Monday, April 20, 2015

Anzac Day - Gallipoli 2015

As New Zealanders prepare to remember Anzac Day where it has been argued the country's nationhood began it is easy to forget that a 100 years ago New Zealand was a very young country with many immigrants from Britain making up a good part of the population. I suppose for some then, was the question of how New Zealanders saw themselves, no doubt there was always an eye toward the 'home' countries of England, Ireland, Scotland, Wales and to a lesser extent Australia - the nearest neighbour. By then NZ had already become a place where equality was something naturally embraced - few would be elevated or lowered in opinion because of status. This was already a country hard at work building roads railways and breaking in farm land. It was only a few short decades since the country had seen land wars resulting in 'punishment' by Government troops carving out large sections of land belonging to 'rebel' Maori. A war of sorts already existed, it was one of people fitting together in a new land and continues today.

New Zealanders had already entered the fray in South Africa during the Boer War fighting with Britain where they were given an early reminder that NZ had already distanced itself from 'class' distinction. A NZ officer was little different than an enlisted man whereas the British brought with them a display showing that even in army life things were measured by rank and wealth, not by bravery and the smarts that tied in respect between the NZ fighters. Many of those fighters were the sons and grandsons of Fencibles - retired soldiers of the British Army offered pensions and land to come to NZ when the threat of civil war, Maori against the new immigrants, was on the boil. So among the 1st fighters a precedent of sorts was set, that continues in many families today - of younger nzers joining the armed services as had family members before them.

This was the case at the beginning of WW1 and would be into the future. Easily not considered in the breadth of war is that the NZers have, apart from the Land Wars of the 1860s always taken part in foreign wars, often under the belief they were fighting for their own freedom - nothing quite so inspirational for young men. Though on the beaches in Anzac Cove pinned down under Turkish gunfire the relative freedom created by being an invader of another country must surely have crossed the minds of many. But it was there, under a baptism of death whistling about puffing the sand and rock that many of the men would identify themselves with their fellows as distinctly NZers.  What some may have been unaware of was the fact that the NZ Native Contingent having sailed for the peninsula were distressed that they were not to take part in a 'European's' war other than behind the lines.

I have read some of the letters from their commanders and sponsors pointing out the 'shame' of the Native Contingent being told they were not to fight - when many had embraced the idea that it would stand them equally beside pakeha NZers for the first time in War. It was not the NZ Government's decision but rather that of the home countries, although as casualties mounted British leaders no longer distinguished who might fight and who might not, so the Maori Contingent were accorded the privilege to fight as New Zealanders first and foremost, even though they had joined the army often along tribal lines, some having overcome resistance to the idea of fighting for those they saw as enemies of their forefathers and land grabbers.

It may be too lightly touched upon in NZ history that the Maori (Native) Contingent fighting at Gallipoli also touched upon the emergence of the concept of Nationhood, because all the NZer's faced death together equally although in many breasts there may have been resentment of one type or the other, but by the time of the final shots ringing out on the British catastrophe that was Gallipoli all those men were equal that survived, just as all those perished were equal in death. As NZ remembers those who served in the Anzacs part of it is the underbelly of the beginning of NZ as it is today, signed in a document, a 'Treaty' no less in 1840, rather than drawing sides again over Treaty claims, opportunity, work or race - it's a time to remember all those men who fought as one. Fought, believing in freedom for one and all, fought for adventure and comradeship that was soon dulled by shadow of death in finding a numbing silence about war many brought home with them.

In one place I visit fairly frequently, named as a sacred place where many of my family are buried I have seen the names of fallen Maori from the WW1. In recent times I learnt that the graveyard was in fact a traditional burial place for local Maori who willingly gave permission for local Europeans (pakeha) to be buried alongside Maori, just as they had fought together many times, and their fathers and grandfathers in much earlier times against each other over the hills and gold. Some of the graves are marked as those killed at Gallipoli revealing a story that was not widely known, nor taught in the schools when I attended. It was also in relatively recent times that I began to learn the history of the Maori part of my family knowing that a number were joined along side my Pakeha relationships on those death swept beaches of Gallipoli a 100 years ago.

Part of what has been an interesting looking back at my family and the many who served in Wars. and those that still serve today, was an interest in collecting badges of the various regiments in which some of those men served. Whilst I have almost exclusively concentrated on WW1 one thing is clear the majority of badges hold the fern, many native bird, also traditional warrior or canoe, as it also true that whilst there was a 'Native' contingent many Maori joined other units as well. I'm not sure at this stage why the fern, bird, canoe and club feature prominently among the badges but a fair guess would be memory of the conflict between Maori and settler when tomahawk faced musket and cannon and sometimes won, where haka was performed and laments sung in the evenings as smoke thinned and birdsong could be heard again through the ferns and the watching bush.

Tuesday, April 14, 2015

David Bain: the dusty glasses.

The dusty glasses. The Bain prosecution if filled with irrelevancies. Among the many are the old pair of glasses belonging to Margaret Bain found in the house after the murders. Totally insignificant as to proving any guilt against David, they do however show the very real construction of the Miscarriage of Justice perpetuated by the Crown against David Bain and how it continues.

It's an irresistible conclusion that the 'glasses' themselves point to have not being used by the killer the morning that 4 members of the Bain family were slain. I say this because the glasses were misused by the Crown in an effort to tie David to the killing of his brother Stephen, if of course he had killed Stephen he was guilty of the murders also of his 2 sisters, and mother. Without giving an exhausting history of the glasses the basics are that after careful searches by 2 detectives in Stephen's room they were not found. Later, the Detective in charge of exhibits, claims to have found the lens in the room when 'searching' after hours - obviously doing a job that he was not tasked with. This was ex detective Milton Weir, a most controversial witness in the Bain trial who admitted misleading the Jury.

Years later it would be Joe Karam who, when looking through scene photos who was able to say the lens was not in the position in those photos were Weir claimed to have found it. Eventually, Karam dismantled the entire framing of David Bain having made this discovery. It would soon become apparent to Karam that Weir had not only claimed to have made the discovery that tied David to the killings but that had decided to hide the fact that lens were not from David's glasses at all, but rather from an old pair of his mothers. It was on this basis David Bain faced his first trial and was found guilty. There had even been a question from the Jury concerning the ownership of the glasses and it was repeated to them that the glasses belonged to David, this despite the ophthalmologist having realised his mistake in saying that the lens was Margaret's rather than David's - something the Jury were never told. For what ever reason The Crown continued on, happy to allow the Jury to think the critical evidence was that a lens from 'David's' glasses were found in Stephens room thus allowing the Crown to say that were dislodged in the bloody fight that had taken place during Stephen's murder.

