To:

The Executive Director

The Wellington District Law Society

PO Box 494
WELLINGTON

Complaint regarding the actions of a lawyer, Nicola Crutchley, practising within the Wellington district.

This complaint is made by:

Christopher Watson

PO Box 336

Picton

Ph/fax 03-573-8979

Mob    021-702-795

Email  chris@freescottwatson.net

INDEX

  1. Outline of complaint                                      3
  2. The Rules of Professional Conduct              3
  3. Short Background of the trial                         4
  4. List of relevant documents                            6
  5. Complaint one                                               7
  6. Complaint two                                                9
  7. Summary of complaints                                12

Outline

A complaint regarding the actions of, Ms. Nicola Crutchley, a lawyer practising within the Wellington district.

          The actions complained of occurred, prior to, and during the trial of Scott Watson that began in June and finished in September of 1999 at the High Court in Wellington.

During this trial, it is alleged, certain actions of Ms. Crutchley contravened Rule 8.01in that she misled the court. Rule 9.01 in that the “scrupulous fairness” required of a prosecutor was breached and Rule 10.02 in that She both knowingly caused witnesses to mislead the court and in submission knowingly misled the court. [Rule 10.02 applies to an advocate for the defence but logically applies also to prosecution advocates.]

The rules of Professional Conduct

Rule 8.01

In the interests of the administration of justice the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.

Commentary

  1. A practitioner must never deceive or mislead the court or tribunal.

Rule 9.01

A practitioner prosecuting a criminal case must do so dispassionately and with scrupulous fairness.

Rule 10.02
Counsel must not in the course of making submissions or cross-examining a witness say or lead a witness to say anything that might mislead the court. In particular, counsel must not make any statement to the court or put any proposition to a witness that is not supported by reasonable instructions, or that lacks factual foundation by reference to the information available to the court.

[This rule logically applies also to prosecuting counsel]

Short background to the trial

          The trial of Scott Watson occurred over a period of twelve weeks and has been reported to have cost around five million dollars, with the investigation costing a similar amount. Over five hundred crown witnesses were called to give evidence. Many of these witness’s testimonies were irrelevant or peripheral to the case and served only to divert and confuse the court. Within the crown case was a large body of exculpatory evidence, elements of it sometimes separated by weeks or months.

          The trial began on June 14 1998 and the Crown case was in a state of flux for much of the duration of the trial. At least fifty witnesses were added to the witness list during the trial, and briefs of evidence were often supplied to the defence on the morning of the day after a witness had given evidence. The discovery process, overseen by Ms. Crutchley, also continued until late in the trial. There was little opportunity for deep thought or forward planning by the defence.

The crown presented a particularly weak and prejudicial case and succeeded in gaining a conviction by asking the jury to make quantum leaps of reasoning by way of inferences, (or guesses).

The foundation stone of the crown case submitted to the court was that every vessel in the area of Furneaux Lodge on the evening of 31/12/97 and the morning of 1/1/98, including Watson’s boat ‘Blade, had been accounted for and all except ‘blade’, eliminated.

 “The crown will call witnesses associated with around 150 boats which were either moored or anchored off Furneaux Lodge or which came in and left during the course of New Year’s Eve or who were moored or anchored nearby. This might seem to you a long-winded way of doing things. But this evidence is important for, and I suggest, crucial to the crown case as I have described just a minute or two ago. So please bear with us as this type of evidence is called.”

                                                                                    Nicola Crutchley

                                                                                    Crown opening submission

A key defence contention was the existence of an unidentified vessel, or mystery ketch as described, to varying degrees, by key crown witnesses. The crown dealt with the evidence of these witnesses, thus:

“As well, the crown contends that there is no compelling evidence that such a yacht as has been described, which the police initially looked for, that is the ketch, was ever in Endeavour Inlet near Furneaux Lodge ….’

                                                                                    Nicola Crutchley

                                                                                    Crown opening submission

Statements of Scott Watson were adduced and his estimates of time, particularly that of the time he left Furneaux lodge, (6:30 – 7:00 am), were alleged by the crown to be lies. The crown assigned Scott Watson’s boat, “Blade”, as being a vessel sighted departing at around 5:00 am.

