Some Musing that may be of use

Different thoughts

It is almost nine months since Scott Watson submitted his Petition to the Governor General the exercise of the Royal Prerogative of Mercy. I admit to being one who believes in his innocence, because an experienced seaman as Guy Wallace is, would not mistake a 40 foot wooden vessel for a 26 foot steel vessel even in pitch dark and Hayden Morrisey would know whether he had reach up or down to hold the Naiad alongside. I also think Sarah Dyer would have noticed she was up to her neck in water as she was sat huddled on the side of the Naiad and the deck level of the vessel they were alongside was at chest level to some one standing on the bottom of the Naiad as she stated.

But my major concern is the identification of Scott Watson and the method police used to achieve it.

Research done overseas during the past 35 years by Professor Gary Wells and others such as Doctor Elizabeth Loftus has shown photo montages to be the worst possible method of identifying alleged offenders, with no redeeming features except it is the cheapest method. The montage system used, and still used with some modifications, is seriously flawed, and falls far short of best practice and as used here has about a 15-20% positive rate, the newer double blind sequential method used in many parts of the world now has a 85-90% positive result. Looking at a group of photos allows the witness to compare the faces and pick the one that most closely matches the face they remember. It is likely it is a feature witnesses remember, like eyes, and they will pick that feature and brush over the rest of the face.

That happened in the Sounds case; witnesses remembered the half closed eyes of the long haired, unshaven man they had seen. Police who used three different montages, from the first two, not one positive identification was made, although only Guy Wallace was shown the first which had a normal photo (taken January 8). The second used a photo taken with a wide angle lens close up(taken January 12).

Normal practice is to assemble photos of people who closely resemble the WITNESSES DESCRIPTIONS of an alleged offender. In the Sounds investigation police assembled photos of people who matched THEIR belief who the offender was, SCOTT WATSON.

In the many photos taken of Watson on January 12, one taken half way through a blink which gave the appearance of half closed eyes was found and in mid March a third montage was assembled and from that Watson was identified by first Roz McNeilly a few other witnesses and over a month later by Guy Wallace. All picked the eyes and all expressed concern about the hair. They were told Watson had had his hair cut. But still a large number of witnesses either picked a filler (a photo of a person known not to be involved), or no one at all.

Police did have a photo of Watson taken on New Years Eve around 9:30pm but it was never shown to any witness apart from Wallace who was emphatic it was not the man he served or took out with Ben and Olivia. He repeated this at depositions and during the trial in cross examination. The other main identification witness McNeilly first saw the 9.30pm photo in John Coulters book “Silent Evidence” and knew instantly she had been lied to repeatedly by police who had told her the man she picked as looking most like the man she remembered was Scott Watson. She swore an affidavit recanting her identification evidence. Secret Witness A has recanted his evidence as has Guy Wallace.

In reality all there is left now of three months Crown evidence, is one long hair that could have come from anyone of about 700 blond women in New Zealand and of very dubious origin and an inmate informer, paid by police for his evidence and who had a serious domestic violence charge reduced to a minor man assaults woman charge

PRESUMPTION - A fact assumed to be true under the law is called a presumption. For example, a criminal defendant is presumed to be innocent until the prosecuting attorney proves beyond a reasonable doubt that she is guilty. Presumptions are used to relieve a party from having to actually prove the truth of the fact being presumed. Once a presumption is relied on by one party, however, the other party is normally allowed to offer evidence to disprove (rebut) the presumption. The presumption is known as a rebuttable presumption. In essence, then, what a presumption really does is place the obligation of presenting evidence concerning a particular fact on a particular party.

as·sump·tion (-smpshn)

1. The act of taking to or upon oneself: assumption of an obligation.

2. The act of taking possession or asserting a claim: assumption of command.

3. The act of taking for granted: assumption of a false theory.

4. Something taken for granted or accepted as true without proof; a supposition: a valid assumption.

5. Presumption; arrogance.

6. Logic A minor premise.

pre·sump·tion (pr-zmpshn)

n.

1. Behavior or attitude that is boldly arrogant or offensive; effrontery.

2. The act of presuming or accepting as true.

3. Acceptance or belief based on reasonable evidence; assumption or supposition.

4. A condition or basis for accepting or presuming.

5. Law A conclusion derived from a particular set of facts based on law, rather than probable reasoning

Does Kristy McDonald have a Conflict of Interest, Real or Perceived?

In his letter to Keith Hunter regarding Kristy McDonald investigating the issues raised in Scott Watson’s petition to the Governor General and also in Mr Orr’s letter to Scott Watson Mr Orr says “Therefore, I am satisfied that Ms McDonald's appointment to assist with your application is appropriate and I do not intend to engage further on this point”. I take from this that Ms McDonald has a fiduciary duty to Mr Watson. Therefore Ms McDonald can to be seen to be in apposition of having a perceived conflict of interest.

In Westpac v Savin [1985]2 NZLR 41, 50 Justice Sir Ivor Richardson said “A fiduciary owes duties of loyalty and fidelity. The fiduciary must act with absolute fairness and openness to his client. He must not place himself in a position where his duty and interest conflict . . . It follows that the fiduciary must not without the informed consent of his client stand to receive any benefit other than his professional remuneration from the transaction which he is retained to carry through… [W]here a fiduciary fails in his obligation to make full disclosure of material facts he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction….”

The legal definition of benefit) n. any profit or acquired right or privilege, primarily through a contract whether real or not. This can include future work or pleasure.

In Merch Sharpe and Dohme (New Zealand Ltd) and others v Pharmaceutical Management Agency Ltd and Smith Kline Beecham (NZ) Ltd CP 23/96 Wellington Registry. Reason for Judgement dated 7 June1996 page 3 Justice Galleen said “ [The] depth and importance of the solicitor/client relationship [between Smith Kline Beecham Ltd and Russell McVeagh McKenzie Bartlett & Co] and it is important to observe at this stage that leaving aside specific matters, the relationship was such that it must have give rise in general terms to a considerable knowledge of the nature of the second defendant, the way in which it did business, the attitudes and outlooks of its employees and in what is accepted by all the parties to be a highly competitive sector of the business community with is position vis a vis its competitors in terms of its organisational structure and products.”   Russell McVeagh McKenzie Bartlett & Co had been sole solicitors to Smith Kline Beecham Ltd for many years but were hired by the plaintiffs to act against their former clients. Four days were spent in the Wellington High Court as they fought for the right to act against their former clients.

In many ways there seems to me to be a strong parallel between that case decision and Ms McDonald who has acted for the Crown Law, MOJ and police and is now expected to act in the interest of Scott Watson, It is just that the knowledge she has could be used to disadvantage Scott.

The New Zealand Law Society in its Rules for Professional Conduct for Barristers and Solicitors has this at the very root of legal practise in Rule 1.01 Do Not Abuse Trust; Rule 1.04 Do Not Act for Multiple Parties; Rule 1.07 Do Not Act for Persons with Competing Interests

As a sign of good faith my name and address

Lindsay R. Kennard, 2 Dash Street, Waimate 7924, South Canternury, New Zealand