Weir has said that he was hounded out of the police by other police who called him a planter. I'm not sure if he was looking for sympathy but even if he had nothing to do with the lens arriving in Stephen's room, it was he who found them after hours, doing a job which was not his and making a discovery that would 'stitch' David into a scene that misled the 1st Jury and threw David's credibility into doubt when he said, truthfully to the Jury, that the glasses were not his. Weir, at least was happy to see that happen, at the same time breaking his undertaking to the ophthalmologist to correct the record that the lens was not from David's glasses but rather from an old pair of Margaret's.

With that setback to the Crown case of Karam discoveries about the glasses they persevered to resurrect the non existence evidence against David with a claim by one of David's aunts that David told her had been wearing them, and another by a detective saying, that he hadn't wanted to be criticised for handling an exhibit, so withheld evidence in which he had claimed that David had asked the detective to pass 'his' glasses to him - meaning the broken glasses of his mother said to have been in his room the morning of the killings. In a case where everything had been done to place the lens and therefore the glasses in Stephen's room, the detective, Anderson, had kept quite about David asking for 'his' glasses. A lot of people were keeping 'quiet' about the glasses, Weir as to whom they belonged to and Anderson about allegedly putting them in the hands of David Bain who the Crown were desperate to claim had been wearing them. None of it washes, other than to indicate the 'lens' in the Bain case is like the 'bullet casing' in the Thomas case.

But lets look further into the lens. The opthamologist on examining the lens was able to say it was dusty. The Crown of course, said the room was dusty when it was found. The room being dusty unfortunately is of no moment because for the lens to have had any significance it has to be shown to have been used in the murders, that was the whole issue of the lens, the importance of them to their failed case. What the Crown had was the history of misleading the 1st Jury as to whom the lens belonged, the discovery of that, before more bites at the cherry by Anderson and David's aunt - belated evidence that made no sense. Well, not enough sense to show why David would wear glasses that were of a different prescription to his own, 'ask' a detective to pass them to him the morning of murders when they were broken and with, according to the Crown's case, a lens missing. Stupid logic really as is mostly the case when mice and men conspire to defeat the truth.

What is the truth about those glasses? All parties now agree they were Margaret's. The Crown have no convincing explanation of David wearing them or how they got in Stephen's room in such a fashion that they were not found by police officers tasked with searching for them, but rather by the officer in charge of exhibits who was quite happy to ensure that the 1st Jury never knew that they were not David's glasses. The truth is that glasses were broken and of no use to anybody, unwearable in fact. If they had been worn by a killer with sight issues, unless David had the same optical problems of his mother they were of no use to him, in fact presented greater sight difficulties that had he not been wearing them.

All this talk about the lens and their 'use' in the murders, but what does science and common sense tell us apart from the fantastic tale of how the lens appeared in a place that had already been searched. Science tells us that there is no forensic link between the 'lens' and the killings. Science tells us that no blood spatter which reached high up the walls in Stephens room found it's way onto the lens either when Stephen was killed or later when it apparently had fallen to the floor. It was however, dust covered and therefore consistent with not having been used even in a 'dusty' room. So as to the frames, when Anderson the detective who didn't want to 'criticised' for 'handling'  the broken glasses frame with the missing lens, and who obviously thinks it is quite consistent that a person would ask for 'his' glasses that actually belonged to someone else and which were broken - yeah right on that, he gave evidence that is helpful long term to David's innocence. He helped prove the efforts to mislead the Courts about the glasses, either hiding the truth about ownership, or the alleged handling of the glasses post the murders of 4 of David's family. But what he couldn't explain and neither could the Crown is how David Bain, having allegedly worn gloves that were soaked through with blood, managed to handle the glasses without any of that blood being trapped upon them, or indeed upon the dusty lens.

So a man whose hands must have been soaked in blood according to the Crown was able to handle glasses, that is adjust them, take them off, place them on a chair without the most tiniest amount of blood transfer. In short it didn't happen. Neither the lens, the glasses, the bloody gloves, have a single ounce of forensic proof of being handled that morning by David, only claims by police and an aunt, in 2 of those cases emerging 'later' when it could be said the Crown case needed a major credibility boost but only got used band aids.

Thinking about the lens and the Crown case in particular I have to wonder how much longer the Crown will persist with such a dishonest case against David Bain. Other failed cases have shown the Crown's tendency to carry on regardless for decades denying fault as has happened in the Thomas case, as happened with Pora until recently, and as it looks to have continued with Lundy, Watson and Hall. The difference in the case of David Bain is the credibility the Crown sought to wrongfully destroy over the ownership and 'finding' of the glasses has now become its own credibility. There is no sustainable forensic proof that the lens was linked to the murders in the Bain case but there is substantial proof of the Crown manufacturing and hiding evidence relating to the lens and the glasses which fits in with a bigger picture of how David Bain was framed. It wasn't accidental it was deliberate as the glasses and much more evidence now shows.

The further difference is that there is now almost totally conclusive proof that Robin suicided. Not just by the Crown in conceding that he turned on the computer on which was found a suicide note, but from a international examination of all the evidence relevant to whether or not Robin did take his own life, concluding a probability of around 98% that he did. That peer reviewed study probably only didn't score at 100% because of the possibility to reach such a score could have required not only the forensic proof pointing toward suicide but perhaps also a witness or witnesses. The Crown should see the wisdom in taking the opportunity to accept the new evidence proving David's innocence, taking advantage by saying that it was not known or understood at the time. While not satisfying all the misgivings the Crown and his agents will have generated for the public, it will at least show that the Crown has the ability to admit it was wrong in this case when science finally found the way matched by common sense.

It is the Crown that wore 'dusty glasses' in the Bain case and it is the Crown that should now take them off, accept the truth, accept that their predecessors sought to manipulate the truth, accept that a ragtag bunch of misfits have continued to deteriorate the Crown's status in the Bain case further with lies and by trying to prop up that which has already fallen down to irrelevancy - and learn, as the public has seen that hiding and planting evidence in modern times is hazardous. Time has moved on, people are more critical of what the will believe, they want to understand things and see how they stand in isolation or in the 'continuity' of a narrative. The Crown needs to accept that anybody will wonder why a person would ask for broken glasses, with a bent frame and no lens, and won't accept any old dusty explanation.

