Sunday, February 28, 2016

Did Justice France abort the Lundy retrail.

The above link shows an New York Judge has ruled that 2 dna procedures for testing render results for being used in a prosecution inadmissible.

That's a good step, bad science, or details that are complex for a Jury should be inadmissible. If there are doubts about the validity of results from a testing procedure, or results that would be on the balance of probabilities difficult for an entire Jury(or even a Judge) to follow - the evidence should beruled out.

I think I know what happened in the Lundy case. Test procedures were used which gave debatable results on which Lundy was convicted. Those procedures were used again in the retrial. There were pretrial motions to have evidence ruled inadmissible because the dna procedures used were too risky, unproven over a wide range of cases, or peer reviewed to an international standard.

What I don't know is if there was a pretrial motion to have the retrial put aside and an order sought for him go free. The reason for that is obvious. The Crown found a new case against Lundy because their old one proved to a pile of rubbish. Anyone tight in a relationship, personal, business or friendly knows that if 1 party is exposed as untrustworthy or incompetent in their work the nature of the relationship is changed, in fact may become irreconcilable in it's validity. Because we don't know if there was a pre-trial motion to dismiss the charges against Lundy, attention is brought to bear on if Justice France considered that the changes the Crown made to it's case were fair or not, if indeed they it was safe for the trial to continue.

2 things are clear in the Lundy case, his conviction can only rest upon the car trip he allegedly made back to his home where the Crown say he killed his wife and daughter with a machete or similar in the first instance and the alleged evidence of his wife's dna (Crown say brain matter) on his shirt. Justice France would have been aware before the trial of the controversy regarding both matters and which the Privy Council quashed Lundy's first convictions. With that in mind Justice France was tasked in being alert to that which had failed in the first trial and resulted in a Miscarriage of Justice to ensure that Lundy got a fair second trial (The Crown itself having ignored the option to simply not proceed a second time) and that the public interest in the case was maintained.

Let's look at that again. The Crown relied upon a car trip having taken place, relied upon science to prove that Lundy's shirt provided evidence of his guilt beyond reasonable doubt. When the Crown prepared for the retrial they rather belatedly gave notice that the essence of their first case was to be abandoned in 2 distinct ways, they no longer claimed a specific time of death, they had a freshly claimed position of the previously disputed unreliability of the testing sample taken from Lundy' search. Immediately Justice France would have observed this highly controversial change and presumably considered if it fell within precedent of the boundaries in which the safe administration of Justice falls. That is his job, he oversees the complete trial, the management of witnesses, their evidence, evidence admitted to the trial, any concerns about the validity of evidence and whether it is first of all sound and admissible or whether it may be in danger of not being understood properly by the Jury, or indeed by the Court itself, whether it could be unfairly misinterpreted as not only too complex but also not of proven and peer accepted relevance in a trial where a man's life was at stake.

All of this fell upon Justice France, in didn't matter what arguments may have been raised by either the Crown or the Defence for or against the science, it was for Justice France to decide. In his decision as a principle of our Law and the way it evolves he was required to look closely at the specific areas of concern individually and then in continuity of other evidence. Here we go back to the 2 keys of the Crown case with which they endeavored to convict Lundy a 2nd time. The 2 planks - a car trip, and what was allegedly found on Lundy's shirt and the strength and weaknesses of the analysis of the handling and testing of that material.

Looking at the first of those planks the car trip Justice France was required to consider all the supporting evidence both that which it was proposed would be offered at the 2nd trial and that which had formerly been offered at the 1st. Which in the case of the alleged car trip was dramatically changed along with the time of deaths, in fact there were few similarities between the old allegations and the new. Such things as an alleged 'sighting' of Lundy being seen running from his home dressed as a woman were gone in a puff of smoke. The precision as to the timing of the deaths no longer existed, it had gone from a tight gambit to an open ended one. The only thing in common with both the first and the 2nd scenarios was that Lundy was not observed by a single witness. Let's be clear the car trip Lundy allegedly took in the early evening compared to the 'new' allegation that it was in the early morning of the following day had no supporting evidence, none at all. Even the dna evidence we will turn to later didn't support either trip claimed by the Crown if indeed it can be accepted as being of unimpeachable value itself. Weak evidence doesn't become stronger because of 'support' of other weak evidence. Remember no one saw Lundy make that trip, saw his car leave the motel or return or his car enter or leave the vicinity of his home. Lundy is of distinct size no one saw him either on the streets of Wellington or his home town in the hours before and after Amber and Christine were killed.

Now the 2nd plank and arguably the more contentious than the mystery trip - the matter found on Lundy's shirt, its handling and testing. Firstly mentioning of course the hidden evidence from the first trial which saw the conviction overturned. That is the evidence from the a pathologist that said that the alleged brain material was too down graded to test. As I learn more about the Lundy case it is clear all the literature agrees that brain matter deteriorates quickly. The first pathologist said that Lundy should not be convicted on such a deteriorated sample. The head of the case hid that information from the first trial and the defence. His actions there were deliberate, he would have considered that he might not get a conviction if the Jury and Court knew what the pathologist said. It goes deeper than that, if one pathologists in NZ held that view there wasn't a 2nd in NZ prepared to support that the test material was suitable for reliable examination. No doubt Grantham looked but found no one. I don't know how Grantham explained the withholding of this evidence, but he was because of his non disclosure, responsible for the first trial verdict being set aside. Any reader will have their views on a situation where evidence helpful to an accused man is hidden.

The question for France however was no different, he had to consider if the cornerstone of the first conviction could fairly, and in the interests of Justice, be used again. When considering that he had to look at the contest as to the validity of that evidence and consider it along with the other changed details of the case. In a pretrial motion in which the validity of the testing of the shirt material was challenged it appears that witnesses for the defence conceded at some point that the testing procedures if on an 'air dried' basis could be acceptable. The Judge needed to consider that along with the conduct of the Crown in the first trial and if what would be the pivotal evidence of the dna, was supported by other independent evidence of guilt - in that event, there was no confession, no witnesses, in fact there was only the 'changed' times of death, the changed times of the alleged car trip, all very weak in themselves. If there was a short fall in the Crown case between what they had earlier said, compared to what they wanted to say at the 2nd trial, that didn't support the controversial evidence and it would have been wrong for the Judge to reason one supported the other.

When there are cracks in the validity of a conviction history shows they seldom are mended, as a rule of thumb they mostly deteriorate as the 1st pathologist said of the shirt sample. I've been recently reading more about the Lundy case mainly because of grave doubts about the validity of the American scientist's work on the shirt sample and secondly because the Crown case was allowed by France to change so much - in other words present a fresh case in place of an abandoned one they held onto for over a decade. It doesn't make sense, something is fishy.

I think there is only one place to look for the cause of the concerns about Lundy being convicted on a new scenario when the original now lies abandoned as false. It strikes as a travesty in every sense that must be at the feet of Grantham because he afterall was the 'boss.' It was he, untrained in science, who looked overseas for an expert to conduct tests that NZ scientists would not. But firstly he hid the information given to him by the first pathologist to observe the samples and who basically said it would be unjust to rely upon testing them. If that information had candidly been placed on the Court file, instead of hidden, no one would be able to observe today that Grantham had acted improperly. It would have been above board and not secret with all the connotations of how secrets that favour the Crown are seen as leading to Miscarriages of Justice as did this, at least in the eyes of the Privy Council. Justice France needed be mindful of that throughout the trial - that Grantham had willfully withheld evidence from the Court in the first trial and even if Crown Law or police were prepared to allow his continuance as head of the case then it fell upon Justice France to observe the public interest carefully along with ensuring Lundy was tried fairly.

I can say that I am now aware that there was samples taken from the crime scene which were too downgraded to be tested, one from the phone and another from a place mat. A reader must remember that the crime scene was in control of police within hours of the homicide and the shirt much later. We are now asked to accept what deteriorated in the crime scene had not deteriorated on the shirt many months later. I don't know how this was dealt with at the retrial or if Justice France commented on it in his Judgement for Miller's forensic work on the shirt to be allowed. Common sense cannot reconcile the 2 points in opposition of one another, suitable of the shirt test months after the murders but not suitable in the crime scene within hours of the murders? Don't think so.

