Wednesday, April 10, 2019

The mystery 'men' in the Watson case.

One of the clear fallacies in the Scott Watson case is the mystery man moniker. The Crown used the mystery man detail to exhaustion in the absence of other factual evidence. However looking behind those facts there is evidence of 4 mystery men none of who was Scott. It must be remembered that Scott was accused of being a sleazy mystery man in the bar but when the evidence is looked at there are at least 4 men, 2 of whom were clearly not involved, we call them A&B. There real names are known and were known to the police early in the inquiry. They conducted themselves in a moderately harmless and forward way on New Year's Eve, flirting with women, mostly very young teenagers.

Then there was the fellow at the bar we will call 'sleazy.' He was also seen loitering near the toilets and openly ogling young women and girls without any inhibition. Some people left the Lodge because of him, uncomfortable and concerned about their daughter in one case, and sister in another. This is the person that Roz McNeilly saw and described, her description was shared by other witnesses but no evidence on that topic was produced from them by the Crown at trial. Other people saw and described him as taller than Scott and with longer hair as the identikit picture of the time showed. The identikit picture has been recognized by people as a person on a ketch at Mapua days later.

We will call the 4th person 'talker' he was confident and forward, described as looking as though he could look after himself. Whereas A and B socialised together there seems little evidence of sleazy and talker being together unless upon the suspect ketch. But it was A and B who drew the police's first attention. After it became evident that they had nothing to do with the disappearance of the couple they were able to serve another purpose for police. One of them would 'become' Scott after police managed to somehow persuade a couple of witnesses they had seen Scott acting in a forward manner, like a 100 or more other males that night. Those that couldn't be persuaded were simply not called by police, whilst those that gave evidence changed their accounts to focus on Scott in a manner that allowed the prosecution to attribute all of A and B behaviour (and perhaps others) to Scott. The result of this was that the Judge was 'able' to say that Scott was driven to anger because he had failed to hook up with any female that morning. Even that idea does not bear scrutiny because there is a big difference in hooking up to becoming intent on murder.

At the very beginning of that idea, no one can seriously accept that a person uptight and contemplating possible murder would tie up to 2 other boats,  let alone get aboard a naiad without anyone on board remembering him or noting the difference between his sloop and a 2 masted ketch. However, that was the Crown's case. A jilted man prepared to kill a couple because young women rejected him. When A and B gave evidence the Crown were careful not to ask them any questions that would give a clue that it was them acting up with women in the bar and not Scott. It could well be to this day that they don't know that themselves. However that doesn't seem likely because they had pointed allegations put to them by police as to the way they had allegedly conducted themselves and what they'd said. Those allegations could well have resulted in them becoming more compliant with police and willing to stretch the truth. That happened time and time again in this case, smoking or possessing dope was overlooked for helpful witness who might just change their evidence 'to help' convict Scott who police said 'killed' the couple and also Nancy Frey. They were being good guys against a common, if innocent, enemy.

Meanwhile sleazy was a loner that night, keeping to himself, drunk, drinking bourbon and as his intoxication increased becoming less concerned about his conduct to young women to the point, as mentioned above, fathers and brothers left the bar with young women as the mood deteriorated. Some of those persons gave evidence, but like A and B, no evidence was adduced from them about sleaze pointing away from Scott. So A and B are a pair, while sleaze and talker are not. No one appears to have put the later together apart from out on the water when the suspect ketch arrived. It is not even clear that sleaze arrived on the ketch although there were at least 2 persons aboard. Talker may not have even gone ashore and certainly wasn't the person in the naiad with the couple. The confident man in the bar might have solely been either A or B, or B if we attributed the confident, almost arrogance. to B.

So what are we left with? Sleaze going aboard the ketch with the couple with talker already aboard and a early departure just after a scream was heard across the water. We do not know if that scream was Olivia's and should not speculate that it was, although it has never been explained by police. Within hours the ketch is seen in probable trouble with rope dangling in the water, suggestions by witnesses that it was 'talking' with another yacht hugging the coastline. Although Crown witnesses gave accounts of this situation, the Crown have never explained these sightings or indeed a ketch trailing rope in the water.

