NOSTALGIA-NZ: May 2016

Thursday, May 26, 2016

Arthur Taylor to help crack the Lundy case?

http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11639110

By Phil Taylor

Witness C must be the type that people can't help but bare their soul to. He has claimed that two men convicted in separate infamous murder cases confessed to him.

The jailhouse informant faces a private perjury prosecution filed this month that accuses him of giving false testimony at David Tamihere's trial for the murders of Swedish backpacker Heidi Paakkonen and her fiance Sven Urban Hoglin.

The Herald can now reveal the same prisoner claimed Mark Lundy confessed to him too.

Witness C - to use the pseudonym given to him at Tamihere's trial - is accused of concocting a story that Tamihere confessed to raping and murdering the couple on the Coromandel Peninsula in 1989.

He also twice approached police with claims that Lundy had confessed to killing his wife and daughter.

Police did not put his claims about Lundy to a jury after inquiries did not support them.

In 2002 he claimed Lundy had confessed when both men were in a prison chapel.

"He [Lundy] told me then that he could have made a fatal mistake. He said he had given a jewellery box, that had belonged to Christine, to a prostitute in Wellington that he had become more than familiar with."

Then in 2014 - nine months before Lundy was convicted at his retrial - the informant approached police with more information. He claimed another inmate, whom he identified as "Rat", had told him through adjoining cell walls that his prostitute girlfriend had been given or had seen a jewellery box that belonged to Christine Lundy."

Detectives traced Rat's girlfriend. According to police files, she said she had no information about the Lundy case or a jewellery box.

In the case of the Swedish backpackers, the same informant claimed Tamihere told him he'd taken the couple's bodies out to sea and weighted them down, had killed Mr Hoglin by beating his head with a lump of wood and that he had given Mr Hoglin's watch to his [Tamihere's] son.

However, Mr Hoglin's watch was later found with his remains on land behind Whangamata. A pathologist found no physical evidence consistent with such a beating.

Ms Paakkonen's body has not been found.

Tamihere served 20 years in jail before being released on parole in 2010.

Witness C is currently in prison, having twice been recalled to serve a life sentence for a double murder. His last recall came after he indecently assaulted a 14-year-old girl on the day of his release.

The private prosecution is being taken by long-time prison inmate Arthur Taylor, known recently for his command of the law and fighting for prisoner voting rights, assisted by researcher Mike Kalaugher, author of the first book about the Marlborough Sounds murders, The Marlborough Mystery.

Taylor plans to give evidence himself that Witness C admitted to him that he lied at the murder trial.

Controversial cases that featured testimony from jailhouse informants:

Arthur Thomas, murders of Harvey and Jeanette Crewe

Jailhouse informants were not part of the two trials in which Mr Thomas was found guilty but a Royal Commission in 1980 heard evidence from two. It concluded: "We are satisfied that the 'prison confessions never took place, and that evidence of the two prisoners was a tissue of lies. It causes us grave concern that very senior police officers were so ready to place credence on such unreliable, self-interested, and in the case of the first inmate, deluded evidence." The commission found that police had planted evidence.

Mr Thomas was pardoned and paid $950,000.

Teina Pora, rape and murder of Susan Burdett

Mr Pora was convicted in 1994 and again at a retrial in 2000 ordered after semen found in Ms Burdett's body was linked to serial rapist Malcolm Rewa.

At the retrial an informant claimed to have seen Mr Pora and Rewa (who were associated with rival gangs) together, providing a link between the two.

The case against Mr Pora was based on his contradictory and often implausible confessions. The Privy Council quashed his convictions last year having accepted evidence from medical experts that his fetal alcohol spectrum disorder could explain why he made what are now believed to be false confessions.

Scott Watson, murders of Olivia Hope and Ben Smart

Their bodies have not been found. Two jailhouse informants separately claimed Watson made confessional comments to them.

Witness A, who has an extensive criminal and psychiatric history, recanted, then recanted his recantation, then told Herald reporters he'd made it up. In his trial testimony he claimed Watson was disturbed by nightmares about the killings and had admitted strangling Ms Hope.

Witness B claimed Watson had said if he went down for the killings he'd sell information on where the bodies were, and had mentioned "the Sounds ... Cook Strait ... [and] Lyttelton".