I've blogged before about the special handling that Grantham gave to Lundy's shirt. He never allowed its custody to be handled by the exhibits officer, in fact I gather it was kept secret from the exhibit officer who gave testimony that he had in his experience never had an item of evidence been handled in a separate way. Grantham gave some comment about this which I have blogged about before, at the very least he saw the shirt as the golden fleece of the case, or at least an item that would become the golden fleece, he nurtured its acceptance as evidence by not disclosing a fundamental report on its unsuitability as a reliable foundation for a conviction. He must have known he was misleading the Court in the first trial, equally Justice France must have been acutely aware of the Privy Council's comments on the shirt. It was, and remains, the hot potato.

Something else which has come to my attention is that the esr have correspondence from Grantham dating to before the first trial asking for samples of Christine's brain material. What I don't know is if those samples were tested for neurons and blood before being released. I do know that Grantham has denied ever receiving them, at this point I don't know how that has been resolved between ESR and Crown Law but a public statement would be helpful. I have been told that the samples were released to Grantham 2 weeks before his trip to America to met Miller to hand over the Lundy shirt.

Diverting back for a moment. That shirt with it's alleged brain matter on it was revealed as having been 'dampened' at least twice before being taken to America. The first was when a damp laboratory slide was scrapped across marks on the shirt, the second time when the shirt was dampened and squeezed out of water which was gathered for testing for dna residue. A reader should remember that brain matter deteriorates rapidly outside the body (recall here that such matter within the crime scene was unsuitable for testing because of rapid deterioration) and that deterioration is accelerated by moisture. What had been tested in NZ, dampened, and not air dried, would over a half a year later respond to Miller's procedures despite no certainty of how the samples had been handled by Granham along with unknown scientific analysis as to what happens to samples transported by plane half way around the world in what most likely were uncontrolled climatic and air conditions. All this faced Justice France.

Even such a imprecise combination was complicated further because there were arguments to and fro about the test procedures and handling. One can assume that not a single witness had all the combinations put before them and asked if the uncertainty of the combination was safe to put before a Jury. The only thing I can see that Justice France can have been certain about was the original pathologist's statements, that warning about the condition of the sample remained at the top of the pile built by Grantham and Miller, along with the knowledge that Grantham having failed to convince another NZ scientist, to carry out the test the first pathologist refused to do, knew the NZ scientific community gave Grahtham's quest no support.

Did Justice France look at the alleged car trip to support the highly controversial dna evidence, then look at the highly controversial dna evidence to support the unseen mysterious car trip. We don't know at this stage, but common sense is that heap of rubbish is not supported by unclear evidence or the other way around.

A reader must remember that the material on Lundy's shirt was possibly residual, unable to be washed out by Christine's use of cold wash washing powder, it was also possibly from cooking animal meat on a bbq, it was down graded from the beginning. There is information that Miller's claims of air drying a sample are inconsistent with scientific literature which say the only human items which can be successfully air dried for testing are blood, bone marrow, cervical scrapings. If that could be overcome in Justice France's mind (assuming it was put before him in the pre-trial motion) he also needed to consider that we know happened to the samples before they went to America, in particular the wetting and wringing out before entering the cross fire of the scientific opinions one of which, at least as the trial proceeded was supported by having been referenced over 3000 times internationally (an impeccable confirmation of opinion), the conduct of Grantham. What was before Justice France was fluid, it began with pre-trial arguments that culminated as Justice France allowed the prosecution to repeat in a soulless and unsubstantiated mantra that Mark Lundy had no right to have his wife's brain on his shirt when there was absolutely no reliable proof that he did. Justice France by then had let the tiger out of the cage, he'd let controversial evidence be shaped into a damaging beast, in my opinion he let the trial be aborted.

I can't see the Lundy case going away. I remain concerned as many others will do about the nature of the new evidence, not only that but the handling of the shirt, the hiding of evidence. I want to know more about the mystery man Miller and the audit controls on his testing procedures and if Justice France inquired of them to satisfy himself that which was too down graded for testing in NZ became miraculously changed. I want to see reconciled  the confusion as to whether Grantham was given slides of Christine's brain matter before he went to the states. It's not over until these questions and other arising from them are solved. Check out the link above and see how an American Judge took a different view as to controversial testing procedures and consider whether it was that Judge or Justice France that has best served Justice.

Footnote: I concede I may not every point here correct in fine detail and am happy to correct them. I also note that I have asked about the samples allegedly been given to Grantham 2 weeks before his trip to America being tested before released, and if those tests were for blood and neurons because Miller has said that 'his' samples showed neither - another deep mystery in this case that would have alerted the Court to the precariousness of the safety of the trial.

2nd Footnote: I have since read the Judgement on the Defence application to stop the Crown presenting various scientific evidence regarding stains on Lundy's shirt. That Judgement was presided over by Justice Kos and not as I had thought by Justice France. Of the 2 samples taken by Grantham to Miller in America one was too degraded for testing purposes and one was not, the sample first preserved by ESR was downgraded but a second preserved some months later was not. I think the Judge referred to that as a curiosity. but didn't find it unacceptable enough to exclude the evidence. There was material found in the murder scene too down graded to be reliable for testing, of two specimens sent to the States 1 was not suitable for testing. I would have 3 out of 4 being positive for testing was acceptable, but 1 out only 1 out of 4 looks to be inviting trouble. Kos used the fact that the 2 from the crime scene that were below testing standard to accept that only 1 of 2 taken to the states was acceptable. That's a lot of optimism, if the buyer of a 4th new car out of which 3 previously had failed safety tests was happy to go on a long trip in which life or limb was in danger in the event of a breakdown it's hard to imagine he'd share Kos's optimism.

Wednesday, February 24, 2016

What has changed in the Watson case?

Here's a list of why I think Scott Watson should be retried, I'm sure there others I've overlooked.  Feel welcome to send details.

1/ Rozz McNeilly a shift Manager of the Furneaux Lodge no longer positively identifies Watson as being with Olivia in the bar. She says she was tricked by police in identifying Watson and realised this later.

2/ Guy Wallace no longer positively identifies taking Watson and the couple to board a boat together in the early hours of new year's day. Guy says that he was tricked or mistaken in his belief the man with the couple was Watson. McNeilly and Wallace no longer put the couple together with Watson, and even more importantly together going onto Watson's yacht.

3/ A couple are now identified (I don't know if they gave evidence at the trial) who were rafted to Watson's boat the Blade and others when he came aboard in the small hours looking to party and proposed to the woman's partner that she might spend some time with him. The vessel was The Blanco, at the  this time according to the Crown's sequence of events, Olivia and Ben were either dead or alive on The Blade when Watson anticipated going with the woman on the Blanco back to The Blade where the couple were. This is a major and serious flaw in the Crown case. I don't know whether it has been touched on before, but when added to evidence now favouring Watson it points to him being innocent.

4/The mystery ketch of this case may now have been identified as the Alliance, however there are other, what would be new witnesses, that saw 2 ketches at the same time (one being the Alliance) soon after the disappearances - providing the possibility that the mystery ketch seen at the same time as the Alliance had the couple on board or  that they had been on board some time earlier. The second unnamed ketch was seen by several witnesses whose recollections appear clear and bring another new dimension to the case that was not heard at the trial.

5/A witness saw a person on a ketch (not the Alliance), after the couple's disappearance, that he believes was Olivia. This wasn't a drunk person at the Lodge, but someone out on the water following new year's eve. His evidence is also new, and material.

6/ 2 hairs lifted from a blanket from the Blade and said to belong to Olivia are now identified as being from the same hereditary line as Olivia's mother. In other words they could have belonged to either Olivia or her sister. Whilst they were not found on a first thorough search in the Laboratory, the 2 hairs were found in a subsequent search on the same day that a hair brush belonging to Olivia's sister was delivered to the lab. The 2 hairs were later found to be contaminated from other contact. There is now evidence to say that the contamination could have happened by the brush being used by the 2 sisters, probably not an unusual event in a household. It's important to note that a/ there was absolutely no other evidence found on the blanket, or indeed the Blade, which linked to the missing couple, and b/ that I do not know the laboratory practice techniques employed reached an international standard that ensured no possibility of cross contamination of the hairs within the lab.