When that vessel is seen again after the Eyvonne and Ted Walsh group in rough weather noted it with the couple on board, it is traced to being berthed later with only the man whose identikit picture was released who is identified and the couple aboard. Later a second man (not Ben) is also seen according to witness accounts. But for followers of this case we are talking about Ben and Olivia alive when they were meant to be dead and weighed down in the Cook Strait. This is the point when it is absolutely clear Scott is innocent, so what did police do - hid the ketch again, changed statements and reports and said it was the Se Swalker.

An intricate web was weaved to show that the suspect ketch was actually another ketch - but that has been rejected by the witnesses or saw it, just as the Alliance was rejected by a majority of witnesses as being the suspect ketch seen at Furneaux Lodge, where the ocean going yacht, with brass portholes, canoe ends etc as the reports remains vivid in the minds of dozens of witnesses to this day.

So here is demonstrated several points, 4 mystery men - 2 are identified, the 3rd goes aboard the suspect ketch with the couple and sails early the next morning and is seen that same day and days after with the couple on board. The police say that boat was a the non sailing Alliance, when the couple are seen at Mapua on a ketch police will say no, that was the Se Swalker. Hopefully soon it will be appreciated by readers that Ben and Olivia were  alive on the 3rd of January (and probably afterwards), the police were rung with that information and the couple could have been saved as the ketch remained there for many more hours before sailing the next morning.

Monday, February 25, 2019

What happened to Justice in NZ?


What ever your positions are on the guilt or innocence of any of the cases I mention put that aside for sake of the argument about what it must be like for Tamihere, Pora, Thomas, Hall, Lundy, Bain and Scott Watson to see Rewa convicted this month for the murder Teina Pora spent 2 decades falsely imprisoned.  Who can know what Teina Pora might feel about the unprecedented event, he may not yet know himself how he feels as he still struggles to find his way after over 20 years of false imprisonment. Not surprisingly both men came from families where some members spent time on the wrong side of the law.

For the entire group it is probably fair to say they had a sense of anger. For Thomas, Bain, Hall, Lundy and Watson they were not looked past for other offenders. In all those cases other potential offenders were obvious, in fact in Bain the Jury answered the question was it ‘Robin or was it David?’ by find David not guilty when he finally had a fair trial. Len Demler who gained financially from the results of the death of his daughter Jeanette and her husband Harvey apparently brought no attention to himself or his new partner for not helping in the police search for the couple. In Lundy, probable offenders left finger and footprints behind, DNA, fibres and 21 hairs were found in Christine’s hands all of which were never traced, and with the hairs not used for mitochondrial traces. Alan Hall, http://i.stuff.co.nz/national/2779008/Group-asks-for-murder-case-review, never fitted the description of the attacker of Arthur Easton, a person described as a young Polynesian or Maori and not an older, much shorter European man, yet he still went to prison The Watson case, even today, has at least 3 suspects who were never interviewed, and 2 of who were since the disappearance of the couple Ben and Olivia were sentenced to life for murder.

In Pora it has been known for over a decade that Rewa was most likely the offender. In fact his name had been given to police by one of the victims pg. 114 (https://books.google.co.nz/books?id=gBrvZ2zsEMoC&pg=PA118&lpg=PA118&dq=malcolm+rewa&source=bl&ots=_bNEyok30k&sig=ACfU3U0V1WAVDXT5gmeoSltDmwRiY870NA&hl=en&sa=X&ved=2ahUKEwjIpLqX_dTgAhURWX0KHfUBB8Q4FBDoATAHegQIBBAB#v=onepage&q=malcolm%20rewa&f=false),  Arthur Taylor has the belief that Rewa had police protection: https://thedailyblog.co.nz/2016/08/15/exclusive-guest-blog-arthur-taylor-why-i-believe-malcolm-rewa-is-a-police-informant/ If that is true, and I am also aware that Rewa may well have been an informant, then Pora was not only sacrificial to solve a case of high public interest but that some police at least knew from the outset police had the wrong man. It has always been clear that the strongest evidence of Pora’s innocence was in his inability to take police to the Burdett house or even give a description of her. Millions of dollars were wasted on a story that had no foundation and allowed Rewa to continue his spree of crimes.