“Some people were up early on 1st January 1998 or in fact hadn’t gone to bed before the sun came up and a yacht was seen moving away from the moored and anchored boats at Furneaux Lodge in the hour before the sun actually came up and before six a.m. As well as evidence that there was little boat movement for a period after that.”

….. The crown says that it was Scott Watson in his boat leaving very early.”

                                                                        Nicola Crutchley

Crown opening submission

In support of this contention a photograph [photo 26] was produced as an exhibit purporting to have been taken at 6:00 am on 1/1/98.

This complaint deals with aspects of the crown case as presented to the court and information, which it is alleged, was known to Ms. Crutchley which would or should have affected the way the crown case was structured.

List of relevant documents

Documentation relating to this complaint consists of the following:

  1. Photo of boats [Photo 26] at Furneaux Lodge said to have been taken at 6:00 am on 1/1/98
  2. Photo of boats [Photo 27] at Furneaux Lodge said to have been taken at about 7:30 am on 1/1/98
  3. Photo of boats [Photo 25] at Furneaux Lodge said to have been taken at about 6:30 pm on 31/12/97
  4. Evidence of witness xxxxxx regarding “6:00 am” photo.
  5. Statement and job sheet of xxxxxx xxxxxxx [Docs 30314 and 11390] relating to times and vessels
  6. Job sheet [Doc 14338] regarding inquiries with xxxxxxxx on 8/6/99, at the instigation of the Crown Solicitor, relating to times and vessels.
  7. Evidence of xxxxx xxxxxx, operator of Endeavour Express water taxi. [Supports xxxxxxx regarding time of departure.]
  8. Evidence of xxxxxxx xxxx. Re his vessel “Trooper” and movements.
  9. Evidence of Detective Bruce McLACHLAN
  10. Crown opening submission
  11. Correspondence directed to Crutchley.

Complaint one

Ms. Crutchley adduced the evidence of Mr. xxxxxx

           What time did you wake up the next day … I was awake early I took some photographs around 6 am

What did you take photograph of generally … I was intent on getting a view of the boats ahead of me and particularly getting the siluottes which you can get early in the morn and which I did get

Look at Exhibit 2 photograph 26 please, can you tell the court whether that is one of the photograph that you took … yes it would be

How soon after you got up after 6 do you think you took the photograph … I think I got it before then, I think memory it would have been about 6 I took the photograph

That is in the morn … yes I got up straight away and took them.

                                                                                                Trial transcript

By adducing this evidence in the knowledge that it was incorrect, Ms. Crutchley contravened Rule 9.01 relating to “scrupulous fairness and also Rules 10.02 and 8.01 in that by adducing this evidence she and/or the witness misled the court. The court was also misled when photo 26 was produced as an exhibit purporting to have been taken at 6:00 am.

Photo 26 does not contain the vessels ‘Blade’, ‘Unicorn’ (both small yachts) or ‘Bullet proof’ ( a ski boat). Crown evidence was that ‘Bullet proof’ left the area at between 6:30 and 6:45 am and that ‘Unicorn, left between, variously, 6:30 and 8:30 am. ‘Blade’ was assigned as being a vessel sighted leaving at around 5:00am.

Some clarification is obtained if one reads the statement of xxxxxxx xxxxxxx [doc 11390] where she states:

It came from somewhere in the main body of yachts moored in the bay and passed on the north side of a boat, which from the photo of the bay, was TROOPER.

I think the boat had a black and white terrier [C1] on it which was barking like made.  (TROOPER)[C2] 

There were 3 people on TROOPER, a woman and two guys[C3] , older type 30-40’s.

TROOPER left about 7.00 am.[C4] 

We left round about 8.00 am.  We went back to Blackwood Bay.

As we went out of the inlet, we passed the ‘Cougarline’, a taxi going into the inlet, also the ‘Endeavour’, another water taxi.

Between Blumine Island and Cherry Bay, we passed TROOPER[C5] , on motor heading toward Picton.

