Amateur investigator highlights flaw in the Scott Watson case
Even though it's almost 20 years ago, there are things about the Sounds murder case which come easily to mind.
How Ben Smart and Olivia Hope, two young friends, vanished in the early hours of New Year's Day, 1998, never to be seen again.
How they'd been at a party on the shores of Furneaux Lodge in the Marlborough Sounds before searching for a bed for the night.
How water taxi driver Guy Wallace dropped them at a boat with a man.
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How the police say - and a jury agreed - that man, and therefore the killer, was Scott Watson.
From there the details get murky - and not just because it's two decades ago.
Even though it is was one of the most highly-publicised criminal trials of last century, and it's since been the subject of books and documentaries, there are aspects of the case which have always been complicated. Contradictions abound.
According to the Crown, it's a closed case: the yacht Wallace dropped Ben and Olivia off to belonged to Watson. A High Court trial, the Court of Appeal, and a legal team which reviewed an application for the Royal Prerogative of Mercy all agreed: Watson killed Ben Smart and Olivia Hope.
Even though their bodies have never been found.
Even though the physical evidence against Watson was limited and compromised.
Even though the evidence of two jailhouse witnesses who testified against him has been questioned.
Even though the boat Wallace described dropping Ben and Olivia Hope at is nothing like Watson's boat.
"The only similarity is that they both float," he says.
And now, Watson's supporters are asking questions again - about the location of the boat where the couple were dropped that fateful night.
It's the case that won't go away, one of several which get raised as people ask whether New Zealand needs to find a better way to resolve - and prevent - cases where the whiff of injustice lingers. Think Teina Pora, David Bain, Peter Ellis, Rex Haig, David Tamihere, and, yes, Scott Watson.
THE MYSTERY KETCH
For most of the three months of the Watson murder trial in the High Court at Wellington during the winter of 1999, the judge may as well have been presiding over a marine inquiry into the movement of boats in the Marlborough Sounds on New Year's Eve, 1997.
Police identified more than 170 boats which had been moored or anchored in the proximity of Furneaux Lodge that night as more than 1500 people joined the party onshore.
Finding out where friends Ben and Olivia had gone was a matter of tracking down boat owners and passengers, tracing where they had been and when, and noting if they had noticed anything suspicious.
Presenting all that evidence took up much of the trial. Though often mundane and repetitive, it was central to the entire case, and controversial.
The defence highlighted sightings of a ketch which matched the description given by Wallace - a two-masted ketch - plotting its movements around the Sounds over the days that followed the party. Unhelpfully for the defence, it was never located.
The Crown, meanwhile, argued that the ketch, if it existed, was not in the location where the couple were dropped off so it was irrelevant.
It was an unusual and protracted departure from what might be expected in a case as tragic as the disappearance of two young people.
Ben, 21, and Olivia, 17, had been friends for years but had come to the Furneaux separately - Ben was staying with mates at nearby Punga Cove resort, while Olivia had arrived on board the charter yacht Tamarack.
Some time after seeing in midnight and as the party subdued, Ben and Olivia took a water taxi to the Tamarack together, but discovered it was already crowded and there was no space to sleep.
In the meantime, Wallace, who had been picking up rubbish in the grounds of the lodge, was asked by a couple if he could take them across the bay to another jetty because it was too far to walk. He agreed and headed to the water taxi, a Naiad inflatable.
Another couple asked for a ride too, saying they wanted to go to the Tamarack. And then there was the mystery man.
With five people on board, the water taxi motored to Tamarack first. As the couple who wanted to go there climbed off the water taxi, Ben and Olivia jumped on asking for a ride back to shore to find a bed.
Told there was none available, the mystery man offered to have them on board his boat, an offer they accepted.
The water taxi headed to the mystery man's yacht first and the three people left on board - Wallace and the couple who wanted to go to the jetty - became witnesses to the last sighting of Ben and Olivia alive.
A CHANGE OF DIRECTION
In the days immediately after, police and the families began a frantic search. Police issued a description - and even a sketch - of the boat Wallace described dropping the pair off at: a ketch (which has two masts), about 40ft (12m) long with a white hull and dark blue stripe.
Ben's father, John, told a journalist: "Maybe the boat has sailed off to Australia or Tonga or somewhere. I'm hoping it might be something like that."
From their home in Auckland, keen yachties Mike and Jenny Kalaugher were, like the rest of the country, transfixed by the case.
