. The Court of Appeal, which rejected Watson's appeal in May 2000, noted: "It is beyond question that the case against him [Watson] depended substantially on the correctness of those identifications [by Wallace], because if they were incorrect the Crown case was seriously undermined."

The recantation of Secret Witness A, who claimed that Watson confessed to him in jail, is hardly of the same significance. All jailhouse confessions are suspect: the people who allegedly heard them are criminals whose motives are suspect. But this too represents a minor unravelling.

So what does the Crown say now? The short answer is that we don't know. Crown prosecutor Paul Davison QC, in a long interview in the Listener last month, did not refer at all to the fact that his main witness, and a couple of others, had recanted. He simply restated the Crown case made at the trial. Davison has not answered phone calls from the Sunday Star-Times. And Deputy Police Commissioner Rob Pope, the policeman who headed the Sounds inquiry, has not responded to an interview request.

2: THE MYSTERY YACHT

Guy Wallace says he dropped his passengers off at a two-masted ketch, not at the single-masted sloop Blade. He gave a detailed description of a yacht much longer and higher than the Blade, with ropes draped about the stern and a distinctive blue stripe along the hull with large brass portholes.

Two other passengers, Hayden Morresey and Sarah Dyer, also testified the taxi had not gone to the Blade, but another, much bigger yacht. And Ted and Eyvonne Walsh, two experienced boaties, described seeing a similarly large yacht in Endeavour Inlet on New Year's Eve. They too talked about the blue stripe, and the ropes. Bruce O'Malley gave a similar description.

And the Walshes saw the ketch in Queen Charlotte Sound the day after Ben and Olivia disappeared. Edward reported seeing a "youngish Caucasian female with long blonde hair" sitting next to a young man with short-cropped hair.

Auckland yachtie Mike Kalaugher, in his 2001 book The Marlborough Mystery, says the Blade could not be confused with the big ketch identified by witnesses. "This is equivalent to confusing a truck with a Mini." And journalist Keith Hunter, author of the 2007 book Trial by Trickery, a detailed critique of the Crown case, said prosecutors considered Wallace, Morresey and Dyer had been mistaken about the yacht's "length, height, freeboard, colour, shape, design, rigging, masts, construction material and visual condition. As far as the Crown was concerned they had been mistaken about everything it was possible to be mistaken about except the fact it was a boat".

3: THE TIMING AND THE "TWO-TRIP THEORY"

Another water taxi driver, Donald Anderson, says he took Scott Watson to his boat in the early hours of New Year's Day. Watson, who does not wear a watch, told police he thought it was "about 2am. I'm not exactly sure". Anderson was vague about the timing and other aspects of the trip.

The trip is a crucial issue. If Watson was back on his boat and did not return to shore, he could not have been the man whom Guy Wallace took, with Ben and Olivia, to a yacht at 3.30 or 4am. So he could not be the murderer.

The Crown took Watson's hazy estimate of the time 2am as an accurate one.

However, Watson was definitely ashore at about 3am, because he was involved in an ugly incident at that time with 17-year-old Ollie Perkins, who was wearing his sister's necklace. Watson's presence on shore at this time is not disputed.

This suggests two possibilities. Either Watson's guess of 2am was much too early and he in fact returned to his boat after the 3am altercation. Or he indeed returned to the boat at 2am but returned to shore between then and 3am.

Prosecutor Davison argued in his summing-up to the jury that Watson must have returned to shore after his earlier trip to the Blade. How he did so was not important. It was "a short row" to shore. "Does it matter?"

The critics say it matters very much, and that Davison's last-minute floating of the two-trip theory was unfair. Because the two-trip theory was not stated explicitly during the trial, it could not be tested. The hundreds of witnesses who were asked about their movements that night were not asked whether they had seen Watson making his way ashore.