When reading this passage it is helpful to be aware that:

  1. The owner of the vessel ‘Unicorn’ owned a small fox terrier dog with which he was inseparable. [Doc 14338]
  2. The vessel ‘Trooper” had only two persons aboard. [Evidence of Raymond Lobb]
  3. The vessel ‘Trooper’ had no dog aboard. [Has been verified by telephone]
  4. The evidence of the owner of ‘Trooper’ was that he awoke at 8:30 am and arrived at Punga Cove by 9:00 am (a distance of about two miles) and did not leave Endeavour Inlet on 1/1/98.

It is evident, with these facts in mind, that xxxxxxx is in fact referring to ‘Unicorn’ rather than ‘Trooper’ as the vessel with a dog, with three persons aboard, leaving at 7:00 am and being passed on the way back to Picton.

This statement tends to confirm other witness statements as regards to times and events (see xxxxxx) and can reasonably be taken as accurate. It refutes the suggestion that photo 26 was taken at 6:00 am and indicates a time of around 7:00 am or later. xxxxxxx was not called to give evidence.

To avoid repetition, discussion of how and when Ms. Crutchley became aware of this evidence will be continued in the second part of this complaint. Suffice it to say that to produce testimony and label a photographic exhibit as being taken at 6:00 am against a body of evidence suggesting a later time can only be described as misleading and confusing to the court, and unfair to the accused, certainly so in the context of such a massive trial.

Complaint Two  

Ms. Crutchley Breached Rule 9.01 and Rule 8.01 when she opened the crown case on the premise that all vessels moored or anchored off Furneaux Lodge had been identified.

It will become apparent Ms Crutchly ‘proved’ her case in the knowledge of the existence of an unidentified “yacht” in excess of the “around 150 boats” she put before the court.

“The police began to find out all the names of all the people who had been at Furneaux Lodge on New Year’s Eve and who had arrived by boat. These investigations were to follow up every such boat and their occupants……….”

“The police were continuing their investigations and following up information and leads provided to them about the New Year’s eve party. Despite the wide media coverage that the police were looking for a ketch, no such ketch was found, or no such sighting was given to the police of it………”

           

“The crown will call witnesses associated with around 150 boats which were either moored or anchored off Furneaux Lodge or which came in and left during the course of New Year’s eve or who were moored or anchored nearby. This might seem to you a long-winded way of doing things. But this evidence is important for, and I suggest, crucial to the crown case as I have described just a minute or two ago. So please bear with us as this type of evidence is called……”

“As well, the crown contends that there is no compelling evidence that such a yacht as has been described, which the police initially looked for, that is the ketch, was ever in Endeavour Inlet near Furneaux Lodge ….’

“Some people were up early on 1st January 1998 or in fact hadn’t gone to bed before the sun came up and a yacht was seen moving away from the moored and anchored boats at Furneaux Lodge in the hour before the sun actually came up and before six a.m. As well as evidence that there was little boat movement for a period after that.”

                                                                        Nicola Crutchley

Crown opening submission

It can be seen from the above excerpts that it was a major part of the crown case that all of the vessels at Furneaux Lodge had been identified and eliminated. The job sheet and statement of xxxxxx xxxxxxx are again important.

30314 / JS / xxxxxx xxxxxxx / LC8773 / 300198

STATES

When I got back in at 6.15-6.30am a wee yacht was going out of the bay.  I can’t remember too much about it or what it looked like but it was chugging away.  There were other people up on a yacht having coffee just to the right of us that may have seen it.

11390 / ST / xxxxxx xxxxxxx / JGD391 / 040298

States:

I came back to our boat and sat on the back of xxxxxxxx and had a coffee.

We had swung round with the tide and I was facing north west across the bay.

I remember a yacht starting its motor, and seeing a yacht come past at about 6.30 am-6.45 am.[C6] 

It came from somewhere in the main body of yachts moored in the bay and passed on the north side of a boat, which from the photo of the bay, was TROOPER.

xxxxxxx describes a “wee yacht” leaving the area and without the knowledge of the dog aboard ‘Unicorn’ and lack of a dog, number of persons aboard and movements of ‘Trooper’ this “wee yacht” would be identified as ‘Unicorn’. With this knowledge, this yacht becomes an unidentified vessel. It is obvious that Ms Crutchley had this in mind when prior to the trial; she requested that police re-interview another witness.