7/ A witness who claimed Scott Watson 'confessed' to murdering the couple and who gave disgusting details of the crime has recanted. The NZ police are now unable to find this witness, however his evidence still stands like that of other witnesses above as indicting Watson when that no longer is the case.

8/ A recent book by Ian Wishart, which I apparently 'fisked,' what ever that term means, exposed (possibly inadvertently by IW) that identifications of Watson and a second person who may have been in contact with the couple in the bar are horribly compromised. This is supported by what Wallace and McNeilly now say. Along with another witness who saw Watson after the couple's disappearance when Watson was allegedly trying to hide and disguise his boat, Watson waved out to him. It must be remembered that Watson never denied being in the bar, there is no suggestion he had disguised himself in anyway, while in fact there are clear indications he drew attention to himself as did many others that night in a confusing flux.

9/ Also, thanks to Wishart's book Elementary, we now know that Watson had intended to paint his boat long before he eventually did after the couples disappearance. What is also apparent, and which wasn't appreciated by myself before reading Elementary, is that Watson was well known to police in the Sounds, and consequently therefore to the locals there. None of those locals identified Watson at the Bar.

10/ 'Secret tapes' exposed by Wishart into conversations held in the Watson household show the family did not believe that the couple had disappeared and thought they would turn up again. The tapes also show that a PI hired by the family asked questions that on the face it looked like they may have been questions the police were interested in knowing the answers too. The tapes, which arguably should not have been revealed by Wishart are now material to the fact that the Watson family firmly believed the couple were not dead. They did not, as has been implied, look to cover for Watson but certainly were concerned about the attention he was receiving as a suspect.

Some of the material above was included in the application by Watson for exercise of the Royal Prerogative of Mercy. When that application was turned down, and the findings made public it was revealed that the investigator of the application looked at all the points favouring Watson individually before dismissing them - presumably in doing so relying on other points of the application to do so. So where the supporting evidence may have failed to cross threshold of bringing doubt upon Watson's conviction, it was seen as supporting evidence in refusing the application.That reviewer, Kristy McDonald, never looked at the points in continuity, that is a Miscarriage of Justice. It is a requirement in practice for items of pivotal importance in a case to be looked at individually and then collectively. What surrounds weak or strong evidence is to be viewed as to whether it adds or reduces weight to the evidence. That was never done in a way consistent with due process and fairness, let alone using a word never used in the finding, with Mercy.

I think even a pessimist sold on Watson's guilt can acknowledge that points above (including others that I may have missed) are matters for a Jury to decide the individual and collective weight and therefore should have been referred to the NZ Court of Appeal as the legislation allows. The Watson conviction is weakened on many fronts by new material that stands alone, and in sequence, in a manner which undermines the validity of his conviction. Some single points appear to tip the balance in Watson's favour as unfairly standing convicted, but it is the overall continuity of a number of points which fully turn the tide against the convictions to a point of requiring a retrial.

Monday, February 15, 2016

Disturbing handling of dna in Lundy case.

Most people knew before the Lundy retrial about the officer in charge Ross Grantham overlooking the advice of a NZ pathologist and going to another in Texas who claimed dna found on Lundy's shirt belonged to his wife. What probably wasn't as widely known, although it did surface in the first trial, was that Grantham handled what would become the dna exhibit in a way that the exhibit officer said he had never heard of happening before. Grantham uplifted the key to the exhibits fridge for perishable exhibits and placed the exhibit there without telling the exhibit officer.

It seems that this is a major clue in understanding what has happened in the Lundy case, including 1 of the reasons Grantham gave in evidence for not having the dna handled in the normal way. More on that later. Firstly however, it's becoming clear that the Lundy case is at the cross roads of the way NZ handles Miscarriages of Justice (MOJ). The case already fits as a MOJ by virtue not only of the first trial and conviction which was overturned as a MOJ, but also the second.

There is a lot to be concerned with in Lundy's conviction. Foremost could be that after 15 years the Crown abandoned their theory on how Lundy had killed his wife and child, that is the time when it happened. Considering that time of deaths the Crown first said was relatively early in the evening, their basis for that was the contents of the stomachs of Lundy's wife Christine and their daughter Amber, someone allegedly saw Lundy running away shortly the pair were said to have been killed, this fleeing all part of a breakneck drive from Wellington and back, the clock settings on the Lundy home computer which the Crown alleged had been changed by Lundy in order to shift the presumed times of death from earlier to later - that's a lot to change. However all these alleged events changed for the 2nd trial. With that change any person watching the proceedings would have been entitled to think something along the lines 'Hold on mate, You said it happened 1 way at a particular time and had evidence to prove it, now you are saying it happened hours later.'

Well, that would be a fair enough observation and I still don't know why the Courts allowed the Crown to essentially bring another version of events after bitterly defending the first trial verdict for over a decade. Particularly, when the Crown had deliberately not told the defence at the first trial of evidence strong enough to help overturn the Lundy conviction 12 years later. Let's think about that first evidence, a high speed car trip which no one saw. A pathologists who claimed to be able to determine the time of death by smelling the stomach contents of the deceased. A computer expert who claimed that the Lundy computer time clock had been manipulated (to give Lundy an alibi). A witness who saw a fat lady running away from the vicinity of the Lundy house at around the time of the 'then' confirmed time of death. There was no doubt that the Crown inferred that the 'fat lady' that was never found was Lundy dressed as a woman. So a defendant who made a car trip at breakneck speed but who was never seen, running away from an address in woman's clothing as a disguise, supported in time by a pathologist who could 'smell' the time of death, in turn supported by an 'expert' who said that the Lundy computer clock had been manipulated in effect to misrepresent the time of death as Christine always used the computer before going to bed - her being up late didn't work for that particular police theory.

Anyone who has read my last post on the Lundy subject will know that I had correspondence in reply to questions I had about the fairness of the Crown coming up with a 'new' story. Despite, and leading from, that correspondence, I want to now know how could the pathologist's defeated smell test, the computer expert, the woman who saw the fat lady running suddenly no longer be relevant when for a dozen years it was a large part of why Lundy stood convicted. The public needs an answer to that or fear that the wool is being pulled over their eyes, again.

Reading some old reporting on the case there was evidence of a person being offered immunity as they were suspected of being an accomplice to the murders of Christine and Amber, when did that trial go cold and why? Recalling in particular on that subject is that there are people who claim to be afraid to speak out on the identity of at least 1 suspect. Why was the offer of immunity abandoned years before the smell tests, running fat ladies and computer fiddling were also retired? That's a lot of abandonment in a case, it's also a lot of skepticism the public are asked to swallow.

There's something bloody fishy going on. The Crown have had 2 bites at the cherry. Let's not forget that Ross Grantham was told that dna allegedly found on Lundy's shirt should never be used to convict Lundy because it was too down graded. Now that didn't stop Grantham going to Texas because he found some body willing to say otherwise with what at the time was a virtually untested procedure that I understand still seeks criticism nearly 2 decades later. Why did he reject the first opinion only to settle on the second - what could he have known? Was it gut instinct or tunnel vision, if it was either he had lost the plot. In as much as we have to look at the suspect or convicted person in a controversial case, we must also look at police tactics but more particularly the man or woman in charge of the inquiry - even to observing whether or not they 'trusted' their own team or were trusted by their own team. Where things don't stack up in a logical way matters of concern must be looked at closely for clues and balance.

The following for example is something that needs to be thought about. When one pathologist rejected the reliability of the status of the dna to produce accepted results, why did Grantham go to another - outside NZ, rather than simply ask the same provider for a 2nd  or even 3rd opinion from other members of it's staff providing his reasons for the request in writing? It's easy to say that he did in fact seek another opinion but if that is an answer then another question needs to be answered - why did Grantham keep secret from the first trial  that first evidence from the Crown's own pathologist. Grantham knew it was material evidence from a qualified pathologist, it was his duty to disclose the evidence to Lundy's lawyers.

