The Queen v Watson [2000] NZCA 46; [2003] NZAR 193 (8 May 2000)

Last Updated: 9 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA384/99 CA507/99

THE QUEEN

V

SCOTT WATSON

Hearing:	10 & 11 April 2000
Coram:	Richardson P Gault J Henry J
Appearances:	B Davidson, I M Antunovic and N Levy for the Appellant P J Davison QC, N M Crutchley and M T Davies for Crown
Judgment:	8 May 2000

JUDGMENT OF THE COURT DELIVERED BY HENRY J

[1] The appellant Scott Watson was found guilty on two counts of murder, on which he was sentenced to life imprisonment. The sentencing Judge also made an order under s80(1)(a) of the Criminal Justice Act 1985 that the appellant serve a minimum period of 17 years imprisonment. The appeal is against conviction and against the length of the non-parole term of imprisonment. The trial, which attracted considerable media attention, commenced on 10 June 1999 and concluded when the verdicts were delivered on 11 September 1999. The conviction appeal can conveniently be considered under seven separate heads, which were the subject of discrete argument before this Court. Before embarking on that exercise, it is necessary for the purpose of putting those into proper perspective to give a brief general overview of the evidence in a summary way. That necessity arises because the appellant did not pursue as a separate ground of appeal a contention that the verdicts were unreasonable and could not be supported having regard to the evidence, and for that reason a full review and assessment of the evidence is not required. Counsel responsibly accepted that it was open to the jury to conclude on the evidence that the appellant’s guilt had been established beyond reasonable doubt. Apart from a claim of fresh evidence, the challenge to conviction is based on trial errors which it was submitted, particularly when taken cumulatively, led to a miscarriage of justice.

Overview of trial evidence

[2] The two deceased persons, Ben Smart aged 21 years and Olivia Hope aged 17 years, attended a New Years Eve celebration at Furneaux Lodge, Endeavour Inlet, Marlborough Sounds. They knew each other, and met up at the Lodge in the late afternoon or evening of 31 December 1997. They were last seen boarding a yacht in Endeavour Inlet in the early hours of 1 January 1998 in the company of a lone male who was the apparent owner or person in charge of the yacht. Although no concession was made at trial, it was not seriously challenged and for present purposes it is now accepted that both Ben Smart and Olivia Hope met their deaths at the hands of the lone yachtsman in circumstances which amounted to murder. Neither their bodies nor any trace of their belongings have been located. The real issue at trial was whether the two victims accompanied the appellant and boarded his yacht on the last occasion of their sighting.
[3] The appellant was the owner of a sloop, a single masted 26’ steel yacht named “Blade”. He sailed it alone to Furneaux Lodge on 31 December, arriving early afternoon and rafting his vessel up to the port side of another yacht, the “Mina Cornelia”. A third yacht, the “Bianco” was rafted up to the starboard side of “Mina Cornelia”. A large number of people were present at the Lodge for New Year’s Eve, possibly about 1500 in total. The police ascertained there were 176 boats in the vicinity, 105 being in the immediate vicinity of the Lodge. There was evidence of inappropriate behaviour on the part of the appellant during the course of the evening, including approaches with sexual overtones to young women. There was also behaviour of an aggressive nature, particularly in respect of a young man resulting in what was known as the Perkins incident. The appellant had consumed a quantity of liquor, and was adversely affected by it.
[4] Olivia Hope had come to the Lodge in the yacht “Tamarack”. In the early hours of the morning of 1 January Ben Smart and Olivia Hope were taken back to the “Tamarack”, but there was no sleeping accommodation available for them. A water taxi driven by Mr Wallace then called at the “Tamarack”, leaving two of its passengers there. Olivia, who was upset because she had paid for a berth on “Tamarack”, asked to be taken ashore by the water taxi. As a result, she and Ben both boarded the water taxi, which was then occupied by three other people and the driver Mr Wallace. Olivia enquired about accommodation at the Lodge which brought an offer from one of the occupants of the taxi of a bed on his yacht. This was accepted and Ben and Olivia were then taken to the yacht and the three of them boarded it. The time was approximately 4am, although time estimates throughout the trial evidence were often conflicting. The man was some time later identified by Mr Wallace from a photograph montage as the appellant, but the reliability of this identification was strongly challenged by the defence, particularly in the light of the description given by Mr Wallace of the person on the taxi. Mr Wallace’s evidence was that this person was the same person he had observed on earlier occasions at the Lodge. Mr Wallace also described the yacht the three people boarded as being two masted, a ketch, with distinctive characteristics which did not match the “Blade”, but it was in the same area where the “Blade” was moored.
[5] The “Blade” left its mooring at Endeavour Inlet probably before 6am, unnoticed by those aboard the vessels to which it had been rafted up. It was next seen at about 9am near Marine Head, with one male occupant. There was one other confirmed sighting of the appellant aboard “Blade” at 9.45am near Kurakura Point, by a person who knew him. There were other possible but unconfirmed sightings. “Blade” was later identified as being in Cook Strait near the entrance to Tory Channel at about 4.30pm. It arrived in Erie Bay probably some time shortly after 5pm with the appellant as its sole occupant.
[6] The “Blade” was seized by police on 12 January 1998, and subjected to forensic examination. This revealed that the vessel had been repainted since 1 January, changing its colour and appearance. The interior had been methodically wiped, removing fingerprints. Radio cassette tape covers had also been wiped, and a recognisable feature, the self steering gear wind vane, had been taken from its usual position on the stern and stowed away. The inside of the hatch cover was found to have some 176 scratch marks, which it was said were likely to have been caused by fingernails. Two of the squabs had recently had pieces cut or ripped out of them. A corresponding hole in the cover of one of the squabs was found, but when first seen the cover had been reversed so as to obscure the hole in the squab. There was nothing left to indicate what may have been on the portion of the cover or squab which had been removed. There were, however, burn marks on the edges of the hole in the squab cover, and some of the foam beneath the burn hole had been slightly affected by the burning. When questioned the appellant gave differing explanations as to how the squab had been burnt.
[7] The police took a blanket from the vessel, from which a number of human hairs were later recovered. They included two which were the subject of later positive scientific testing strongly indicative of having come from Olivia Hope.
[8] Very extensive, probably better described as exhaustive, police enquiries resulted in the elimination of all identified yachts in the immediate vicinity on 31 December and 1 January as being the vessel boarded by the two victims on delivery by Mr Wallace’s water taxi. Extensive enquiries failed to locate a ketch of the description given by Mr Wallace, or any similar ketch which was reported as having been sighted in the area at the relevant time but not excluded from involvement. A distinctive shirt worn by the appellant while at the Lodge has not been recovered. When interviewed by the police, the appellant denied any responsibility or involvement in the disappearance, and said that he had been taken to his yacht by a water taxi at about 2am and not left it again before departing Endeavour Inlet at about 7am, and then arriving at Erie Bay about 9.30 to 10am.
[9] There was evidence given by a Naiad water taxi driver, Mr Anderson, of having taken a lone male matching the appellant’s description, to a vessel which he eventually agreed probably was “Blade” between 2 and 4am on 1 January. Some of the occupants of “Mina Cornelia” and “Bianco” told of being woken by the appellant in the early hours of the morning looking for a “party”. The Crown conceded that the appellant had returned to his boat at about this time, but contended that he had then returned to Furneaux Lodge. This became known as the two trip theory, the second trip being back to “Blade” on the Wallace water taxi, in company with the two victims. There was evidence that the appellant was involved with other people on shore, probably between 3am and 3.30am.
[10] Following his arrest, the appellant was in custody at Addington prison. He made statements to two inmates on separate occasions, each of which constituted admissions of responsibility for the killing of both Ben Smart and Olivia Hope. In one instance he gave a graphic description and demonstration of how the young woman met her death. There was also evidence that in the period November 1996 to March 1997 he had expressed a hatred of women in general, referred to killing a woman, and that again in November 1997 he had spoken of killing people. The appellant did not given evidence at trial.
[11] We turn now to the specific grounds of appeal, all of which can be described in general terms as being trial errors. Before doing so, we make the following observations. It would be wrong to describe the case as one which was finely balanced. It was proved to the jury’s satisfaction beyond reasonable doubt, and that finding is not under challenge. Further, although there undoubtedly were areas of critical importance to the Crown case, where proof as here depends substantially on what is known as circumstantial evidence, it is the totality of the evidence which almost always is important - the accumulation of a series of facts or factors.

