The Court of Appeal has agreed to consider the issue of photographic evidence in Scott Watson's latest fight against his convictions for the murders of Ben Smart and Olivia Hope.
Scott Watson's appeal is due to be heard later this year. Photo: Pool / John Kirk-Anderson
Watson was convicted of murdering the pair, who disappeared during New Year's Eve celebrations in the Marlborough Sounds in 1998.
He has always maintained his innocence, despite a dismissed Court of Appeal bid in 2000, a denied application to the Privy Council in 2003 and a turned-down appeal for mercy to the then governor-general in 2013.
The prosecution's case relied on Watson's behaviour on the night the pair disappeared as well as in the following days, evidence relating to the description of the man last seen with the pair at Furneaux Lodge and hairs, thought to be Olivia Hope's, found on a blanket on Watson's yacht.
In 2020, then governor-general Dame Patsy Reddy referred Watson's case back to the Court of Appeal after reports from a forensic scientist questioned the reliability of the hair evidence.
In particular, the reports cast doubt on the standards relating to the collection, handling, and forensic examination of the hairs, the reliability of the results obtained from testing and the fairness and accuracy of the evidence given at trial about the DNA testing and the results obtained from it.
Dame Patsy asked the court to question Watson's convictions by considering these new reports and to determine whether a miscarriage of justice may have occurred.
At a hearing in 2020, Watson's lawyers argued a photo montage put together by police and used by a key witness to identify him as the man last seen with Ben Smart and Olivia Hope should be included in his upcoming appeal.
Crown lawyer Madeleine Laracy asked that the court stick to the grounds on which the governor-general had based her referral as Watson had already benefited from a robust appeals system.
The admissibility of the montage was challenged before the 1999 trial, however, the judge held it to be admissible.
That ruling was not challenged on appeal in 2000 but Watson now wishes to argue the judge erred in admitting the montage.
A report prepared by the Independent Police Conduct Authority in May 2010 concluded that the compilation of this montage, and the showing of a single photograph to a key witness "fell well short of best practice" and was "highly undesirable".
"Whether that is so, and whether it is productive of a miscarriage of justice, are of course matters for this court to decide if this is a ground Mr Watson may advance," Justice Kós said in the judgement.
It was in the interests of justice to include the photographic evidence for consideration at the appeal, he said.
Watson's Lawyer, Nick Chisnall said Watson and his legal team felt vindicated and heartened by the Court of Appeal's decision to look at the issue.
It removed an impediment to the ability to present an argument that addressed the two most controversial pieces of evidence in the Crown's case at trial, he said.
"We endorse the Court of Appeal's conclusion ... that it would be contrary to the interests of justice to deprive Mr Watson from advancing a ground of appeal that has the prospect of affirming what he has always maintained, which is that he suffered a miscarriage of justice."
Watson's appeal is due to be heard by the court later this year.