Wednesday, April 27, 2016

The 'Secret' Bain case.

Thanks to various media reports such as the one above the secret Bain case continues to emerge. For anybody with an interest in this case and a certain amount of insight the secrets of the Bain saga continue to emerge. There are many aspects to the Bain compensation claim that when viewed in context tell the public a lot more than what is being revealed.

Firstly, when Ian Binnie's report was rejected by an over zealous and unlawful use of Cabinet Powers, rather than the case being dropped from public mind interest was increased about how the Law was being applied to Bain's compensation bid. Royal (Executive) Powers as conferred on the New Zealand Government of the day compared to legal procedure and due process were brought into sharp focus and found wanting.

Bain was forced to seek a Judicial Review of the way his compensation was handled. Judicial Review was something this commentator had felt since 2009 was the way forward for David Bain in a unprecedented way that challenged the status quo of a person wrongfully convicted to be compensated by a process put in place by the Government of the day which excluded the Judicial System. In other words a wrongfully convicted person was not entitled to take his case for compensation to the Courts but had to rely on a Government Judging it's own conduct and decide the financial fate and future of person wrongfully convicted. If such a process was open and fair, as no doubt the original design of such a system was considered to be, time and practice had shown that in the hands of politicians seeking advice from the very people or their predecessors responsible for the execution of a Miscarriage of Justice have control over the process was anything but fair and open. Who investigates alleged misconduct by the Crown in NZ, the Crown itself. In the rare cases where someone totally independent of The Crown might be appointed to do an investigation who does that person report to, or who are given the right of responding to any negative finding? Under the current system the Crown itself.

In the case of right of reply by the Crown no one could hope to say that is unfair, equally no one could say the complainant into misconduct by the Crown or their representative would be seen to be given an unfair status by being able to reply to the Crown saying that some part of the investigation was unfair or flawed resulting in unfairness. But the truth is no leglislation protects any member of the public from misuse or omission of Executive Powers in cases of wrongful imprisonment - except, now as it becomes to be recognised the NZ Bill of Rights.

One could say that Parliamentarians or Crown Entities do not like not having absolute powers as granted to them by Law that cannot be reviewed by the Courts. That is made plain in the Bain case, cabinet wanted to simply throw out the Bain compensation claim without allowing Bain himself natural justice or due process. They considered it their right to make decisions for individuals such as Bain and Pora, both victims of Miscarriages of Justice, without consideration to the Laws and were content to deny such people access to the Courts where at least Judicial Independence could be seen operating and make decisions observed by  the public and tested in Higher Courts if required. It is not fully realised by all politicians and Lawyers alike that there has been a shift in Executive Powers, not only in decisions as to where a wharf may or may not be built, what area may or may not become a marine reserve and so on but right to the heart of the Judicial system as was intended by the advent of Executive Powers Legislation being formally enshrined into Law.

Politicians may have given themselves absolute power according to certain aspects of the Law, trusting in themselves and those that would follow in their footsteps to act fairly and constructively for not only the public good but also the rights of the individual but time has shown they failed. No clearer recent example exists than that of Judith Collins supported by the National Cabinet who worked against the system of Executive Powers instead of being carefully used in the public interest to using them in a manner that was unlawful. When the original Bain application for compensation process was abused a watershed moment was reached where the question was raised dramatically as to how someone can be denied justice and process by those empowered by Statute to ensure no such abuses ever occurred. Most readers will know that the first Bain compensation bid processes and mishandling was made known to the media and with held from Bain himself. He was even threatened when seeking a copy of the report already sent to the media with a comment from the Minister that he might not like what was in the report but which had been widely distributed without his knowledge.

Not wishing to go deeply in the first Bain compensation claim details and the Cabinet directed fiasco which followed I will return to firm ground - ie what we know and what we can deduce by that knowledge of where the Bain case now is, a current situation that appears not be fully comprehended by the media generally, or by the public. It's actually a dog fight. When Bain belatedly, in my opinion, finally applied to the Courts as to the misconduct of the use of Executive Powers there was an explosion in the halls of Powers, political revolution was rattling at the doors of Parliament. A subject of the Crown was knocking loudly to come in and be heard, nay busting his way in through the hallowed doors, opening them wide so that public might also see the right of an individual to be treated fairly before the Law.

Sounds too dramatic? Forgive yourself such a thought. When Bain went to the Courts also accompanying him were others that the Law through Parliament had estranged them from their rights. Those would include Arthur Thomas, Allan Hall, Teina Pora and others convicted of offences they should never have been convicted of, victims of perversions of the Law. Include also the stifled rights of Mark Lundy and Scott Watson, men still without their deserved freedom or at least the chance for the cases to be fairly put before a Jury of their peers again to see if their convictions should stand or be wiped out for all time.

I debated for many years off and on with a number of Lawyers on line who claimed Bain had no right to go to the Courts. They argued that Executive Power was all encompassing. When the application was finally lodged the objections mainly dissipated, those who considered that the Courts had no role in passage of freedom and other rights to be heard challenging Executive power were no longer so sure. When it became apparent that the Crown through its association with Government of the day were no longer so certain that Executive Power could not be tested in the Courts a big shift had taken place on the landscape of NZ Justice. We don't know what agreement was made between the Crown and Bain when the 'reprieve' of an offer of a new compensation claim was made but it is not hard to guess despite the secrecy that surrounds the obvious.

The link above where the Prime Minister John Key explains how the compensation claim sits at the moment tell any discerning observer what is between the lines. Not one single application for the Royal Prerogative of Mercy or for an Exercise of Executive Powers to provide compensation for a wrongly convicted person has resulted in any New Zealand Prime Minister before John Key informing the public that an independent report has been received by the Minister of Justice which the Crown are considering but that also that the Bain legal representatives are considering as well.

That tells me what long has been obvious, that the deal cut between Bain and the Crown ensures that both the Crown and Bain have the right to respond. That one party cannot simply run off to the press excluding the other to make a case supporting their decision before the other party is even informed. In other words that due process is involved here, a giant step for a single man against the might of the State. That between the lines is revealed that if the author of the current report has made a recommendation not supported by facts as interpreted by either side, that is the Crown or Bain, that they shall be debated and agreed upon now or ultimately go back to the Courts. Additionally, any benchmarks of the Governments instruction to Callinan as to what his inquiry should look into which are not consistent with the facts of the case or indeed with Natural Justice and due process will be challenged by both sides, not just one as happened with the Binnie report.