Mark Lundy retrial

A jailhouse informant testified at Mark Lundy's retrial that Lundy had confessed to murdering his wife, Christine, and daughter, Amber.

He claimed Lundy had said his wife "had it coming" and that "he wouldn't be in there if his daughter hadn't come in and seen what he was doing to his wife."

The informant, who had 20 dishonesty convictions and several domestic violence protection orders against him, wrote but did not send a letter to a judge that said he had "the smoking gun to end all smoking guns" and asked that he be released on bail.

Lundy was again convicted.

Somebody explained the above information to me over the phone, thinking at the time that Secret Witness C from the Tamihere case had given evidence against Lundy. That didn't make sense as the only secret witness to give evidence against Lundy was at his retrial and the witness was not an a twice recalled lifer. However, the exact story was still very revealing and potentially very helpful to Mark Lundy.

I should first point out a North and South on the Lundy case published by Mike White in 2015. It is very informative in important detail, and something I read for the first time last night. I don't have a link for it at the moment but will endeavour to sort one out. The article didn't discuss the secret witness but gave an insight to the case which was most helpful. Among a number of telling points was that of a defence Scientist Anna Sandiford, who was referenced by France J, the COA President, in her dissenting vote on the admission of the disputed evidence of Dr Miller of Texas. Sandiford expressed doubt that a Jury would be able to follow the complex scientific arguments, and who could not agree when even the Judge appeared lost at times.

In the meantime back to Phil Taylor's article above. It is now known that there were at least 3 attempts to introduce secret witness evidence to the Lundy trials. 2 were not successful and were apparently instigated by the same man Arthur Taylor is attempting to convict of perjury because of clearly false, fabricated, evidence given in the murder trials of David Tamihere. I don't know much about the Tamihere case but it was revealed to me that the COA relied upon witness C to uphold the Tamihere convictions. Of course the graphic lies witness C told not only resulted in what may be a false conviction but also an extraordinary long sentence such were the horrific details witness C invented.

That invention was given full rein again in 2002 when witness C made an attempt to verbal Mark Lundy. The chances are that he may have never met Lundy. To some degree I am surprised police didn't risk banking on the professional liar witness C. I doubt that they rejected his evidence because of it's content and the decision may have been made by Crown Law owing to the coincidence of witness C appearing something of a 'professional' liar for hire. What we don't know, but may do in the next year or so as Taylor continues his research into witness C by way of discovery and inquiries, is whether witness C was courted by Palmerston North police to entrap Lundy. That would appear highly likely, as would be the knowledge that witness C was a perjurer although his name remained secret from the public. That reason alone may have made it a close call not to call the same man in the Lundy trial. In other words police may have been able to use witness C again despite evidence that he was a liar because Lundy's defence would presumably have had no way of knowing that witness C had given false testimony before. It stinks, the current Lundy secret witness X adds to that.

But let's step back a little and assume, because we don't know otherwise at this point, that Lundy's defence team at the retrial had been made aware of witness C's 2 attempts to sell Lundy down the river - even to the point of it being revealed that the decision not to use witness C at the first trial was taken by Crown Law after a proposal by police that he be used as a witness. Shortening that, police desperate enough to use the witness who claimed to have seen a fat lady running from the Lundy household, who insisted on a neck breaking trip at speed that few New Zealanders believed only to drop it after a dozen years, who insisted on a 7am time of death only to re-calibrate that by 8 hours at the retrial in a late change that left the defence unprepared, who insisted that a tiny spot was human central nervous system found on Lundy's shirt to the exclusion of a shower of blood that flew against the walls in Christine's bedroom - but the speck when analysed was 'washed,' had no blood or neurons and tested for faint animal cns, in fact a very desperate prosecution after an inquiry in which critical evidence was thrown out and somehow brain samples disappeared a short time before Lundy's shirt was taken to the USA after no NZ scientist would agree to test the downgraded spots found on the left breast area of the shirt. Things lost, witnesses having visions, a single spot in a blood bath, full stomachs at 3am after eating at 7pm the previous evening and they wouldn't entertain a lying witness with a smooth as velvet credibility? A man who invented that Lundy 'was more than familiar' with 'rats' girlfriend.