"The picture of two young teenagers going missing from a New Year's Eve party was disturbing," says Mike Kalaugher. "It was at a time of the year where there wasn't much other news on, and the police were actively looking for feedback from the public to help them in their investigation...that aroused people's interest too."
But it was what happened next that really gripped them. On January 5, police from Christchurch arrived to take over the murder inquiry, and soon afterwards attention turned to another boat. Watson's single-masted 26 foot (7.9m) yacht was seized on January 12, just a week after the Christchurch police took control of the investigation.
That dramatic switch made Kalaugher sit up: "They'd been looking for a 40 foot wooden ketch with high freeboard and next it's a 26 foot steel sloop with one mast. We thought oh yes, that's different and I hope they got that right, changing tracks like that."
So what had drawn police to Watson and his yacht, the Blade? A 2008 police report on the case notes simply it was "a combination of information and circumstances".
One of the factors was where Wallace described the location of the boat he had dropped Ben and Olivia at: if it didn't lead the police to Watson, it certainly confirmed their suspicions about him, and locked him in their sights.
After leaving Tamarack, Wallace put the track of the water taxi's journey relatively close to the Furneaux Lodge jetty. It's the path police went with, concluding that he had pulled up to the Blade which was rafted up to two other vessels.
Watson and the Blade left the bay in the early hours of the morning. In the days afterwards there was evidence he had cleaned and the painted the boat. Forensic examination of the Blade discovered what was said to be scratch marks in the hatch. Later, two hairs said to belong to Olivia were discovered on a blanket onboard.
Throw in evidence from two cellmates who said Watson had confessed to them after he was arrested in June 1998, and it was case closed.
At the trial, and over subsequent years, all that evidence has been challenged - though all of those appeals have been dismissed. Watson remains in prison, a convicted double murderer.
Last year, in response to protests about Watson's innocence, the police said they were unable to re-litigate aspects of the case in public. "Mr Watson's conviction by a jury is based on consideration of all the evidence, not just individual pieces of the picture. This includes witness testimony corroborated by the facts, " they said.
'A FUNDAMENTAL ERROR'
Kalaugher is unperturbed and growing increasingly frustrated that a man he is certain is innocent, remains incarcerated.
"There's a fundamental error that happened in the early days of the police investigation that led to a wrong verdict. This case should never have got to trial. It's a horror story. How come this guy's still in prison after 19 bloody years?"
Which is why he wants to talk about his theory concerning the location of the boat where the couple disembarked the water taxi with the mystery man.
"The police made a huge reliance on an uncorroborated statement from one witness which has turned out to be incorrect, and they built the whole case on it," Kalaugher says.
That witness is Guy Wallace.
"Guy Wallace made a simple error when he was describing to the police where the boat was that he dropped the kids on to."
Kalaugher says he has gone through the witness statements and sketches of Wallace and the couple who remained on the water taxi, to examine the crucial journey from the Tamarack to the drop-off location.
He used the timings and directions and descriptions laid out in the statements, the angles and known locations of certain boats, and plotted on a chart each version of the trip.
"The other two people in the water taxi describe the boat as being much further out in the bay," says Kalaugher. In fact, it's about 150m further out in the bay, out past most of the other boats there for the party.
And crucially, the location Kalaugher has plotted is where other witnesses say they saw the mystery ketch.
"Guy Wallace made a simple error that any other person could just as easily have made and he says, 'yeah, sure it was an error'.
"Guy says, 'no I was honestly mistaken, I got jumbled up in trying to recall the different trips I'd done in the water taxi'."
Kalaugher knows that's what Wallace thinks because he went to see him about it, and even video-taped the conversation.
On that tape, filmed in 2001, Wallace says: "I got my um, the runs that I did that night, I just got those mixed up.
"So yes I imagine the ketch would have been further out in the bay than what it actually has been estimated."
Keith Hunter's 2006 book on the case, "Trial by Trickery", examines how Wallace was always confused about the location of the boat but how, despite that, police job sheets show detectives fixated on the area where the Blade was.
One particular job sheet from March, 1998, made it plain that "it didn't matter what Wallace said about the position of the boat," Hunter wrote. "His 'ketch' was doomed because, the job sheet notes, 'there was no ketch rafted or anchored in the area he stated that he dropped the trio off to'."
THE WRONG PATH?
So where was this mystery boat and can Mike Kalaugher be right? His theory is backed up by Barry Kirkwood, an experienced navigator and retired psychologist who has given expert evidence on memory and the psychology of how people orient themselves and move in spaces.