This is a major step forward for New Zealanders in a way many may not yet realise, if offers that when all doors are doors are closed that a citizen still has the right to go to Court. The fact that power of one citizen against the state is generally recognized as inequitable financially is yet to be addressed by provision of legal aid, but I think that challenge is not far around the corner for something fairer for people such as Ellis and Pora who have to go cap in hand asking the Government to recognize its deliberate in many cases, mistakes.

Also was is peeled away here is that 'fairness' now has a voice in the Justice system, either by the process of The Exercise of the Royal Prerogative of Mercy to be scrutinised and held accountable as well as the use of all Executive Power. Right at the moment Mark Lundy serves a sentence of life imprisonment having been convicted of  weak circumstantial evidence supported by a highly suspect scientific procedure rejected by the President of The Court of Appeal, while Scott Watson is denied a retrial in part because a 'review' of his conviction wasn't looked at for its overall points but rather on its points individually, exactly the reason offered by Judith Collins when she wanted to throw out the Binnie report. That additionally in Watson's case he has been denied a retrial because among other things police cannot find their own witness who has recanted from a confession he claimed and since denied Watson made. A matter which should be at the moment be on the table again, at the High Court.

But right now consider something else as the slow march continues on the Bain case. There have now been 3 reviews of his right to compensation, whilst we don't know anything concrete about the 3rd we do know it's on the table now, and from my personal observations very difficult to Judge that he should not, or wont be compensated. The first finding was that Bain should be compensated, the second finding was that Binnie should have used a different method in his reasoning, but however using that alternative method may still have resulted in Binnie reaching the same decision. By any count both those conclusions support Bain, or at least neither reject his claim. The money is on that the 3rd report will be consistent with the first 2 and that reasons provided for such a finding will be a harsh revelation for the doubters of Bain's innocence.

Somethings may be kept secret but reality and observation can never be silenced.

Friday, April 22, 2016

Press Council Complaint against Martin Van Beynan.

The following is the full version of my complaint to the PC regarding Martin Van Beynan. When the PC rejected the complaint they redacted parts of the content. I wasn't asked if I consented to this and on reflection think  should now release the whole content in order that others may make up their own minds as to the merits of the complaint and MVB impartiality.

6th March 2013

[46] Expressions of honest opinion must be based on true facts stated or referred
to in the material complained of, or notorious, in the sense that they are generally
known. The material identified by a defendant as the relevant facts will assist the
Court in determining both whether the imputation is an opinion and in determining
whether, under s 10(2)(b)(ii), there was reasonable cause to believe that the opinion
was not the genuine opinion of the author.

MVB doesn’t have a commonplace understanding of the Bain case. He in fact is considered by The Press and others to be an expert on the Bain case and it is often quoted that he sat through nearly the entire trial. His own editor submits that he has published over 70 articles on the Bain case and claims that in the reading of them it would be shown that many of them are ‘fair’ in David’s favour – a claim which I certainly can’t confirm and which would be irrelevant anyway to the tone of the specific article which is the subject of my complaint.

As the foregoing Judgement shows in respect of defamatory statements (and therefore any statements) argued to be opinions, that such opinions must be based on ‘true facts.’ Clearly then the test of true facts must apply to all published opinion pieces not withstanding anything, and certainly so when endorsed by both the writer and publisher of the credibility of the status of the writer as an expert.

Before dealing with specific areas of my complaint, I point out that I, as an informed reader, was aware that MVB’s opinion piece was factually wrong in several areas, and consequently it did not comply with a basis of either ‘true facts’ or indeed ‘balance.’ I anticipate that if each of the specific areas of my complaint were balanced by information known to an expert on the case, I would have no complaint with the issue of whether they were true facts or not because as a reader I would have been offered a ‘balanced’ view, material from the trial and limited research and be able to make up my own mind on the ‘opinion’ of MVB, MVB established neither measure, neither with ‘true facts’ nor with a balance to purported ‘true facts.’

When considering ‘balance’ and ‘impartiality’ it is important to look at whether the writer has established that impartiality and balance not only in the piece written but by prior conduct, and in this case prior reporting.

1/MVB attacked the credibility of the Christchurch jury in the 2009 Bain retrial. He complained about them in an ‘opinion’ piece where he accused the Jury of misconduct. Yet, he, as he has claimed sat through an entire trial and never brought that alleged behaviour to Court officials, instead deciding to write about it after the trial and clearly purport that he was the only person who witnessed the examples of his ‘complaint’ and that a Judge, Counsel, court staff simply ignored it. The ‘facts’ claimed in his attack on the Court and the Jury have never been sustained.

2/MVB was warned by the Ministry to stop harassing a Juror, a published event.

3/ MVB asked David Bain at a Perth Justice Conference why he had said he hated his father, when in fact that statement by David Bain, to police, was correctly that ‘if’ his father had killed the family he would hate him.

It is submitted that these 3 examples show that MVB has a clear bias against David Bain and his ‘opinion’ piece is misleading and not balanced with counter facts against the allegations made by MVB.

Furthermore: MVB has not declared his potential conflicts of interests in this case: that his brother is a senior police officer, thus allowing any reader to determine for them if MVB’s opinion might therefore be biased by that connection.

It is important, and in the public interest that both the ‘impartiality’ and ‘true facts’ are provided in opinion pieces. This is particularly so when the author claims some particularly authority, as MVB does through his familiarity with the case and evidence. Of course it is even more important for the subject of the opinion, a published ‘opinion’ carries with it a grave responsibility of balance otherwise is shown through not only the piece written but events such as the three mentioned above that the ‘opinion’ is personalised and subject to bias. There is no excuse for MVB to have avoided ‘true facts.’