Admissibility of statements by the appellant prior to 31 December 1997

[12] The Crown called three witnesses who gave evidence of statements made on two separate occasions by the appellant expressing a desire or willingness to kill people. The first was Mr A, who knew the appellant at the time he (the appellant) was building “Blade”. That occurred sometime between November 1996 and March 1997, when they were commiserating with each other over their own personal difficulties. In that conversation, the appellant said that his unhappiness in this respect caused him to have “almost like a hatred towards women”. He went on to talk about killing a woman but without referring to any particular woman. He was described as very angry, and when Mr A suggested he was talking rubbish the appellant responded, shouting “just keep an eye on the papers then”. The conversation then ended.
[13] The second incident concerned Mr and Mrs B, who went to Endeavour Inlet in their yacht on 31 December 1997. While anchored there the appellant, who was previously known to them, came over to their vessel where some liquor was consumed. Shortly after the appellant’s arrival, Mrs B went below deck. She said she had done that because she felt uncomfortable in the appellant’s company, as a result of a previous experience with him. That related to an occasion in November 1997 when the appellant had called to their home, and he and her husband drank some beer and then went to a hotel. When they returned some time later, a discussion started concerning some annoying behaviour by a woman earlier at the hotel. The appellant said he should have killed her, and got rid of “them”, indicating other people as well. This talk contained specific reference to the woman at the hotel - “it carried on for quite a while about her, and her body, and the rest...”. She described the appellant as vocal and intense. He continued to talk about killing people and asked Mrs B if there was anyone she wanted killed, that he knew how to do it. His ability to carry out the killing and avoid detection was implicit. Mrs B was unable to deflect him from continuing to talk in this fashion. She took him seriously.
[14] Mr B recalled the November 1997 occasion when the appellant called at his home, and they both then went to a hotel where “out of the blue” the appellant started talking about killing people in the bar. Mr B was unable to change the subject. When back at the house, the appellant again brought up the topic of killing people and offered to kill someone for Mrs B. Mr B confirmed the substance of his wife’s evidence as to this incident.
[15] The admissibility of this evidence was the subject of a pre-trial application, which was heard on 8 June 1999, two days before the trial commenced. In a judgment delivered on 24 June, the trial Judge ruled the evidence inadmissible. The Crown sought to appeal, but this was dismissed for lack of jurisdiction (R v Watson [1999] 3 NZLR 257). On 19 August the Crown again sought to adduce the evidence, and on this occasion the trial Judge ruled the evidence admissible. The Crown case concluded on 25 August. Mr Davidson for the appellant understandably placed some weight on the fact that the Judge had originally ruled the evidence inadmissible. There can be no doubt the Crown was entitled to seek a further ruling at what was a much later stage of the trial, and that the Judge was entitled to determine the matter afresh in the light of matters as they then stood. The issues, now the trial has concluded, is whether the evidence was legally admissible and, if so, whether the Judge erred in not exercising his discretion to exclude it on the ground of fairness.
[16] In considering those issues, the particular circumstances of this case become relevant and need to be kept in mind when applying the relevant principles. The killer was a lone male yachtsman who had been at Furneaux Lodge, who fortuitously offered a young woman and her male companion sleeping accommodation on his vessel. Shortly before boarding the yacht, he had indicated that the woman was welcome but that the male was not, although he did not persist in that attitude. Within a comparatively short period of time, the two young people were killed and their bodies disposed of without trace. There is no apparent reason for the killings, other than an inference that they may have been associated with a sexual attack on the woman. The enquiry is whether the evidence assists in identifying the person responsible for opportunistic murder in those circumstances.
[17] It is helpful to record the substance of the reasons given by the trial Judge, contained in three separate rulings, for admitting the evidence. On 19 August he stated:

In essence, Mr Davison QC says that I should review my ruling because in combination the statement of intention of Mr A, sets up the basis for a motive, that is a general hatred and animosity towards women. Mr Davidson, says that that alone, probably having regard to the fact that it occurred almost a year if not more, prior to the event, and on its own it would lack the necessary cogency. But taken with the renewed expression, although in somewhat different terms, as to a willingness to murder or be involved in a murder in the way in which I have analysed in my earlier judgment, that that combined with the events on New Year’s Eve and New Year’s Day, give rise to an inference the jury could draw that he was motivated by an indiscriminate hatred and animosity towards women and that was the overriding motive for him at that time. As has been said in the past, motive is always admissible, it is not essential to establish but evidence of a motive is always admissible to assist the jury.

Having reflected on the matter, and seen in the reality the impact of the events and how they occurred, and the ongoing rejection and rebuffing of the accused by women on the particular evening, and generally having regard to the way in which he was treated, it seems by a large group of persons, I have reached the view that I should allow this evidence to go in as being evidence of a relevant motive having regard to the provocation and circumstances of the events which were faced by the accused on that evening. It seems to me that is information that the jury might well see as appropriate and as going to the question of identity of the accused.