Journalist Keith Hunter, however, says Watson could not have been on the Blade at the earlier time. The yachts Mina Cornelia and Bianca were moored alongside the Blade. When the drunken Watson returned to his boat he clambered across to both boats and made a nuisance of himself, wanting to party. One woman on the Mina Cornelia was awake until about 2.45am and says she heard nothing. So Watson's noisy return to his boat must have happened some time after this. Another woman on the Bianca remembers being woken by the ruckus Watson caused and not going back to sleep for half an hour afterwards. It was a quiet night and the boats were next to each other. "Had Watson gone back to shore she could not have failed to hear it," Hunter writes.

This would mean that by 3.30am there was still no sign of Watson on his boat. And witnesses agree that by now he was involved in the altercation on shore with Perkins. So his trip to the Blade must have been later.

Hunter believes this proves that Watson is innocent. He could not have made two trips; he must have gone to the Blade after 3.30am; and he could not have been the man on Guy Wallace's water taxi.

Certainly this raises big questions about the Crown theory, but they may not be decisive. The theory relies on some fairly exact recollections of the time by people who had been partying till late. Journalists Jayson Rhodes and Ian Wishart, in Ben and Olivia: What Really Happened, a book published just after the trial, show the dangers of this. One witness "was hazy about times when he was giving evidence. [Prosecutor] Nicola Crutchley asked him what time he got up on New Year's Day. His response? `I'm buggered if I know haven't you been to a New Year's party?"'

4: THE TRIP TO ERIE BAY

On New Year's Day Watson sailed the Blade to Erie Bay in Queen Charlotte Sound, where he stayed with an acquaintance who was the caretaker of a property there, and his two children. The man, whose name was suppressed, told the court Watson arrived some time after 5pm.

The Crown argued that this gave Watson time to have disposed of the two bodies in Cook Strait. Two men on board the interisland ferry said they had seen the Blade in the strait at about 4.30pm.

The critics find various flaws in this. They point out the caretaker had earlier told police that Watson arrived at between 10am and midday. Watson had made the same statement. Why did the caretaker change his mind? "An honest mistake," the man said.

But the change had the effect of strengthening the Crown case, giving Watson more time to dispose of the incriminating evidence. And the caretaker had reason to try to please the prosecution: police had found 250 cannabis plants on his land. Critics wonder if he changed his evidence in exchange for a lighter charge (he was charged with cultivation rather than the more serious charge of possession for supply).

And Hunter says Watson could not have been sighted in Cook Strait at 4.30pm. It was physically impossible, given the tides and Blade's speed, to get from Cook Strait to Erie Bay in less than two-and-a-half hours. Hunter replicated the trip on the Blade to prove the point.

The Sunday Star-Times, in an effort to clear up the timing issue, tried to contact the caretaker and found he died in a car crash in March 2003. The coroner was told that he had excess blood alcohol and the car was mechanically sound. His daughter, 14 at the time of the trial and now a teacher in Japan, told the Star-Times that it was she and her brother who had persuaded their father he had made a mistake about the timing. They were present that day, and based on their recollection of certain horse races televised that afternoon, they convinced their father his 10am estimate must have been wrong. "He had a terrible short-term memory," she explained. He had a candid relationship with his children they knew he used dope and never mentioned any "deal" with the police.

Some serious questions remain about the timing of Watson's trip to Erie Bay, but they are hardly decisive. If the 4.30pm sighting was wrong, this could cut both ways. Watson would still have most of the day to get to Cook Strait and then Erie Bay by 5pm or 6pm. Hunter replies that the tides in Tory Channel would have been against him for most of that time and that nobody in the crowded waters of the Sounds saw him.

Doubts remain.

5: OLIVIA'S HAIR

The defence still has to explain how two hairs, one identified as very likely to be Olivia's, ended up on a rug on Watson's yacht. This is certainly one of the most important strands in the rope of the Crown's case. DNA analysis found that one hair was 28,000 times more likely to have come from Olivia than an unrelated blonde female chosen randomly from the population. The other could have come from Olivia or her sister, mother, or anyone descended from the same female line.