Going to Joanna Norris’s reply, there is a difficulty in that Joanna, to her credit, does not purport to be an expert on the Bain case.  Therefore it is difficult to see how she is able to judge what is ‘balanced’ and what is not. Perhaps she took some professional advice on the case, but if she did she hasn’t mentioned doing so. Checking on ‘balance’ would have required contacting some spokesperson for David Bain, or at the very least reading the Privy Council Judgement, or some other comparative measure. I imagine Joanna Norris appreciates that MVB has ‘without’ bias essentially attacked the Bain Jury, by doing so he therefore attacked the Court staff counsel and the Judge ‘for being asleep’ at the wheel as he accused some jury members of being.  He later pursued a juror to the point the juror complained to the police who warned him to stay away. Additionally, as mentioned in my complaint, MVB travelled to the Perth Conference and asked a question clearly out of context and thus carrying potential incorrect implication that David killed his father because he not only hated him but admitted to police that hate. None of these actions and omissions is the actions of a person without bias.

Joanna cites Martin’s legal training, but however MVB is trained he is ‘meant’ to be offering an opinion based on ‘true’ facts, and any legal training he may have merely suggests a greater knowledge and responsibility on him to have written and behaved properly on this matter. It is with concern that I have included at the outset of this letter the view the Courts take on ‘opinion.’ I would have no objection if MVB had presented both sides of the case fairly and therefore Joanna’s opinion that Martin ‘argument on these (rebuttals to his claims) has been that, although each of them has a possible alternative explanation, the defence case relies on the coincidence of all these explanations applying at once’ would have been evidenced to the public. Without that rebutted evidence being published in the article it appears Joanna’s position is post hoc justification, and one I do not accept. For the justification to be applicable, and for the article to have been balanced, unbiased and relying on true facts those purported coincidences should have been included for the public’s benefit (along with the defence of these) to display the credibility of the opinion. They were not.

In my opinion unfortunately Joanna appears to be ‘rubber stamping’ the ‘opinion piece’ with generalities, she has been unable to make any informed comment or explain to me, as a member of the public, why MVB has essentially criticised a jury, the court and even ‘stalked’ jurors demanding information from them. That alone, in the public interest, would justifiably require an editor to ‘retire’ a reporter from a particular topic, rather than encouraging them to ‘go on’ further with the same. However, MVB, having been unable to present ‘two sides’ and it seems that Joanna when ‘adjudicating’ my complaint has only relied on MVB’s side to endorse his opinion and has entirely avoided answering my specific criticisms raised in my letter to her.

This is of concern. It suggests a negligent or at least cavalier attitude towards complaints on a potentially serious matter of principle, and I hope the Press Council will address the matter more properly.

I propose three remedies.

The first being MVB apologising to the public and David Bain for entirely leaving out of his reporting important information showing David Bain’s innocence.

A ruling from the Press Council that ‘opinion’ pieces must be based not only on ‘true facts’ but also demonstrate balance, ie by showing two sides to any argument being debated.

Thirdly, The Press to provide an opportunity for myself or some other nominee to rebut MVB opinion piece in an article of equal length.

Anything else considered by the Press Council that properly determines that ‘opinion’ pieces while not preventing rigorous analysis and vigorous expression must nevertheless provide balance and essential truth even if the writer in his or her ‘vigorous’ expression might prefer to ignore them, thus leaving any reader without the basis of ‘true facts.’

In conclusion this article and at least one earlier one by MVB sets a ‘precedent’ I’m sure that was unintended with the development of ‘opinion’ pieces, the progression of which is that an ‘article’ titled ‘opinion’ appears to raise a flag of self-immunity from normal publishing standards. Where the author can apparently say what they like and ignore that which they don’t. This approach is clearly not universal by the majority who write informed and balanced opinion pieces, but clearly unrestrained use of ‘favourable’ or ‘imagined’ evidence that misses out in part, or entirely rebuttal, becomes an opportunity to ‘vent,’ under a banner of ‘opinion’ misused as though it becomes a defence against any criticism from being ‘biased’ right through to be ‘hate speech’ or  being ‘defamatory.’

Tuesday, April 19, 2016

Gerald Hope to meet Scott Watson?

What a unique situation in New Zealand, the father of a murder victim willing to go and meet her alleged killer in prison because of doubts the father had while attending the trial after which Watson was convicted.

In some ways Gerald Hope has been in the background as debate over Watson's convictions continue. But in the article below Hope confirms his willingness to meet with Watson. He has reservations however about Watson's media champion Mike White being present because Hope maintains he has questions to ask more relevant than those Mike White may choose to raise. Many will agree that is a very good point. Some, possibly like me, would feel any conditions surrounding the meeting took fore mostly Hope's conditions into account and that he should be applauded for his courage in admitting doubts about the convictions of Watson. It's my opinion that the 2 men should met alone if both so decide, other than that no conditions should be added.

Watson finds himself in a precarious situation that Hope may confirm a belief that Watson is guilty rather than innocent after the meeting. It's more than likely most people have already made decisions about Watson's guilt or innocence. One might think this would be an opportunity for Watson to grasp, in a firm and measured way, matched by the innocence he claims. I appreciate the cautionary note by which Watson and his family might treat such a meeting but I wonder why?

Surely Scott's family accept that Scott can explain himself, won't be tripped up by a man concerned that he should learn the truth. There has been an interesting public revelation since a meeting between Hope and Watson was first discussed. Foremost would be from the 'secret tapes' that while the Watson family were of the view that Gerald was from the flourishing side of the tracks, they also considered, at least early on, that his daughter was not dead but would turn up again. I think that is clear, there seems little reason for the Watson family to be concerned that Scott cannot answer questions from Gerald without their or Mike White's presence.

Overall though, there is little doubt that the Watson family have been pilloried by the media in general, not least by Ian Wishart in his recent book Elementary that was less valid about Wishart's claim that Watson was guilty that it intended to be. Wishart overlooked some of the details of his own research, completely misinterpreting the impact of the secret tapes, showing clear bias in his repetitive conclusions regarding witness identity confusion, also that Watson was well known by police, and therefore others in the Sounds area from where Olivia Hope and Ben Smart disappeared over a decade and a half ago. Though by far the biggest oversight was Wishart trying to sell the tapes as something other than what they were because the tapes did not disclose that the Watson family were closing ranks around their son Scott knowing he was guilty but rather because they believed he was innocent.

