Wednesday, April 27, 2016

The 'Secret' Bain case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 22, 2016

Press Council Complaint against Martin Van Beynan.

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

6th March 2013

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I propose three remedies.

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

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

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

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

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

Tuesday, April 19, 2016

Gerald Hope to meet Scott Watson?

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

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

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

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

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

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

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

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

Saturday, April 16, 2016

Saturday, April 9, 2016

Special agent X in the Lundy case.

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

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

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

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

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

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

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

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

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

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

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

Monday, April 4, 2016

Some of the ridiculous things about the Lundy case.

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

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

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

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

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

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

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

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

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

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

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

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