On 25 August the Judge added:

When we resumed on Monday I reminded counsel of the exchange that we had had on the Friday night about this matter. I continued my ruling and drew counsel’s attention to the basis on which this evidence could come in. I reminded them that the evidence of motive or intention and states of mind has always been available to prove identity. R v Ball [1911] AC 47,68, Phipson on Evidence 14th Edition 327. The fact that identity was in dispute and that was questioned, it seemed to me, did not prevent the Crown from giving the best evidence that it could, on this topic if it was relevant and the coincidences of a person with these apparent intentions, being in close proximity to the two persons involved in the case, gave cogency to that as identifying evidence. It was a circumstance that could be taken into account. These were apparent random and indiscriminate motives, and the accused was allegedly in the vicinity at the last sighting of the two persons. It was a coincidence that the jury were entitled to hear about in all the circumstances of this case.

And in his ruling delivered after the trial on 11 October, he said:

As the case developed it became plain that the Crown would have to deal with the possibility that the accused had returned to shore following his return to the boat, and indeed that is what transpired, the Crown acknowledging that Mr Anderson’s evidence appeared to be conclusive that Watson had returned to his boat. It followed therefore that for him to go back to shore, he would need to have a reason for doing so and that could be the motive which the Crown said right from the start was the desire of obtaining a woman to come back to the boat, but also could have been simply the motives that he had expressed in, or could be inferred from the conversations with Mr and Mrs B. These would be an additional reason for him to return to shore, and if driven by those sorts of considerations, might be a reason for the jury to think that he would go to the additional effort of returning to shore if such were his motives overall.

Then there was the evidence of the prisoner who said that Watson had described the method of killing which arguably was by strangulation. Watson’s conversations with Mrs B as to the ability to avoid detection, and being boat related had some cogency in that that may have been the method by which he was able to carry out the killings without leaving a great deal of forensic material such as blood and so on. It thereby increased the probative value of the B conversations. It did not require many more probative factors to tip the balance and at the end of the day faced with the reality of the evidence and the way in which the case had developed and in accordance with the entitlement that the Court of Appeal plainly placed before me, having regard to the overall interests of justice, I thought the balance had been tipped and the evidence should come in. It cannot be denied either that looked at in the round this was evidence of background or backdrop to the events of New Year’s Day and in respect of the B conversations at least, recent remarks of that kind remained relevant and probative overall.

[18] As noted above, the circumstances in which these murders were committed were unusual. They indicated what could be described as a random or indiscriminate murder of a woman arising from a chance situation, with the killer possibly having a general antagonistic or violent attitude towards women consistent with that extreme conduct. Motive, or reason, for murder is relevant and admissible In R v Ball [1911] AC 47,68 the relevance of evidence showing motive to the issue of identity was set out in an often quoted observation of Lord Atkinson’s:

Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life. Evidence of motive necessarily goes to prove the fact of homicide by the accused as well as his “malicious aforethought” in as much as it is more probable that men are killed by those that have some motive for killing them than by those who have not.

This passage was cited with approval in R v Fulcher [1995] 2 Cr.App.R 251, as properly setting out why evidence of motive is probative of the issue of identity. Mr Davidson stressed that cases where evidence of this general sort had been admitted, they tended to be instances where there was a specific relationship between the event or statement and the offence itself, which he submitted was lacking here. R v McIntosh, (T8/90, Christchurch Registry 23 August 1990) is an example of a case where the evidence was of a more general nature. There evidence of animosity to a category of people, namely gang members, was held admissible as being relevant to whether the accused had killed the deceased. The relevance of motive evidence must be in the link between the earlier words or conduct and the act itself.

[19] Taken overall, we consider there was here a sufficient discernible link to make the evidence admissible on the question of identity of the killer. The appellant had earlier expressed himself as having an intention or desire to kill, it was directed to women, it was unrelated to any cause given by the victim, and together the two instances disclosed what could be described as a deepseated intention or desire, one probably fuelled by consumption of liquor and a perceived unfair treatment or rejection by women. The link is evidenced by the circumstances. At the time in question the appellant had consumed a considerable quantity of liquor, and had exhibited antisocial behaviour to women but been rebuffed in his approaches. He also subsequently admitted having carried out the killings in a way and in overall circumstances which were consistent with his earlier statements. In that situation, the evidence in question in our view went well beyond mere propensity, and was supportive of the Crown case in identifying who, among the lone yachtsmen present in the relevant area at the relevant time, was the offender.
[20] That leaves the question of unfairness or undue illegitimate prejudice which it was submitted resulted from allowing the evidence to go before the jury. This aspect was really at the heart of Mr Davidson’s submissions, as became clear when in oral presentation he stressed that the two critical factors were the significance placed on it by the Crown, and the trial Judge’s initial conclusion as to the prejudicial aspect, which primarily led the Judge to his first ruling. For the reasons already traversed, we are satisfied the evidence has probative value. Although covered by the Crown in some detail in its closing address, the transcript of it does not reveal undue emphasis or the use of inappropriate or excessive language. The probative value lay in it being a factor, but no more than one factor, in the overall picture leading finally to identification. It was a pointer to the possible offender. Its weight was, subject to a proper direction from the Judge, a jury matter. As to illegitimate prejudice, we are satisfied that the possibility of the jury being improperly influenced was not sufficient to outweigh the potential value which could be given to the evidence. In reality, the only likely illegitimate prejudice was to treat the evidence as purely evidence of propensity and nothing more, which we are satisfied was not the consequence. The appellant’s behaviour generally when at the Lodge was of relevance, and this additional evidence was no less so, and did not in the overall equation result simply in blackening his character without adding in some substantive way to the total picture.

Identification warnings

[21] In the course of his summing up the Judge directed the jury to the need for special caution as required by s344D of the Crimes Act 1961. The section reads:

344D. Jury to be warned where principal evidence relates to identification - (1) Where in any proceedings before a jury the case against the accused depends wholly or substantially on the correctness of one or more visual identifications of him, the Judge shall warn the jury of the special need for caution before finding the accused guilty in reliance on the correctness of any such identification.

(2) The warning need not be in any particular words but shall-

(a) Include the reason for the warning; and

(b) Alert the jury to the possibility that a mistaken witness may be convincing; and

(c) Where there is more than one identification witness, advert to the possibility that all of them may be mistaken.