That Gerald Hope still wants to meet Watson discloses that if he read the Wishart book released earlier this year that it did not serve the author's intention to convince the public that Watson was guilty as the book concluded. I don't think Watson has anything to hide, Wishart has dug the dirt on him and made it public. That because one result of the book was to highlight that when Watson had allegedly kidnapped or duped the couple to come on board his boat Watson, despite the clear opportunity of discovery, went aboard another vessel to which his yacht was tied, waking the couple on board and wanting them to party early on the morning of new year's day. No person with nefarious intent or something to hide would have drawn attention to himself in that way because it invited sure discovery.

With that background, and Gerald Hope's obvious misgivings about the Watson conviction I'm sure many would agree that the 2 men getting together offered a sign that Gerald Hope has reservations about Watson's guilt to the point he wants to meet him, ask him questions, get a sense of the man privately. If he should come away convinced or less convinced of Watson's guilt or innocence - which ever way it might go, Watson should not only understand the expected scrutiny, but arguably look forward to being truthful if he is indeed innocent. What an odd situation in the NZ Justice System, it will be of credit to the Justice Department to co-operate in the 2 men meeting, it would benefit a father who has lost his youngest child, it would be human in a process that has been quite inhuman in many ways, not least that despite what many would agree was a situation that resulted in a trial by media and police statements long before Watson was even arrested, and since - one man near the center of things has doubts he would like to attempt to satisfy.

If I could extend any message to the Watson family and Mike White it would be encourage Scott Watson to meet Gerald Hope and Gerald Hope's terms, accept that he is a grieving father and that Scott has nothing to hide from him, not least sympathy for his situation.

Saturday, April 16, 2016

Saturday, April 9, 2016

Special agent X in the Lundy case.

When the Crown lost the Privy Council appeal on the Lundy case they were right up against it. There time of death was ruined, their hot shot American Doctor was flayed, the computer expert was shredded so what did they do? Well very early on the introduced a special informant. X I've called him but he could be any letter in the alphabet and a long line of people who prisoners some how confess to in a case that is very weak or under pressure. So X comes along and he confirms the very thing the police want, Lundy admits to killing his daughter when she woke during the axe slaying of his wife.

Of course we know that Lundy was trying to get away with crime, because, well... Because he is a master criminal whose only known alleged crime has seen him in prison for 14 years. So according to X who happened to talk to Lundy in a prison yard Lundy said he killed his daughter with an axe because she woke up as he was killing his wife with an axe.  You'd think that Lundy would have had a rough idea when he was carefully planning his wife's death that his daughter might have awakened during the act of her mother having her head split open with blows from an axe. If X has it correctly Lundy never knew that his attack on his wife with an axe would cause his daughter to wake. Silly fellow. He was also silly if you listen to X because his story means that in Lundy's careful planning in order not to get caught that it wasn't careful planning at all. Why? Well here are a few reasons.

Despite what X has to say about Lundy's alleged stupidity of 'confessing' to a random stranger in prison he must have been stupid for other reasons as well. For example why would Lundy use an axe and not simply dispose of his wife in a manner that wasn't going to create screams loud enough to wake his daughter and therefore presumably his neigbhours. I can't answer that because the idea from X is inherently stupid. About as stupid as police believing that Lundy ran away from his house in order not be recognised dressed as a very large and cumbersome woman. Actually maybe the police didn't believe that because at the retrial that was suddenly no longer evidence, Also gone was the times of death, no longer reliably confirmed by a pathologist who claimed to be able to smell the stomach contents of a deceased to determine accurately when they had died. The computer expert who had maintained that Lundy had altered the time clock on his computer all but admitted the only fiddling that had gone on was with the computer expert fiddling with himself.

Using an axe was likely to create a lot of blood, Lundy would need to clean himself up and dispose of clothes. He would run the risk of being stopped in his car at anytime only to be found to have blood on him and in his car. He also ran the risk of waking his daughter according to X, but if you believe that letter of the alphabet Lundy never considered that in his careful plan. He also didn't consider telling a random prisoner he didn't know something he, Lundy, never told another single person in the whole wide world could become evidence against him over a decade later. I guess X was just a lucky X that day plying his trade as a paid police informer, somehow managing to get placed in a yard with a prisoner from a high profile case who decided, rather nicely, to confess to him. Maybe X was dressed as a Priest and Lundy thought he better cough up before he got hit by a strike of lightening or something. But it was nothing to do with money or favours earned from the police that caused X to dress as a priest or at the very least present himself as a sympathetic ear for a man who wanted to spend a few decades in prison. The money was an afterthought really, as were the favours from the police, it's all just a coincidence that X interrupted his lifetime of crime and offending to help out the police and get something in return. He probably actually quite likes the police despite the number of times they'd sent him to prison.

So when the Privy Council quashed Lundy's conviction, being critical among other things of police hiding evidence, what did the officer in charge of the case Grantham, the man responsible for running the case and disclosing all material evidence to the Crown, Court and Defence do? Well, he didn't resign. By some apparently accidental means he got critical information from an informant that wouldn't make sense or have any credibility at all with most folks. An informant who'd held quiet on the information for over a decade and who well, needed to be paid and a bit of other help.

Let me tell you of a few other informants in high profile NZ cases. In Thomas, a man pardoned for 2 murders, a inmate suddenly contacted police to tell them Thomas had confessed to him. A Royal Commission of Inquiry didn't believe the man even though desperate police did. We also had confessions of a sort from the family of Teina Pora who was convicted of a murder the Crown acknowledge he never committed. Those relatives were paid as well, along with a prison inmate who its clear now absolutely lied in order to put Pora together with the man who did commit the crime but who was found not guilty because of a prosecution muddled by the false evidence against Pora. There is the Watson case where a prison informer has recanted his claim of a confession against Watson, a man who now cannot somehow be found by police while Watson remains in prison.

In California the good 'work' of paid informers is not admissible but it will do in NZ in cases where real evidence is weak, hidden or distorted. So what did Lundy's second Jury get to hear, the lies of X of course. The disgusting fabrication that doesn't make sense apart to Grantham and the Crown whose reputations were rightfully in tatters and who needed to restore their status with the highly incredible testimony of a life time crook. That's who the Crown and Grantham laid down with in order to reconvict Lundy a life time crook called X.