Asking these questions is important because they have given rise to doubts, therefore demand an answer that is comparative to the circumstances, the consequences, and on probability whether the answers satisfy inside a sound prosecution and conviction, or not. I've heard why Grantham said on oath that he broke normal procedures and handled the dna in secrecy even from the exhibits officer. A man who might well have been shocked to find out that he wasn't part of inquiry, fell into a catagory perhaps as to persons that Grantham didn't want to know along with Lundy in particular. Much of what happens to those experiencing a MOJ is that events that are odd are essentially blamed on them. Lundy already knew he was a suspect, knew what clothes he had been wearing that night, it was no secret to him and certainly not a reason why the officer in charge would be concerned about the information leaking out. What would Lundy have done if he'd known, there's only 1 answer - he couldn't do any bloody thing anyway. Grantham on the other hand could have trusted his own staff so no suspicion would fall upon the handling of the controversial dna.

Let's not forget that the dna, like the time of death, the computer tampering, the driving at breakneck speed for over 2 hours and not being seen on a busy road,  the running fat lady, the black magic of sniffing stomach contents and the possible accomplice who immunity was considered for. Let's forget none of that as the Crown now wish, but weigh that up in an overall Crown case, one that changed clothes and expected that would not be noticed. Why did Grantham accept the black magic test but not that of a pathologist employed by the Crown. It's easy to see from the 1st police case that a whole lot of stuff was made up, other information ignored - even hidden. Where does one take confidence from that? With real evidence - but we still don't have it, so Lundy should be let go.

Overall, if Grantham did not have confidence in his own staff, did they equally have less confidence in him than would be expected in any inquiry let alone one investigating the deaths of Christine and Amber? More so however, if Grantham was in charge of the case and all the evidence discredited at the Privy Council was his objectivity and methods to be trusted, again. Was it in the public interest for an officer who had overseen a deliberately perpetrated MOJ to continue with the case? Common sense and public opinion says no, remove the risk. Who was the alleged hit man or accomplice that it was considered to offer immunity against prosecution? Surely the public can have those details rather than a nagging doubt as to why Grantham could stay at the helm after the first trial was found to be a MOJ with critical evidence hidden and which relied upon unscientific data? The only material Grantham seems to have accepted was that which under a favorable light said Lundy but which under greater scrutiny was revealed to have fed a MOJ.

Let's look at case 2 briefly and make comparisons with case 1

Both cases have Lundy driving to Wellington and back and not being seen. However in case 2 he is required to have consumed an entire bottle of rum before the trip.
Case 1 has a tampered with time clock that now actually (in case 2) is where the Crown now want the time to be reading correctly.
The smell test is gone in case 2 and other methods of scientific weight are employed moving the times of death to where the Crown didn't want them to be in the first trial.
In case one the dna allegedly taken from Lundy's shirt weeks after the murders (always a sign of concern in any MOJ) was said to belong to Christine. The defence said that the dna could have arrived on Lundy's shirt accidentally and at some point from memory to have possibly been planted there. In case 2 an international forensic scientist whose work has been referenced over 3500 times said that the dna was not Christine although the prosecutor (wrongfully in my opinion) was allowed to claim that time and time again in his closing address - presumably without any censure by the Judge or objections from the defence. I am reminded here of the correspondent who's view was that the defence weren't prepared for the battle. On this basis what would Michael Reed have done to the Crown case had he defended as he did the Bain retrial - shredded it to pieces I believe. In case 2 the fat lady is gone along with, imo, the credibility of the Crown and our Courts. Michael Reed or someone his tenacity and clarity of thought would have had the real case echoing in the Jury's mind from the outset. But remember that's not Lundy's fault.

This Lundy conviction is not clean and transparent, it's a rehash of a failed case that relies on the goodwill of a Jury to accept the police made minor mistakes but overcame them to provide the right ending. That's simply bs. My opinion is that the prosecution should not have been allowed to change their case is such a material fashion, that perhaps even that it was too dangerous to put before a Jury because of how much it had become compromised from the original false case. Let's be clear the essence of the first case was false, and the second looks even weaker. For example if Lundy as alleged was so smart to alter the computer why didn't he also know that it would be difficult if not impossible for the bodies to not provide an accurate time of death. In fact the only time they didn't was when the police needed to establish an earlier time of death to make Lundy seen to be guilty.

A correspondent has sent me a video in which is made clear how a number of MOJs in America are overcome by civil cases on behalf of a defendant because more information becomes available. The same correspondent sent me the thoughts of an observer of MOJ's which concludes that police only look for evidence directed by their targets or suspects and not further - so of course they are not working to find any perpetrator but more to find the proof against 'their' perpetrator. That reminded me of an online 'expert' on the Bain case who wrote that he concluded that it was Lundy because the writer couldn't 'think' of anyone else that could have done the crimes. I think Grantham thought along similar lines. Even if he didn't, he has left behind deeper concerns about Lundy's guilt, not only by changing the theory, but increasing interest in parts of the 'new' theory that fail to make sense and have no independent corroboration. I don't believe that the many experts who gave evidence for the defence on the dna were wrong, particularly not the scientist whose work has been referenced in other cases over 3500 times world wide. I don't think anything substantially confirms that Lundy left his motel room that night and drove for hours while drunk and was not observed. I also think that the other suspects aspect needed greater attention from the police so that it could have been if not ruled out at the trial then put into perspective for the Jury, if indeed the case should even have been retried.

Does changing a clock change the time of death, are pathologists so redundant to the process of determining time of death that a mere changing of a clock makes a difference, that the transition to the state of rigor mortise is also changed, core temperatures and their fall compared to external temperatures also alter? No, not at all. Does hiding evidence and a presumption that police cannot be trusted by their superior give confidence, particularly where confidence had already been achieved only to disappear when a new version appeared? Never. When an investigation falls over in a spectacular way does the person in charge have credibility to be given a 'second go?'  You decide.

Thursday, February 11, 2016

What's happened with the Lundy case?

Easy to forget the Lundy case which until Mark Lundy was convicted a 2nd time looked a fair chance of being found not guilty. The case against him was in shreds and as readers know the Crown essentially offered a 'fresh' theory at the retrial as to how Lundy killed his wife Christine and daughter Amber. I was surprised by that for a number of reasons. Primarily because the Crown held onto the old theory for over a decade denying in ever way that any of it was wrong. This despite misgiving about a 'hair raising' drive that Lundy was said to have made in a rush to kill his family before returning to a rented motel room in Wellington. At the hearing of Lundy's appeal to the Privy Council we learnt of a Crown scientist reporting that dna found on Lundy's shirt, and said at the trial to be that of his wife, was too down graded in the expert's opinion to provide reliable testing. That information was never released, despite the rules of disclosure, to Lundy's lawyers at his first trial. There was also some remarkable evidence by a pathologists who claimed to be able to narrowly define the time of death of the victims by a 'smell test' of the contents of their stomach along with a visual inspection of the same. That may have been a world first, and last, though remains an indicator as to why there has been public disquiet about the Lundy convictions.

Somewhat miraculously for The Crown they also found a woman who gave evidence of a fat women running away from the vicinity of the Lundy household around the time of death. Another miracle of sorts was performed by a police computer expert who said that the time clocks of the family computer had been altered forward in order to show Christine was up after the time designated as the time of death. In other words Lundy had done this to throw investigators of the trail. In all, every aspect of the theory was covered and it would only be at the Privy Council hearing where the public would hear how fragile and incorrect the case against Lundy had always been. In fact that it has been put together on hope and opinion which did not bare examination. That the bizarre aspects of the case were accepted by the NZ Court of Appeal who even wrote about the drive at 'breakneck' speed, and also who went from declaring the murders well planned to only later say that Lundy had snapped shows reason for concern about Judgements from that Court in the 1990s and early 2000s when the same Judges were being elevated some much competence to be seen to no longer require overall assistance from the centuries old Privy Council. They got it wrong in spades, as they did in Bain and in Pora in a most damning fashion.

Move to the new trial and things twist. The Crown had a new time of death, a new time that Lundy allegedly made his trip, the computer clock time was revisited. In short the only striking similarity was that despite the first theory being wrong the second was right and Lundy was guilty.