14338 / JS / xxxxx xxxxxxxx/ BM6952 / 080699

NEW ZEALAND POLICE

 JOB SHEET

OFFENCE: OPERATION TAM

At the request of the Crown Solicitor carrying out enquiries as directed with boat owner and occupant witnesses.

08/06/99

1250 hours       Phone enquiry with:

  

   xxxxx xxxxxxxx

   xxx xxxxxx

  xxxxxxxx is the co-owner of a yacht Unicorn.

She confirms that while at Fumeaux they had their dog with them which is a fox terrier.

On the morning of 01/01/98 she said that their party were up drinking    coffee at the back of the boat between about 6.30 to 7.30 am.

 Between those times she noticed a ski boat leave and she had seen that earlier beside the fishing boats. She thought that she saw another yacht leave over that period but couldn't describe it any further.

B McLACHLAN Detective 6952

 It is indisputable that the answers provided in this job sheet corroborate xxxxxxx’s observations and that the questions were asked in order to verify her statement. xxxxxxx was not called as a crown witness. xxxxxxxx was, but no evidence of the sighting of this unidentified yacht was led. Ms. Crutchley was aware, by her actions in having Eastgate re-interviewed, of the import of this information prior to the trial and yet continued to conduct it on the premise that all boats were accounted for and eliminated.

Reference to the trial transcript of evidence regarding “all” the boats at Furneaux Lodge reveals that no small yacht left the area between 6:00 and 7:00 am and that only one person with a small yacht had told police that they had. That person is Scott Watson.

The evidence supporting this proposition is the, now corroborated, statement of Scott Watson.

There is still one vessel, sighted at around 5:00 am and initially described as being “about 40 ft long”, which is not now accounted for. In either case there is one excess vessel. 

Summary of complaints

The documentation illustrates that Ms. Crutchley had knowledge of:

(a.)    The times that various unnamed, or wrongly named, but identifiable vessels left the area and thus had knowledge that the photo said by the crown to have been taken at 6:00 am was not in fact taken until sometime after 7:00 am.

  1. An unidentified vessel leaving the area at 6:30 – 6:45 am on the morning of 1/1/98.

This raises serious moral, ethical and legal considerations concerning the conduct of the crown case.

Ms. Crutchley breached the Rules of Professional Conduct for Barristers and solicitors when she:

  1. Called “around 150” witnesses to prove a point that had become redundant from the time she became aware of the unidentified “yacht”.
  2. Failed as prosecutor to call xxxxxx xxxxxxx as a crown witness thus depriving the court of information that could allow an informed decision on the veracity of crown submissions.
  3. Failed as prosecutor to call xxxxxx xxxxxxx as a crown witness who tended to substantiate the statement of Scott Watson regarding his time of departure.
  4. Failed to adduce evidence of the sighting of an unidentified yacht from xxxxx xxxxxxxx, who was a crown witness.
  5. Submitted and allowed it to be submitted in both opening and closing that all vessels at Furneaux Lodge had been identified and eliminated from the investigation when she was aware that all vessels had not.
  6. Adduced the evidence of Detective McLACHLAN that all vessels at Furneaux Lodge had been identified and eliminated from the investigation in the knowledge that this was not true. [It should be noted that McLACHLAN was officer in charge of “the boat phase” of the investigation and should have been aware of the import of his June 99 contact with xxxxxxxx]
  7. Adduced evidence from Mr. xxxxxxx that Photo 26 was taken at 6:00 am in the knowledge that it had not been taken until sometime around 7:00 am.
  8. Entered photo 26 into evidence as having been taken at 6:00 am in the knowledge that it had not been taken until sometime around 7:00 am.

Attempts have been made to correspond with Ms. Crutchley regarding this matter but no reply, or acknowledgement, has been received.

                                                     Chris Watson

                                                     Note: Witnesses names have been removed to protect their privacy.

www.freescottwatson.org