The defence says one possible innocent explanation is that in the crowded partying of Furneaux Lodge, Olivia's hair was transferred to Watson directly or even via a third person, and then left on the rug. While there have been documented cases of such transfer, even Hunter agrees that it would be extraordinarily unlucky for an innocent Watson to have had this happen.

Perhaps there was a mix-up of the hairs at the ESR laboratory? ESR's record is not unblemished, and there was an unexplained 1cm-long cut in the plastic bag that contained hairs taken as reference samples from Olivia's bedroom. Perhaps the reference hairs from Olivia's hairbrush became the incriminating hairs supposedly found on the rug.

Finally, there is the possibility that the hairs were planted. Again, this has happened before an incriminating cartridge was famously planted in the Crewe murder case. And when the ESR scientist first examined the hairs, including hundreds of dark ones, she did not find the blonde ones. She found them only during a second inspection seven weeks later.

Planting of evidence is obviously a serious crime, and as Auckland law lecturer Scott Optican points out, allegations of planting of evidence are rare in New Zealand. The question remains. Do the hairs show that Watson did take Olivia aboard his yacht? Or is there some other explanation?

THE FLAWS in the Crown case, then, are certainly enough to warrant a new investigation but they do not by themselves prove that Watson is innocent. It is also an unfortunate fact that Watson is not an ideal pin-up boy for the defence. His threats to kill women a female witness told the court about a conversation with Watson where "he seemed to have a lot of hatred in him about women" and he had said "one day he would kill them" reveal at the very least an unpleasant side to his character.

Whether they are evidence of a serious motive for killing, or merely drunken ranting, is a matter for judgement. Prison sources say he has been involved in many fights in jail. Even Hunter agrees that when Watson was drunk "he was a bit of a pillock".

These facts no doubt explain why people commonly have divided feelings about the case. The trial was seriously flawed but Watson was not an appealing character.

Perhaps the most sensible conclusion is that of Olivia's father, Gerald Hope. He too has developed doubts about the case.

"I'm not saying [Watson] is not guilty. What I'm saying is, let's clear up the doubt."

THE SOUNDS MURDERS

December 31, 1997: Ben Smart, Olivia Hope, Scott Watson and hundreds of others are partying at Furneaux Lodge in Endeavour Inlet in the Sounds. Dozens of yachts float in the bay.

Early hours of January 1, 1998. A water taxi drops Olivia, Ben and a man at a yacht in the inlet. The pair disappear.

January 2: Gerald Hope tells police his daughter is missing. Police investigate.

January 4: Media discover story and massive coverage follows.

June 15, 1998: Scott Watson arrested.

June-September 1999: Trial of Watson at Wellington High Court. On September 11 he is found guilty. Watson's response: "You're wrong." Sentenced to 17 years' jail in November.

Late 1999: Ben and Olivia: What Really Happened, a book by journalists Jayson Rhodes and Ian Wishart, offers a detailed critique of the trial. It concludes "it would be a brave person who believes guilt has been proven beyond all reasonable doubt".

2000: Silent Evidence: Inside the Police Search for Ben and Olivia, a book by journalist John Goulter, concludes Watson did it. Police inquiry head Rob Pope contributes a foreword.

May 8, 2000: Court of Appeal rejects Watson's appeal.

The Marlborough Mystery, by Auckland yachtie Mike Kalaugher, concludes that "the mystery of Ben and Olivia has not been solved".

November 7, 2003: Keith Hunter's TV documentary, Murder on the Blade? criticises the Crown case. Key Crown witness, water taxi driver Guy Wallace, tells Hunter he no longer believes Watson is the man he dropped off at a yacht on New Year's Day. The Privy Council declines to hear a further appeal from Watson.

March 2007: Hunter's book, Trial by Trickery: Scott Watson, the Sounds Murders and the Game of Law, provides a detailed critique of the Crown case and the police investigation.

 

Sunday Star Times