Because this puzzled me I recently wrote to a few friends with various expertise in the criminal Justice system for their thoughts, proposing that to be a possible issue on appeal .Although they each had different views, the views rather than colliding complimented each in a interesting way. One view was that the problem had been in the defence not being up to the fight against a 'mendacious' opponent, and for that reason Lundy's hopes were over. A second was because there was no secret that Lundy was in a bind over a financial commitment that could have provided merit for looking deeper into whether the crime might have been an off target hit of some sort, alternatively the writer said that Lundy fitted the familicide characteristic so that respondent looked for motive. Of course each response relied on specific information in response to my basic question of was Lundy treated fairly by having a different case thrown at him. The last response went further along than the first 2  in answer to the question about fairness. I should point out here that I had been clear that I didn't know what pre-trial procedures had taken place about the new case, or if there had been any applications seeking the Court's opinion on whether it was fair or not. Either did my correspondents, so it would be fair to say the public were also left out on this important aspect. So qualifying such a situation (of not knowing if there was fair notice, or indeed challenges to the change of direction of the Crown case) the third correspondent believed that it may not be fair, had there not been sufficient warning. The first opinion again that the preparation to fight the Crown looked absent so Lundy's chances had been done and dusted. The second that if the crime wasn't familicide a motive for someone else to have killed the mother and daughter needed to be pursued, and that defence suggestion that Lundy's brotherinlaw having been involved was damaging beyond reason. If the accusations against the brotherinlaw, because he if dna of the dead found in his bathroom had been used to simply show that dna contamination wasn't exclusive to Lundy then the jury might not have, if they were, been offended by false accusations against Christine's brother. This view is more methodical in my opinion, a practical approach whereas the first had the impatience of recognizing that the chance to meet fire with fire had been lost at trial and moving on from there was most difficult. The third on the other hand in my opinion was about the concept of fairness. While acknowledging the first 2 fully recognised fairness - it was of contemporaneous timing to events in the Court, not to be looked at later so much.

This raises questions as to whether fairness in a prosecution is first and foremost. Leading me to wonder if fairness is too easily pushed to the back of the stove in the cut and thrust of the courtroom rather than being seen as the necessary ingredient of Justice. The first reply has an essence that unfairness should be slain in it's tracks, the second that unfairness will not survive logic or motive in which ever order. The 3rd response is that fairness must be nurtured even if were absent at some point it should be brought back to its just and rightful place at the fore.

I like all of that stuff, a signature of thinking and experience. Where do I get left by all of that? I'm still thinking about it, as I hope others will. Something else to think about and which I learnt only in recent days reading from old reports from before and after the first trial, material, which I had not known before. The alleged dna taken from Lundy's shirt was not handled as a normal exhibit. It was keep in the control of the officer in charge of the case as I recall his position. There are reports of that from the trial with the officer involved explaining why he broke procedure and another officer in charge of exhibits giving evidence that such a situation was a first in his experience. I should now mention that I don't know if the officer keeping the evidence out of the controlled environment was the same officer advised that the dna was too down graded to be relied upon for testing, and therefore the same officer who kept that information secret from the defence, the Court and the Appeal Court. I also don't know if that was therefore same officer who took the samples off to America  to find another opinion - obviously 1 that suited a case against Lundy, the drive at break neck speed, the planning (and snapping) the eye witness, the 'fiddling' with the computer clock and the miracle 'smell test.' If it was the same officer, and taking into account the failure on all the other assertions from the 1st trial, some readers might think 'well, hold on,' over 90% of the first Crown case was made up, yet surely the 2nd could be the same.

Well, yes it could. One witness whose work has been referenced over 3500 times gave evidence at the retrial saying that the dna 'off' Lundy's shirt was not proven to be his. Lundy was not seen driving his vehicle during either of times police alleged, on the 2nd scenario Lundy needed to have been entertained by a prostitute, drunk a bottle of rum and driven back unseen to his home. This, all during which, he needed to lift himself to a beserk anger, keep safely on the roads, go in and out of his home without being observed before being suitably composed the next day to meet customers who noted nothing unusual in his manner.

Because we don't know the details at this stage about any applications made by Lundy's defence about the 'fairness' of the new Crown case we can know the arguments for or against any applications made. It seems to be important information overall. What we do know of is an interview pre-trial with Lundy's lead counsel in which, to my opinion, showed a confidence where one might have anticipated not hearing from him at all - until after the trial.

What for some reason hasn't arisen again is an explanation about a group who claimed there was a motive for another person to have 'leant' on Lundy but who may not have known he wasn't home when his 'agents' when to the Lundy house that night. A group that have been concerned about being identified for fear of retaliation. Details about this groups comments can be found on line and go right back to 2002. There are a few explanations that should be made about the Lundy case, that is surely another. NZ isn't a place that readily permits witnesses to cowered into silence for fear of violence and it is everyone's interest that nagging doubts about this are cleared up as best can be. Personally, I think that is the job of the police and is in the public interest.

Before finishing here I should note that Arthur Allan Thomas was found guilty twice before being pardoned. Bain found not guilty on retrial, Pora discharged without a retrial. Certainly all these cases with perhaps the exception of Thomas went to the Privy Council. In none of these (with the exception of Pora) were there significant changes to the retrials, the allegations remained if not identical, then vary similar to that of the first trials.

Another thought to ponder, if for example Lundy's counsel did not raise the roof at the Crown's essentially new in great detail retrial - is that Lundy's fault. Under current thinking it is, or largely I believe. This is the situation where an appellant gets to hear that all such matters should have been canvassed at the retrial. Another way of saying the horse has already bolted tough luck if those applications weren't made or weren't made forcefully enough Fair? You decide.

Friday, February 5, 2016

Wishart's book Elementary? Not so much.

I've read Ian Wishart's book with much interest, taken notes in order to blog and assemble my thoughts in response. I had looked forward to something new and conclusive about the deaths of Ben Smart and Olivia Hope along with the conviction of Scott Watson. When it became apparent that the new book Elementary had concluded Watson was more than likely guilty I was keen to read the reasons for that conclusion. I expected an impartial logic particularly because IW has previously co-authored a book which made the claim that Watson was not guilty.

That impartial logic doesn't exist in Elementary. The book has a basic design to convince a reader that IW's conclusion is correct which is not evidenced based. It starts with descriptions of the character of psychopaths which Ian Wishart seeks to link to his apparently impartial and professional position as an investigative journalist. That doesn't work for me. Neither a Jury nor a Court decide guilt on the opinions of an investigative journalist assuming the role of a trained Psychiatrist on a person/patient whom they do not even consult. In fact a journalist is not a Psychiatrist. The only thing IW's opinion does is confirm a bias and give a preliminary warning that his 'diagnosis' of Watson is going to rely on the psychopath label to cover the cracks in the Watson guilty narrative. If this effort to paper over the cracks wasn't intentional then IW showed an alarming naivety if he believed it would not be seen that way. He refers to his diagnosis many times throughout the book as though it is backstop when the logic of his opinions lag.

Foremost, his need to rely on his opinion of Watson, is not the only crutch he takes into his analysis. Another is police tapes never released before. I had heard claims about these tapes and was obviously interested to know the contents. They are revealed toward the opening of the book and one can only consider that was another deliberate attempt to set the tone. In commenting about the tapes IW reveals his wont to allowing a reader the information while putting a spin on it which doesn't match the information. In the tapes Scott Watson's mother makes comments about Olivia and her parents which are unflattering, even perhaps exposing a jealousy. As IW continues his narrative commenting on the contents of the tapes he points out that the comments are callous and disturbing (my words, not his.) My thoughts had already jumped to the question as to whether Bev Watson had been aware that Olivia had been killed such was her language so removed from comments that one would expect. Near the end of the tape Bev Watson comments about the cost of the inquiry and who will have to pay for it when Olivia 'turns up.' Bev Watson had clearly considered that Olivia was not dead and would reappear. She was never gloating about the death of Olivia or Ben despite IW spinning it that way, he never retracted those comments perhaps hoping a reader would reach the same conclusion.