Consider the common denominators of known Miscarriages of Justice in NZ, what do they have in common. Here's a list of some common points, planted evidence, withheld evidence, bogus computer experts, technical experts of invention, bizarre scenarios, evidence from informers. In Lundy we have had withheld evidence, computer evidence by an expert that had to reconstruct it into further nonsense, a Doctor setting the times of death by smell, a bizzare scenario of Lundy using an axe to 'quietly' kill his wife and accidentally waking his daughter according to career criminal. What may have affected the Jury's deliberation more than anything was the evidence of X, the absolute horror of having it 'confirmed' that a father had not only killed his wife with an axe but also his darling young daughter.

I can't cop the bogus science. The  American expert not even able to give forensic evidence in the States and whose lab or methods are not accredited there. I cant cop that it appears that a brain sample went missing before the American was given Lundy's shirt on which to do his novel tests. Tests which the American Professor of Bio Chemistry Chris Halkides wrote this comment about 'I would not have accepted IHC evidence in a courtroom.  It is a diagnostic science that got transplanted into forensics.    I also can't accept that Grantham was not stood down from the Lundy retrial once it became clear the breadth of criticism which arose from the Privy Council Judgement on Lundy's first conviction. I can't accept that other elements common to Miscarriages of Justice in New Zealand featured in Lundy's retrail. I'll never believe that X is anything other than a liar, a disgusting man willing to put an image in the Jury's mind of Lundy killing his own daughter so as to be rewarded for it by a desperate prosecution.

Lundy's retrial was not fair. It began when police right up to the Commissioner did not recognize that Grantham because of the criticism of his running of the case, the withheld evidence in particular, was not taken off the case. That he was then permitted to revert to the worst type of evidence admissible in any Court supported the travesty.

Footnote. Excuse the script change after Professor Halkide's quote, I don't have the expertise to change it.

Monday, April 4, 2016

Some of the ridiculous things about the Lundy case.

Foremost may be the evidence of a fat woman running from the scene in the early evening. A Jury were asked to believe Lundy, disguised as a woman, was seen running from the house following the murders. Of course an overweight woman running along the street was always going to draw attention the exact opposite to the point of being not noticed. Unfortunately a Jury believed that. In the second trial the fat woman was suddenly missing.

Then we had a high speed drive that took in parts of suburban NZ at, wait for it, an average speed of 120ks an hour. That was something else abandoned by the Crown. As though to completely outdo itself the Crown set the times of death relying on the sharp nose of Dr Peng who convinced a Jury that by smelling stomach contents of a deceased person he could pin point the time of death, a Jury believed that as well. Somehow the Crown wriggled it's way out of that at the second trial by saying they couldn't fix the time of death accurately. Interesting and ominously photos of the deceased stomach's contents were said not to be of sufficient quality so they were thrown out. Much like evidence was thrown out in other cases that proved to be Miscarriages of Justice, that of Arthur Thomas and David Bain. In Thomas important evidence was sent off to the tip, similarly in Bain because, as explained by ex Snr Sergeant Doyle 'the boys' didn't like having blood in the police station. Interesting to note here that despite the Thomas and Bain cases no instructions have ever come from Crown Law or the Government of the day for exhibits not to be discarded in cases where dispute remains about guilt. So why wouldn't police get rid of evidence that didn't suit them, fully understanding that no one will be held accountable for that. In Bain letters had been sent to those in charge of the exhibits that they were required for examination but old Doyle chucked them out anyway. With Lundy in 2 sets of a series of photos showing stomach contents, photos to the middle of the series were set to be of poor quality so were thrown out. Thinking about that, the photos were stored electronically virtually taking up no space and could have been examined independently but no, they were chucked out, deleted. The fact that such photos in a series of photos are said to have been impossible to suddenly be out of focus because the camera was set as it finished for perfect photos with only the middle being allegedly unusable. Of course it won't be missed by Joe average that the photos just happened to be the most important as being able to set the time of death - something which we see from the Crown as precise when it suited them and later as incalculable when they needed no such certainty of time. Chucked out, never confirmed by any independent authority as being unusable. So just like the Bain samples which could be used to prove innocence, the photos gone and no one accountable. It's situations like this that allow Miscarriages of Justice to continue and Crown officials to know they can get away with it. So maybe not ridiculous as much as ominous.

The following are also ominous. Lundy's shirt the most controversial piece of evidence in the Lundy case, handled according to the police manual? Well no. The officer in charge Grantham was overcome by the need to have it handled in a 'special' way. At the first trial he said he did this because he didn't want information to get out about the shirt. He didn't want Lundy to know. Straight up, that's the evidence he gave. So we are to assume that Lundy had free access to the police station, police files and information from the police? Well that's what Grantham appears to have thought. How else would Lundy know? And what if he did find out, what would the result have been, what could he have possibly done? Grantham kept the shirt details close to his chest, appearing to not trust other police in case they leaked to Lundy information that he could do nothing about anyway. With a critical piece of evidence Grantham broke protocol and nothing happened, just as is the case in Thomas and Bain. He knew Crown Law would turn a blind eye to while the Judiciary sat on their hands. There was nothing to discourage him from going outside the parameters because he was protected by Crown Law and the Courts as it prevails. Well heck, even after the first conviction was quashed in part because of hidden evidence helpful to the defence Grantham was not relieved of his status as Officer in Charge, he was actually supported to continue in the role. Resign? What for, he'd only done what others had done in other cases of  Miscarriages of Justice, nothing new there - move on.

Well a little further anyway. That shirt had two small spots on it, Dr Teoh the pathologists in charge of the case  said that the 2 spots were too downgraded to rely upon for testing. Not good enough for Grantham he after all had no scientific training but he knew a thing or 2 about almost invisible spots on a shirt. Enough to break the manual rules on how evidence was to recorded and managed in case Mark Lundy found out about it and did, well nothing. But that isn't the point, Grantham wasn't taking no for an answer he was off to America. Before he left of course a mystery developed that has yet to be solved. Some brain samples belonging to Christine appear to have been released to somebody for testing. So who was it in america that could do something something that Dr Teoh said could lead to unreliable results that could result in an innocent man going to prison. He'd had be a Forensic Pathologist of international standing obviously. No sorry, he was Dr Miller with a lab not accredited for Forensic testing who lived in Texas. One thing about living in Texas surely meant he had given evidence about such things before. No, precisely not. On an issue such as this he wouldn't not have been allowed to give evidence in his own state.