[22] The direction to the jury was in the following form:

I am now dealing with another independent topic but of critical importance in this case. When a case against an accused depends wholly or substantially on the correctness of one or more identifications, it is required by law that I direct you that you be warned of the special need for caution, before convicting in reliance upon evidence of identification. The reason for this is because of the possibility of a mistake, having somehow arisen. This applies even though more than one witness has given evidence of identification. The same possibility of mistake could apply to all of them Sometimes people who were not really able to make a clear identification are later able to persuade themselves quite sincerely that they can now make a positive identification. You may think this is a case where people have taken a firm position about identification perhaps on both sides of the case and then found it difficult to resile from it. Often media have published their views or the views of others. A case where witnesses you may think here, have given evidence sometimes with enthusiasm, exaggeration in an attempt to assist, has perhaps been a hallmark of this as you have observed witnesses in this case. I do not confine that entirely to prosecution witnesses, but witnesses generally in an endeavour to assist, even to be helpful, perhaps over stating their position, perhaps exaggerating their position, who knows. But in any event that is not really the point. The point is that before accepting evidence of identification it is necessary to examine closely the circumstances in which any identification is said to have been made and in this case I require you to do that in respect of all witnesses who you consider gave important evidence of identification. How long did (they) have the person under observation, the accused in this case. How long did the witness have the accused under observation if it is the accused, that is a critical matter and in most of the circumstances in this case, that is so. At what distance did they see him. In what light. Was the observation impeded in any way, for example by other people in the vicinity, or by boats or objects. Had the witness ever seen the accused before, or the subject of identification before, and if so how often? Had he any special reason for remembering the accused. In this case of course that is a significant factor. How long elapsed before the original identification and the subsequent description to the police. Were there any material discrepancies between the description to the police and his actual appearance. And all those matters, you may think, one way or another, have been canvassed in this case. Examined in some detail by reference to earlier police statements and so on. You will have noticed that the defence, and quite properly so, have had wide ranging access to the police enquiries to their files and that is the way it is and should be. And as a result of that you have been able to look at the background, which exists in respect of most witnesses as to the way in which they have arrived at their ultimate identification. It is to be remembered that sometimes people make mistakes in recognition of others, even of relatives, or of close friends, and witnesses can often be convincing although possibly mistaken. Paul Davison said to you that I would give you a warning of that description and he is absolutely right and I am required in law to give you that caution and that direction on the question of identity.

[23] The first complaint under this head is that the Judge was wrong to give a s344D warning in respect of the purported identification by Mr Wallace of the appellant as the man in the water taxi who boarded the yacht with the two victims. Mr Antunovic submitted that on a proper analysis of the evidence, Mr Wallace had not made a visual identification of the appellant, but on the contrary had given evidence which excluded the appellant as the man in question. The effect of the warning therefore, it was submitted, was to undermine that exclusion to the wrongful disadvantage of the appellant.
[24] Mr Antunovic took us through the evidence in some detail to support his submission that the descriptions given by Mr Wallace of the person he had seen at the Lodge during the festivities and again as the passenger on the taxi trip could not have been the appellant. He referred in particular to a photograph which included the appellant, taken on board the “Mina Cornelia” early in the evening of 31 December, and Mr Wallace’s agreement under cross-examination that the appellant’s appearance in that photograph ruled him out as the person in the water taxi. The difficulty with this approach, one which is really fatal to the submission, is that Mr Wallace had nevertheless made a positive visual identification of the appellant as the person in question. This was by selecting his photograph (no. 3) from a montage he was asked to view by the police in April 1998. Although the concession as to the “Mina Cornelia” photograph had also been extracted from Mr Wallace in depositions, at trial he confirmed in evidence in chief that the no. 3 photograph was the person in the water taxi. When asked how sure he was, he said “I am pretty definite”, and later “that is correct, that is the (same) person”. Further confirmatory evidence was given in re-examination.
[25] Based on that evidence, in closing the Crown placed considerable weight on Mr Wallace’s identification evidence of the appellant, analysing his evidence in some detail. The jury was invited to conclude that Mr Wallace had recognised and identified the appellant as the person on the water taxi, and that his identification received some support from other occupants of it. In his closing address for the defence, Mr Davidson repeatedly referred to Mr Wallace’s purported identification of the appellant, and strongly countered the Crown’s contentions for accepting there had been a reliable identification.
[26] In summing up, the trial Judge clearly treated the Wallace evidence as visual identifications of the appellant not only on the water taxi but also on earlier occasions at the Lodge. It therefore becomes apparent that the Crown, defence, and the trial Judge all regarded Wallace as having made a visual identification of the appellant. It is beyond question that the case against him depended substantially on the correctness of those identifications, because if they were incorrect the Crown case was seriously undermined. In making that observation it must also be noted that these visual identifications were but part of the overall evidence relied upon by the Crown as establishing to the required standard of proof that the appellant was the offender. As so often happens, visual identification may be supported (or in some cases weakened) by other evidence. In those circumstances it was incumbent on the Judge to direct in accordance with s344D, notwithstanding an indication from the defence such a direction was not desired.
[27] We do not see the direction as being to the disadvantage of the defence case. It was made clear that special need for caution was required before convicting in reliance on identification evidence. We are unable to see how it detracted from either the defence criticism of the reliability of the positive identification, or the defence contention that the evidence positively excluded the appellant.
[28] The second matter raised under this head of identification concerns evidence given of “Blade” being sighted in Cook Strait near the entrance to Tory Channel at about 4.30pm on 1 January. Mr W D Gay and his son Mr M W Gay were travelling on the interisland ferry from Wellington to Picton when they observed a single masted yacht in that area, not under sail or motor, “wallowing”. Mr W D Gay gave a description of the yacht which was consistent with it being “Blade”, and he also selected a photograph of “Blade” as being the yacht he had sighted. Under cross-examination he said he was certain that the yacht was the one in the photograph. Mr M W Gay gave evidence of sighting a yacht generally of the description of “Blade”, but was less positive about it being the one in the photograph. Neither witness observed any person on board the yacht.
[29] Mr Antunovic submitted that a s344D warning was required, reasoning that in essence in this instance identification of the yacht was identification of its known occupant, the appellant. Although logically if it was ‘Blade” seen by the Gays the inference is that the appellant was aboard, we do not think such an analysis comes within the words of the section. It is concerned with visual identification of a person, and it cannot sensibly be construed otherwise. However, we accept that there is force in the alternative submission that it may well be appropriate in a case such as this for a jury to be given a similar kind of warning if a significant identification of an inanimate object is made in circumstances where there is a possibility of error. Here the direction given by the Judge in his opening remarks on this topic were general in nature, and there was also express reference to “the subject of identification” in a context which was in contradistinction to a person. In addition when discussing this sighting the Judge expressly referred to “the identity question, as to whether (the appellant) was identified as being on a boat out in the Tory Channel”. He went on to refer to the defence contention that there were very real reservations about the identification. Looked at overall, we are not persuaded that the Judge erred in law in not giving a more explicit direct warning as to the need for caution by the jury before accepting this identification of the appellant’s yacht.
[30] The third related matter was a submission that the Judge’s directions may wrongly have been taken by the jury to apply to Mr Wallace’s description of the vessel finally boarded by the victims as being a ketch (arguably supported to an extent by one of the other occupants of the water taxi), and to sightings by various witnesses of ketches which were either of a similar description to that, or were of vessels not located by the police and therefore not excluded from involvement. To an extent this submission is in conflict with the previous submission, which really contended that the directions did not apply to a similar kind of sighting by the Gays. That apart we are satisfied the point has no substance. The evidence of Mr Wallace did not purport to identify any particular vessel, and was no more than a description of his recollection of what the vessel looked like as he viewed it on that one occasion. Similarly as regards the evidence of sightings of ketches not located. These were observations by people of vessels seen by them on a particular occasion, and could not in any way be construed as specific identifications which were the subject matter of the summing up directions. There is no danger the jury may have been deflected and approached those matters in that way. It must also be said that it was entirely appropriate for the jury to give careful consideration to the accuracy and reliability of the various observations or descriptions of vessels. The fact that they may have assisted the defence case does not mean there is any less cause to examine the issue of reliability.