So IW attempted to paint a portrait of the Watson family which wasn't consistent with the secret tapes. The tapes also include talk of Watson shooting the head of the inquiry Rob Pope, in my opinion it was all just talk and didn't warrant inclusion in the book as I'm sure it would likely have been excluded from evidence at any trial as prejudicial and not helping the Crown case because the Watson family at least early on were convinced that the couple were not dead.

The 3rd backdrop to Elementary was IW's inability to hide his contempt or jealousy of Keith Hunter's work on the case. He appeared to write on the basis that for his conclusions to be accepted that he needed to belittle Hunter's work. He made some accusations against Hunter, conclusions which had a number of possibilities and not just one that appeared to be the best choice to devalue Hunter's work. I will give examples of this later. In the meantime to the notes:

According to IW psychopaths are around in numbers equivalent to about 4% of the population allowing to him to conclude that there were several psychopaths at Furneaux Lodge on New Years Eve 1997. Already IW had leapt to use of his diagnosis of SW as a psychopath, not with evidence or clinical support but from the expertise of an untrained layman. He then goes onto develop the theme that 'star' witness Guy Wallace, as IW calls him, recollections of dropping Olivia and Ben that night were compromised because he had discussed them with other witnesses right from the start. This allows IW to pull apart testimony that doesn't fit his theory while somehow stopping him applying the same restraints to testimony which suits him. He calls witnesses liars freely, when in fact they may simply be mistaken or as is the case most frequently, restricted to what IW claims they are saying. A reader is given no choice it's either IW's opinion or the highway.

Moving on, a PI Quintin working for the Watson family, asks members of the Watson family questions which they mention on the tapes, there is a sense in reading that some of the questions might have been asked on the behalf of the police - for some reason IW does pickup on that, nor indeed even mention it. Quintin says to Sandy, Scott's sister that someone is scared 'shitless' of Scott but she replies that she can't imagine that. Bev says that there is talk that Andrew, a friend of Scott, is scared of Scott. Sandy questions the veracity of that by saying 'but, he knew Scott' - reinforcing that because he knew him, and therefore his real character, it wouldn't be true.

IW writes that because SW stabbed someone is prison it fits the definition of psychopathy - however he doesn't bother to point out that his lack of supporting evidence that SW did actually stab someone when in prison. We find out that the man named Andrew above claimed to have been told by Scott to keep his mouth shut. Later on we discover that there is no reason connected to the murder revealed by IW that indeed, if it were true, was why Watson had told his friend to shut his mouth. This leaves the possible conclusion that Watson, Andrew and others may have been involved in dealing cannabis or some other criminal activity. In fact from the book it becomes clear that Watson's circle was shaken up by the police looking for evidence as would be expected in a murder inquiry and if they were involved in crime there was presumably plenty they should shut up about. There are allegations of Watson showing stress around this time and IW asks why. Well the answer is abundantly clear his boat had been seized and he was the centre of a murder inquiry.

Moving back to the PI Quinten he was told by Andrew that Scott was always stealing things, or he suspected he was but that the items always turned up again. This falls short of the mark IW was trying to make but he included it nevertheless to show SW as an untrustworthy thief. Andrew also reportedly didn't like Scott's attitude because he believed it was hard. My comment here would be that from what I've read SW made a point of trying to appear that way. He was however a small man and may have felt the need to present himself bigger and tougher than he was, none of which makes him guilty. Andrew asked SW if there was anything on the boat that he could be in trouble for after it had been seized. SW is claimed to have said no, 'that it was all cleaned up.' Taking into account the drug use and dealing alleged against Watson there are a number of conclusions as to what had been 'cleaned up.' Earlier Andrew described Scott as holding a hammer, and in another instance a rope 'like a garrote'. Taking into account there is no evidence known to me, and certainly not alleged by IW, involving Andrew in the deaths of Olivia or Ben, then Andrew must have been concerned about other dealings he and Scott may have been mutually involved in. IW reports that Andrew said that SW made inappropriate comments against women, something he also claimed about Guy Wallace who, a reader might think, was a target of IW to ensure belief of the validity of his theory. Going further one almost gets the impression that IW is suggesting that Guy Wallace was involved in the disappearance of the couple although he says that Wallace had a alibi.

IW writes about SW making comments about raping women and snuff movies. This, as far as the book goes, is not substantiated in the book other than by hearsay. There is another unsubstantiated claim by IW that a crewmate of Watson said that Watson would murder someone for the crewmate. How that finds its way into a credible book is a mystery. We find out that Scott changed the name of his boat frequently to avoid paying mooring fees - of course that is not proof that he killed Olivia and Ben. In fact I don't believe IW provides any proof of that, so the problem of the SW conviction continues on despite this book. Notable here, at about the same place in the book, is that SW talked about changing the colour of his boat long before New Years.

IW has Watson always carrying a flick knife yet we never heard this from Andrew or the reason why SW was allegedly threatening him. We do not know what Andrew might have known that Watson wanted him to remain silent about. A reader gets to read about a feud between Watson and another man over the shared ownership of a boat along with an allegation 95% 'sure' was 1 of 3 men yelling at another yachtie  but who couldn't see properly in the night to identify him. It is revealed that feud was settled between the 2 men amicably.

There is much written about witnesses impressions of Watson 'left out by Hunter.' No idea where this is meant to take IW because there is much revealed already about Watson changing when drunk - something not that unusual with young men, and those older - with all the elements of bravado or insecurity perhaps. SW is even said to 'hate' Christians, hardly uncommon - check out general debate on any interactive blog.

We come to a stolen rifle said to be in Watson's possession. This comes from a person called Ryder in whom SW obviously had confidence in to trade stolen property. This group including Ryder, Andrew and others when picked apart seem to have dwelt in a twilight world  where committing crime, or benefiting from it was not unusual.

Soon we happen upon North and South journalist Mike White, along with Hunter again, being attacked for not mentioning an unconfirmed incident some 9 years earlier that the New Year's Eve at Furneaux Lodge with a young lady at what appears to have been a skin heads pad. The event, if it happened, is said to reveal that despite what both men having said that SW had moderated his behaviour, in fact he had not. Relying on an unconfirmed incident following which no charges were laid is very odd, it was after all nearly a decade earlier than the disappearance of Smart and Hope. Another example where IW choose controversial alleged events to draw his picture of a psychopath his book relies upon. The public need hard evidence, not speculation, nor attacks on the shortcomings, or not, of other journalists.

We have conflicting reports that SW didn't drink much, or did, but that he smoked dope. I think the public already know that. Along with the fact he is or was a bit of bastard. What I expected the new book to bring, after it was announced that the author now felt Watson was guilty, was some substance. I don't think the book produced that. None of the contents go deep into proof of Watson's guilt, they are speculating on a foundation built by IW as SW bad, mad, even dangerous.

A sword incident is discussed, something also unreported to police as adding weight to an argument for guilt that has no weight. Dean Ryder, from that same circle as Watson, dealers, thieves from the narrative, says that Watson was capable of killing the couple and dumping them in the sea. On that subject I was reminded of the forensic insight of IW into psychopathy. We soon return to another tactic of the book, having the opinions expressed that some claimed Guy Wallace would rather lie than admit being wrong. It was important that Guy Wallace was wrong to suit the weak theories of IW, but that he relied upon it so much, and so blatantly, cast doubt again on his objectively - his investigative journalism. In general descriptions of Guy Wallace he reduces the man in a way many might feel unfair. He even fails to understand the consequences for Wallace of being a suspect in the murders. His view is ruthless to his cause of finally solving the case and it appears not to matter what gets in the way. For this reader, however, I needed clear evidence and not speculation or aspersions about character or motive of those not fitting the dialogue IW has attempted to sell. Often where IW excitedly reveals information from the police files he fails to appreciate that much of the information was not volunteered but resulted from questions from police. In other words to suit the case being built against Watson.

We hear about Wallace lying about going to Nelson. To IW this means that the man cannot be trusted, it never occurs to him that Wallace may be feeling the heat of being a suspect, or a star witness relied upon by police. From having this raised by IW it looks as though Guy Wallace was fortunate in having an alibi that night, one which IW appears to consider suspect because Wallace according to IW is a liar, refuses to admit being wrong, is a womaniser who makes lewd comments and who (my words) doesn't fit the IW world view of a good guy - even, one could suspect, not a christian. It seems to be missed by IW that Wallace wasn't keen to be framed for a crime to which he was connected as a suspect.