Even without that assumption, do we imagine that had Hislop and Burns known about witness C that they would not have called him in order to display to the Jury exactly what kind of liar he actually was and invite the Jury to consider that X was no better - that in fact the Crown were desperate for evidence because their case had fallen over and facts such as evidence being thrown out, witnesses no longer being called, brain samples disappearing, a man unauthorised to give forensic evidence or do forensic testing in America called as an 'expert' in NZ only to produce manipulated samples devoid of blood and neurons laughing all the way to the bank, overalls that were never found, a car without a single trace of forensic evidence, a motel the same, just nothing able to withstand clinical scrutiny and thus a smokescreen from a paid informer who said he met Lundy in a sentenced prisoner's yard before Lundy had even been tried. And much more of course. Important to the lack of credibility of the Crown case - you bet ya.

Will witness C not spill the beans on who asked him to say what in his original attempt to frame Lundy, or that the police attempted to get him to set up Lundy as he had also set up Tamihere decades earlier? Who knows, but any police who've trusted a snake in order to frame Lundy should be very worried right now, because there are people on their case that are unlikely to rest, unlikely not to delve under every rock - very, very, bright people and Taylor is one of them.

Before finishing I would just like to mention the Mike White North and South article again, in it he gives a picture that fills out between the lines and gaps in the Lundy case, particularly in his summary of key evidence and facts. He also mentions that Grantham was not in charge of the retrial investigation so I was completely wrong on that - he does however say that he gained the impression that the new officer in charge was not looking beyond proving that the first case and investigation was right, in other words influenced in some direction at the outset.

As I slowly learn more about the Lundy case, try to get right to the middle of it I'm beginning to see an innocent man, trapped not once but twice in deceit and by witnesses who lied and prevaricated in 2 trials. This allows me to think about the man Lundy and consider what shines through both in photographs of he and his family and in videos, a man capable of saying that he'll always love his brother despite his brother saying publicly that he hates Mark. Need a reason to want to find the truth in this case, well I already have one.

I close using a quote from the 1980 Royal Commission of Inquiry into the Thomas case, words that echo down the years and sharp in truth and insight.

"We are satisfied that the 'prison confessions never took place, and that evidence of the two prisoners was a tissue of lies. It causes us grave concern that very senior police officers were so ready to place credence on such unreliable, self-interested, and in the case of the first inmate, deluded evidence." The commission found that police had planted evidence.

Saturday, May 21, 2016

Understanding why the Crown is wrong in Lundy.

Putting the 'washed' shirt spot that miracously had no blood or neurons and looking at the time of deaths in Lundy case, that is the 'new' times of death (TOD) indicate a major and probably deliberate fault is found in the Lundy reconviction.

The time of death was 7pm at a push 7.15pm according to Pang. It stayed that way for a long time (over a decade) and only 'changed' suddenly and without warning 2 weeks before the trial.

I've recently been reading the evidence of Professor Michael Horowitz called by the defence. He set the times of death 1 to 5 hours after eating, allowing an exceptionally long 'lag period' which is the time food sits in the stomach before digestion begins. At the best Horowitz's time lines up exactly with Pang's original estimate, at the longest time it stretches to 11pm when Lundy was with a prostitute in a motel in Wellington. So the Crown on Horowitz's evidence are 4 hours short of when they now claim the murders were committed. There was plenty of evidence at the trial about empty stomachs that most readers will have some personal knowledge about, no solids for six hours before an operation because the medical wisdom is that it takes 6 hours for the stomach to empty. In Lundy the stomachs were still full of undigested food up to nine hours after Christine and Amber ate, there is no medical evidence or study that supports that so the Crown bolsetered it with a smoke screen.

That smoke screen surrounds the duodenum. The man that opened the duodenum which is the first part of the small intestine said it was empty. A new witness for The Crown who never saw the duodenum said it might have drained back into the stomach because the bodies were supine and therefore digestion may have started. But that doesn't explain that the stomachs were said by Pang to be quite full, with recognisable food, and lacked the smell of gastric acid which indicated to Pang that digestion had not started. So if that new witness Sage was in anyway correct, that duodenum may have drained the stomach still remained quite full, with recognizable foods (pre digestion) and no gastric smell - all of which affected the TOD to have fallen between 7 to llpm.

How this was used to convince a Jury of a 3am TOD is staggering. How it was allowed to be heard by the Jury at all, let alone without any directing comment by the Judge is equally staggering. Always remember food after 1 hour in the stomach does not look the same a further 9 hours later - the Lundy retrial Jury were not made by the evidence to understand that. What were the problems then?