Defence opening

[31] The Crown opened its case on 14 June 1999, and over the following 11 weeks called some 490 witnesses. The Crown case closed on 25 August 1990, and this was followed by an indication from counsel that it was proposed to call evidence for the defence. Mr Antunovic opened on 30 August, having anticipated that the opening would occupy approximately one hour. On three occasions Mr Antunovic was interrupted by the trial Judge, and as a consequence he desisted from opening quite as fully as he had intended. Although propounded as a separate ground of appeal, Mr Antunovic accepted that standing alone it could not be said to have resulted in a miscarriage of justice. He submitted however, that the Judge was in error, and the effect of the interruption and curtailment of his address could properly be taken into account in conjunction with other grounds of appeal supporting the overall submission that there had been a miscarriage.
[32] The Court has available to it a transcript of Mr Antunovic’s address, taken from Television New Zealand videotapes. He commenced by confirming that it was not an opportunity to engage in a detailed critical analysis of the Crown case, which was something to be done later by Mr Davidson (in closing). He indicated about 25 witnesses would be called. This was followed by reference to the general rules applicable to criminal trials, and counsel then turned to the facts. He referred in some detail to the evidence of Mr Anderson, stressing that he had taken the appellant to “Blade” sometime between 2am and 4am. Mr Antunovic proceeded to talk about the evidence of the occupants of the “Mina Cornelia”, and the impossibility that the victims were with the appellant when he was talking to those persons. At that point the Judge interrupted. The transcript discloses:

Judge: Mr Antunovic I hesitate to interrupt you. You indicated that you were going to indicate what the critical issues were and indeed you have isolated them appropriately. And of course, an opening is not a review of the evidence as you indicated when you began and it is really an outline of the evidence that you are to call rather than what has in fact been called already.

Antunovic: It is also, with the greatest respect sir, an opportunity for the defence to review the crucial evidence of the Crown and that is what I am endeavouring to do sir.

Judge: I thought you were really reducing it rather than commenting on the evidence you were really exploring what were going to be the central issues and I have no problem with that.

Antunovic: Thank you sir.

Judge: But it is appropriate for you to tell us, having identified the issues now, as to what they are rather than the evidence that goes to those issues to now tell us the evidence.

Antunovic: The Crown had half a day for their opening sir, we have waited for two and a half months to address this jury.

Judge: I know that Mr Antunovic, I am trying to be fair about this but you will have an opportunity, you will have the final opportunity of addressing the jury and that is when those matters must be addressed, now I would like you to having summarised those issues, and I’ve let you go a long way on that, now to tell us the evidence that you intend to call.

Antunovic: I wish to spend more time sir on the subject matter that I am on right now sir if I may with respect. I don’t have a lot more to say. It is important sir that I try to draw together this evidence.

Judge: Of course it is important but it’s a question to which the opening should be put and you correctly identified it, as being an analysis of the central issues. What I am saying to you that it doesn’t involve a discussion of the evidence of those issues because you will have another opportunity of speaking of those and indeed, you will have the final opportunity and you will get that without restriction. So could you just turn now to the evidence that you are about to give after just making the final remarks that you indicated. But with that direction in mind, you are to isolate the issues rather that the evidence going to the issues.

[33] Mr Antunovic continued to refer to the evidence of the occupants of the “Mina Cornelia”, and then proceeded to that given by Mr Wallace and two of the occupants of the important water taxi trip. He analysed their evidence, submitting that the appellant could not have been the yachtsman in question, and then proceeded to further criticise the Crown case and the identification of “Blade” as the vessel boarded. At that point the Judge again intervened:

Judge: Now Mr Antunovic I must ask you that is a review of the evidence, I must direct you now to get on with the evidence that you are about to call. I have allowed you considerable leniency.

Antunovic: Alright Sir, well on that basis I will disregard more material that the defence wish to put to the jury at this stage and if I’m allowed to, I’ll put it to one side.

Judge: I want you to concentrate now on the evidence that is to be called on the basis that you will have ample opportunity of doing so and I have allowed you considerable latitude already on that point. Now let’s get on with it.

I don’t detract from the integrity of your remarks, it’s just that they are not appropriately made at this stage.

Antunovic: In my submission sir, I disagree. I accept what you say.

Judge: I want you now to go onto the evidence that is to be called.

Antunovic: Alright, well that’s the way it has to be members of the jury.

Judge: Mr Antunovic, it’s the way it has to be because I have directed it has to be. Now please do so without provoking me any further.

Antunovic: The evidence that you are about to hear members of the jury, mainly relate to the ketch sightings. It is difficult now for me to put this into context about what I was actually going to say to you about that but.

Judge: Mr Antunovic, I am not going to have that. If you want to give a review of the evidence relating to ketch sightings, I have no difficulty with that. But it must be just in the broadest summary and then go on to your evidence as to the what you intend to say about individual ketches and the evidence relating to them too. Do I make myself clear about that?

[34] Mr Antunovic then outlined the proposed defence evidence, this occurring he said some 40 minutes into his address.
[35] In the course of argument in this Court, Mr Antunovic accepted that he had been able to address the jury on what he regarded as the important facets of the Crown case. The only additional factual areas he had intended to traverse related to the appellant wiping down the interior of the yacht, the scratches on the hatch cover, and the confessions allegedly made to prison inmates. These were not seen by him as of particular significance to his opening.
[36] The right for the defence to give an opening address is contained in s367 of the Crimes Act 1961, which provides:

367. Evidence and addresses - (1) Upon the trial of any accused person, counsel for the prosecution may open his case and after such opening (if any) shall be entitled to examine such witnesses as he thinks fit; and the accused person, whether he is defended by counsel or not, shall be allowed at the end of the case for the prosecution, if he thinks fit, to open his case, and after such opening (if any) shall be entitled to examine such witnesses as he thinks fit.

(2) When all the evidence (including any evidence given on cross-examination, re-examination or in rebuttal) is concluded, counsel for the prosecution may make a closing address to the jury.

(3) After the closing address (if any) on behalf of the prosecution the accused or his counsel may make a closing address to the jury and the prosecution shall have no right of reply in any case.

