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.

Thursday, March 12, 2015

The Lundy case, the Crown inventing a way to lose?

I think most people appreciate that a convincing argument is one that not only endures time but which has an obvious connection to logic. On both of those the Crown look to be throwing the Lundy trial to the wind. They always had a difficult task proving not only a road trip by Lundy to commit the murders and return to Wellington in what has been argued as impossible timing, but also that dna found on Mark Lundy's shirt was brain material from his wife Christine.

As we know now for the first of those tasks, the Crown simply abandoned it to offer that the road trip must have happened later. It appears that the only reason for this was that the time of death they argued in the first trial was much earlier, 'supported' by evidence of the digestion of the stomach contents of Christine and Amber Lundy. The evidence was destroyed so much so that the Crown searched for another time scenario. The dna evidence presented a much different problem for the Crown, if they didn't have hard evidence of the timing of the murders they needed the dna link more than ever. It was on this point that it looks like the Crown invented there way to lose.

One thing for sure is that the Crown are maintaining that Christine's brain matter was found on Mark Lundy's shirt. This, despite evidence, hidden from the first trial, indicated that the quality of the dna was too unreliable to base any conclusions from - a major part of the decision by the Privy Council to quash the original conviction of Lundy. So how have the Crown maintained the located on dna shirt was of both sufficient technical reliability to test but that also was capable of being reliably shown as being that of Christine? Well they have presented witnesses to prove the point including the American expert whose evidence was called bad science by the defence at the Privy Council. All good I suppose, except for the fact the defence have produced witnesses giving evidence to the contrary to such an extent, that the words contained in the previously hidden evidence that the dna was too down graded to rely upon, ring loudly. This is reminiscent of the Bain retrial where the Crown called witnesses in an attempt to undermine the evidence of their own pathologist who had resisted changing his evidence at the behest of 2 experts who had not had the opportunity to examine the body of Robin Bain, in particular and the wound to his temple. In fact there are a lot of similarities between the defence and prosecution run in both the Bain and Lundy retrials. To me David Bain was clearly not guilty and since the trial more evidence has emerged supporting that, with Lundy however I don't know enough to offer a firm opinion on his guilt or evidence but I can say that there is little convincing evidence at this stage.

Always in the background with the Lundy retrial is that the Crown so adamant that Lundy's conviction was safe, suddenly diverted into a new scenario at the retrial after holding firm on their original scenario put to the first Jury for over a decade. That adds to  the uncertainty of their case, as does Christine and Amber's dna being found in both the boot of Christine's brother and also his bathroom - not to forget the earlier evidence of dna being found under the nails of both of the deceased coming from two sources likely to be males. Looking for certainty with the dna found on Lundy's shirt, the search of his car, the transfer of other dna in the case, the first pathologist saying the shirt dna was too downgraded to produce a reliable finding and all the conflicting evidence surrounding the dna shows that in my opinion that there is no certainty surrounding the dna - only considerable doubt.

Pausing for a moment to consider a question often raised by those stumped by this case - 'If it wasn't Lundy then who was it,' or the variant 'I don't know of anyone who could have committed the crime.' As odd as these questions might be they deserve an answer, it's not for Lundy to prove somebody else committed the crime, the onus on him is to show that there is reasonable doubt that he did not kill his wife and daughter - it simply ends there. If Lundy is innocent, and judging 'long distance' on the evidence heard so far - the public have little emerging from the Courts proving guilt one way or the other, confusion for sure, conflicting evidence as well - then what of the man? It's hard to think of a man or woman that you don't know who is under trial for a crime which in this case it is alleged a man in a happy marriage who doted on his daughter was capable of killing them both. I imagine that is difficult for many people, what I can't imagine is if Lundy is indeed innocent - then what he has been through. This is another case underlying an argument that 'Justice' must be better than this, that if the Crown fail to uphold a conviction of this type that they should be restricted in 'claiming' the right for a new trial where evidence so uncertain, it's not good for public confidence and it shows what some will think is a bitterness to hold onto being right. That's a noble sentiment if it were not that Justice is not about people or the Crown personally arguing that they are right, it's about conclusive evidence pointing at guilt being assessed by a Jury. In this case 'conclusive' evidence from the first trial has proven to be anything but, evidence in tending toward showing innocence had in fact being hidden, elaborate (and more so now argued as unbelievable) scenarios have been abandoned and replaced by vague possibilities.