Sunday, April 5, 2015

Comparing controversial murder convictions in NZ

The following cases have all  been  controversial and it is an interesting exercise to see what they have in common. My data relies on memory but does show significant similarities across a number of the cases, some of which have had trials determined by the Courts to be have Miscarriages of Justice.

Arthur Thomas. Farmer, convicted twice of murdering Jeanette and Harvey Crewe - later pardoned and compensated.

Motive: Said to have harboured resentment against Jeanette for not opening a gift he sent her years before both were married. There may be an explanation of how Arthur allegedly knew that the present was never opened, however it remains a insignificant motive with little to substantiate it, in other words not a motive at all.

Evidence: Circumstantial. Feeling about this case resulted in a number of people working voluntarily to help Arthur. This was the first time in NZ history where it was determined that police planted evidence in order to get a conviction.

Other suspects? The father and stepmother of the deceased couple were never investigated. On record is a letter from the then Commissioner of Police instructing staff not to investigate the stepmother who one deceased witness identified as having been on the couple's farm between the time the couple were killed and some days later when their bodies were discovered.

Evidence from paid informants or 'prison stoolies': Although no witnesses were called at Arthur's trials who fit this category, one such person was called to give evidence at the Royal Commission of Inquiry into Arthur's conviction. He was a prison inmate, a lifer who claimed Arthur had confessed to him.

Current status: Has been free for over 40 years after having been pardoned and receiving compensation. Spent around a dozen years in prison, was assaulted and divorced by his then wife Vivian who spent many years fighting for his freedom.

David Bain. A student with an interest in the performing arts accused of killing his entire family, mother father and 3 siblings.

Motive: No motive was ever advanced by police. However members of groups claiming to support the late Robin Bain, David's father and the alternative alleged killer, have made numerous unsubstantiated claims of motive. On the other hand, as this was a case the Crown presented as it having to have been either the father or the son as guilty - there was significant evidence of a motive for Robin Bain having reacted to concerns that his daughters were about to make allegations of abuse against him.

Evidence: Circumstantial. The Privy Council in England was required to recognise on appeal that there was much evidence material to David's innocence withheld by the Crown. Much of that evidence was deeply significant and included proof that he was not at home when a computer on which a message a suicide note was left and which when 'closed down by an expert' had the actual shut time presented to coincide with the misleading time claimed to have been the point at which David arrived home from a paper round. Evidence of when David was seen arriving home was also distorted, as was proof that glasses allegedly used by the killer were not David's but rather his mothers. David was found guilty in a first trial later termed a Miscarriage of Justice and not guilty at a second. There is the general conclusion that not only was evidence hidden from the 1st Jury but also that evidence had been planted.

Other suspects? There was always acceptance that it was either David or his father who had killed the family, with the later suiciding after having killed his wife, 2 daughters and youngest son. The groups that appointed themselves to 'protect' the name of Robin Bain claimed that the father had no injuries or blood on his hands consistent with having killed the family. In reality he had both, whereas his son, David, had none at all. This case continues on to test David's innocence using a antiquated and odd procedure. His current claim is likely to centre on an independent and peer reviewed study carried out specifically on evidence surrounding Robin's death and which reportedly indicates a figure of around 98% probability that he took his own life.

Evidence of paid informants or 'prison stoolies' There was no evidence from any such sources although there had been discredited 'confessions' by David claimed by the groups supporting Robin. One of those confessions ultimately was shown to have been written by a administrator of the site, a defacto and futile effort to fill the gaps in the lack of evidence against David in order to manipulate the compensation process.

Current Status: Found not guilty at a retrial, found innocent by International Jurist Ian Binnie who recommended he be compensated. The recommendation was set aside because of claims that Binnie did not give some involved in the case a chance to respond to criticisms of them in his report. In fact the criticisms had been around long before Binnie's report. A second claim is now underway. David now is married man with a family. Like Arthur above he had never been in trouble with police and took a somewhat naïve position that the police were 'helping' him.

The following cases have all controversial and it is an interesting exercise to see what they have in common. My data relies on memory but does show significant similarities across a number of cases some of which have had trials determined by the Courts to be Miscarriages of Justice.

Arthur Thomas. Farmer convicted twice of murdering Jeanette and Harvey Crewe - later pardoned and compensated.

Motive: Said to have harboured resentment against Jeanette for not opening a gift he sent her years before both were married. There may be an explanation of how Arthur allegedly knew that the present was never opened, however it remains a insignificant motive with little to substantiate it, in other words not a motive at all.

Evidence: Circumstantial. Feeling about this case resulted in a number of people working voluntarily to help Arthur. This was the first time in NZ history where it was determined that police planted evidence in order to get a conviction.

Other suspects? The father and stepmother of the deceased couple were never investigated. On record is a letter from the then Commissioner of Police instructing staff not to investigate the stepmother who one deceased witness identified as having been on the couple's farm between the time the couple were killed and some days later when their bodies were discovered.

Evidence from paid informants or 'prison stoolies': Although no witnesses were called at Arthur's trials who fit this category, one such person was called to give evidence at the Royal Commission of Inquiry into Arthur's conviction. He was a prison inmate, a lifer who claimed Arthur had confessed to him.

David Bain. A student with an interest in the performing arts accused of killing entire family, mother father and 3 siblings.

Motive: No motive was ever advance by police. However members of groups claiming to support the late Robin Bain, David's father and the alternative alleged killer, have made numerous unsubstantiated claims of motive. On the other hand, as this was a case the Crown presented as it having to have been either the father or the son as guilty - there was significant evidence of a motive for Robin Bain having reacted to concerns that his daughters were about to make allegations of abuse against him.

Evidence: Circumstantial. The Privy Council in England was required to recognise on appeal that there was much evidence material to David's innocence withheld by the Crown. Much of that evidence was deeply significant and included proof that he was not at home when a computer on which a message a suicide note was left and which when 'closed down by an expert' had the actual shut time presented to coincide with the misleading time claimed to have been the point at which David arrived home from a paper round. Evidence of when David was seen arriving home was also distorted, as was proof that glasses allegedly used by the killer were not David's but rather his mothers. David was found guilty in a first trial later termed a Miscarriage of Justice and not guilty at a second. There is the general conclusion that not only was evidence hidden from the 1st Jury but also that evidence had been planted.