[37] This provision was introduced in the 1966 amendment. Prior to that, the 1961 Act gave an accused a right “to open his case” and when all the evidence was concluded “to sum up the evidence”. The earlier provision can be traced back to s2 of Denman’s Act (28 and 29 Vict.c.18). The New Zealand practice is referred to in the 2nd edition (1971) of Adams’ Criminal Law and Practice in New Zealand where at para 2982 the author states:

The right of the accused to “open his case” is, it is submitted, only a right to “open” to the jury evidence which the accused is proposing to call, and not a right to make a preliminary address when he is not adducing evidence. In the latter event, his only right of address is the one given by subs.(3). The opening address should deal with the defence evidence rather than with criticism of the Crown’s case, and should be kept within reasonable compass (see the judges’ remarks in Webster [1945] NZLR 322,324).

[38] This practice was confirmed in R v Edwards (1992) 8 CRNZ 329. Eichelbaum CJ observed at p333:

In terms of s367(1) Crimes Act an accused person electing to call evidence is entitled to open his case to the jury. The trial Judge has no discretion to refuse him the right to do so although entitled to ensure that the address is limited to relevant matters. There appears to be no reported case in New Zealand defining the allowable scope of an opening address. Archbold (44ed, 1992) p572 para 4-317 states that as well as outlining the defence it is permissible to criticise the prosecution evidence, citing R v Randall, an unreported 1973 judgment of the Court of Appeal delivered by Roskill LJ (The Times, 11 July 1973). In modern New Zealand practice, in simple cases the opening on behalf of an accused is generally confined to a statement of the nature of the defence case together with an outline of the evidence to be called. In addition there is often reference to the onus and standard of proof and a modest degree of criticism or comment relating to the prosecution case.

[39] The wording of s367 itself confirms the practice. To open the case is essentially to advise the jury of the nature of the defence, and to indicate the nature of the evidence it is intended to call and how that fits into or conflicts with the Crown case. By contrast a closing address clearly envisages an all-embracing approach. Although interruption of counsel’s speech to the jury is not to be undertaken lightly and should be reserved for instances where it is necessary for the proper and fair conduct of the trial, control must ultimately be in the hands of the Judge. No hard and fast rules can be laid down, but in the case of an opening its true purpose must be kept in mind by counsel. The right to open is not unrestricted. For example it would be inappropriate where the only evidence to be called is a witness testifying to the accused’s general good character in the community, for the opening to include a full scale analysis of and attack on the Crown case, with a second opportunity to repeat that exercise immediately following the Crown’s final address. A fair balance must be struck.
[40] In the present case we are not persuaded the Judge erred in intervening at the stage he did, and to indicate the parameters within which counsel should then operate. Allowances of course had to be made for the length and complexity of the trial as it then stood, and Mr Antunovic was entitled to focus on the issues, to identify the defence position, and to outline how his evidence would impact on the case overall. That necessarily included some reference to the evidence which the jury had heard, but a detailed analysis and attempted destruction of the Crown case was not called for. The proper place for that is the closing address. In the present case, viewed objectively in context as matters stood, both at the particular time and when finally before the jury for deliberation, there is no reason to suppose the defence was in any way prejudiced or disadvantaged by what happened.

The two trip theory

[41] Mr Antunovic submitted that the defence was prejudiced when the Crown introduced this for the first time in any positive fashion in the course of its final address. The theory was put forward to counter the defence contention that the appellant had been taken as the only passenger to his yacht by Mr Anderson, remained there, and therefore could not have been on the water taxi operated by Mr Wallace when the victims were last seen. The substance of the argument appears to be that the Crown case was up until closing presented on the basis that the appellant returned only once to his yacht after leaving it to go ashore, and that was with Mr Wallace and the two victims. Acceptance therefore, at a late stage in the trial, that the appellant had returned to his yacht with Mr Anderson but had again gone ashore before the last trip back with Mr Wallace, was unexpected and unfair. The argument must be that it was not open to the Crown to address on the latter situation as being a possible scenario on the evidence. As a matter of principle, that would appear to be an extreme position for the Court to affirm, and one which would be appropriate only if the conduct of the Crown case was such that an unfair trial resulted - for example where the defence was justifiably unaware of the nature of the case which was ultimately presented to the jury and thereby unduly prejudiced in meeting it.
[42] The background requires consideration. At issue was the identity of the lone yachtsman in the Wallace water taxi. The appellant had told the police that he returned to his yacht at he thought about 2am and remained there. He had been taken from the Lodge by a water taxi driver as the only passenger by “an old guy with a hat on”. That description did not accurately fit Mr Anderson. Mr Anderson gave viva voce evidence at the preliminary hearing and was cross-examined, with the obvious object of establishing he had taken the appellant to “Blade”, consistently with the appellant’s police statement. A reading of his deposition shows that although his evidence tended to support the proposition, it was not clear and certain. At trial, the Crown led evidence from Mr Anderson, in particular directed to a trip on which he had carried a lone person to a rafted up yacht in the area where “Blade” was moored. Mr Anderson gave a physical description of the man, and of the yacht he was taken to. He had a recollection of the name of the yacht reminding him of a sharp edged weapon. He was unable to identify the man from a police montage. On further questioning he indicated that the man did not look like some news footage of the appellant he had seen in a television news program some time later. Under extensive cross-examination, Mr Anderson ultimately effectively accepted that the yacht in question was “Blade”. The consequential inference was that the male person was the appellant.
[43] The whole basis of the Crown case was that the appellant had returned to “Blade” with the victims on the Wallace water taxi at around 4am on 1 January. It must have been apparent to the defence throughout that, if as they hoped to establish from use of the deposition and the series of statements made by Mr Anderson to the police, the appellant had been returned to his yacht in the early hours of that morning by other means, the Crown would in that event seek to show that was still consistent with its basic theory. The Crown case was not at any time wholly dependent upon the Anderson trip excluding the appellant, nor was it presented in opening in that way. The fact that the appellant had, or might have, gone to his yacht in Mr Anderson’s taxi between 2am and 4am must always have been a scenario anticipated by both Crown and defence.
[44] In that situation, an obvious response to a claim that the appellant was not involved because he had gone back to his yacht with Mr Anderson and he had therefore not been with Mr Wallace, was that that did not necessarily follow because there was an opportunity for him to return to the Lodge before the Wallace trip. This possibility was apparent not only theoretically, but also in a practical sense because there was evidence of sightings of the appellant at the Lodge in the time frame of 3-4am, and of his acquisition of a jersey at a late stage of the festivities. The two trip theory must have been a possible Crown contention from the outset, and certainly became so as matters developed in the way the defence anticipated they might. Mr Antunovic submitted that the so-called late acknowledgement by the Crown on this point impacted adversely on the defence. It was suggested that more extensive cross-examination of the witnesses who were on board the “Mina Cornelia” and the “Bianco” as to the timing of the appellant’s return with Mr Anderson would have been undertaken. Similarly as regards the witnesses to the Perkins incident ashore, and the absence of evidence as to how the appellant may have returned to the shore. But an examination of the transcript shows that there was extensive cross-examination on those issues. Furthermore, it was always apparent that the timing of the Anderson trip had to be important to the defence if in the final address the jury was to be invited to conclude the possibility of a return to the shore was excluded. The suggestion that the appellant may have made a different decision as to giving evidence himself is without evidential foundation, and in the circumstances of the case it has the air of unreality.
[45] We are unable to see anything unfair in the way in which the Crown case was finally presented to the jury. As the trial unfolded, it became necessary to deal expressly with this factor. To prohibit the Crown from promoting a rational theory, for which there was supporting evidence, consistent with the whole nature and thrust of its case, would be a drastic step, and one to be taken only where the interests of justice would otherwise be in jeopardy. The situation was far from being in that category.