So we have a Dr testing a minute sample for Central Nervous System material months after it had apparently arrived on the shirt. This is material that degrades from the moment it leaves the body, it is withering and rendering to unstable state, as Dr Teoh said unable to be reliable for testing. So in many ways this is a story about an orphan with 3 alleged brothers all from the same brain. One brother landed on a phone in the Lundy home another on a place mat, both were tested soon after and found, as expected to be too down graded. These two pieces of brain were large and visible to the eye of scientists inspecting the scene who were able to identify what they were readily.

Mean while the 2 smaller pieces alleged to the same material from Christine's brain were said to have found their way onto Lundy's shirt as he, according to the Crown, killed his wife and daughter. Not wanting to put to finer point on it but the first pieces had been among a shower of such material that left a shadow on the wall, that is the a sheltered place where no brain spatter sprayed because of the assailant standing between the wall and Christine. That person blocked the spray from at least landing on the shadow area. That blocked spray fell on the assailant. Should I say not as tiny specks but a torrent of blood, brain, bone, hair and spinal cord material.

So back to the shirt and the two small spots, one on the left sleeve and one on the chest area. The sleeve spot was found to be either human brain material or animal brain material. The spot on the chest, like the 2 samples from the house were too downgraded to be tested. So including the 1 from the phone and the 1 from the place mat, and according to the fragile nature of stem cell or brain material once outside the body 75% of the samples failed to be a standard suitable for testing. 1 somehow miraculously survived and only 1 person that we know of in this story who believed it would have survived wasn't a Doctor or a Forensic Pathologist but was in fact a police officer who broke the handling of exhibits protocol, in other words didn't do what the book says. How did he know? What made him so certain, what actually did he see through a microscope that Dr Teoh didn't see? Did he even have a microscope is probably more to the point. To have to ask these questions with a man in prison for allegedly having 2 spots on a shirt would be ridiculous if it wasn't so sad. That man of course is Mark Lundy, never violent in his life, never before convicted of any crime, never involved in prison violence a man who lost his wife and child and his liberty for something only a man without a microscope could see.

That was a sobering last sentence to write, about the real man and his real family taken from him. Taken by who. you may ask. I think it is by a system that allows evidence to be presented which was highly controversial by it's nature. Not only that but from a source that one cannot help think should have had a 100% fail rate, but which somehow survived for months when similar matter didn't last hours, a tiny speck which even after it's shirt partner had fallen to being too downgraded - survived, to be either human or animal brain matter and a man is convicted on that. Convicted on the evidence of a police officer who according to the manual mishandled an exhibit, after brain samples were released shortly before his trip to America where they were tested in a Lab which was not accredited for such work, where there was no external control or rules - where the Doctor did things the way he wanted and got paid in American dollars courtesy of Grantham - a true believer in the 2 spots.

It goes further and gets even more ridiculous. The American with the unaccredited Lab who could not have been able to give the same evidence in own State, was allowed to give evidence in NZ by the Courts. His uncontrolled methods outside the American protocols were ok in NZ. This because of a peculiar Judgement by our Court of Appeal who said that the Lundy retrial would not be a scientific contest, would be easily followed by a Jury because two international experts would provide evidence for and against the American's Doctors unaccredited, uncontrolled methods. They did that because it appears they were blind to a single fact that if there was 'draw' to be had with witnesses for and against cancelling one another out then that should have fallen in favour of Lundy otherwise another Miscarriage of Justice might occur. Well one did,

The special mishandling of the exhibit, the evidence of Dr Teoh, the lost sample brain samples of Christine just before Grantham' trip, the sole survivor sample of alleged human or animal brain found in an unaccredited Laboratory by an unaccredited for such work Dr Miller meant that the stage was set for exactly what could happen. Lundy found guilty by a Jury who returned to ask a question not about the forensic evidence but about Lundy's statement to police - even then they got a redacted version because all the information about the earlier time of death had been redacted. They got to hear about controversial science but not the comments of a police officer berating Lundy for committing the murders at a time the police would later change.

But for now back to the ridiculous, nay scandalous events. If Doctor Miller was in NZ he wouldn't be accredited to do the tests from which it must be considered, although contentious, resulted in Lundy's conviction. He wouldn't be able to drive a motor vehicle, he wouldn't be allowed to enter certain laboratories, he wouldn't be authorised to do his tests, nor be accredited to give evidence on them had he been able to do them in an unaccredited Lab. Miller admitted that he was personally not qualified as a forensic path (that is a contributor on the journey to evidence being admissible in a criminal court). He also said that his lab, ProPath, was not accredited, he also admitted that he was unaware of the International Standard ISO17025. He claimed that he was unaware of the American Society of Criminal Laboratory Accreditation Board ( meaning he was unaccredited). When asked in cross examination if he would be allowed to have given his evidence in Texas, knowing that it was clear he would not, or been allowed to have taken part in the building of a forensic path, his answer was evasive 'This case was not done in Texas it was done in NZ.' He of course was exactly right in his evasion. But the point is that without the checks and balances that would have applied had he been in NZ he was given free licence to give evidence unacceptable to the Courts both in his own Country, and NZ.

Add that to Grantham apparently knowing what the tiny spots were when scientists were unable to do so in NZ, the way Grantham handled the samples beyond the method prescribed in the manual, the missing samples of Christine's brain released some time before the trip to America and it doesn't spell ridiculous but something far worse.

Tuesday, March 22, 2016

Why it looks like Lundy got framed.

That the police changed their story is only 1 thing.

In assembling a list there look like two sources of information that give a clue as to why Lundy may have been framed. The first is the evidence and conduct of the officer in charge of the case Grantham, the 2nd is what the Courts have had to say about the retrial.