He reviewed the statements and sketches of the other witnesses on the water taxi and compared them to the known positions of certain objects, such as the jetties and the Tamarack.
One of the witnesses, told police about how long it took to travel between the various points. "Assuming a reasonably straight track between points and a consistent speed of the Naiad it is possible to convert times to distances," Kirkwood swore in an affidavit. Based on those estimates, he calculated the speed of the water taxi as being around three knots, which was consistent with what Wallace said. "This lends weight to her [the witness's] estimates."
By using that speed and the time she said it took to get from the Tamarack to the mystery yacht (three and a half minutes) and then on to Doctor's Jetty where she and her partner were dropped at (two minutes), Kirkwood was able to draw arcs from the known points of the Tamarack and the jetty.
Where those arcs overlapped gave an area where the mystery yacht should be - and it was not where the Blade was.
Kirkwood also examined the sketch and statements of the other witness on the water taxi. It showed the track of the water taxi from the Furneaux jetty to the Tamarack as being on a 70-degree angle. "The actual track is 80 degrees, making [his] estimate only 10 degrees in error. This shows his bearings are good estimates."
The witness's sketch then plotted a 55-degree path from the Tamarack to the mystery yacht - a path which took the water taxi "well seaward" of the Blade, by a minimum of 95m.
What's more, the paths both witnesses described matched each other.
"In summary, the positions for the unidentified yacht as given by both [witnesses] are consistent with each other, they exclude the yacht Blade and point to an area appreciably to the seaward of the yacht Blade," wrote Kirkwood.
AN UNHEARD THEORY
Legally, where does that leave things? The answer is very un-legal: it's a bit tricky.
The location issue was skirted around during the trial, most notably when the defence asked a police officer on the case: "Did you ever consider that Mr Wallace might perhaps have been mistaken about the exact area that he had taken the missing couple to?"
The officer replied: "Considered it, but it was corroborated by the other two witnesses that were with him."
And that's about as far as it went. (Kalaugher says when you plot what the witness statements actually said, they didn't corroborate Wallace.)
Location was also dealt with during consideration of a failed Royal Prerogative of Mercy plea from Watson. Kristy McDonald, QC, who gave the Ministry of Justice advice on the 2008 application, pointed out that Wallace had not given "any evidence [at the trial] relating to the specific location of the boat, presumably because he was unable to give such evidence".
At the time of the application, he was saying the boat was further out in the bay than he originally believed, but McDonald concluded this did not constitute fresh evidence.
"I noted however that Mr Wallace had always been unclear as to the precise position of the boat," said McDonald. "Mr Wallace had given many different possible locations for the boat and therefore this raised issues about his reliability on this issue."
But neither McDonald nor the trial or appeal judges ever heard Kalaugher's theory.
The only way he can think of it being considered is if there is a fresh application for the Royal Prerogative of Mercy.
Which brings us to what is perhaps the most important question raised by the Watson case: does the justice system in New Zealand do enough to investigate potential miscarriages of justice?
Kalaugher is clear: the system is letting people down.
"New Zealand hasn't really come to grips with the problem of wrongful convictions."
Canada and the United Kingdom were examples of jurisdictions which have taken concerns seriously, and we should follow them, he says.
"Things do go pear-shaped sometimes and when miscarriages of justice occur, we should do something serious about looking into it."
He cites two Canadian cases, Guy Morin, whose conviction for the murder of a nine-year-old girl was overturned after DNA proved his innocence, and Thomas Sophonow, cleared of the murder of a donut shop worker.
Inquiries were held into both cases. "In the first one, the Morin case, that was a bit difficult for the police, with people saying, 'you stuffed up' and they were saying, 'um, no we didn't'," says Kalaugher.
"In the second case, the police were more actively engaged, they wanted to get it right."
Since then, the Canadian Ministry of Justice had carried out major work looking at miscarriages of justice.
"They've worked with the police and with prosecutors, and now they do things there that just don't happen in New Zealand, like they don't allow multiple jailhouse informants into court in one case."
And, yes, remember two cellmate witnesses gave evidence against Watson, a point which isn't lost on Kalaugher. (Especially, since he recently helped with the private prosecution of a secret jailhouse witness in the David Tamihere case).
It's just one more thing about the Watson case which infuriates Kalaugher.
Asked what's in it for him, he answers quietly.
"Oh, just that it's wrong. I'm tempted to just forget it and do something else... but do you just walk away and let an innocent man rot in jail?"
- Stuff Circuit