Here are some that I found, mostly centering around the testimony of Horowitz.

When an expert witness gives evidence on the expert testimony of another witness, the first witness has a right of reply if the Prosecution so decide. It's important to remember that Horowitz acquainted himself with all of Pang's previous statements and evidence before he gave evidence - with 1 exception. Horowitz told the Court that he had not read the evidence of Pang at the retrial where Pang had changed his evidence in a massive way. Horowitz told the Court that a number of times. It was up to the Judge and or counsel to ensure that Horowitz read the new evidence he had not heard of before in order to give his expert opinion on that evidence, if necessary stopping the trial and calling an adjournment. How could Horowitz dissect the new evidence without reading it, this should be a major point on appeal. Somehow the protocols got broken down. The defence expert witness of digestion and consequently, at least in this case, the times of death was unable to read the basis for the new changes to the times of death in order to comment on them.

Horowitz's evidence was interrupted throughout, mostly by the Court asking him to slow down his evidence. A perhaps alarming interruption was the Judge asking for the correction pronunciation of duodenum. It would follow that he wasn't conversant with the function of the duodenum, and one would have to ask if he wasn't how would it be expected that he could explain that important aspect to the Jury. It's farce really, pure farce. But what was left behind, or missed out, was that we still don't know Horowitz's opinion on the reasons given by Pang for changing his evidence. The Jury got to hear a witness who denied known science regarding digestion while a leading World expert was held silent on the issue because the Court overlooked something a 5 year old would understand - if you can't see, read or hear something that allegedly happened, then you know nothing about it. This denial of Horowitz being able to read Pang's evidence is a denial of Justice and due process, a witness held silent in his specialist field because of an oversight by the Court.

Something even more worrying followed. When being questioned about the duodenum Horowitz asked about the 'depth' of the cut into the duodenum. Nobody answered his question, an expert witness brought from Australia in order to help the Court and therefore the Jury wasn't given all the information he thought relevant, despite asking for it. I have to wonder if the Judge was asleep. The most important evidence of the trial about one of only 2 critical points and the Judge ignores an expert witness telling the Court that he hasn't had the opportunity to consider critical testimony. Not just any witness by the way, not that it matters so much compared to the omission, but a World Leading expert on the digestive system is asked to report on evidence withheld from him - it's bloody bonkers.

What I also found when reading Horowitz was a comment he made about lack or restricted time to prepare in answer to the 'new' evidence of Pang only given notification 2 weeks before the retrial. This has 2 aspects: I am not ware of any reason given by the Crown for the late notification, equally it's important before appeal that the defence gather under discovery of some sort when the change of TOD was first raised, and by who, along with all the correspondence etc which followed, right to the poing of when the new decision was finally made. I suspect within that information are reasons to hold the whole prosecution in contempt of due process, the Crown and police have been too deeply entwined in strategies that have not been at arm's length - when in fact they are separate entities, with a professional distance required. Letters and other communications between the Crown and police on the retrial are imperative to understanding how a man can be convicted on such incongruous evidence.

What I find completely bewildering is that neither the Court, Crown or police ensured that Lundy and the public received confidence in the retrial. By all appearances the only effort made was using the same people who had administered a miscarriage of justice in this case already. Entrusting them to do the job right a second time was Russian roulette - and so this retrial proceeded, the same players given an opportunity to prove the Privy Council wrong and win a conviction. So the guys got another chance and no one appears to have considered the obvious trail or their personal 'commitment' to proving themselves right. That's how it appears when times of death change, a prison witness appears from no where to record a confession, an expert witness reviews his own work after it was criticised at the Privy Council, and surprise, finds that he was right.

I read Pang, Sage and Horowitz's evidence generally but also for a specific purpose - to find out if they had read the 2013 Indian paper only to find it was not mentioned. In other words paper is new evidence which would have shown photographic context and simple findings as to the contents of a dead whose time of death and last meal were known. The paper would have helped the Jury immeasurably, the photos put up on a board along with the times since eating would have shown an empty stomach after 6 hours, a pre - digested state of food when eating had been an hour earlier showing clearly different foods as Pang and 2 police described the contents of Christine and Amber's stomachs. They would have also seen food in a digesting state unregonizable as to what food it had actually been, becoming by then a slurry of sorts. They would have understood that Mark Lundy could not have killed his wife and daughter , as accused in the small hours of the morning, a time at which his beloved family had already been dead for hours - as their stomachs showed.