The summing up

[46] The Judge’s summing up was the subject of a number of complaints which will require separate consideration.

(a) The evidence of Mr A, Mr B and Mrs B

[47] Immediately prior to this evidence being called, the jury were directed that it went to the issue of identity, which he said could be proved by direct evidence and also by reference to “motives, intentions, enmity, attitudes...”. The jury were reminded it was just a piece of evidence, if accepted, relevant to whether it was the appellant who was implicated in the crimes. No challenge is made to the content of those directions. In summing-up the Judge gave more comprehensive directions. It was submitted that these were confusing and possibly misleading. We do not agree. When read in its totality the passages in question make it clear that the evidence was not to be used on any stand alone basis as being indicative of guilt. It could only go to assist the identity issue, which still had to be proved positively by other evidence. The Judge went to some trouble in his explanation, in a way which if anything was favourable to the defence. A careful reading of the transcript does not disclose that the jury were directed in a way which left a danger that the evidence may have been used for any improper purpose.

(b) The two trip theory

[48] The thrust of the submissions for the appellant was that the Judge had not given sufficient attention to the evidence relied upon by the defence to support the contention that there had been no second trip by the appellant to the Lodge. We do not see the summing up as either unbalanced or inadequate in this respect. The timing of the Anderson trip to “Blade”, and the defence claim that it was substantially later than 2 or 2.30am, leaving insufficient time to fit the appellant into the Wallace water taxi trip, were canvassed in general terms. In the circumstances, although specific points relied upon by the defence were not expressly adverted to, we do not think that absence has led to any unfairness. Crown and defence had each covered the evidence they respectively relied upon, and it was not incumbent on the Judge to repeat those details.

(c) Identification issues

[49] Several of the particular complaints relate to the identification of the appellant as the lone yachtsman on the Wallace water taxi. To the extent they are based on the contention that there was in fact no identification of the appellant by Mr Wallace, they have no substance for the reasons earlier discussed. In so far as they are directed to the balance and adequacy of the Judge’s treatment of that issue, we are not persuaded they have any force. The defence case was adequately traversed in this respect. Neither do we see any substance in the criticism of the way in which the Judge discussed the issue of whether or not it was in fact a ketch to which Mr Wallace had delivered the victims. As to the Cook Strait sighting by Mr Gay and his son, although the Judge dealt in some detail with the question of time, and the possibility or impossibility of “Blade” having been there and also arriving at Erie Bay some time shortly after 5pm, he did not expressly address the specific aspects covering the reliability of the identification. We do not discern any imbalance in respect of the timing issue, but we agree it would have been preferable for attention to have also been given to the reliability of the visual identification. But it is impossible to conclude that this omission has itself led to any miscarriage. There are a number of other criticisms of the way in which the Judge dealt with several related matters, including possible actions of the appellant during the festivities ashore, and sightings of unidentified ketches. We do not find it necessary to traverse those, it being sufficient to record our conclusion that even in combination they are insufficient to establish a sustainable ground of appeal.

(d) General imbalance and unfairness

[50] The first specific matter was the Judge’s final comment before inviting the jury to retire. He said: “This is an important case as all cases are involving criminal justice, but you apply the same rules to this case as juries do to all cases, as I have directed you. It would be of course, of considerable benefit, if you could put this dreadful event, in the life of our country, to finality by a verdict according to law, but only in accordance with the oaths and affirmations you have taken.” Although when given careful thought this could be seen as directed to a guilty verdict because a not guilty result would mean the tragedy remained unresolved, we are satisfied the jury would not have been influenced in that way. They could have been under no possible illusion as to the true nature of their task, and the real likelihood is that the observation would have been seen, as no doubt it was intended, as an encouragement to reach a verdict. The second specific matter concerned the scratches to the hatch cover. According to the evidence of a former girlfriend of the appellant, he had told her in a conversation initiated by him in March 1998 that the scratches had been made by his sister’s children. The complaint is that the Judge wrongly suggested that some evidence as to this having occurred could have been expected. The passage in the summing up in question covers relevant matters in a balanced and fair way. The comment referred to was to be expected, and when placed in context was entirely justified.
[51] Mr Davidson also referred to several instances of what were described as the Judge unfairly answering defence contentions as he was discussing aspects of the defence case. We have considered the examples, and the context in which the Judge was dealing with them. This was a conventional summing-up. It covered matters of a general nature, and referred to the principal issues which the jury were called upon to decide. Before turning specifically to the Crown and defence cases, the Judge covered many aspects of the evidence in a fair and balanced way. Drawing on closing addresses he then quite properly referred to the respective cases. In doing so a trial Judge is not restricted to simply repeating points made by each, but is entitled, in a balanced and fair way, to comment on the evidence or the submissions made. There was nothing untoward in the comments or observations which have been drawn to our attention. There was no unfair “undermining” of the defence case. Possible errors of fact which were referred to in submissions were minor in nature, and of no overall concern.