There is only 1 key issue, Lundy's shirt said to have either his wife's brain matter on it, or spinal cord matter from an animal arriving there from a food splash. There is no proven motive for Lundy, there are no sightings of him having been at his family home on either the evening or early morning in which it is known his wife Christine and young daughter Amber were killed. He was confirmed to have been in Wellington. There was no evidence found at the scene which link Lundy to the killings. He was not a violent man and there are no reports of any domestic situation between Lundy and his wife that was untoward. Not a single witness anticipated that there were problems within the family other than of a type facing any ordinary family.

So it is the shirt that matters. Matters from the time when if was confiscated from Lundy and matters to this day. Everything surrounding the shirt is still accessible to testing, whether Lundy has the resources to do that, or if funding could be provided by Legal Aid that shirt needs \more testing.

Proceeding towards his retrial, and on late brief the Crown gave notice that it was going to change it's allegations after 14 years of sticking to them like glue. Essentially, 90% of the original Crown scenario was gone or changed, an unprecedented situation in NZ and perhaps even the world. What remained was the shirt, bolstered by supporting evidence of a test procedure only used a handful of times in the millions of cases where defendants have been prosecuted world wide for murder since 2001. In short a novel system to bolster a finding heavily criticised by the Privy Council who ordered that Lundy's first conviction be set aside while leaving the decision of any retrial to rest with the NZ prosecution authorities. At that point the Court was introduced as the second or responding voice to the first source, the testing of and handling of Lundy's shirt.

The Court was asked to ruled the new supporting evidence of the original tests on Lundy's shirt as inadmissible. Here is the time to make the point that the Courts were never asked to consider the conduct of Grantham in respect of the way he handled the shirt, or secondly if Grantham had samples of Christine's brain released to him before he took the shirt overseas for testing. That testing, following  the refusal of any New Zealand scientist to test the shirt because, at least in part, that the original pathologist Dr Teoh, who when examining the shirt said that the material was too down graded to put a man's life at risk by trial. Here is the time to mention that 2 other deposits of Christine's brain found on a phone and table mat hours after the killing were also too down graded to be tested. Brain and stem cell material rapidly deteriorates outside the body, I do not know if the two samples found in the house were tested for neurons or not but of the 2 almost invisible spots on Lundy's shirt examined months later resulted in mixed results, 1 was too far gone to enable reliable testing (just like the 2 found in the house) the other tested, according to Miller, as being human brain matter - but which had no neurons. Every part of the human brain had neurons in greater number in  the outer hemisphere reducing toward the centre, even the lesser neuron capture in the middle brain tests in the millions for neurons - but somehow Miller's miracle sample, the only survivor had none at all. The defence had evidence which was essentially that the stains had tested for animal brain cell material, splattered animal fat from cooking.

This is where the understanding of why Lundy is convicted becomes incredulous. The single evidence against him, the shirt, is a changing mystery. It was never handled properly, was rejected as suitable test material at the outset and got taken to Texas. Before the officer in charge of the case took the shirt to Texas he first of all handled it in a way outside the rules of the police manual. He wrote to the ESR before he left for Texas asking for samples of Christine's brain but has apparently denied being the person who was provided the samples. Surely if a man is faced with going to prison for life, the sanctity of carefully handled material according to the rules is foremost - the very least required is the careful handling of exhibits by members of the police and analyzing scientists employed.

Grantham gave evidence that he put the shirt in special custody because he didn't want Lundy to find out about the spots on the shirt. This beggars belief. First of all there is no way Lundy was going to find out any details about the shirt until he was charged and reached Court for depositions. Police do not reveal evidence to suspects other than deliberately in order to get comment from the suspect or some kind of explanation. The tiny spots were not a secret, other police were not going to tell Lundy about them unless instructed to do so by Grantham - his comments, and handling of the shirt makes no sense but do cause concern. As does the question as to why Grantham 'searched the world' to find somebody who would test the shirt that NZ Scientists would not. Why did Grantham have confidence in Miller who was not a forensic scientist and had no practicing licence as a forensic scientist or an approved Laboratory - a man who presumably would not be allowed to give evidence on such matters in his own country? What ever answers are given to those questions they cannot genuinely dispel the concerns offered by Dr Teoh, or the equally worrying miracle of the single surviving specimen that had 'lost' its neurons.

Back to the second source creating both doubt and concern in this case: includes the Judgement by Justice Kos as to the admissibility or inadmissibility of Miller's evidence he said that it was a 'curiosity' that a single sample had survived, that it was a 'curiosity but nothing more than that.' I would agree that it doesn't look as though Kos was asked to consider whether ot nor it was also a curiosity that the officer in charge of the case had handled the surviving sample in a manner outside the instruction manual, that he had ignored local professional advice by those qualified to give such opinions and instead had gone fishing for another 'expert' of less professional standing to discover the miracle that only Grantham appeared to know existed in spots roughly the size of grains of salt (pause here to consider when looked at on the shirt compared to when looked at on a slide the alleged same material from the same source was unrecognizable in its second situation compared to his first - it's appearance had changed,) - one could think that surely the status of the evidence was more than a curiosity but rather a reason for alarm. It also doesn't appear that Kos knew about samples of brain being released to some person before Grantham's trip to Kansas, or indeed about letters requesting such samples. He should have been told if he wasn't. Such information may have or should have built the curiosity to the point where the evidence should have been disallowed. Not least because of it's late arrival in the piece, why Lundy's lawyers didn't seek the opportunity for a delay in order to provide time for further research must have been a marginal call - perhaps they did not know all the details that time since has provided.

What Lundy's lawyers did do was appeal the Kos decision to the Court of Appeal where in a minority Judgement by France E, the president of that Court, rejected the evidence in a Judgement of astounding clarity compared to the shorter majority Judgements which to my mind provided no answers to the 'curiosity,' the lack of status of Miller in this field of forensics or indeed the rejection of Teoh of the samples - which incidentally where withheld from the first Jury by one person - yes, Grantham. Where ever there is irregularity in the handling of Lundy's shirt or information about it comes back to 1 man. It appears no argument was raised by the defence concerning the handling of the shirt but the President of the Court of Appeal appears to have clearly understood, from what evidence before her, that the shirt evidence was not admissible.