I think we have seen by the Privy Council for the first time in dealing with an overturned conviction for Murder in the Pora case, asking for submissions both from the Crown and defence as to whether a retrial should be held for Pora, that the PC have recognised that the Crown are exercising a right to retrial in a less than dispassionate way, in fact perhaps in a partisan way. That happened in
Bain, it looks to be happening in Lundy - so the PC have sought to offer advice on what is thrown up by both the defence and Crown as to retrials by asking for submissions on it. That is another significant advance arising from the PC, another argument why that Court should be retained as a highest appellant Court by way of Petition. The PC have again relied upon distance from the heat of battle to recognise that the conflict over Miscarriages of Justice in NZ have for a lengthy time reflected bitterness and determination rather than accord to the principles of Justice.

It is not a sound proposition in Law to hold one position for over a decade only to abandon a significant reason for that position while relying on another position which is by no means

Tuesday, March 10, 2015

The Bain case, lost at the bookshop.

There had been less that subtle bragging from the hate-siters that there was a new book on the way that would, yes of course, ensure that David Bain's compensation claim failed. Sort of ho hum prediction by the normal folk desperate for any advantage which might see them gain credibility or save a little face. Many readers will know that the sisters predictions have a dismal record of becoming reality, not least because they obsess over things that are of no value in deciding whether DB may be found innocent on the balance of probabilities a second time. Over time they have exposed a remarkable ability to shoot themselves in the foot because they are absorbed in their own lies with no apparent consciousness that others simply don't believe them no matter how many times they are 'told.' As it transpires the 'book' wasn't so much a shot in the foot but rather a double amputation.

Indeed the bragging was correct, a book was self published and titled 'The Bain Killings Whodunnit.' The 'whodunnit' a sure indication of the author's identity and if the rumours were not certain enough to guess what the books 'slant' would be the author and his or her friends certainly let the cat out of the bag as quickly as a 9 year old sworn to keep the secret of what a sibling's Christmas present was. To say there were major celebrations isn't an exaggeration along with a particular, smug silence as to who the author in fact really was. On that point the author outed him or herself quite early despite trying to speak about his or herself in the 3rd person. By then there was interest in the book by those alert to the damage the mindless sisters would try to inflict given any opportunity. As it prevails it was fairly quickly discovered that 2 shops were stocking the book which they soon withdrew from sale based on advice that it was a highly defamatory work that would never have been published other than by a self publisher.

Of course the sisters protested about free speech, a concept that escapes them that free speech isn't actually an opportunity to speak or write any old nonsense - particular defamatory material or one sided hate speech. Soon however it became evident they had found another outlet - Trade Me. Yes, that's right. The sisters, somehow unable to connect that TM had previously been sued for publishing misinformation and lies on the Bain case, and were therefore likely to be very cautious about the old subject and who was bringing it to the fore once again. The sisters either didn't appear to have given a passing thought that TM would be concerned to learn that the 'old team' were back to their tricks. Though to be fair to the sisters they are well capable of convincing themselves of anything and could have brought the line the book was in fact 'true,' or even bizarrely  considered that TM would be on their side, such are the problems they exhibit. By this time it was known that the book published a name that was permanently suppressed so it is not difficult to imagine why TM withdrew it from sale whilst keeping a wary eye on not being sued itself.