What now needs to be investigated, and surely will be, was the paper trail leading from the decision to shift the TOD, when that decision was first mooted, who was involved in it and all the relevant correspondence. Not only will the timeliness of that decision reaching the defence be important but so will the whole design of the 'shift.' The shift has no scientific basis of support, Sage could only use the word 'may' in connection to the duodenum possibly back transferring - Horowitz said he was comfortable to give a time based on what he knew, which didn't include Pang's revised testimony. The weight of Horowitz' estimate was lost in a muddled Court, deliberately submerged in his cross examination that centred on irrelevant issues. Counsel for The Crown must not have believed their luck that Horowitz's opinion on Pang's reasoning as to the time of death change could not be essentially and pointedly questioned in detail and thus a Miscarriage of Justice occurred - again.

Reading or thinking about Pang's change of evidence in a blog 2 below indicates to me, after further consideration, that his cross examination was weaker than it might have been. I would have liked the Jury to have heard Hislop point out to Pang that his evidence took 12 years to change all of which time Lundy remained in prison and that it was reasonable to expect that Pang could take another 12 years to change his opinion again to agree with that of Horowitz with all that time while Pang remained wrong for another 12 years then Mark Lundy would have spent 24 years in prison because Pang was wrong not once, but twice.

I will later post in comments probably in 'comments' below, the actual testimony about the depth of cut, having been pushed for time to prepare for the retrial (even before the late change in TODs) and about Horowitz not having read Pang's second trial evidence - for those that might think this corruption of Process isn't true.

Friday, May 20, 2016

Joseph Parker v Carlos Takam

Counting down to the biggest fight of Joseph Parker's career when he meets Carlos Takam in Auckland tomorrow night. Trainer Kevin Barry has said that Carlos is a fighter 2 current world champs haven't fought nor anyone of his calibre. He says it is a mandatory fight most hopefuls would wish to avoid. Going on Takam's record and viewing some of his previous fights Kevin Barry is most likely right. Takam is a heavily built, heavy hitter who likes to be in front of his opponent going forward and throws a mean uppercut.

Reflecting on the last 3 years Parker has not only physically changed body wise, he is also a more accomplished and disciplined boxer. Most recently he has looked to dominate from the bell, a sure sign of confidence. I hope we see that confidence tomorrow night. Larry Holmes was interviewed about the fight, spoke of meeting Parker twice and how impressed he was with the young boxer's character and skill set. He advised that Parker needed to be dominating with that jab in this fight. Of course that is correct and no doubt the ideal, but it will be no surprise seeing Parker standing square punching and throwing the upper cut early so as to not only show dominance but make it difficult for Takam to adjust from a possible expectation that Parker would jab from the outset.

The chances are that Parker may get tagged big time, he hasn't been in with a big puncher who is in his prime before. Takam has the shots and the ability to absorb punishment, though his 10 round TKO against Povetkin showed him not to be invinicible. I think Parker will take that knowledge into the fight with him being confident that he can do the same to Takam, but earlier in the fight.

This fight is likely to be the premier heavy weight NZ fight of the current era, and perhaps before. This fight has worldwide attention. Parker is not only trained to the minute but he has 3 years of Kevin Barry discipline behind him, the relaxation and quick analysis. He has the chance to win well and will look to take it because he and his camp are single minded about where they want to go.

It will be a special night for me because the elder of the Samoan side of the family will visit to watch the fight, having flown back from Samoa tonight, an ex boxer himself and has for many years been an esteemed Matai whose wife, my motherinlaw is from a chiefly line in the same village as the family of Parker originate. Parker doesn't need luck, probably like me and most others doesn't think about it so much but if support equals luck he is in surplus all because of his own training and mental discipline. May the best man win.

Wednesday, May 18, 2016

Dr Pang please tell the truth.

For those that may which to read, there follows part of the cross examination of Pang at the re-trial giving evidence as to why he as able to give a TOD in the first trial accurately at 7.15 in the evening, being approximately an hour after it is presumed Christine and Amber ate a Mcdonald's meal, only to say in the retrial that he was able to 'extend' that time to 3am in the morning. Of course because of Lundy's inability to be in 2 places at once if he were the killer the times of death couldn't have been during a time it was known he was in Wellington spending time with a prostitute. One could say that Pang's change of times was conveniently helpful to the Crown essentially dropping 1 case and replacing it with another at short notice.