Other suspects? There was always acceptance that it was either David or his father who had killed the family, with the later suiciding after having killed his wife, 2 daughters and youngest son. The groups that appointed themselves to 'protect' the name of Robin Bain claimed that the father had no injuries or blood on his hands consistent with having killed the family. In reality he had both whereas his son, David, had none at all. This case continues on to test David's innocence using a antiquated and odd procedure. His current claim is likely to centre on an independent and peer reviewed study carried out specifically on evidence surround Robin's death and which reportedly indicates a figure of around 98% probability that he took his own life.

Evidence of paid informants or 'prison stoolies' There was no evidence from any such sources although there had been discredited 'confessions' by David claimed by the groups supporting Robin. One of those confessions ultimately was shown to have been written by a administrator of the site, a defacto and futile effort to fill the gaps in the lack of evidence against David in order to manipulate the compensation process.

Scott Watson. Convicted of the deaths of a young couple Olivia Hope and Ben Smart on board his yacht.

Motive: An alleged sexual attack after which the couple were killed, possibly dumped at sea and whose bodies were never found.

Evidence: Circumstantial. The Crown relied heavily on a pre-trial campaign that pointed toward Watson. 2 significant witnesses material to a identification of Watson in the company of the 2 deceased later recanted, claiming to have been shown misleading photos by police. The strongest or weakest evidence depending on a reader's neutrality would be hairs found on a blanket said to belonged to Olivia (but which could have come from other female members of her family and been placed deliberately, or arrived accidentally where they were found,) hairs which were not found on an earlier search of the blanket, thus configuring with the Bain and Thomas cases where in Bain a lens (never able to be tied to the killings other than by allegation) was found several days after initial searches by a Detective not tasked with the job and who admitted at the retrial having misled the 1st Jury. In Thomas it was a shell casing found in a garden that had not been made at the time of deaths of the married couple, this casing had been 'missed' in earlier searches, no doubt because it had not been manufactured at that time.

Other suspects? Police were given reports of a mystery ketch consistent to that which one eye witness recalls being similar to the boat to which he dropped the couple. Police abandoned this line of inquiry to concentrate on Watson.

Evidence of paid informants or 'prison stoolies'. The Watson case had 2 such witnesses from memory. One of whom claimed to have been given explicit details by Watson as to the deaths of the couple. This witness later recanted, despite this and in the review of a recent petition for mercy by Watson where the witness could not be 'found' by police, the petition was rejected despite a reasonable argument that the Crown could both no longer rely on the evidence of the 'stoolie' or indeed, somewhat helpfully, even find him. The nature of the alleged confession was thick with perversity and as it is now recanted, also able to be said thick with claims likely to prejudice the Jury
against Watson.

Mark Lundy: Alleged to have killed his wife and daughter in their own home after travelling 600 ks to and from the scene without coming to the notice of any other party, apart from a witness who the Crown did not call at Lundy's recent retrial.

Motive: Said to be financial pressure despite Lundy's own accountant saying that the Lundy's business was not in terminal decline. It was argued that he killed his family to gain insurance on a policy instigated by his wife but not confirmed at the time of her death, I have read in one report.

Evidence: Circumstantial. There are plenty of details in the most recent following blogs on Lundy that show reasons for doubt regarding the reliability of his second conviction after a retrial. There is considerable conflict over brain stem cell material found in 2 small spots on his shirt. This material as in the cases of Thomas, Bain and Watson was not found during initial inspections of the shirt. There is a strong argument that the amount of material found was not consistent with the blood spattered room in which Christine, Mark's wife was killed.

Other suspects? A number. DNA of 2 persons not identified but probably males were found under the nails of Christine and Amber. Christine's brother had DNA of both the deceased found in his car and bathroom. 3 Men were seen in the vicinity of the house  contemporaneously with the killings. One man was considered a suspect but none of his details could be revealed in Court.

Evidence of paid informants or prison stoolies:
.
Mark Lundy: Alleged to have killed his wife and daughter in their own home after travelling 600 ks to and from the scene without coming to the notice of any other party, apart from a witness who the Crown did not call at Lundy's recent retrial.

Motive: Said to be financial pressure despite Lundy's own accountant saying that the Lundy's business was not in terminal decline.

Evidence: Circumstantial. There are plenty of details in the most recent following blogs on Lundy that show reasons for doubt regarding the reliability of his second conviction after a retrial. There is considerable conflict over brain stem cell material found in 2 small spots on his shirt. This material as in the cases of Thomas, Bain and Watson was not found during initial inspections of the shirt. There is a strong argument that the amount of material found was not consistent with the blood spattered room in which Christine, Mark's wife was killed.

Evidence of paid informants or prison stoolies: This case is remarkable in that at retrial, after a the Privy Council found evidence of a Miscarriage of Justice, the Crown presented a remarkably different case against Lundy. Part of that change scenario was a 'prison stoolie' who in fact 'introduced' a claim that Lundy had told him that he had killed his daughter Olivia because she 'happened in' on Lundy killing his wife with an axe or similar weapon. In the earlier trial Lundy was said to have been wearing a disguise, which like the murder weapon, was never found. Why Lundy would chose to kill his wife with a blunt axe or tomahawk knowing the likely noise and blood spatter was never explained credibly by the Crown.

Current Status: Resentenced to life in imprisonment with no prospect of parole for a further 8 years. A man with no history of violence and described by both his late father and mother-in-law as a loving father to his daughter Amber.

Teina Pora: Convicted of killing Susan Burdette in her home when he was aged around 16. First cleared on involvement in the crime the young Teina, now known to have suffered intellectual development problems because suffering foetal alcohol syndrome, confessed the crime to police, not actually of killing Susan but of being a party to her death with others. Notably he was unable to show police Susan's house nor indeed able to give a description of her. This didn't deter police who were desperate to solve the crime, the senior investigators deliberately switched their bullshit detectors off in order to 'solve' the crime.