Meanwhile in Lundy there is good reason to believe the true offender(s) will be found having left both DNA and hair at the scene, along with fingerprints. While in Watson there are sound reasons to believe police could still find the perpetrators, some of whom have potentially been involved in similar crimes. To my mind the missing Swedish couple David Tamihere was convicted of killing is potentially solvable with a fresh look at the case and a deathbed confession which is now on record. Regardless, even the NZ Court of Appeal will struggle to say that David had a fair trial when at least one of the 3 main witnesses perjured himself after which that Court relied upon the evidence of the perjurer, Conchie Harris, to uphold the convictions.

Few NZers will believe that Arthur Thomas was guilty, and few would not accept that Arthur is owed an apology, such as that afforded Pora when police had no choice but to admit their wrong doing in that case. On the subject of ‘Arthurs’, with Arthur Taylor now released and rehabilitating himself on a good diet and exercise as he comes to terms with 40 years of imprisonment that had its beginnings in wagging school before being sent to a boy’s ‘home’ where he became trapped in what would eventually be a criminal lifestyle, may yet take a further interest in some of these cases and turn his attention not only to paid informers but their enablers.

Various Governments have pussy footed with police and Crown malfeasance for too long. We’ve had planted bullet shells, glass lens, hairs, paid informants and always the same excuses with only one constant – that nothing has changed. This year it was revealed again that the main informant against the late Rex Haig confessed to many people, yet police refuse to release the details. That means the potentially guilty man is still being protected by police and has ‘immunity.’ In fact, immunity should and can be reviewed as the process is a stay of prosecution as happened with Rewa after his 2nd acquittal. An acquittal now shown as having been highly unlikely to have happened if the innocent Pora had been released from prison and not left to rot to hide the darkness police employed to have him falsely convicted.

There was much argument about the sanctity of a ‘stay of proceedings’ and its usefulness in cases of immunity where the guilty person might otherwise go free. However, for the 1st time in NZ history to my knowledge, the power to ‘un-stay’ a stay was realised to be necessary because of, at least in part, police and Crown malfeasance. Without the stay being lifted the NZ public would never have seen a true and fair trial of Malcom Rewa. The Rewa case has broken the back of the institutionalised protection of the guilty, as have the prosecutions of Arthur Taylor, Mike Kalaugher, and Jenny Kalaugher of Conchie Harris who was ‘let go’ from a life sentence for 2 killings which he said were ‘like eating an ice cream’ in less than 10 years for lying his guts out for grateful police. Finally Justice peeks through the dark world that has becoming policing in all the cases mentioned here and many, many others. Time for a clean out, and public scrutiny of the enablers.

Saturday, December 1, 2018

Lundy and the sea of science.

Mark Lundy is soon to turn 60, just before then his papers for Leave to Appeal to the Supreme Court will be filed in what continues to be one of NZ's most controversial cases. One that will not go away. In the last 2 years the questions of guilt and innocent have returned to 2 shirt spots which are claimed to have contained Mark's wife's central nervous tissue 'associated' with her DNA. In other words a slam dunk of guilt according to our Court of Appeal.

Recently when doing a little work on another case of interest, that of Scott Watson, I spoke to a critic of Scott's. The critic was essentially a legal professional of some standing but not a lawyer. That person told me that Scott was guilty of another crime 'but the police didn't have the evidence.' That is one of the most astounding statements I've heard a person ever make about another, on that basis everyone in NZ is guilty of some thing or other, but the police don't have the evidence. It reminds of the 2 spots allegedly 'found' on ML's shirt. For 18 years they have been spoken about in tandem, yet 1 of the spots has no relevance because it has not given any conclusive test results. In fact, logically there are no scientific connections that link the spots except that police believe they are associated 'but don't have the proof.' The Courts have followed suit and this is how prosecutions can work, something is made from nothing, a link is inferred despite not being able to be proved and the Court does not object.