Anyway I suggest for those that read it, that another irony is Pang writing to TVNZ after a documentary made by Bryan Bruce in 2010 estimating that the times of death in the Lundy case were at 2am and Pang's strong denial of that.

My opinion is that Pang's evidence was so compromised beyond his autopsy finding that it shouldn't have been put to the Jury, and is a large part of the reason Lundy was reconvicted when the evidence points to his innocence. This case may not be a popular cause but don't close your mind to the real facts. A dodgy and changing time of death, firm for a dozen years then dropped, a dodgy tiny spot on a shirt 'analysed' by an American Doctor in an unauthorised for forensic purposes laboratory who gave evidence that he would have been prohibited to give in a USA Court because of lack accreditation, qualification, a safe forensic audited path way, lack of providence on a parallel test he made on his own work in the same unauthorised lab. Dodgy with a capital of D, 2 Ds helpful for the comment dumb and dumber. Don't be fooled. Remember this case involves a man who for a dozen years was said to have when dressed as woman to have been seen running from the murders in the early evening.

Q. You are familiar aren't you with schedule 4, the Code of Conduct for

10 Expert Witnesses?

A. No, sorry.

Q. You're not? Well perhaps I’d better show you a copy.

A. Okay, yeah.

Q. Thank you Mr Crier.

15 WITNESS REFERRED TO CODE OF CONDUCT FOR EXPERT

WITNESSES

Q. Paragraph 1 you'll see Dr Pang, “An expert witness has an overriding

duty to assist the Court impartially on relevant matters within the experts

area of expertise.” “2; an expert witness is not an advocate for the party

20 who engages the witness.” Basically, Dr Pang, that means you're not

here to just bat for one side. You've got a duty to the Court to be

impartial?> snip

20 Q. Okay, now can we start again and can I have an answer to my question.

The learned Judge a moment ago established from you that there was a

difference between your position back then, at trial one, and your

position now and you accepted that that was so. Now I want to know

when it was that you changed your mind. Now, first of all, before you

25 answer that, do you understand the question?

A. I, I would think so, yes, yeah.

Q. All right, well can I have an answer please?

A. The answer to that is I gave an estimate at the previous trial and the

present knowing the limitation of estimating the time of death with

30 gastric contents would rather state the only certain time I knew and that

death could have occurred is between the 14 hour bracket.

Q. Dr Pang, let us try again. When did you change your mind? You told

the learned Judge you had changed your position?

A. Yes.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. I want to know when it was that you changed your position?

A. I would think that’s after the Privy Council judgment which you clarify

and emphasise the limitation which I already mentioned at the first trial.

Q. Well you would agree with me wouldn’t you that there is nowhere in any

of the material before the Privy Council that suggested 5 that it might take

some 14 hours and still someone has a full stomach. That’s right isn't

it?

1500

A. They are just, because it's a biological process there are a lot of

10 variables. In a normal subject it is unlikely but it is giving an estimate

without know all the variables affecting any individuals. So for the

majority of individuals that is correct but there is a minority, maybe even

a significant minority when the situation could be different. So to give an

answer that is certain I could only stay within the normal time of that

15 14 hour bracket but that's different from giving an estimate which I

already said will be imprecise because it's a biological process, it's

subject to variables and I would defer to a physiologist, a

gastroenterology to define that range and the limit at the last trial. I did

not attempt to give a range or a time bracket myself because it wasn't

20 my area of expertise.

Q. You told us a few moments ago that what changed your mind caused

you to change your position is what occurred before the Privy Council,

yes?

A. That's correct, yes.

25 Q. The affidavit of Professor Knight you've been asked about, that was

before the Privy Council, yes?

A. That's correct, yes.

Q. And you read the contents of that, yes?

A. Yes.

30 Q. And that he, according to him, normal healthy adult from time of eating

to emptying, having an empty stomach after a normal meal, three to four

hours and then he stretches it to six as a limit, that's what

Professor Knight says, yes?

A. Yes.

2126

Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. So that can't have changed your mind about one to 14 hours delay, can

it?