Evidence: Circumstantial. This entire case was a dogsbody. Teina had 'convinced' willing police that he was the watch out for 2 gang members who killed Susan. The gang members were charged but not convicted because of alibis, Teina who began as a potential witness seeking a reward was however convicted. At the time of Susan Burdett's death a serial rapist had been at work in the South Auckland district where she lived. The first Pora Jury was never told of that, nor was there any cxplanation for unidentified semen taken from Susan's body. She had been attacked about the head. Ultimately, the rapist was caught and convicted of 17 rapes and identified as the person responsible for the semen taken from Susan's body. He (Malcom Rewa) was charged with her rape and murder, convicted at a 2nd trial of only having raped Susan.

Evidence of paid informers or 'prison stoolies' Unfortunately, and perhaps a mirror in this case and some of the others above, showing the desperation of investigators, Pora got the double whammy, ie paid for evidence of informers in his own family and a 'prison stoolie' who attempted to prove a link between Rewa and Pora which never existed, but which however the police needed when it became clear that Rewa was not only the rapist of Susan but highly probably her murderer as well. Some of his other rapes showed his attacks to the heads of his victims and that he always worked alone. He was an older gang member and rival of the gang with whom the very young Pora had associated. To this point he has never been tried without the false cloud hanging above him that someone else had been convicted of the murder.

Other suspects. Malcom Rewa, the lone wolf rapist who raped Susan Burdett the night she died by being attacked to the head.

Current Status: Teina is a free man. His conviction for murder was overturned by the Privy Council in the last couple of years putting him in the same category as Bain and Lundy in that respect and in the same category as Bain, Lundy and Thomas as having suffered a Miscarriage of Justice because of the Crown withholding material evidence supporting the innocence of all 4. The Privy Council took the unusual step of seeking submission from both the Crown and Pora's defence team as to their positions on a retrial before recommending that no retrial take place. It's likely that the Crown will accept that recommendation.

Other cases of note:
David Tamahere: Convicted of the deaths of 2 Swedish tourists. Either 'verballed' or had evidence given against by a 'prison stoolie' as to the explicit nature of the deaths of the tourists and where they were buried. One of the bodies later discovered a considerable distance from where the 'stoolie' claimed and wearing a watch that a late detective testified as to have taken from the son of Tamahere and presented as evidence at his trial. This man had an extensive criminal history, is now free and it is unknown if he is pursuing having his convictions overturned.

Rex Haig: Captain of a fishing trawler convicted of killing and throwing overboard a crew member. A cousin and fellow crew member of Haig gave evidence against Haigh. From memory he was paid and given immunity from prosecution. Haig eventually had his conviction set aside but was able to progress compensation on the basis of a determination that he had been involved in the killing even if not the principle offender.

Allan Hall: A small middle aged man of limited intelligence who lived with his mother convicted of killing a Papakura man at his door. The assailant was identified as a tall youthful dark man who suffered some injuries in a fight with the man's sons and who was seen running from the scene. Hall is short and white. Last known information that he was the first recipient of help from an Innocence Project based in the Capital City.

Summary on the 1st four cases. 75% of them had material information withheld from the Jury. 75% of them relied on paid informants or 'prison stoolies' with that occurring with Thomas at the Royal Commission stage. 100% of them saw a combination of either evidence withheld from the Jury, found after initial searches, or relied on 'prison stoolies' or paid informants. There are other cases such as these but in the interests of the higher profile of such cases those discussed here all show a 100% failures of police or Prosecuting authorities to complete their work either according to the Law or to comply with practice of frank disclosure. In other words failures didn't happen accidentally they were all contrived. It's notable here to mention that not a single prosecution as resulted from any evidence which was shown to have been intended to mislead the Court or (known to me) any complaints made to the Law Society about practitioners who deliberately did not disclose evidence material to the defence. Often following such Miscarriages of Justice some of antagonists receive praise or promotion, in the case of Thomas the chief Prosecutor was later made a Judge. The Governmental oversights to such Miscarriages of Justice are not owned by any particular party but they do have in common an acceptance along the lines that such cases are said to bre rare, time has moved on etc. In fact many of the recent revelations are contemporary even if the case is somewhat aged.

It's probably fair to say that no Judicial or Legislative changes have occurred at the result of any of these cases, in other words the status quo is endorsed. It's hard not to accept that Government resists the obvious with Miscarriages of Justice, passing them off to one side to gather dust with others already placed there. I was of the opinion very early on after the Bain retrial that the Courts were really the only place where meaningful change was going to take place. Arguing on this blog and elsewhere that the Bain compensation should immediately have been taken for Judicial Review which at the time had never been used in such a way but was however a way to 'step back' into the system from 'no man's land.' Similarly, I argued here that Watson should have been considering JR over the Government's endorsement of a report by Kirsty McDonald to do nothing about the 'stoolie' who had recanted and been unable to be found for 2 years or more but whose evidence was still allowed to stand against the imprisoned Watson.

I'd like to be surprised to see the right of going to the Privy Council to be re-instated for those cases following it's abandonment in favour of the new Supreme Court. It does have to one or other but can be both. I'd also like to see the abandonment of immunity from prosecution evidence, that from paid informants or 'stoolies.' That is also unlikely to happen but with the high incidence of such evidential failures in the above cases arguments, say in Watson and Lundy, against such types of evidence or the warnings given about it using some instances from above might well be entertained by the Courts and become part of the Common Law. In the Watson case initially through a JR and in Lundy at the Court of Appeal. In both these cases the Crown argument against both men is considerably weakened. As written earlier the primary 'stoolie' in Watson has in fact recanted, in Lundy on the other hand it was only the 'stoolie' witness 'X' who could introduce the absurdity that Lundy killed his daughter after she woke by 'surprise' at the time (perhaps) her mother was being killed. Arguments could be supported using the Bill or Rights Act, namely as to due process and receiving a fair trial.

What also could be done without any legislative changes are for complaints to be made to police when their own witnesses admit misleading the Jury to be routinely investigated and prosecuted. The same with prosecutors who knowingly withhold evidence - either prosecuted or investigated by the Law Society all of which rely upon complaints being made by members of the public, police, Lawyers or the Courts.

Lundy, Watson and Hall are not settled. It suits the powers that be that all these cases are treated individually when the facts emerge they all have much in common - being Miscarriages of Justice for which no one pays the price except the accused.

Saturday, April 4, 2015

Lundy resentenced; but is it over?