Of course if there is no precise proof then the 2nd spot is of relevance to the case against ML, it must rely on an unproven 'association' to DNA. Either, for that matter is the 1st - the one meant to contain Christine's brain matter. We need to look at that spot and the quandary the Courts has got itself into over that evidence. I used the word 'associated' DNA above. In fact ML has his wife's DNA on his shirt like possibly every other married man in NZ has his wife DNA somewhere on his clothes and vice versa. However the suspect material said to be CNS (central nervous system) had no identifiable DNA at all. The Crown were unable to prove the DNA was even human and in fact in tests it showed faint traces of being animal.

To reflect on that CL's (Christine Lundy's) DNA on the shirt in 2 particular areas - but the whole shirt not tested for DNA. The alleged CNS purportedly arriving on the shirt at the same time from an open wound - does not have her DNA inside. In fact it is missing millions of neurons the building blocks of CNS, and has traces of animal DNA. No one has, or can explain that in a way that points to ML's guilt. What should have been on the shirt was CL's DNA, and inside the spot should have been her DNA as well, both surrounded both with wound debris - a lot of it, because there was the blood shadow on the wall where of Christine's attacker. No scientist has ever been able to show that shadow fitted ML, or been able to explain how it can be said CL's DNA and the spot arrived at the same time - because that is what is needed to make the evidence relevant, that along with CL's DNA actually in the spot, not just surrounding it and with millions of neurons missing.

There is a lot of scientific papers about the association myths of DNA. One of the first points is that no one can tell when DNA arrives somewhere, so with a spouse it could be any time, even before a shirt for example was washed. Also the quantity has no significance, in 2 traces of DNA in the same area one cannot say that the larger amount is connected to the crime and the lesser is not. This is the corner our COA have painted themselves into. But there is also another factor.

In 2014 a Dr Miller, a man who has vowed never to return to New Zealand, and one must think because of concerns over 'brain samples' he acquired illegally, did a 'parallel' test to show his novel testing techniques could be relied upon. He took a sample brain that may have already been preserved and placed in conditions where he claimed it had 'air dried.' He then stained it using an IHC technique which tests known samples for disease or abnormalities, but he used to 'show' that it was brain despite that the stain was not brain specific (meaning would only react to brain.) Following which other IHC practitioners (neuropathologists) looked at the sample through a microscope. None of these persons were forensically trained, they all said it was CNS tissue by comparative testing using a subjective technique which has essentially fallen off the 'forensic scientist's check sheets now. The same process used in the Watson case where an 'expert' looked through a microscope and said that something compared with something else in respect of 2 different hairs to 'confirm' their probable source. That process later showed to have a 93% failure rate in FBI hair comparison testing methods conducted in cases where hair was used as conclusive evidence.

In the Lindy Chamberlain case, 'experts' said they saw blood in samples taken from under the dashboard of the Chamberlain family car after a staining process similar to IHC (and also novel) was used. Later the 'blood' was found to be underseal or noise suppressant material. In Chamberlain, like Lundy and Watson - no one could tell when the alleged 'blood' had arrived behind the dash. Just as in Watson no one knows when the alleged hairs of Olivia arrived in the lab (or more to the point if they are Olivia's hairs at all, or as in Lundy the alleged brain (less its millions of neurons and attended by animal DNA) arrived on the shirt compared to the known DNA which may have been from a sneeze or transferred from other clothing. Then why so little alleged CNS (no bone, sinew, skin or flesh) but an abundance of DNA during the course of a horrific killing?

So these are all things common in these controversial cases where someone is guilty 'but the police don't have the proof.' I challenge any reader to explain the Lundy shirt 'CNS' with no neurons. And I do that with confidence that Miller and police pulled a fast one in their 'parallel' test with their stolen brain. Why? Because Miller did not report results throughout his parallel test which indicated the donor's DNA was not present or when it began to 'disappear.' He also did not report when the neurons where present in the DNA or when they began to 'disappear.' Just as NZ 'scientist' did not report the presence or lack of peroxide in the 2-hairs in the Watson case, and still has not. And just as 'scientists' looked through microscopes and said underseal was blood in the Chamberlain case.

Forensic science can be daunting in the hands of some people, and can be misused. It has been misused in all 3 of these cases, CNS without neurons or DNA of the donor, mystery hairs confirmed as belonging to somebody by the eye of an expert using a now discredited method, panelbeaters underseal becoming blood.

