Crown says Watson is the only one who could have killed pair

Scott Watson was the only one who could have killed Ben Smart and Olivia Hope, the Crown has told the court as it sums up its case before three Court of Appeal judges.

The court today sat for the fifth and final day of Watson’s appeal to squash his 1999 convictions for killing Smart and Hope.

Lawyers for Watson argued two key parts of the evidence against him were unreliable.

Firstly, the identification of Watson by eyewitness Guy Wallace, and secondly the forensic evidence, in particular the two hairs found on Watson’s blanket that were linked to Hope.

But the Crown said it never rested its case on two hairs and knew there were significant challenges with Wallace.

Crown lawyer Madeline Laracy told the court the "totality and interlinking" of circumstantial evidence provided "overwhelming" evidence of Watson’s guilt.

Watson’s team argued Wallace’s identification was unreliable because he was shown a single photo of Watson that predisposed his positive selection from a montage a month later.

It’s not disputed that Wallace was shown the single black and white photo by police in January. It was taken of Watson in 1990 and Wallace was told it was old.

But the 1999 jury was never made aware Wallace was shown it and rejected it was the "mystery man" that he saw at the bar and took on a water taxi.

The Crown argued the use of the single photo was disclosed pre-trial but Watson’s lawyer Nick Chisnall said, if that was the case, the defence would have used it.

Stuart Baker for the Crown said the issue of non-disclosure was a "non-starter".

“Both from the fact that letters show that it was disclosed to which it was, the response wasn't received saying 'no, it hasn't been',” he said.

No allegation of trial counsel error was being made.

Justice Susan Thomas asked Baker what he made of the appellant’s point that it was "not necessarily" counsel error and "more an interest of justice issue".

“Why, again, defence counsel didn't raise it, we don't know, we're unsighted on that,” said Baker.

The appeal has heard from experts who said Wallace’s memory was contaminated after seeing an old photo of Watson and with a saturation of his image across media.

Baker, for the Crown, said the impact of the photograph was speculation.

“We know a photograph can contaminate, but again, as to what it did, what contamination was caused, it is an unknown.”

He said the report presented at the hearing by identification experts Gary Wells and Adele Quigley-McBride which criticised the process was “misleading” when read at face value.

Professor Wells said Wallace’s memory was weak and he wavered between two photographs in the montage. He described it as "non-confident" identification.

But Baker said it wasn’t up to the experts to make findings of fact.

"It is not for an expert to make conclusions in relation to credibility or reliability."

On the second ground of appeal — the reliability of forensic evidence — the Crown said Watson was not the victim of bad science.

Watson’s team argued hair transference or contamination was the explanation of hairs, strongly supported to be Hope’s, being found on Watsons’ blanket.

“What we're saying is there is no new evidence of transference — simply new assertions about how it might have happened,” said Crown lawyer Robin McCoubrey.

An expert in forensic science this week criticised ESR’s handling practices and painted a picture of a lax organisation.

"A fair examination of the notes of evidence demonstrates that 1998 wasn't the forensic science Wild West that Sean Doyle wanted you to believe it was," said McCoubrey.

This week, ESR scientist Sue Vintiner told the court she had passed on the hair examination work to a technician. This contradicted her original evidence to the jury which said she did the work alone.

But McCoubrey said the jury knew technicians were involved.

"It's right that Susan Vintiner did not say specifically a technician did this and a scientist did this, but it was known at trial part of the evidence that technicians were involved in the laboratory work," he said.

He said the possibility of contamination and hair transference were raised at trial.

"They were confirmed as a possibility by expert witnesses, but ultimately they were rejected by the jury."