A. Not on that basis, no.

Q. Professor Paul Ciclitira, his affidavit put the limit of about just six or just

over six hours eating to empty 5 stomach, do you agree?

A. Yes.

Q. Can't have been his affidavit that made you change your mind, could it?

A. No.

Q. Professor Diamant? Paragraph 196 I think it is of Truscott he refers to,

10 referred to in Bernard Knight’s affidavit. He again postulates two to

three hours eating to emptying in a normal adult but would be pushed to

six hours. That's right, isn't it?

A. That's correct, yes.

Q. So that can't have changed your mind to one to 14, could it?

15 A. No.

Q. Tell me, who asked you to change your mind?

A. I’d – please, can I refer you to that affidavit that I gave for the

Privy Council?

Q. In that affidavit you did not suggest one to 14 hours or anything even

20 approaching it?

A. No but I quoted a paragraph from Professor Knight which he stated, “In

the majority of individuals emptying of the stomach with an average

meal is within three to four hours and is up to six hours for a heavy

meal,” which is in fact the evidence I gave at the, the first trial about,

25 specifically talking about an anaesthetic but he also added a paragraph,

“That even though the greater majority of individuals there’s a minority

when this limit, the time limit would not apply and this could be even a

significant minority and therefore we cannot place an estimate on such

shifting sand as stomach contents.” And that he say, the thing I follow

30 on to be on the safe side was to not even estimate but if you ask me

about the time that is certain that is a time bracket of 14 hours. So I

have not been talked into changing my mind by anyone.

1505

2127

Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. Okay. We know, of course – tell me this, just continuing as to the timing

of your change of position. You say it was after the Privy Council.

A. Just about the time.

Q. Sorry, just about that time?

5 A. Yes, yes.

Q. Well I’ll tell you what, did you ring up London when the revelation

dropped in your mind and said, “Look, hey, I got it really wrong in the

first trial”? Did you contact anyone?

A. No I have not been in touch with anyone in London.

10 Q. Well what about the police or Crown law, did you go to them and say,

“Look, I’m dreadfully sorry but having reflected on the, what the

Privy Council have said, I think I got it wrong.” Did you?

A. No I’ve not been in touch with anyone concerning this case.

Q. Well tell me, see we know and the Judge – the jury will find out in due

15 course, we didn't know until mid-January of this year that the

prosecution changed their theory about when the time of death was. It

used to be early.

A. Mhm.

Q. First trial.

20 A. Yes.

Q. And then it became late, second trial?

A. Yes, mmm.

Q. Now your – you've changed as well and what I want to know is whether

that’s a coincidence or not?

25 A. It is not a coincident. I could refer you to a printout I got from a east

Midland forensic pathology unit which I came across at the time of

preparing my affidavit for the Privy Council and this applies to forensic

pathology in general. If I may just read out a relevant paragraph. Just,

“Although a number of investigative tools are available to the pathologist

30 to assist in the consideration of this question, that is the time since

death, it must be borne in mind that no matter which tool is used the

opinion proffered is only an estimation. All that can be said, with any

certainty, is that the deceased died sometime between the last time that

they were seen alive and the time they were discovered.” And on the

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basis of this I would say it’s not therefore safe to give any estimate of

time to be, which may be misinterpreted as a time of any accuracy or

certainty. So it is not following the prosecution’s case which I am not

party to determine a time, changing of time from 7 o'clock to early

morning. There was – 5 I have no party in that area.

Q. Okay.

A. And I did not know of the change in time until I’d read that in the media.

Q. Okay, well –

THE COURT:

10 Q. Can I just be clear here. As I’ve understood it your one to 14 is;

one hour is gastric juices to kick in, 14 is the length of time that elapsed

between the two periods when someone, or the last period when

someone spoke to Mrs Lundy and when she was, her body was

discovered?

15 A. Except Your Honour, is the more between zero to 14 hours.

Q. Zero to 14 hours?

A. Yes.

Q. So the evidence that Mr Hislop is putting to you about what, are they

gastroenterologists or –

20 MR HISLOP QC

Both, a mixture of both.

THE COURT:

Q. – are saying, are you disputing that?

A. Sorry, I –

25 Q. If they say, based on this case it couldn’t be more than six hours after

food was eaten, are you disputing that as an expert or not?

A. I’m not disputing that, I think it should apply to the majority of individuals.

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. So you would accept in the majority of individuals it takes, at the

30 outside, about six hours for the stomach to go from full to empty?