In the 3 days since Lundy was reconvicted a majority of opinion of his guilt still seems to be centred around his behaviour after the deaths of his wife and daughter, on the one hand he was able to resume work a few hours after their deaths with none of those he dealt with suspecting anything was wrong. On the other hand he behaved in a way that can be described as quite outlandish or more commonly describe as 'bad' or 'poor' acting after the deaths of Christine and Amber became known. Still, not hard scientific proof of his guilt or innocence either way.

Something worth reflecting upon is that in the first trial the jury, we now know, were sold a pup. The 'lundy 5 hundy' as it became known to describe the trip at break neck speed Lundy needed to make to have killed his family to fit with the now abandoned times of death the Crown earlier relied upon. It's worth considering that there might have also been a 'pup' in the second trial. That would have to be the argument that Lundy killed his 7 year old daughter because she woke during the attack on her mother. The source for that is of course the prison 'stoolie' whose credibility the Judge warned the Jury about in fine detail. Lets have a look at the claims by witness 'X' compared to the overall narrative forwarded by the Crown.

Lundy planned to kill his family, in particular to use an alibi of a prostitute in a city 150ks away from his home. Not a particularly thoughtful alibi most would agree, and certainly not one that would win approval from a Jury, even when warned, as this Lundy Jury was, to not judge Lundy on the fact that he used a prostitute. What did that require, well according to the Crown, it required Lundy not to appreciate, arguably naively, that nothing would happen on that 2 way trip which would bring him to the notice of others. He would also run the risk of leaving his car to be seen when he approached his home, or indeed parked his car there. Sharp planning and without risk or nonsense - remember this is a man who the Crown claimed went to great links to hide his crime. He apparently had no appreciation of the risk of being seen leaving the motel, entering his own home, having his car be seen, 'dropping' off evidence such as the murder weapon during all of this before returning to the motel unnoticed. Not seen leaving or returning from the motel, driving 600 ks and not seen entering or leaving his house - try putting yourself in that position and measure your confidence in such a plan. No tickets, no accidents, leaving a heavily populated area and returning unseen and on it goes.

Preferring not to rely on good or bad acting, I have difficult accepting that account. I have even greater difficulty that the man so carefully planning killing his loved ones chooses an axe. Yes, choosing an axe or something similar to hack his wife to death would not be considering the screams that were likely to bring attention from others, and in particular his daughter. For the case against Lundy to work on the basis that he was broke (there was plenty of evidence otherwise that he was simply operating a small business that was struggling, but getting along) and therefore needed to kill his wife - then why kill his daughter?

Because, the Crown say, 'X' said that Lundy gave that reason, conveniently helping the Crown explain away a chink its case. Rather than being satisfactory it simply raises more questions, questions that call out for more substantial proof. The axe was never found, no witnesses were ever produced to show Lundy owned an axe - in fact a neighbour loaned Lundy an axe when he needed to open up packaging of kitchen items for sale. No witness were produced to confirm any sightings of Lundy or his car that early morning. Reverting to the 'careful' planning again, it's difficult to believe that using an axe to kill somebody in a house where a child slept was careful. Lundy for example could have avoided blood splatter, noise and everything else by silently strangling Christine. Either Lundy was going to kill both Christine and Amber in a most brutal way or it has be accepted on the word of 'X' that Amber was accidentally woken during the commission of a careful plan that wasn't careful at all. The Crown cannot have it both ways, they now rely on a 'stoolie' who might well change his mind, or reveal that he stood to gain something for his evidence and lied. From the Judges summing up he was very careful to warn the Jury about 'X' but perhaps they were swept along by the way Lundy apparently 'acted' after the killings. Not immediately after, but when it is known he was told his wife and daughter were dead. For Lundy to drive that trip home knowing his wife and daughter were dead but needing to pretend that he was unaware of that would have been a test of fight or flight at the very least. Was the man who chose to use an axe absolutely sure he had not been seen, that he had not left incriminating evidence behind when he became the monster that slayed his wife and family but who could in a few short hours greet customers - I have doubts that are not overcome by what 'X' claims. Also, if Lundy was careful to act amiably and as if having all things together the morning after when meeting his customers, then why did that veneer reduce to transparent acting as it has been described. We are asked to believe he was smart, but then 'acted' stupidly. Surely a determined and cool planning assassin of his family would be astute enough not over 'egg' the mix that had already been 'finely' planned.

The first trial got sold on the 'Lundy 5 hundy' the second trial got sold the 'accidental awakening' of a child in a household of screams that then necessitated she be killed by her father, who in the earlier trial was said to have worn a disguise. Still not adding up as guilty beyond reasonable doubt.

Friday, April 3, 2015

Lundy retrial: when the Crown cheat.

Mark Lundy has been reconvicted of the murders of his wife Christine and daughter Amber. The verdict seems to have been greeted with general approval, with many comments across blogs speaking of their dislike for Lundy and voicing feelings about him they have held for years - the very sharp point being made that people go with feelings, even putting aside facts or misgivings if they have already formed an opinion. Of course the Justice system is meant to rise above that, Jurors are asked to put their feelings aside whatever they may, be to concentrate on the facts.

The facts in the case of Mark Lundy is that the Crown cheated. They withheld evidence in the 1st trial that DNA matter was too down graded to be relied upon, they used a computer expert willing to fit in with a scenario the police had of Lundy driving at breakneck speed back to his home to kill his wife and daughter before returning to his motel in Wellington. They produced a witness who claimed to have seen a fat woman running in the vicinity of the Lundy home around the time of the killings, a time confirmed by a pathologist who relied upon the smell of the stomach contents of the 2 deceased.

At the retrial the computer expert changed the time when he claimed the computer was last used by several hours, suddenly allowing the Crown to say that Lundy made the trip later than the Crown had claimed in the first trial. Not only that but the time of death also changed. As for the woman who saw the fat lady running away from the Lundy household she wasn't called to give evidence. Stepping back from those events it's easy to see that the computer witness changed his evidence to fit a new scenario from the Crown of the deaths occurring later rather than earlier, the time of death also changed to a situation in which Christine would have needed to have woken her daughter from sleep late at night to eat McDonalds bought hours earlier. No problem with that, anything could be changed and was.

