Mark Lundy’s defence lawyer reviews Ian Wishart’s book on Ben and Olivia

Former criminal lawyer Ross Burns assesses Ian Wishart’s new book on the Marlborough Sounds killings, Elementary (Howling at the Moon, $38.99)

Nothing about the Sounds murders has been elementary. Following the disappearance of Ben Smart and Olivia Hope from Furneaux Lodge on New Year’s Day 1998, there was a huge, albeit apparently flawed, police investigation. It was conducted in the light of widespread media coverage, and Watson, the principal suspect, was left dangling for five months, his home bugged and his acquaintances helping police build their case against him.

Watson’s trial was a good, old-fashioned legal stoush fronted for the Crown by the doughty Nicola Crutchley, then Deputy Solicitor-General, with the formidable assistance of Paul Davison QC and Kieran Raftery, and for the defence by Mike Antunovic and Bruce Davidson, both seasoned, capable and robust advocates.

The Crown case relied on eliminating everyone other than Watson from being the killer. Police had spoken to every person on every boat that was there that evening and over the duration of the 11 week trial, the jury heard from most of them. Sherlock Holmes – who Ian Wishart silently acknowledges by calling his book Elementary – would have said, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” The jury agreed, finding Watson guilty of both killings.

Critical to an understanding of the controversy over Watson’s conviction is the evidence of Guy Wallace, a water taxi driver who says he saw Ben and Olivia climb aboard a yacht, which he described as very different to Watson’s vessel Blade. A ketch, not a sloop. From such detail comes doubt, and over a long time in prison, such doubt can move others to re-examine the case. This one is no different. There have been books and a documentary, there is a website and most recently Mike White’s interview with Watson himself. Wishart wrote a book in 1999 in which he came down squarely on Watson’s side.

Seventeen years later, Wishart has changed his mind. His first book was written based on the evidence heard in Court. In his second, he has had the benefit of the defence files, which include all the statements given to the inquiry team as well as material generated by a defence PI. In coming to his revised opinion, he has relied heavily on the statements made much closer to the time, and discounted the “much more unreliable court testimony”. He quotes extensively from these statements as he doggedly supports his thesis, only pausing from time to time to bitch-slap those whose conclusions he disagrees with and to criticise the police investigation.

Snippets of the trial evidence appear, almost grudgingly, but on the whole it’s ignored, or put down to perjury, collusion and the mystical wiles of lawyers. Barristers would die to have the levels of skill, persuasiveness and sheer rat-cunning attributed to Watson’s defence.

In forming his opinion, has Wishart violated another of Holmes’ axioms? The great detective mused about “how dangerous it is to reason from insufficient data”. That danger is rarely recognised by most people, who are capable of forming trenchant and passionate opinions based on the flimsiest of information about a criminal case. It’s a problem which Watson’s trial starkly demonstrated; the painstaking elimination of all suspects but one, over nearly three months, may have been legal Valhalla, but it was fatal to sound-bite journalism and in the end, the public was left vaguely confused, empty and wanting more. A forensic Chinese takeaway. Wishart has no such difficulties; he has pretty much everything, and his problem has been what to choose, what to leave out and what to ignore.

His book breaks down into three main chunks; Scott Watson the psychopath and all-round bad bastard (the things the jury never heard), the “mystery man” and the ketch and whether they existed and finally what really happened.

His analysis of Watson’s character is detailed and if accepted at face value must cut away a large chunk of the sympathy vote which is so important to a successful innocence campaign. He gives the lie to depictions of Watson as a man who had got into a bit of trouble in his youth but had lived a blameless life in the years leading up to the murders, instead portraying him as violent, explosive when drinking and a sexual predator.

Wishart’s explanation for the absence of recent convictions is that his victims were too scared of him to tell the police. His analysis is somewhat flawed by the conclusion he draws from it, which is that Watson is a psychopath, the murders must have been committed by a psychopath, and as the chances of two psychopaths being on the prowl at Furneaux Lodge are pretty slim, Watson must have been the killer. This type of backward reasoning crops up elsewhere. In one passage, he deals with Watson’s claim that as he didn’t drink bourbon, which the mystery man was ordering, it would not have been him at the bar, hitting on women and generally behaving like a complete arsehole. Wishart brilliantly demolishes this by pointing out that bourbon is actually bourbon whiskey, and that there was evidence that Watson had previously drunk whiskey, therefore he is a liar.

If some enthusiastic prosecutor tried that on in court, it would be squashed in an instant, and it doesn’t improve by being put down on paper. While Wishart condemns the “advocacy journalism” of others who have written on the topic, he too strays across the line frequently.  There’s nothing wrong with advocacy journalism.  Ask Nicky Hager. Just don’t pretend it’s objective.

Much has been made of the apparent differences between Watson and the mystery man. Wishart is at his strongest in pointing out that they are likely to have been the same man; that one man’s clean-shaven is another’s three-day growth and that describing hair that comes to the collar as long is not necessarily inconsistent. Given the known frailties of identification evidence, he has much to work with and does it well. Likewise in his analysis of whether there was a ketch which police never found, he is convincing in his reasoning that it never existed, and if he is right, and the water taxi driver got it wrong, Watson comes right back into the frame.

As for the “what really happened” part, by this stage in the book the narrative has become discursive, but Wishart nevertheless draws a number of interesting conclusions from the evidence which help in pinning down the events, all of which underline Watson’s involvement. It’s not the most readable part of the book, but is probably the most needed.It’s important for family members of the dead to understand what happened to their loved one. It helps the grieving process to understand the events over which they had no control.

In his dedication, to the memory of Ben and Olivia and to their families, Wishart expresses the hope that his book may end the uncertainty. Does it? Over 17 years people take positions and become entrenched, evidence and the perception of it alters to fit the terms of reference and public opinion changes. Watson needs supporters as all he has left is the Royal prerogative of mercy and that is rarely granted. Those who support him will doubtless continue to do so, those who do not will be unlikely to change their minds and the vast majority will maintain a position of polite apathy. For Scott Watson, the debate is far from over.

For the families of Ben and Olivia, no book can bring their children back, but it is Ian Wishart’s hope that his will at least help. I hope so too.

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