What does emerge from the wandering of IW's logic is that police were interested in Watson right from the beginning because he was well known to them. No surprise there apart from the failure of IW to connect that if Watson was so well known many local witnesses would have been a source of information - particularly as to identifying Watson being in the company of the deceased couple. That didn't happen before the book Elementary, and hasn't done since its publication. That information is more important than a character analysis of one of the witness and a psychiatric evaluation of Watson. On that basis the book is a let down, reads as something developed for a captive market, a milking of a cash cow.

Rather than repeat each time that IW relied on his interpretations of what witnesses or those making statements had said any reader may have hoped that IW have found proof positive of Watson's guilt rather than a stretched out analysis of what witnesses said from which IW could choose that which most suited his narrative. The middle of the book is bogged down with IW underlining of criticisms of Hunter in particular and the repetitive descriptions of eye witnesses. He didn't seem to realize that the main point he was making is that there is a lot of confusion among the descriptions none of which promote the Crown case, but which, alternatively weakened it for its lack of being able to clearly put Watson with the couple on his yacht or any other vessel. Over this was the point that IW was diverting from the key issues of the case, the questions that needed to be answered without the character attacks on some witnesses, police and journalists. Proof was needed not repeated criticism.

I noted at 33% of the way through the book that I didn't consider IW has made in progress in support of his headline 'Watson guilty.' We read account after account in which Watson is clean shaven, or unshaven, his height, his manner, his eyes, the length of his hair. Yawn really, people already know about  the discrepancies in the evidence of witnesses to identity. People really need to know about the critical time when Watson, according to his theory, was on board his boat - along with the couple who were silent while Watson woke up people on other boats he was tied up to in order to continue the party. I wanted to know about the absence of screams, how the up front and dangerous Watson  backed off every single time his behavior was called out that night. Watson might have been acting lecherously, though why if he had his victims somehow stowed away on his boat was he going onto other boats looking for company. Doesn't make sense, Nor does the silence from the couple, their decision to go aboard the yacht of an apparent, lecherous stranger. If they, according to this scenario, were alive in the morning why didn't they wake when their temporary bed set sail. It's hard to buy that they didn't, just like they didn't scream, or fight back when Watson had attacked them, also doesn't explain why he was seeking out female company on other yachts soon after or before he apparently attacked the couple. This is weak ground for the case of Watson's guilt and which IW totally ignored, preferring to rely on his psychiatric analysis of Watson and his ability to explain the identifications of witnesses of people and things he never witnessed himself.

IW brings his own argument and SW not being clean shaven by saying that the majority of witnesses said that he was not clean shaven. On IW's own theory of eye witness corruption because of witnesses talking to one another (and in fact police, reading in the media etc, gossiping) his argument or opinion renders the ids hopelessly unreliable. IW has done this in his book, even turning the process into a majority argument as to which witnesses are right and which witnesses are not. This is not investigative journalism but rather adjusting information that is reliable and unreliable into shape to suit a theory.

'Imagine what are the chances of 2 identical looking me, both psychopaths (underlined again by the author), being in the same bar at the same time and attracting the same attention from different witnesses.' In fact many of the witnesses said different things so the same attention idea does not apply, asking people to 'imagine' applies even less weight because throughout his book, and indeed right from the start, IW has deliberately created the picture he endeavors to make his readers imagine starting with a psychopath, parents allegedly supporting him despite knowing that he was the killer, a sex pervert, people in fear of him (but still somehow working with him and being friends) and so it goes on - no need for imagination as Mr Wishart has indicated what must be imagined, in fact arranged in order that there may be little other choice unless one is interested in how and if the couple went aboard the Blade, ie positive proof.

There is evidence of Watson apparently falling over drunk, swaying on his feet, having drunk a bottle of rum, being clearly intoxicated and stoned. How therefore did he convince an aware young couple to go with him to his yacht, have them remain silent while he went to wake up neighbors on other yachts to party in the small hours, propositioning  women. In fact proposition women when it is claimed he already had one captive on board his yacht along with a man apparently bigger than the diminutive Watson. We read about the fiery exchanges between Olivia and those that allowed her bunk to be used on the Tamarack, a bunk she had paid for, of others sleeping on the decks. When did she become suddenly silent and compliant, the evidence is lacking to say that happened on Watson's yacht The Blade. Considering that Watson was inviting women from the boats his yacht was tied to - where did that put the couple. Wishart entirely misses that point as I did until just now.

All the evidence about  persons in the bar that may have been Watson is a red herring, he admitted being in the bar. A reader is asked to jump from Watson's conduct (or some one that perhaps was Watson) on the prowl in the bar to therefore believing that he and the couple were dropped off to his boat in silence, no voices, no laughing, no screaming, no yells of rage, sounds of fighting - absolutely nothing and no witness saying that they saw that group go aboard the Blade led by the drunken Watson. And, as we now know, thanks to IW's book, inviting other women onto his boat during the time the whole police case argued that the couple were on his boat. Big fail there.

IW tries to convince a reader that the photo of Watson being clean shaven is only as good as the person camera and lens. When something favours Watson it is illusionary, in fact photo shopped IW later claims. When Watson isn't placed going aboard with the couple by Guy Wallace it is because Wallace is an unreliable liar who might only be reliable if he was prepared to agree with IW. When witnesses deny seeing SW they are unreliable their memories corrupted recollections enhanced from speaking to other witnesses.

Popping back to the secret tapes I have to wonder why IW question Bev Watson about her comments on the tape regarding Olivia and her parents. Logic would suggest only 1 answer, because she had already vindicated her position on the tapes themselves - she had not believed that Olivia was dead and IW knows that. That is a long way from a mother distressed that he son was in trouble and that she somehow supported him knowing he was guilty. None of that stops IW from overlooking what favours Watson by deliberately turning facts into something they are not.

IW blames the police for not clearing up that there was no mystery ketch. However, because IW has taken a point of view, one that less than subtlety is to upsurp Keith Hunter and therefore sell his book, IW has only added to the lack of clear and pivotal evidence against SW. Ted Walsh, like Guy Wallace and Roz McNeilly before him becomes unreliable - in fact a target of the pen of IW. This criticism is from a person who was not there, and who is trying to convince the public that he was mistaken in his former view that SW was not guilty. IW appears to have a condescending view of readers and witnesses alike. If the witness does not say something in support of IW theory, IW simply explains why the witness is wrong and tells the reader what the witness actually saw. Where doubt lingers, phrases such 'criminally psychopathic personality' 'snuff movies' etc are rolled out again and again to fill the gaps.

Despite the volumes of criticism of Hunter and White as journalists from IW the author takes emotive language and conclusions to a new level in his claim to be critical, another example 'so what are the odd? We have 2 psychopaths prone to violence, and rape and murder fantasies, drunk and on drugs, with a Jekyll and Hyde personality matching the description of the missing man?" A reader will know that Watson has apparently no arrest record for rape, backed down each time when confronted with people telling him to 'f' off, and that rape and murder fantasies may not even exist. Again why would 'Wallace be hearing voices in his head or gilding the lily' as IW puts it? Emotive nonsense. Guy Wallace could have done himself a big favour by remaining compliant with police and his first accounts. He gains nothing from the conflict that has ensued since he retracted his identification of Watson being with the couple, in fact he loses from it and IW demonstrates this in a most ruthless way in order to sell his book. More on that later.

Calming down from the tirade against Guy Wallace, what the forensic psychiatrist/investigative journalist somehow overlooks in forgetting about his readers, and his job, is that all the controversy surrounding Wallace is reason for a retrial. Indeed, something for a jury to evaluate, along with the retracted position of Roz McNeilly (who IW fails to land a punch against) and the retracted statement of the prison inmate who heard the confession. No mention of that confession which apparently did not have any detail supporting the new position of IW regarding accompliches.

IW goes into a lot of drivel about gangs. A line that the police obviously investigated and turned away from. That doesn't stop IW, if mentioning snuff movies won't help convince a reader then surely the mention of gangs will help. Another demonstrable flaw is the claim by IW that the reason Guy Wallace 'lied' to police was because he could not afford $2000 an hour to pay for a lawyer. 20 or so years ago its arguable than no lawyer in NZ charged out at that rate, it would be rare if indeed credible that such a rate would even apply today. IW made stuff up.