But is that just. This wasn't simply a witness mistaken about the colour of a shirt or the model of a particular car driving past. This was a definitive time of death changing. What came with that? A plethora of experts confirming DNA found on Lundy's shirt in 2 small specks to have been brain or spinal cord dna. Experts for the defence countered that, none among either the Crown witnesses or the defence could confirm that it was human DNA. My observations were that of a sceptic, the blood spatter in the Lundy house was significant, reaching up the walls - but only 2 small specks on Lundy? Add to that scepticism the not one witness seeing Lundy or his car on the drive from Wellington to Palmerston North and back. Not one witness seeing anybody near the house, particularly not a very large man with mobility problems because of his size and weight.

Mark Lundy may have been found guilty a second time but the Crown case is still far from compelling. To me it's compelling impact is a deficiency in credibility, a 2nd bite at the cherry, that the Crown so adamant in their first trial scenario, had another go. I said cheated above. To clarify that the Crown cheated in the first trial by claiming a time of deaths that was specific, something in the   2nd trial they abandoned, they hid evidence about the DNA - that too is also cheating, they produced a witness offering compelling evidence of seeing somebody the Jury were invited to believe running away from the scene - that witness was not called at the second trial, they called an computer expert to claim that the Lundy computer had been manipulated, there was only 1 reason for that - to prove that Christine was not alive around 11am that night whereas in the 2nd trial, under their new scenario they needed her to be alive then because Lundy had an alibi that he was in Wellington at that time spending time with a prostitute.

Lee Hinkleman commented on an earlier Lundy thread here this morning, pointing out something quite obvious - that it would have been a very unhelpful alibi for Lundy to voluntarily claim he was with a prostitute because it would present police with the opportunity to call such evidence before a Jury presenting him by implication as an unfaithful husband in a troubled marriage. Justice France warned the Jury not to morally Judge Lundy in his closing address, something that would never have been the case if Lundy were the killer, and had been clever enough to realise spending time with a prostitute was always going to look bad for him. Indeed, Lundy already had an alibi -  that he was 150ks away from where the killings took place and it would have had to have been extraordinary luck for him not to have been seen somewhere on that trip and able to turn up to sales meetings the next morning as his usual cherry self.

On KiwiBlog yesterday Ed Snack having digested the Jury's finding concluding that it was obvious that Lundy had been fitted up in the first trial. Also, although he didn't like to admit so, he felt that the DNA could have been planted Lundy's shirt. I'm sure others have considered that possibly, the Jury as well. The profile of manufactured evidence, particularly planted evidence, is that is often out of context. In NZ cases where see in the Crewe case one example, a bullet casing found on a subsequent search by an officer not tasked with the job, the same in the Bain case where a lens was found 'after hours' belonging to glasses said to be worn by David but belonging to his mother. The lens was also found by someone not tasked with the job and who would admit at the retrial having misled the first Jury on other matters. In the Crewe case it was revealed that bullet casing had not even been manufactured at the time of the Crewe couple's death. In Bain, the police withheld from the Jury that the lens was not from glasses owned by David but rather his mother, something the Jury in their deliberations asked the Judge for clarification, additionally the lens was dust covered and had no blood on them in a room spattered with blood as high as its 3m ceiling, inconsistent in fact with the environment in which it was found. As Lundy's glasses, ring and watches all escaped being collectors of DNA in a very bloody murder scene it is at least with some inconsistency that there were only 2 specks found on Lundy's shirt which was not confirmed as human DNA. Ed Snack didn't make those points in his observations but it was probably something in his mind, that evidence is planted in NZ in some cases. Snack went onto say that he though Lundy most likely was correctly convicted.

Those musings are an indication of the psyche that has developed abroad in some of the public - that police only 'fit up' the bad guys. Quite a terrible statement of Justice in NZ. Of course Justice France would have directed the Jury on this matter. However, it remains in the background of the Lundy case, the Bain case and others that police and Crown cheated in these controversial trials and the Courts allowed such conduct. No one was ever charged in any of these cases and when the proof of the planting was established it was not a barrier to the Crown from continue further with the cases. In reality that will continue, at least until a one strike rule is established where it follows charges are dismissed. The public interest is not in a case continuing where rules have been broken or conduct of prosecutors or police has transgressed the Law, the public interest is in people like Ed Snack and others, particularly in police and prosecution, that no illegal or unfair conduct is permissible before the Law and that criminal misconduct will be greeted with charges.

It's only speculation in Lundy that the dna spots were planted, but it is not speculation that the Crown cheated in the first trial to the point it was declared a mistrial. Yet they were given another chance where key witnesses dramatically changed evidence. Before finishing this, there is another interesting aspect of the Lundy case that some correspondents have touched upon. That is, Lundy had no history of violence, his marriage was said to be happy and he was a devoted father. He spent his entire life before this case never having been convicted of any crime and was not known as violent. As far as I know he has never exhibited any violence in prison or whilst on bail awaiting his retrial - for many that will inconsistent, particularly for those that can put aside impressions of Lundy, with killing his wife and only child with a weapon that may have been an axe.

I have no idea if Lundy is guilty or not. I am not persuaded by the DNA alone, or by impressions of his personality - I think considerable doubt remains as to his guilt. Somehow, as these cases seldom do, I doubt this case will go away. He is going to spend a lot more time in prison, there will be not a few left somewhat troubled  that the evidence against him is less than substantial. It is easy to consider the Crown thought the same, otherwise to bring a prison 'stoolie' into the fold would not have been an option. It's the evidence of a 'stoolie' since recanted that keeps Scot Watson in prison, I wonder if this 'stoolie X' will recant, or if more may emerge about that DNA. On the other hand if it doesn't change, then at least some evidence will emerge supporting the Crown case so that this observer's doubt will be reconciled.

Saturday, March 28, 2015

Lundy Trial - too much doubt.

With both the Prosecution and Defence having given their closing addresses and with the Judge to follow on Monday for many long distance watchers of this trial there will be a feeling of uncertainty. Despite the PC decision regarding the withheld DNA advice of it being too down graded to be a reliable source, and other evidenc which the defence called bad science, it seems there was at least partial agreement that Lundy may have had DNA on his shirt likely to be brain or stem cell, however there is doubt that it was human material.