In the sea of science that is the Lundy case, why hasn't one qualified person explained why CL's DNA is not contained in the spot claimed to be her brain (or CNS) material. When police chose to support Miller's tests with newer, fresher tests observed by others, why has nobody reported whether the brain used to emulate Miller's original test had neurons after it had been air dried and examined, or whether or not the Donor's DNA was still traceable? At some point along the way the alleged CNS on ML's shirt lost its neurons and identifiable DNA (if it ever had any of each) and picked up animal DNA. Surely the same must have happened to the donor (sample) brain or is this a case like the one the person explained to me about the Watson case 'they didn't have the evidence'? As a final point DNA denatured in some way by time or other processes can be reinstated, but that didn't happen in Lundy either.

Neurons in the brain and central nervous system:

https://www.nichd.nih.gov/health/topics/neuro/conditioninfo/parts

"The basic unit of the nervous system is a nerve cell, or neuron. The human brain contains about 100 billion neurons. A neuron has a cell body, which includes the cell nucleus, and special extensions called axons (pronounced AK-sonz) and dendrites (pronounced DEN-drahytz). Bundles of axons, called nerves, are found throughout the body. Axons and dendrites allow neurons to communicate, even across long distances.
Different types of neurons control or perform different activities. For instance, motor neurons transmit messages from the brain to the muscles to generate movement. Sensory neurons detect light, sound, odor, taste, pressure, and heat and send messages about those things to the brain. Other parts of the nervous system control involuntary processes. These include keeping a regular heartbeat, releasing hormones like adrenaline, opening the pupil in response to light, and regulating the digestive system."


Saturday, November 17, 2018

The Scott Watson '2 hairs' theory is broken and busted.

I've written about the '2 hair's theory in the Watson case before. Between a prisoner and their freedom can be just the smallest piece of evidence and so it is in the Watson case at least since 2013. It was then when Justice Minister of the time, Judith Collins, claimed they were all that was needed to keep Scott in prison after other aspects of his case were weakened evidentially and in the established process of Law.

The first of weakened aspects of Law or evidence, related to the '2 trip theory' (this is a case where '2' features a lot.) On appeal the Court of Appeal (COA) referred to 'extensive cross examination' on the '2 trip theory' which the had Crown pulled from the coals of the fire of their burning case when there was no proof that Ben and Olivia ever went aboard the Blade. In fact, there had been no cross examination of the '2 trip' theory at all because it was only raised after all the evidence was heard and the Crown got away with it assisted by a helpful Judge. Part of the expression of Defence Counsel at trial is captured in the Doco 'Doubt,' and is worth watching as the defence team shake their heads in one of the worst abuse of the trial system seen in a NZ major trial takes place. It sits alongside the communications 'caravan' police parked outside the High Court during the Thomas retrial when police also socialised with jurors.

Kristy McDonald QC, the reviewer of Scott's first Royal Prerogative of Mercy (RPOM) application  (submitted in 2009 and rejected in 2013) acknowledged the COA's 'mistake.' However, rather than send it back to that Court as was the onus on her under the legislation, she instead said it didn't matter overall because of the strength of the '2 hairs.' The Minister agreed with that publicly without securing her position by asking for an update on the forensics testing which move rapidly in the modern times. That would have been a prudent decision and allowed Scott to be freed over a decade ago. What is less appreciated was that McDonald when summarising the 2009 RPOM application referred to early 2000s COA decisions in the Bain case to dismiss the application. By then however both Bain decisions had been overturned by the Privy Council and so the reviewer was relying upon Judgements that had been overruled. She chose the older judgements which were found faulty instead of the PC judgement that had superseded them. The essence of the difference between the overturned Judgement and the fresh evaluation was to look at points for and against exercising the RPOM in isolation as the NZ COA had done in Bain,  when compared to the Privy Council ruling that such points needed to be looked both in isolation and in continuity of the overall evidence. The difference being in Watson that the 2 hairs were looked at alone and not with their invariable and proper connection to a 'fact' which was that not one witness confirmed the couple going aboard the Blade or even seen, or heard with Scott. That is a big and critical difference. For Scott to be guilty according to the primary evidence, the hairs had to be shown to be beyond reasonable doubt Olivia's, backed up by proof of the couple ever being aboard the Watson boat Blade.

