Trial by Trickery

The Beginning – too hot for Penguin

Long before it had a title, Trial by Trickery was accepted for publication by Penguin Books – in October 2004. Penguin received a first draft, still untitled, on 1 July 2005. In September 2005 Penguin had it checked out by a major Queen Street law firm. Two lawyers there said it was too dangerous.
At the author’s insistence Penguin had a second legal check by another media law specialist. This time the lawyer said it was unpublishable because those attacked in the book, because of their status in the justice system and in New Zealand society generally, would have no option but to sue for defamation. Penguin handed the book back to the author in early April 2006.
The author consulted Penguin’s second lawyer himself and was advised by the lawyer that he could fix the book for a fee of $15,000.
The author thought the lawyers were wrong so he published the book himself as Trial By Trickery, encouraged by the views of Associate Professor Bill Hodge of Auckland University's Faculty of Law. Bill Hodge considered that if the facts claimed in the book to be facts are in fact facts, then opinions fairly based upon them are protected in law. That’s what the author thought too. The facts in the book are facts.

Several years later no-one has issued proceedings, or threatened to issue proceedings, against anyone involved with the book.

The Book

Trial By Trickery is the development of an open letter to New Zealand’s Parliamentarians. Here is that letter, the opening pages of the book, which goes on to list and detail two and a half years of constant misinformation to the press and public of New Zealand, and to the jury, by the police, the team of Crown Prosecutors, the trial judge and the Court of Appeal:


The Members of the New Zealand Parliament,
Parliament Buildings
Wellington

Dear Parliamentarians,
New Zealand is regularly awash with books questioning the guilt of yet another New Zealander convicted in yet another high profile case in our High Court. This is not one of them. The evidence known and available but not put before the court makes Scott Watson’s innocence as transparent as daylight and a book on it would obscure the real issue. The real issue is the performance of the justice system itself, through the actions of its representatives, the police, the prosecutors and the High Court and Appeal Court judges who featured in R v Watson.

This book stands alongside many other calls for an inquiry into the criminal justice system. It asks for a public inspection both of the case and of the everyday mechanisms which that system engaged to pursue Watson. It is written squarely in the public interest and seeks answers to the following questions, amongst others:

• Why did the police conduct their entire inquiry into the disappearance of Ben Smart and Olivia Hope in the shade of a constantly repeated lie?
• Did the police deliberately set out to have Scott Watson tried in the media prior to his arrest?
• Did multiple statements in police affidavits to the High Court constitute false oaths in terms of the Crimes Act?
• What caused the Crown to mislead the court by constantly misquoting or misinterpreting the evidence?
• Is counsel misquotation of evidence and fact a common tactic in our courts?
• What caused the Defence Counsel to be unaware of the true scenario held against their client until it was too late to mount a defence against it?
• Was the failure of the Crown team to address crucial issues and make plain its case until the last minute truly a failure or a planned tactic?
• Did the Crown conduct its case in accordance with the prosecutorial role of ‘Minister of Justice’, or was it criminal litigation practised as competitive sport?
• Was the trial judge prejudiced by involvement in the process during the police inquiry, when he became privy to defamatory and untrue allegations by the police, which were never put to the court, nor to the accused man or his counsel?
• Is it proper or normal practice for a judge to be assigned the governance of a trial when he has already issued an opinion sanctioning suspicion of the accused?
• What caused the Court of Appeal discover in the trial transcript an entire line of evidence which allows the jury’s guilty verdict but which does not exist - when revealing the truth would undoubtedly have led to a new trial?
• How can the jury system survive such maltreatment as it suffered in R v Watson?

Many other questions are raised in the book. Some were implied in a detailed television documentary which I produced and presented for Television One in November 2003. Titled Murder on the Blade?, it included an astonishing statement by the principal prosecution witness, the eyewitness without whose evidence neither arrest nor conviction would have been possible. This eyewitness told almost six hundred thousand viewing New Zealanders, categorically, that Scott Watson was the wrong man. He made it clear that he thought he had been tricked into a wrongful identification. The film also made clear the plain error by the Court of Appeal referred to above. So blatant were these allusions, and so crucially related were they to Watson’s conviction, that they demanded either investigation or rejection by the ‘System’. But beyond a claim by the leader of the investigating police team that the film revealed nothing new, the System was silent.

And so this book is a sequel to the film, focused on the accusers instead of the accused, more detailed still and, I hope, incapable of misinterpretation. At its heart is an honest demand for an inquiry into an adversarial process of criminal litigation that is often condemned for encouraging the practice of law as a game in which victory goes to the most devious. It is addressed to you both individually and as our governing body, Members of Parliament, because it seems to me and many others that justice as practised in New Zealand often aims to address guilt but not innocence, to satisfy society’s need for order and not justice, and because you might appreciate that if you don’t do something about it, perhaps the hand that was dealt to Scott Watson will sometime be dealt to you.

You will see that there is little to be gained from asking the judicial system to investigate the matters raised in this book because it has already consistently refused to respond anyway. Nor is it appropriate to make that request now because it is the judicial system itself which is subject to questioning here. The accused cannot also be judge.

You will also see that the profound defamation and tunnel-visioned pursuit of Watson, for the rest of his life, has been entirely unearned. He has been stripped of his freedom and his reputation, wrongly defamed and unjustly treated at every stage of the judicial process, from police inquiry to Court of Appeal.

I have yet to meet or speak to Scott Watson. But I am confident he will approve the accuser’s boot being fitted to the other foot – his foot. When it suited the case against him, but only when it suited that case, he was cheaply labelled a liar by all of those who accused and judged him. The documentation does not support the label. He emerges from an inspection of it lie-free. Others do not. Charged by us all with studying and knowing the evidence and dispensing justice based upon it, none of his judges or accusers spoke in R v Watson without failing the truth. Sometimes the failures are demonstrable lies. It’s Watson’s turn now. On his behalf I ask for an open inquiry to determine why his accusers failed and if the failure is endemic.

Keith Hunter