By this time the anger stakes had risen, the sisters scheme wasn't going to plan - a new best seller wasn't emerging to prove that sisters were indeed, after all, 'right thinking New Zealanders. In fact that the 'best seller' wasn't a seller at all. The stakes were raised,  the news filtered out that inquiries were being made about the breach of a suppression order to which a chorus broke out on message boards that the allegation was untrue. Obviously this was a very important issue for the sisters, keen not to end up in Court. By week's end the author had not only outed his or herself, citing having not done so earlier because of the old 'threats' excuse that is always somewhere near the top of the mitigation list. Of course by feeling threatened about revealing his or her identity is some what reduced to pure nonsense when the 'threatened' person does exactly what they had claimed they couldn't do because it wasn't 'safe', but things are never simple in googa land, particularly when the pressure is on. Perhaps more interestingly, and as no surprise to this commentator, the author also revealed the poorly kept secret that the 'book' was actually plagiarized from, yes, the Counterspin site - with permission of course. I can imagine Kent Parker would love to have his 'ramblings' accepted as truthful, it would be a type of vindication for him in terms on the many charges of defamation he was found guilty of a couple of years ago. The later fact bearing no reason for consideration on the dumb author about the 'quality' and veracity of the material he was copying. Meanwhile Kent was equally oblivious that the had been sued before for material taken from his site and published else where - I guess he forgot in his excitement and relief of knowing he was going to be vindicated.

I know that is a difficult logic to follow but no more 'difficult' to accept that the great conspiracy the sisters have convinced themselves exists - that they are the only people in NZ who know what's going on and all theirs mishaps and failed predictions to date are simply an effort by others to hide the truth. They can't comprehend that the latest 'work' could actually be defamatory because it appears to them to be all true and just something they need to 'get out there' without apparently being able to absorb that is what they having been doing for many years. Fun while it lasted, but worth an ongoing watch in terms of the suppression breach. The author now appears to have gone underground, perhaps because, as it is recorded on Beyond's Blog, the book published a suppressed name most likely now to have been confirmed by the Christchurch High Court. It's hard to wonder why when the first information emerged to the author and cohorts they in a fury published the name else where all over the internet. It seems a person of reasonable caution would have made certain whether the suppression order existed or not, rather than argue that it didn't because on the face of it a particular person's name was published until a certain date and not thereafter.

With the many claims about the cost of the self published work that apparently appears not to have been professionally edited let alone cross checked as being accurate in it's facts, it beggars belief that a lawyer's advice was not sought on the contents. I note around the time of publication Kent started blogging again, attacking Karam and the Judge who oversaw his Trial. For me those events happening in apparent unison was not accidental. It seems Kent's blog was the result of he and the author convincing themselves that Kent, because of his failed defences against defamation in particular, was elevated to an expert and that they couldn't contain themselves in their excitement that both Kent and the 'secret' author would be applauded for being 'right' all the way along. Another bus they missed.

Saturday, March 7, 2015

Teina Pora, too easily fallen through the cracks again?

With news that Teina Pora has had his conviction for murder set aside it's easy to forget the identity of a man who spent 22 years in prison for a crime he may not have committed, in fact in my opinion couldn't possibly have committed. It's the nature of the concept of Justice that many in society who commit crimes and who are imprisoned are expected either to reform or to fail to reform in a conscious and most deliberate way. Teina Pora obviously does not have the cognizance of other prisoners or ex prisoners to make informed and reasoned decisions. He appears not to even understand that he is more vulnerable to brain damage than most, because he suffers Fetal Alochol Spectrum Diesease, something that a sufferer doesn't just recover from to the point of becoming a functioning person with a keen sense of what is right or wrong. Boxing is not a place for a brain damaged individual such as Pora.