'Elementary' generally bogs down in the middle of book on either side are repeats of descriptions, no substance other than comparing the descriptions time and again. If had decided to blog about the book I would have skipped to the end rather than read what had been repeated again, and again. We hear about SW height going from 5ft 8 to 6 foot, slurring his words, swaying back and forth, inebriated and having trouble standing. Nothing about the key factors of this case, no break through no support for the fact that even on IW's account Watson's conviction is suspect because there may have been more for the Jury to consider. There are changes from a 't' shirt to a grey jumper, from drunkeness to being sober. A bloody mess. I wanted to know about hairs on the blanket which are not even mentioned in the book, I wanted, expected Wishart, to step back and bring into play the way Watson's Application for the Prerogative of Mercy had been dealt with, real evidence, not confusion in order to make Wishart right but others wrong.

In Chapter 17 we see another example of IW blatantly overlooking what a witness says. The water taxi driver Mullen says 'I do no recall taking only 1 passenger on my water taxi out to the yacht. The procedure we adopted was to fill the taxi with as many people as it could possibly take, in a safe manner. I doubt that I would have left the wharf with only 1 passenger, although it could have occurred but I can't remember doing it.'

IW takes that statement literally but entirely overlooks the qualification. He uses the statement to claim that Watson is a liar and then attacks Hunter for overlooking it. As in other places he frequently overlooks what a witness actually says in order to promote his theory. That is unfair. Particularly because Wishart damns the defence lawyer at the trial for doing (in IW's opinion) exactly the same thing. It is worrying as to why a journalist so blatantly twists the facts, particular where the reader can read them and see that what the author says is in conflict with what the witness has said.

Scott Watson says that he didn't speak to anybody on the yacht the Blanco the Blade was tied up to that night, that is after he was dropped off from the Lodge. However a female witness says she woke up and looked toward the cabin door asking 'what are you doing in here?' She says the person who responded sounded really uneducated and either drunk or drugged. As the conversation continues, the woman's partner becomes involved, by now in his narrative IW has decided that the man at the door is in fact Watson, it no doubt was. The man, Watson, offers to 'look after' the woman for the man. He is told to 'f' off and leaves. Watson in his own statements admits going aboard the other yachts that The Blade was tied up and looking for a party, calling the sleepers 'pikers' and so on. That he may have confused 1 yacht for another does not make him a liar as IW zeroes in onto convince the reader but ignores the real evidence - that Watson could not have afforded another woman or man to come aboard his yacht had the couple been there.

The investigative journalist is completely silent as this point on making any comment about the apparent absurdity of Watson already having a silent couple on board going looking for a partner. What a reader learns is that Watson when told to go away, just as happened many times on shore, actually left. Confusion follows as to what time The Blade left it's mooring later. What there is absolutely no confusion about is that there had been no noise indicating anyone else was aboard The Blade with Watson and there remains not one witness to this day who puts the couple together with Watson on board The Blade. Every re-interpreted description in the world, every aside about Bev Watson, about Watson himself cannot, and has not bridged the gap, of putting Olivia and Ben with Watson on his yacht that morning. When I speak about noise, I mean no laughing, loud talking as those drunk might do, no music, no screaming or thuds of violence.

Instead IW makes great purchase of his belief that 'no one drunk, who was awake nearly 24 hours, falls asleep and then wakes up in the space of an hour, noiselessly unties his boat and slips away before sunrise.' That's an opinion readers will judge from their own experiences. That lack of noise is definitely inconsistent with the sounds of murder or a young couple being woken by the thud of a diesel motor only a few metres from where they may have slept.

In Chapter 20 we go into details about SW painting his boat. This is a tired old argument. IW himself admits that Watson had been talking about repainting his yacht in the months leading up to New Year's Day. I think IW confuses the matter further than it has been already. I've reached a point recently in accepting that because Watson and The Blade were so well known in the area, fresh paint wasn't going to fool anybody. If you knew Watson you knew his yacht whatever color it was painted. Around this time the character attacks on a friend of Watson, Zapper and his children, begin with a disturbing feature with which IW finishes his book and which I will write about toward the end here. According to IW most of those Watson associated with were in his control in some way. Because of the fact Zapper would be convicted of growing dope we should not forget Watson's other friends in Picton and consider that Zapper most likely supplied Watson with dope and he could have on sold to others. Jumping to a scenario that Zapper would place himself at risk to help Watson hide his involvement in murder is a jump too far. It was far more likely that Zapper would have been offered a deal to 'rat on' Watson and have his cannabis operation/conviction handled in a manner less destructive to himself and family.

Later we read about a young lad saying he saw 2 men on The Blade but IW can't produce this 2nd person or any evidence reliably supporting it. He mentions some possible candidates but frankly admits a cold trail. That doesn't stop his theory however, or his attacks on the drug dealer zapper and his 2 children. He accuses zapper of enlisting his children to being 'accessories after the fact to murder.' As for the 2 men theory a reader must wonder why that information wasn't in the withdrawn confession Watson is claimed to have made to a prison inmate. IW backs up the claim of the 2nd man theory on using the evidence of Sam Edwards, another water taxi driver who knew Watson and The Blade well. Looking at what Sam Edwards says however is that he saw The Blade from a 100 to 150 meters away, that Watson waved to him and that he was 'pretty sure' he saw another person on board. That was all the desperate IW needed, pretty sure is proof positive in his book. He of course makes no comment on Watson drawing attention to himself when he is in the depths of either dumping bodies or painting his boat in order that persons such as Sam Edwards will not recognise him.

It gets more bizarre. 'If Watson did kill Ben and Olivia, was he planning to to rendezvous with someone who could help him get rid of the bodies, and/or was he dropping off the mystery man on board?' IW asks. The planning for such a rendezvous required that Watson found somebody to take back to his yacht, that there was someone willing to involve themselves in a terribly sick act and be waiting at some pre-planned place and a pre-planned time beggars belief taking into account there is no evidence to support such a theory to this date, probability zero. That zero undermined further because Watson invited others onto his boat to have a 'good time' after the couple had been allegedly dropped off there. Rendezvous planned? Bloody daydream.

Final chapter in a book without surprises, well at least no surprises that weren't signaled from the outset and did not continue to regurgitated, tediously, throughout. We hear about 2 men handling corpse size bags one passing each corpse to the other in a dingy. I know that dingies are easy to tip, but I know more about handling heavy weight. Moving decomposing bodies with rigor mortis setting in, lifting them over a rail and down to someone in a dingy might be impossible. Assuming that the couple weight around 65 to 80 kgs I have to ask whey IW did not conduct a practical test on this claim, it would have taken little time and be easy to achieve. I think there is only 1 answer for that. I won't dwell here on the 'body bags' others have mentioned sails, I've wondered about freshly cut marijuana been whisked away in anticipation of heat going on in the area from police. I have no proof, but I'm more than confident about the handling of bodies (or something of equivalent weight) so easily as IW wants a reader to accept is pure bs. But I'll challenge Wishart to do the experiment, maybe he could invite Keith Hunter along/

IW for his faith leaps, pyschiatric evaluations, conclusions about people lying when they clearly could be simply mistaken might have shored up confidence in his impartiality had he conducted the body moving experiment before going to publication - that is what I believe a investigative journalist would do. He accepts himself that it would be difficult in the extreme and chaplinesque in execution - but that doesn't stop him from using it.

One final, disturbing point. I read recently details of claims that Watson had sent intimate photos of himself to a young girl, When the Justice Department investigated they found that they were  sent from a prison in which Watson was not housed - a set up in other words. Here is something a reader might think is similar. It is in a PS to the book Elementary - presumable just for good measure.

Postscript: As this book was going to press, former Detective Senior Sergeant Wayne Stringer told me that Watson had not just 'confessed' to Zappa about the murders, but actually boasted about it, in the same breath making barely veiled lewd threats about Zappa's 13 year old daughter. Zappa told Stringer this directly, years later.