Fresh evidence

[52] The Crown called expert scientific evidence to show that two head hairs recovered from a blanket on board “Blade” when it was seized by the police had probably come from Olivia Hope. They were subjected to examination in New Zealand, Australia and the United Kingdom. Microscopic examination showed no distinguishable differences from sample hair sourced to Olivia Hope. DNA testing also indicated a match in respect of each of the hairs, although one of the tests for one hair disclosed a mixed DNA profile.
[53] At the time of the trial, a ministerial report had been commissioned concerning the presence of a DNA profile at two crime scenes matching that of a person “N”. N was proved not to have been at either crime scene, and a purpose of the enquiry was to explain how the match was obtained. The report is dated 30 November 1999, and concluded that on the balance of probabilities there had been accidental contamination of the DNA extracted from the scene samples at the ESR laboratory in Auckland. At trial, there was some cross-examination of a Crown witness on this episode, it being known at that time that contamination had likely occurred. The cross-examination was primarily directed to possible laboratory contamination accounting for the mixed DNA profile obtained in England from one of the hairs. But, even if it had occurred, it was not demonstrated how that would have undermined in any significant way the matching evidence which was obtained.
[54] It was submitted that the final report, confirming contamination in the case of N, would have been of assistance to the appellant in the present case. We have difficulty in seeing how it could be of material assistance. The report adds little of significance for present purposes to what was known at the time of the trial. The circumstances of the two cases have no common features, and there is nothing now put before the Court to suggest that contamination such as occurred in relation to N may have occurred here so as to throw doubt on the validity of the scientific evidence given at the trial. In short, there is no new evidence which would tend to throw doubt on the accuracy or reliability of the DNA testing results as they were placed before the jury.

Jury vetting

[55] The appellant applied for an order preventing the Crown from determining through use of the Wanganui Computer whether any of the jury panel summoned for the trial had criminal convictions. The Judge declined to make the order. Although listed as a ground of appeal, the refusal of the order was not pursued as a basis for setting aside the convictions. Counsel responsibly accepted that in the circumstances it was not realistic to contend that a miscarriage of justice had resulted. In that situation we have concluded that it would not be appropriate to make any definitive ruling on the lawfulness, or alternatively the desirability, of the practice, one which we understand is not uniform throughout the country. It is of course common practice for both Crown and defence to make some inquiry in respect of potential jurors, with a view to assisting in exercising the right to challenge, whether peremptory or for cause. The limits of those were not addressed in argument before us, the sole point being Crown use (through the police) of the Wanganui Computer for disclosure of criminal convictions. It is difficult to see how such a practice could infringe, as was suggested, either the Juries Act 1981 or the New Zealand Bill of Rights Act 1990. The Privacy Act 1993 could require consideration, although Mr Davison for the Crown submitted that s111 was sufficient authority. The issue must however be regarded as open, particularly as regards the policy issue of overall fairness. Consideration of the dicta of Tipping J in R v Greening [1991] 1 NZLR 110, and of the English authorities such as R v Mason (1980) 71 Cr App R 157 and R v McCann (1991) 92 Cr App R 239 can await another occasion.

Conviction appeal - result

[56] For the above reasons we are satisfied that there has been no wrong decision in law. We are also satisfied that no miscarriage of justice has been demonstrated under any of the separate grounds of appeal agreed in this Court. Neither do matters relevant to those grounds in their cumulative effect constitute a basis for impugning the verdicts. We repeat, that absent trial error or the availability of fresh evidence which in either case has led to a miscarriage of justice, it was accepted by counsel for the appellant that on the totality of the evidence findings of guilty were open to the jury. The appeal against conviction must therefore fail.

Non parole term of imprisonment

[57] Section 80(2) of the Criminal Justice Act 1985 as it now stands following the 1999 (No.2) Amendment provides:

The court may impose a minimum period of imprisonment under subsection (1) if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 10 years.

[58] Prior to 17 July 1999, the threshold for imposing in a case of murder a minimum term of imprisonment exceeding ten years was the existence of exceptional circumstances. The 1999 amendment on its face operates retrospectively (s2(4)). That aspect of the legislation does not bear on the present case, because as Mr Davidson accepted this offending was such it qualified for an order under either statutory provision. The sole issue is whether the Judge’s selection of 17 years was excessive.
[59] In his sentencing remarks, the Judge referred to a number of cases where non parole terms had been ordered including several of those considered by this Court. Apart from cases of repeated sexual offending where terms of 25 years, 22 years and 20 years have been imposed, 16 years appears to have been the highest for a case of murder. That was ordered in R v Bain (T1/95, Dunedin Registry, 21 June 1995) where 5 family members had been killed. Terms of 15 years, 14 years and 13 years have also been imposed. Having referred to the authorities, the Judge stated:

But this case bears no resemblance to the general pattern of murder cases, often domestically motivated or following drunken arguments and fights or botched burglary or robberies. This was a random killing which had all the hallmarks of the work of a lone psychopath. I am not in a position in the absence of relevant reports to determine whether Watson falls into that category. If he does then the chances of him being released on parole, ever, are remote. Some of the hallmarks of that category of criminal offender include grandiosity, callousness, indifference, insensitivity, remorselessness, aggression and hostility, all of which seem to have been present and in his character, to the limited extent of the Courts observation, and so far as can be determined on available material at this point.

Difficulty in the assessment of the circumstances in detail, should not in my view, notwithstanding the careful submissions of Mr Davidson on this point, preclude the Court from exercising its discretion to the best of its ability, having regard to the view that it takes of the case. What is clear, and it is agreed, this was a double murder of persons who the offender did not know, and in the circumstances of the evening that have been already outlined.

Watson speaking to you - by your actions on this night you snuffed out the lives of two young people, taking them from their parents, brothers, sisters and others close to them. As a result you have brought misery and suffering to many people and have outraged the public of New Zealand. Your actions were against what must have been a largely defenceless couple, vulnerable by virtue of the time and circumstances of the occasion. Under the pretext of offering them hospitality when they were in some distress and looking for a place to sleep, you seized the opportunity, as Mr Paul Davison QC said, which had fallen into your lap. No one will know of the circumstances of their death. It is too horrible for most people to contemplate or attempt to reconstruct, but there is some suggestion on the evidence that the agony of dying in one case may have been prolonged. The circumstances of the murder were also likely to have reflected your overtly sinister aggressive and nasty behaviour.

It is difficult to rely on precedent in such a matter. All murders carry with them their own degree of outrage. But to seize upon two young people in these circumstances at this time, was a grossly despicable piece of violence, probably sexually motivated, and the community are entitled to be protected from people like you for some time if not indefinitely.

[60] We are of the view that these comments were justified, and could properly form the basis for assessing the appropriate minimum term to be imposed. The random opportunistic killing of two young people who posed no threat or harm, and disposal of their bodies so that recovery became virtually impossible, must be roundly condemned. The circumstances have no real parallel from which a worthwhile comparison could be made. The term selected of 17 years could be described as high, but it does not indicate that the aggravating features were given undue weight. We are not persuaded it was excessive. Mr Davidson drew attention to the Judge’s concluding remarks, to the effect that the term equated to the life term of one of the victims. We do not regard the observation as anything more than just that. It was not indicative of the Judge’s reasoning in assessing the term, which was earlier set out in careful and considered form, and properly based.

Conclusion

[61] For the reasons set out the appeal against conviction is dismissed, as is the appeal against the making of an order that the appellant serve a minimum term of 17 years imprisonment.

Solicitors
Greig Davidson Gallagher & Co, Wellington, for Appellant
Crown Law Office, Wellington, for Crown