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Court of Appeal determines preliminary skirmish on expert report in Scott Watson appeal

14 Jun 2024

| Author: Anna Longdill

Defence application for orders requiring production of Crown expert report for substantive appeal hearing – approach to supplemental powers of Court of Appeal – Crimes Act 1961, s 389  – Criminal Procedure Act 2011, s 335 – can the s 389/s 335 powers be used to require a document obtained by one party which it does not intend to adduce in evidence to be provided to the court in the face of that party’s opposition? – is the Crown obliged to present the report under its overarching duty of fairness?

Watson v R [2024] NZCA 170

 

Scott Watson was convicted of the murders of Olivia Hope and Ben Smart in 1999.  He was sentenced to life imprisonment with a minimum term of 17 years.  Watson’s appeal against conviction and sentence was dismissed by the Court of Appeal in May 2000.  The Privy Council declined to grant special leave for Watson to appeal his convictions in November 2003.

In July 2013, Watson’s application to the Governor-General for the exercise of the Royal prerogative of mercy was declined. A subsequent application, made in November 2017, was successful and the question of his convictions was referred to the Court of Appeal.

Watson’s appeal was set down for a five-day hearing in the Court of Appeal from 10 – 14 June 2024.

One of the grounds of appeal is that the identification procedure that resulted in Watson being identified when shown a photographic montage did not produce a reliable identification and it therefore should have been inadmissible.

Watson has adduced affidavits from two experts on eyewitness identification evidence in support of his appeal. The Crown required both experts for cross-examination at the substantive appeal hearing.

The Crown engaged Dr Margaret Bull Kovera, a psychology professor, to prepare a report on the psychological research on eyewitness memory that is relevant to understanding the likely reliability of the eyewitness identification made in Watson’s case.  Kovera works in broadly the same United States academic milieu as Watson’s visual identification experts.

Kovera reached the same conclusion as Watson’s experts – that the identification evidence was unreliable.  The Crown advised that it would not be filing any evidence from her and disclosed the report to Watson’s counsel.

Watson then applied pursuant to s 389 Crimes Act 1961 for orders requiring the production of Kovera’s report to the court.

The Crown opposed the application. It conceded that Kovera’s summary conclusion could be adduced as evidence but did not agree that her conclusion was correct (the Crown’s view is that the reasoning process and factual foundation to support the conclusion are questionable).

The Crown argued that Watson could call Kovera himself (she having never been a Crown witness or deponent) and the s 389 supplemental powers should not be used unless it was necessary, in the interests of justice, to fill some critical gap, generally a gap the parties cannot themselves address.

 

Applicable principles: Approach to supplemental powers of Court of Appeal – Crimes Act 1961, s 389  – Criminal Procedure Act 2011, s 335 – can s 389(a) Crimes Act (or its successor, s 335 Criminal Procedure Act) be used to require a document obtained by one party but which it does not intend to adduce in evidence to be provided to the court in the face of that party’s opposition? – is the Crown obliged to present the report under its overarching duty of fairness?

 

Held: The application was declined. Given the Crown’s appropriate and helpful concession on a summary of Kovera’s conclusion being adduced as evidence, production of the report was not necessary for the determination of the appeal. If Watson wished for the report to be adduced in evidence, it was a matter for him to call Kovera, following the requisite procedural steps.

 

Watson v R 2024 NZCA 170

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