But back to the 2 hairs, the 'miracle evidence' 2 long blond hairs found in a lab after many previous searches. The only long blond hairs out of nearly 400 shorter dark hairs, one 15 cm long and the other 25 long. But there happened to be another 'miracle' discovered in relatively recent times - the police who investigated the case knew that Olivia had her coloured with peroxide just weeks before her disappearance (peroxide lasts up to 2 years in the hair). That information was required to be submitted to ESR and indeed eventually to the Jury. The reason for that is the international recognition of the damage peroxide does to hair and the exclusion of it being analysed in the majority of testing labs worldwide (certainly NZ's as we had no specialist tester at the time or even an appropriate dedicated laboratory). The reason for that is basic, to ensure time and money are not wasted on hairs from which a test result was unlikely, or indeed prove unreliable. Strike 1: on the '2 hairs' easily seen but not found after multiple searches, no disclosure about peroxide, NZ didn't have a specialist DNA unit or hair-testing facility staffed by competent and accredited personnel, in fact ESR at the time was working toward overall accreditation but had not achieved that standard.

Somehow that information was hidden, kept from the Jury and Court. There is a reason for that, is the 'mitochondrial' DNA found on the '2 hairs' whereas there is international agreement that only the FBI could manage such tests on hairs treated with peroxide, and with potentially poor to unreliable results. There is a lot of other information relevant to the '2 hairs' not able to be encompassed here because of the volume of international peer reviewed science on the subject. The most striking being an admission by the FBI in recent years that something over 93% of their cases which relied upon 'subjective' hair analysis as sole evidence were faulty. That within an organisation that is well funded and the biggest of its type in the world, and which has a standard rule that any use of 'hair peroxide' having been rendered on suspect hairs needed to be notified.  So much for ESR.

Clearly that notification was somehow hidden in plain sight in the file. Furthermore 'our' tester used 'subjective comparison' testing with its 93% failure rate but our 'tester' wasn't an expert and had 'help' from another scientist who just happened to be in the lab that day. This is the brief version of events, but what isn't in anyway brief is that police knew that Olivia had peroxided her hairs, and we know that peroxide hairs were unlikely to give a result in 93% plus cases where examiners knew of the presence of peroxide, or indeed where no peroxide was present but where the ESR type of 'hair comparison' method was used. Strike 2 a process of high un-reliability even when in the hands of accredited experts which ESR did not have. Next we need to connect again to a hallmark of miscarriages of Justice worldwide: 'further searches.'

As set out above the 'suspect hairs' took many searches to find. However, 'sample' hairs (to match the suspect hairs by super dooper scientists whose failure rate was 93%) were taken from the home of Olivia once, then again. Just like the search of the flower bed in the Thomas case and the 3 searches required of Lundy's car to find a bracelet which, when found, was too small to have fitted Christine Lundy, or the 'lens' found in Bain household after hours in a room, already grid searched.

The officer who did the  hair collection broke the accredited standards for uplifting and storing the hair - no doubt because ESR didn't know the correct procedure themselves or didn't bother to tell him. What is certain is that at least 3 others in the Hope household, or who visited the home were more likely than Olivia to have been the hair 'donors' if there was in fact a reliable mitochondrial DNA match (maternal DNA line, not specific to an individual). Strike 3 - multiple sample hair collections and searches, specimens not properly handled, specimens not photographed in situation, specimens not collected, handled and stored according to accredited standards, and highly likely to have been contaminated as a result, no peroxide allegedly found in the hairs, never mentioned in the Court by the scientist but found recorded in the file - an important issue itself, perhaps not understood or more than likely hidden but not 'cleaned up' after properly. Detectives did take a record of the peroxide treatment of Olivia's hair for a reason that is not known, however that record never reached the Court.

3 Strikes for already controversial evidence is broken enough. Certainly not reliable evidence to keep a man in prison for killing a couple no one has ever said he ever met, let alone that they went aboard his boat. The '2 trip' theory has other major problems in itself, not firmly appreciated until this year but now backed by witnesses.


