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Dunne Speaks: The Scott Watson Case Goes Back To Court

Over 20 years after the event, the Scott Watson murder case continues to attract public attention. Last week’s decision by the Governor-General to refer the case back to the Court of Appeal is but the latest step in this long saga.

The Watson case is one of a handful of cases from the 1970s to the 1990s which aroused considerable doubt about the original convictions and led to their being eventually overturned. Arthur Allan Thomas was twice convicted for the Crewe murders in 1970, before being pardoned and released from prison in 1979 following a Royal Commission of Inquiry. David Bain’s conviction and imprisonment for murdering his family in 1994 was overturned at a retrial which acquitted him in 2009. Teina Pora was convicted of murder in 1994 and was in prison for 20 years before being released. His conviction was subsequently quashed by the Privy Council. Rex Haig’s murder conviction in 1995 was quashed in 2006, while he was on parole after serving 10 years in prison. Scott Watson was convicted and sentenced in 1999, with a minimum non-parole period of 17 years, and he is still in prison after 21 years.

Separate to these, but no less significant, is the case of David Tamihere, convicted in 1990 of the murder of two Swedish backpackers. His appeals to the Court of Appeal and the Privy Council after the discovery of massive conflicts between the evidence presented and the emergence of subsequent contradictory facts both failed, and he served 20 years in prison before being released, still protesting his innocence. Earlier, this year, the Governor-General referred his case back to the Court of Appeal for further consideration.

And then there is the case of Peter Ellis, convicted in 1993 of child abuse, twice upheld subsequently by the Court of Appeal, and once more by a separate Ministerial Inquiry, who served his full sentence of 10 years before being released. Now, following Ellis’ death last year, a final approach is being made to the Court of Appeal to posthumously clear his name of what many consider to have been an appalling miscarriage of justice.

Over the years, I have read almost everything that has been published about the Scott Watson case, as well as speaking to many people directly involved. I am still unsure whether his conviction was justified by the evidence available. An aspect of the case that has always bothered me is the Police insistence from the outset that the young couple were last seen on a distinctive ketch (a double-masted yacht), whereas Watson’s yacht was a sloop – a single-masted vessel.

Many witnesses came forward saying they had seen a ketch that matched the original description given by the Police in and around the Marlborough Sounds at the time. Indeed, I saw such a ketch in Westport a few weeks later, which I subsequently reported to the Police, who, by then focused on Watson’s sloop, told me emphatically “there was no ketch”, even as a poster describing the ketch and seeking information about it hung incongruously on the wall behind them!

While our system of jury trials is probably the best and fairest available, there will always be incidences where the complexity of the case, or the paucity of incontrovertible evidence increase the possibility of a mistake being made and a miscarriage of justice occurring. The right of appeal to the Court of Appeal, then the Supreme Court or ultimately the Governor-General, is a sufficient safeguard in most cases to ensure that eventually a just and correct decision is reached. But as the Thomas, Bain, Pora, Haig, Ellis and now potentially Tamihere and Watson cases have all shown, there will still be some cases that will leave a measure of public unease that the legal system, however fully applied, cannot resolve.

In that regard, the formal establishment this week of the Criminal Cases Review Commission is an important and welcome step forward. In essence, it will replace the referral function of the Governor-General, as exercised in the Watson case, with an independent statutory commission able to investigate on its own behalf cases where a possible miscarriage of justice may have occurred and to refer such cases back to the Courts if it considers that is the appropriate thing to do. The Commission’s statutory independence should ensure that it can proactively examine cases that come before it fully and independently without having to rely solely on the evidence previously collected. In that way, it is hoped that the cases the Commission considers can be judged more holistically than on the current basis of whether the Police and prosecution or the defence got it right.

The prolonged nature of resolution of each of the cases referred to above has been unsatisfactory in many respects. There has been the length of time taken, and the unreasonableness of the impositions on the freedom of the individuals, especially in the Thomas, Bain, Pora and Haig cases where the convictions were ultimately overturned. And each case and its course has also led to a measure of weakened public confidence in the current system, as the ongoing Tamihere, Ellis and Watson cases currently suggest.

Arguably, the system eventually got it right in the Thomas, Bain Pora and Haig cases, leaving us all to ponder how much more tragic the outcome might have been had capital punishment still been in place.

Whatever the eventual outcome of the Tamihere, Ellis and Watson cases, the establishment of the Criminal Cases Review Commission should mean that where such cases arise in the future, as they will inevitably, an outcome can be reached much more rapidly, without those affected having to prove their innocence while spending many unnecessary years languishing in prison.

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