On that note in particular it's been difficult to reconcile the small amount found, if Lundy had been wearing that shirt and was indeed the killer of his wife and child - shouldn't there have been more dna found, in fact a lot more. His counsel David Hislop QC pointed out that there was no dna found on Lundy shoes, glasses, his ring or in his car. The other significant point that Hislop made, apart from the obvious that the Crown had abandoned their original scenario used in the 1st trial, was that with the 'new' timing of the deaths of Christine and Amber required that Amber would have been needed to have been woken from sleep to eat dinner in the small hours. He said the idea was preposterous. I agree, and if we want to look for something else preposterous then the prisoner who claimed Lundy confessed to him whilst awaiting an appeal against his conviction, when in fact Lundy had not been convicted, fits the bill. In the first trial there was the 'mad' trip which no one saw from Wellington to Palmerston North, and back.

This time the trip was made cautiously, according to the Crown, in order that Lundy not be seen. Thinking about a person not wanting to be seen driving a car is pretty odd, hardly something one can quickly hide in the face of oncoming traffic or a following car. Miscarriages of Justice often are held together by odd (could be said desperate) logic. Of course the fat lady running away in the 1st trial and said to be Lundy in drag was also spectacularly odd, as odd as the Crown reduced to needing a deranged prisoner with problems as a star witness, a mother feeding her daughter McDonalds' in the middle of the night, and a driver, driving with stealth a trip of 100s of ks in order not to be seen.

For me at least enough has been seen, a changed story given an odd replacement and no unambiguous evidence pointing to Lundy. From what I read of the Crown's summing up the motive, hammered away for days at the outset, that Lundy was caused to kill his family by a dire financial situation was put on the back boiler. I think the whole Crown case was on the back boiler from the start when they admitted they were changing their story.

Tuesday, March 17, 2015

Times of Lundy deaths unclear: expert

Found the above headline in the news this week.

Some folks will remember that the time of death for the 2 deceased in Lundy's first trial was estimated at around an hour after their evening meal. Part of the tests leading to that estimation was the pathologist relying on the smell of the contents of the stomachs of the 2 deceased, Christine and Amber Lundy, the wife and daughter of Mark Lundy now being retried for their deaths having had his original trial adjudged a Miscarriage of Justice where, among other things, evidence was hidden.

Where once the time of death was precise to the hour, in order to support a high speed car trip made by Lundy, part way through which he was said to have been observed running from the crime scene dressed in drag - suddenly that time is unclear. With news like that there could be 2 extreme views roughly expressed as 'the fat bastard still did it,' or alternatively, 'hang on, the bloody cops are changing their story.' I don't know about other people's experiences in life but there are some people who think someone is guilty of a crime no matter the details, or if the details are changed. Fair enough. Equally there are others, who recall a child being questioned about how a chocolate bar disappeared from a cupboard only to end up remaining only as an empty pack in the little person's drawer, who may not well remember under gentle questioning some of the excuses offered.

Well the Crown in the Lundy case 'ain't no child.' The Crown has had 2 trials, the 2nd of which distinctly separates from the first. Time of death is 'unclear,' time of trip allegedly made by Mark Lundy from Wellington to New Plymouth and back is also unclear, remains not only unclear by time but most importantly having absolutely no positive sightings by any other motorist or witness, the important dna evidence from the first trial also remains unclear. That dna evidence was specifically that Mark Lundy had brain matter from his wife on a shirt found in his car, this was the man allegedly who had been wearing woman's clothing as he killed a wife and daughter that other witnesses have said he doted upon. Earlier the Crown claimed he was in disguise, yet somehow the disguise was never found and a shirt unlikely to have been part of that disguise was found with a dna sample that was not 'noticed' at the outset, and as is historically shown in cases of planted evidence in NZ, was found when the Crown needed it.

However, don't expect some continuity to begin on the dna because hidden from the first Jury was evidence by a specialist that the 'belatedly' discovered dna sample was too down graded to produce a reliable result. The only continuity of the Lundy case is that things don't link together to the point where even evidence in the 2 trials have little in common with one another. Whether Mark Lundy is guilty or not, he has in my opinion been involved in a situation of being framed, the Crown in the first trial were happy for Lundy to be led away to start a life sentence knowing that evidence highly material to that trial had been hidden. He's had 1 trial where evidence has been hidden or manufactured to complete a scenario the Crown have now abandoned after 11 bitter years of hanging on to their claims despite public disquiet about the crazy car drive Lundy was meant to have made and which not a single person saw. Even the fat lady 'running' from the scene was a bizarre allegation.

However the Crown pronounce a new scenario with an apparent complete ease  and without any reference as  to how they can have been right for a dozen years in their claims and evidence against Mark Lundy. No answers to questions of how they can have been 'right' relying on hidden and dreamed up evidence for  so long to now be saying that was wrong, but that this (the new 'unclear' scenario) is 'right.' I call bull crap on such changes and the Crown being allowed to continue on in their prosecution. For them to be able to take an unprecedented shift from their original claims is questionable on the face of things, but to do so unable to rely on clear evidence (in fact rely on unclear evidence about the dna, about the car trip, the time of death and so on) is a clear legal travesty. They are saying 'hold on, we are having another go - with umh, unclear evidence.'

If this is what the case against Mark Lundy is after a dozen years then he should not be standing trial. I think it is a very fair point of view that the Crown are having extra bites at the cherry. I think it is fair to consider that the ambiguity about some of the evidence is in itself evidence of a skewed prosecution, not only originally - but also now. Why should the Crown receive credit for hiding evidence by claiming later that 'new' tests procedures  show that the hidden evidence was not detrimental to the Crown case. For crying out loud, the evidence was and is evidence helpful to Lundy, the Privy Council have pointed that out. But more than that, the hidden evidence portrayed exactly the way the Crown started out in it's prosecutions of Mark Lundy, by being unfair. This trial is further evidence of the unfairness, they call witnesses who now say the time of death for example is unclear, no definitive position - even possible to be viewed as guesswork. But it goes on, if the Crown started out willing to hide evidence, called witnesses who gave 'unusual' descriptions of a 'fat lady' running from the scene and who was never found, rely on the smelling expertise of witness to show the time of death, this case is a side show. A very sinister side show in which I for one would not be surprised indicates the suspicion that must be placed upon the dna evidence regarding Lundy's shirt, what it in fact is, how it  may have got there, and the old worry why it was missed initially.

And to allay concerns of things being 'unclear' the public can look forward to the evidence of a troubled man, the only person in the world to whom Lundy confessed to 'explain' why he 'had' to kill his daughter. A bloody dreamer paying for his supper.