The Court of Appeal has turned down a bid to quash Scott Watson's convictions for the murders of Olivia Hope and Ben Smart.
Watson's lawyer, Kerry Cook said Watson was "very disappointed" with the decision.
"He maintains that he is innocent. He has instructed us to prepare an application for leave to appeal to the Supreme Court."
Watson – who has spent a quarter of a century in prison for the murders of Smart and Hope – had his case heard by the Court of Appeal last June.
The Blenheim friends, aged 21 and 17, were last seen stepping off a water taxi onto a stranger's yacht in the Marlborough Sounds in the early hours of January 1, 1998, after a New Year's Eve party at Furneaux Lodge. Their bodies have never been found.
The appeal focused on the use of photo montages shown to witnesses ahead of the original trial, and the reliability of forensic testing used to show two hairs found on Watson's boat belonged to Hope.
A nearly 300-page decision released on Wednesday by Justices Christine French, Patricia Courtney and Susan Thomas, found there was no miscarriage of justice in relation to the hair evidence or the identification of water taxi skipper Guy Wallace.
"Considering the case overall, the court is satisfied Watson's trial was fair and the jury's guilty verdicts followed the crown presenting a compelling case.
"Watson's murder convictions must stand."
A long awaited appeal
Watson was found guilty of the murders at a jury trial in the High Court in 1999.
The key issue at the trial was whether Watson was the lone man with whom Hope and Smart boarded a boat the last time they were seen. It was now accepted that the pair died at the hands of the lone man in circumstances which amounted to murder.
In the absence of a murder weapon or any bodies, the original case relied on circumstantial evidence – including two blonde hairs that were found to belong to Hope and were recovered from Watson's boat Blade, and that Watson was picked out as the lone man by Wallace from a photographic montage.
Watson is appealing his 1999 convictions for murdering Ben Smart and Olivia Hope in the Marlborough Sounds. (Source: 1News)
Watson appealed his convictions to the Court of Appeal in 2000 and it was dismissed. He then applied to the Privy Council for special leave to appeal, which was declined in late 2003.
An application for the exercise of the royal prerogative of mercy, a special avenue for criminal cases to be reopened where a person may have been wrongly convicted, was declined in 2013.
Watson made a second application for a royal pardon in November 2017, and in 2020, the governor-general referred the question of his convictions to the Court of Appeal to determine whether a miscarriage of justice had occurred
The focus of the five-day hearing, held last June, was to consider new evidence about the hair belonging to Hope and the reliability of Wallace's identification of Watson.
Watson has been denied parole five times since he became eligible eight years ago – partly because he has refused to admit his guilt.
Hair evidence and photo identification
In the appeal, Watson relied on new expert opinion challenging the reliability of the forensic evidence at trial about the two hairs found on a tiger-patterned blanket aboard Blade.
The court considered the collection and handling of the hairs; the reliability of the results obtained from the DNA testing; and the fairness and accuracy of the evidence given about those tests at trial.
It found there was no issue with the reliability of the hair evidence, and that it was extremely unlikely they had become mixed up in the lab with those taken from Hope's home or transferred to Blade through other means.
The appeal also considered whether a photo montage used by police had predisposed witnesses to pick out Watson.
At the original trial, the Crown's case relied completely on the positive identification of Watson by water taxi driver Wallace, who dropped off the young pair to a stranger's yacht in the early hours.
That positive identification was critically important to the Crown case, as the Court of Appeal had confirmed in 2000 and again in 2022.
Professor in biochemistry and molecular biology says the forensic evidence is "very strong" but not positive identification. (Source: 1News)
After initially describing a completely different man and failing to pick Watson out of a montage of photos, Wallace was shown a single picture of Watson.
Three months later, after being shown a series of photos known as "montage B", Wallace picked out Watson as the man he had seen.
Wallace – who took his own life in 2021 – recanted soon after, saying he was pressured by police and for two decades he vowed Watson was not the mystery man.
The court found the photo montage did not predispose witnesses to pick out Watson and that the cumulative effect of other circumstantial evidence, including various witnesses' descriptions of Watson from those at Furneaux Lodge on the night Hope and Smart disappeared, supported Wallace's identification of Watson in the photo montage.
'A fair trial'
The Court of Appeal said given the "continued controversy surrounding this case" it had to demonstrate it had fully considered all matters raised by Watson.
It said the only real issue at trial was whether he was the lone man on the water taxi that night. Both the Crown and defence had accepted at trial that the lone man identified at Furneaux Lodge was the same man transported by Wallace on the water taxi.
The court said the circumstantial evidence against Watson included descriptions of his interactions with numerous other partygoers that night; significant inconsistencies between his own explanation of his movements on New Year's Day and the sightings (and non-sightings) of Blade; the forensic evidence; and that he immediately repainted and sanitised his boat after leaving Endeavour Inlet.
"Though the defence offered alternative explanations, Watson's conduct from daybreak and in the following days was consistent with the actions of someone intent on avoiding detection and concealing incriminating evidence."
It was the Crown case that the murderer had to be a man who attended Furneaux Lodge and had a yacht moored in the inlet on December 31, 1997, in the location described by witnesses, and who was in all probability the yacht's sole occupant.
Therefore by elimination, the Crown said Watson was the murderer.
"The court does not suggest there were not errors and misstatements made during the course of the trial or in respect of aspects of the evidence. That is hardly surprising in a trial (and police investigation) the length and complexity of Watson's.
"However, there was nothing in these errors and misstatements, either individually or cumulatively, which amounted to a miscarriage of justice.
"It was a fair trial."
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