Wednesday, October 10, 2018


STATEMENT ON BEHALF OF MARK LUNDY

I have spoken briefly with Mr Lundy and outlined the 395 paragraph Court of Appeal decision dismissing his appeal against conviction.  He now has a copy of the decision.

He is, of course, very disappointed at the outcome of the appeal.  Mr Lundy has long argued that for whatever reason his case has become the testing grounds for novel science.  It was the novel use of the IHC that lead to a successful appeal against conviction before the Privy Council back in 2013 and it was novel use of the mRNA evidence that was the primary focus of the 2017 appeal. The Court of Appeal has found that the mRNA evidence was wrongly admitted at his 2016 retrial.

The Court of Appeal have applied the proviso.  It was only after the appeal was heard that the Crown confirmed that it would seek to rely on the proviso if its primary argument as to admissibility of the mRNA evidence was rejected.    In a lengthy decision the Court of Appeal have concluded that notwithstanding the wrongful admission of evidence that was so strenuously contested both before trial and at trial, that allowing that evidence to be considered and accepted by the jury, has not given rise to a substantial miscarriage of justice and did not make the trial unfair. 

That decision raises important issues and is inevitably one that Mr Lundy will ask the Supreme Court to review. 

In those circumstances any further comment on behalf of Mr Lundy is not appropriate.



JHM Eaton QC
Counsel for Mr Lundy
9 October 2018

Sunday, September 23, 2018

Propensity evidence in the Watson case is bull dust.

Dead case walking:

Propensity evidence is an argument as to something a person is likely to do, mainly because he or she are said to have done so before, spoken about, or displayed the character to do so. When a case has no evidence, the Crown, if pig-headed and intent of prosecuting, might embark on seeking from the Court to admit propensity evidence. That's what happened in Scott Watson's case. There were no violence convictions of prior offending for police use. So they invented some. They did that in various ways but all to the same point - that the jury, if they had any doubts about Watson's guilt, could reflect on things he allegedly did or said to a number of people - who it is now clear could be leaned on, or given 'favours,' or because overall Scott was a bastard wanted for an unsolved alleged murder on Great Barrier Island, who had to be stopped.

Somehow the Judge allowed that evidence, after first ruling it as too dangerous to be admissible. Evidence, which when the Judge 'changed his mind' could have made the Jury feel that Scott was the likely killer because of that material which in totality was not actual evidence but rather allegations that were never proven, 'statements' for which there is no material proof had ever been said and which were not revealed by witnesses at first call. The totality of such, never proven as true or beyond reasonable doubt testimony, would have been unsettling to the juror's minds particularly for those with a belief that police are always right. Scott Watson was being 'tried' for things that could not be proven true but which the Crown was allowed to use to prove a case for which they had minimal, really no evidence. It's a lot to think about in a tight situation, taking objective focus away from the reality that there was no proof of Ben and Olivia ever going aboard the Watson boat or even being in his company. There's remains a strong (and hidden until now) argument about which boat the couple boarded despite a parcel of strong evidence put together over 2 decades - in reality the 'propensity evidence' is a fragile connection between alleged random events linked by alleged talk regarding alleged evidence for which there is no confirmation.

The Crown didn't have proof of death, the Crown didn't have Watson and the couple at any point together, also the further weakness of his being dropped off to his boat alone at the end of a long night with sunrise less than hours away. Nothing found on Watson's boat provided any proof of the couple being there other than speculation. So the argument for propensity evidence also relied on a lack of physical evidence critical to its integrity. That is the pattern of the evidence in this case - a lack of evidence and unsubstantiated talk to fill gaps. Boats shrunk and grew in size, changed colour and number of masts. Sequences of events alleged by the Crown were not linked together, the investigation was not thorough because a target had already been identified from which point all other leads were ignored. Not one question raised from either the Tam team, Police Headquarters or indeed the Crown - no one willing to 'say we never properly investigated this case - we fixed on one potential suspect and completely ignored the rest.' That investigative conduct was somehow permissible, as it is now. That will change in whatever way Scott's current Royal Prerogative of Mercy appeal is settled because a question for the reviewer, and this Government, is whether lack of evidence in continuity is actually evidence at all. Time is going to show that it is not, and this case against Scott Watson will fall in the disgusting heap it has always been.