The 3rd leg of Judicial input goes to the trial where from memory the trial Judge France J made no comment on the Kos observation of a 'curiosity' between live and dead specimens. France J when commenting about the conflicting evidence regarding the shirt was not permitted to disclose to the Jury the very important factor that the President of the COA had rejected the evidence. All that evidence was temporarily suppressed. Why a Jury were not entitled to the comfort of knowing that if they considered the evidence suspect (without even knowing about the odd handling of the specimens) then no less than the President of the COA had found it wanting.

The average person on a Jury is possibly unable to understand all the technicalities of the forensics in the Lundy retrial, but what they could have understood, and which imo they should have been told was the OIC had handled the exhibit in a non specified way, also that there were claims other slides had been released to him before he went to meet Miller. If a reader asks why a Jury should have been given that information then there is a simple answer which the Courts and Prosecution overlook unless it raised by the Defence. It's understandable that the Prosecution prefer that route (suppression) because it is obvious it weakens their case, but why France J left it aside is of concern. This observation is not directed at France J specifically even though in this specific case it could be seen as important that the Jury were not told all the relevants facts about the controversial evidence, that it was hidden is a blight on Lundy's conviction. I'll give one example why.

When convictions are eventually overturned on the grounds of a miscarriage of Justice in NZ, at least in recent years it has been by the Privy Council. This is true of Lundy, Bain and Pora. These cases are looked at in isolation, it appears nothing is learnt from them and others following on the same path can easily fall prey to Miscarriages of Justice because the Judiciary take no stand on it, in fact appear compliant. Thus the reason why Joe Karam ensured that the Jury in the Bain retrial knew about the conduct of ex detective sergeant Milton Weir who like Grantham hid evidence from the first jury, acted outside the protocols of the manual and misled a Jury. Whether that should have been left up to the Judge to decide in the Bain retrial was not left to chance, Karam ensured that the retrial Jury knew about the way Weir had acted before the first trial and during the trial. Here is a relevant time to compare what Weir admitted doing compared to what we know of Grantham's actions.

Weir searched a crime scene after hours even though his role was an a exhibit officer.
Grantham assumed the role of exhibit officer in terms of a single piece of evidence, although it was not his job.
Weir was told before the first trial that glasses said to belong to David were actually his mothers. Weir was told by a witness that he, the witness, had been mistaken and the glasses actually belonged to Margaret Bain. Weir told the witness he would have that put in evidence but never did. In fact Weir sat silent despite the Jury returning to ask about the ownership of the glassesk because David Bain had truthfully denied they were his.
Similarly Grantham was told by Dr Teoh that the samples on the shirt, like the samples on the phone and the table mat were too down graded to be reliable, but Grantham never told either the Court or the Jury that information in Lundy's trial. He sat silent as the reliability of the shirt evidence was gauged.

So the similarities: both men stepped outside their designated roles, both men held silent on vital information at the first respective trials. The courts in both situations, indeed the prosecuting authorities brought no charges against either man. In the Bain retrial however Karam made sure the 2nd Jury knew. In Lundy the 2nd Jury did not know because the Defence, the Crown or Judge did not raise it - there was no impeachment on Grantham for hiding material facts from the first trial. Additionally in the Lundy retrial Kos's comment about the curiosity of the brain matter samples was not mentioned to the Jury and the views of the President of the COA as to the admissibility of the forensic evidence were kept secret. Fair, in all the circumstances? Absolutely not. Have the Courts got their heads in the sand over such matters? Yes. The small light shining in the distance is that an ex Minister of Police charged under the Electoral Act had charges thrown out because evidence had been with held. A small step for progress but not for Lundy. In the case of the ex MP there was a prima facie case against him and he had been convicted, without the special miracle evidence of Miller there was no evidence against Lundy of note.

I include here the considered thoughts of 2 men who were involved in the Amanda Knox case to enlarge upon that shirt evidence.

charlie_wilkes wrote:

The Lundy case represents a challenge, but also an extraordinary opportunity. It should be possible to test substances other than brain tissue - like sausage residue - using Miller's technique. If a scientist could show that other substances will react and produce slides like the ones used to convict Lundy, the substantive case against Lundy would evaporate. The court would be under immense pressure to overturn the conviction. Would the prosecution then attempt a third trial, with the "brain tissue" evidence off the table? I doubt it.

I have discussed this with (withheld). It would be a complex and expensive project. I think someone should do it. Lundy's defense team was not up against a redneck with a dog that can be discredited with a simple test. They had to contend with a claim based on experimental research, performed by a medical doctor. No defense team can possibly address such a claim without a huge budget. A jury cannot be expected to evaluate the quality of such evidence. 

Miller needs to be debunked. The repercussions of doing so could extend far beyond Lundy. This case could be a big deal. It could help the criminal justice system recognize that forensic evidence must be regulated and vetted before it ever gets to a courtroom.

charlie_wilkes wrote:

You'd have to look at the details of his test. He extracted gunk smeared on Lundy's shirt and subjected it to a specialized staining test designed for medical diagnostic purposes in narrow, specific conditions. Lo and behold, it stained the same as CNS tissue. So it must be CNS tissue, eh? That was his scientific conclusion.

Then, in preparation for the re-trial, he took known human CNS tissue, smeared it on a shirt, did the same test and got the same result. This is his proof that it works, i.e., a positive control.

What no one has done - what has to be done - is a series of negative controls to ascertain whether this test would react to something other than CNS tissue, like a food stain from cooking sausage.

The presence of pig and cow DNA in this putative specimen of brain tissue, as confirmed by a university lab in California, suggests the likely result of such an assay...

Name withheld wrote:


With respect to Dr. Miller, he is very dismissive of criticism, and the technique he used was designed for a non-forensic purpose. His lab may have been the source of some female DNA found on the shirt. He publicly indicated his belief in Mr. Lundy's guilt. Deciding whether or not someone is guilty is the job of the CJ system: being the voice of the data is the job of the forensic scientist. I think that crowd sourcing some funding for the testing that Charlie suggests might be a good way to proceed.

In all reality it looks like Lundy got framed - twice.