Why Martin Snedden of Duco Promotions would defend Duco for entertaining an apparent request by Pora to engage in a televised boxing match is a mystery of the modern understanding of brain damage. Pora is already suffering underdeveloped brain function, with no apparent hope of being the same person he would have been for his mother not having drunk alcohol in excess during her pregnancy with Teina. Having him the ring is absurd. Perhaps Duco, like many others, rate Pora as a person capable of having matured from a youth who confessed to a crime that he had not committed, in a house he had never visited. That confession was the product of a mind in short circuit, having never had the capacity to open the vast array of corridors shut closed by the alcohol that the gestating baby Teina was fed. If you watched Duco's event last night in which Joseph Parker had top billing you will have noticed a man in Parkers entourage with Downs Syndrome near the front. I guess we can suppose he is part of the Parker family, someone no doubt appreciated and loved.

That man too, was Pora.

Friday, March 6, 2015

Pora Privy Council ruling, a close run decision?

The decision favoring Pora's conviction being quashed may not be as fragile as it seems. On the face of it what was expected by me at least to be a resounding favorable decision for Pora. However, the reality is that the appeal got home on the basis that the point which the Privy Council gave credence, and importantly so, to a question any Juror would have, why did he confess.  The PC accepted that he may have confessed due the effects of his mother drinking heavily during the pregnancy leaving him with identifiable problems, some of which, a Jury might consider as an explanation for his confession to a crime a large portion of NZ believe he did not commit.

Underlying that single point, which I don't know how was dealt with on earlier appeals, is the fact that while Pora had an apparently strong case for appeal, much of it based on common sense, the doubts that he undertook the crime with an older, more worldy gang member and convicted lone wolf serial rapist, and as fragile as that made this conviction look - it remains that Pora would still stand convicted today if not for potential answer being given to the basic question - why did he confess?

Of the few PC decisions I have read this one had no summary of facts and circumstances that took a reader through a lengthy tour of the case toward a decision. To my mind it simply established that there was an answer to a question that a jury were likely to have in their minds. That is what I mean by the appearance of a close run decision, no doubt because the PC considered, obviously rightly, that any Jury would make up its mind as to the credibility of paid witnesses, the likelihood or otherwise of Pora 'teaming up' as a teenager with a man, from a different gang over 20 older than he and so on.

Again I am struck by what NZ loses with the right to the Privy Council gone. In a few short years, three lots of murder convictions have been set aside in cases our own Courts were not able to remedy. While we now have a new superior Court, the fact is that it still sources Judges from the same pool which has resulted in a number of serious Miscarriages of Justice not being put right. The argument traditionally was that NZ needed to chart its own legal waters, while time has shown we can and do chart our own legal waters we can and still would benefit by an association with the Privy Council. We can have our own Supreme Court and still allow petitions to the Privy Council for leave to appeal, and continue with our Judges sitting on the PC from time to time which has happened for many years. It seems the Pora case and others show that our relatively young legal system too soon wanted to 'grow up' and be independent, when the argument should never have been about legal independence at all, rather about drawing from the deep and living history of the Law many centuries older than ours.

But as to the re-trial or potential re-trial of Pora. I believe there has never been such a dilemma facing The Crown with what appears on the face of it, trying Pora again and still being left with the natural conclusion that highly probably the gang member twice tried for the same murder, Malcom Rewa, will never be convicted. Alternatively to that, not trying Pora and leaving the country with the dissatisfaction that Rewa escaped conviction. Or thirdly possibly trying Pora again, having first sought evidence confirming the diagnosis accepted by the PC of Pora having perhaps suffered from Fetal Alcohol Spectrum Disorder and calling such evidence at the outset of the trial, then after cross examination and assuming that the opinion is consistent with that which the PC based its decision on -  seeking leave of the Court to withdraw the charge. In this manner, or in some way to the same affect, Pora would be entitled to claim for compensation and an possibly an apology but probably more importantly in terms of the public interest Rewa could be retried in such a manner that there were no distractions for the Jury that someone else, according to the Crown, was also involved. Rewa would present as having admitted having 'sex' with the deceased and need to prove a defence that someone else was responsible for her death. 99% of the public it could be safely said wouldn't  believe that defence for a second.