Sunday, August 19, 2018

Watson convictions failed.

I have good reason to believe the Watson convictions are dead in the water. To some extent I can offer an insiders point of view as to why the convictions are unlikely to be able to be sustained. A year ago the foremost reason would have been the failure of the forensic procedures used to 'recover' the 2 hairs, and later to distinguish whether, as offered by the Crown, they even belong to the missing teenager Olivia Hope. The doubts are beyond reasonable that first of all the 2 hairs came off Watson's boat (they were never seen or photographed their in a thorough forensic examination by scientists), then secondly and more importantly, that they were even Olivia's hair. There were approved standards for the recovery and examination of questioned hair from crime scenes, and sample hairs from other sources - everyone was broken in this case and what followed was a now discredit hair analysis 'system' whereby a 'trained' scientist uses extraordinary (and hoax) comparisons of the questioned hair and sample hairs. Such methods resulted in a 98% failure rate of convictions in the USA which used similar systems. In short no one has that infallible ability to compare hair so finely that can be relied upon as evidence - it is subjective trickery, a tool of the devil.

There are other devils in this case a few of which are discussed here.

Propensity evidence: Loosely described as a defendant who has an alleged propensity to commit a certain type of crime. In Watson we had a number of people who claimed that Scott had spoken about killing women or indeed confessed to doing so. The problem with that evidence is that the witnesses didn't say such things at the outset but developed their opinions over a number of police interviews as other hard evidence couldn't be found. Scott now has one man who was offered his freedom if he would agree that he was a drinking buddy of Scott's and who heard Scott make such claims. We'll call this guy Rambo. Rambo was made angry by the suggestion and told the police officer what he thought of him, which wasn't much. Rambo kept notes of the conversation and we now know the reason why the statement written out for Rambo wasn't signed. So not a single witness who wasn't bribed, bullied or cajoled to tell lies about SW's so called hidden violent tendencies.

The 2-trip theory: The secret trip Scott is alleged to have taken back to shore after being delivered to his own boat alone.  This evidence was dropped on the Jury after the close of evidence by now High Court Judge Paul Davison, the same man who prosecuted the innocent Teina Pora. A man who told the Jury that a positive sighting of a ketch by an excellent witness O Malley, a helicopter pilot, was not backed up by anyone else on the boat - when indeed the skipper of the boat had confirmed the sighting but was never called to give evidence. So that unconfirmed 2nd trip has been a topic of conversation for 2 decades. Now however, Scott has proof that police looked for evidence of the 2nd trip as early as January 98 and for the next 18 months to trial found none, in fact still have none now - the very reason Davison could call evidence to back up his claim.

Possibly the 3rd heading for now could be ketch sightings and the mystery man. Both of which police said never existed - everyone dreamed it up or were mistaken. This allowed the police to move from a two masted sailing ketch to a Watson's small sloop and indeed to a man who was on his boat alone and vulnerable to allegations by paid witnesses and those with torches held to their feet. The police aided this enterprise by deleting evidence, 100s of time. This is not conjecture but something that has been proved. Overall however, do not forget if there was no mystery ketch or no mystery man, the ketch and the man that scores of people saw should have been discounted from this inquiry 20 years ago. Remember that there is a list of over 60 people who more than likely saw the ketch, some even touched it, or rowed around it in appreciation of it's fine style.

As for those deletions it is now proven that they didn't only happen with statements and reports but also with the Photo File. Photos of the ketch are missing. The forensic file was tampered with, witness statements were tampered with and so was the Photo file. The proof is at hand, I and others have seen it - the majority of it is with this Government with more to come.

Corrupted file, corrupted witness statements and evidence, tampered with forensic evidence, photographic and video evidence negates the Watson convictions as does the fact that there is absolutely no proof, and never will be, that Scott did not go back to his boat alone, and the same absolute proof that the missing couple Ben and Olivia were never on the Blade, let alone aboard it in a raft up off three boats with nearly a dozen people aboard. That's the facts, or just a few them from a vast file defending Scott Watson. Watch this space.