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A. That's correct, yes.

Q. And to be fair on you that’s a view that you've held for quite a long time

isn't it?

A. That's correct, yes.

5 1510

Q. Because I think it was in November, 30th of November 2010 you were in

correspondence with TVNZ about a certain TV programme and you

were complaining because you thought that the broadcaster had been

unfair and misleading?

10 A. That's correct yes.

Q. Okay. And the crucial issue in the, in that complaint of yours – and what

I’m going to do is put a copy of it for – I’ve got a copy of it here and we

have a copy for the Crown. We’ve got a copy for the Court.

Your Honour it may assist the jury because there is a little bit of material

15 that they have a copy to follow through. You will recall that the

broadcaster, a Mr Bruce was opining a time of death about 2.00 am in

the morning –

A. That’s correct, yes.

Q. – that was his hypothesis?

20 A. That's correct yes.

Q. And it’s right, isn’t it, that you were essentially saying in your complaint

that you didn’t accept that as a hypothesis at all, do you agree, you were

disagreeing with him?

A. That's correct yes.

25 Q. And I think you set out the reasons why you disagreed with him and you

said, “Yes,” and this is page 5, if you want to follow, of your letter of the

30th of November 2010 and it’s almost half way down the page, the last

sentence of the second paragraph on that page and you're explaining,

“Yet at post-mortem the stomachs were full of food, it was photographed

30 as undigested,” and that’s what you were talking about Christine and

Amber Lundy, do you agree?

A. I beg your pardon, what page?

Q. I’m sorry, page 5.

A. Yes.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. And it’s the second paragraph and it’s the last sentence of that

paragraph.

A. Sorry...

Q. “Yet at post-mortem the stomachs were full and food was photographed

as undigested.” 5 Then you go on, “So –

THE COURT ADDRESSES MR HISLOP QC – PAUSE (15:14:00)

THE COURT:

Q. So count in five pages from the front Dr Pang.

A. Yes.

10 Q. And you should have a page that starts, “There are however significant

problems,” is the first line.

A. Yes thank you Your Honour.

Q. Got that – then go down, the second paragraph is, “Mr Bruce,” and the

third is, “A routine day”?

15 A. Yes.

Q. Okay, just about “routine day” you're being read the last two sentences,

“Yet at post-mortem...”?

A. Yes.

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

20 Q. “Yet at post-mortem the stomachs were full and food was photographed

as undigested.” So Mr Bruce’s assertion of 2.00 am or 3.00 am does

not work, do you see that?

A. Yes.

Q. And you were basing that assertion on that the six hour outside limit

25 from eating to stomach empty, yes?

A. That's correct, yes.

1515

Q. And you go on and you start to provide reasons, other reasons why

you're right and Mr Bruce has got it wrong. You say, “A routine

30 day-to-day situation can help us understand the time gastric emptying

takes. I gave evidence on this point at Court although Mr Bruce did not

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make any mention of it in his programme. This is that when patients

require a general anaesthetic for surgery to prevent aspiration of

stomach contents which can cause morbidity and even fatality, patients

are asked to fast, nil by mouth for a minimum of six hours.” As an

example, an information sheet from the Royal 5 Free Hospital and I think

you included that in your letter and you quote, “Having nothing to eat for

a minimum of six hours before surgery in this way we can assure that

your stomach is empty of all food.” And then you go on, “This is also

pointed out in the text book edited by Jason Payne James and Others,”

10 an you've referred to that in an appendix to your letter, referred to the

above, “In normal individuals prior to upper gastrointestinal endoscopy a

six hour nil per mouth period ensures that initially every stomach is

empty irrespective of precise food type and that often a four hour period

will ensure that the stomach is empty.” Now is that something that you

15 have obtained from that text you refer to?

A. That's correct, yes.

Q. And you go on, “Doctors accept six hours is enough to empty one’s

stomach for general anaesthetic and surgery in day-to-day hospital

practices. Using the same six hour rule we can expect Christine and

20 Amber’s stomachs to be empty by or before midnight (six hours after

eating at 6.00 pm) empty enough to be safe for surgery. And you go in,

“And probably earlier at 10.00 pm if we apply Dr Knight’s two to four

hours for most people and often a four hour period will ensure the

stomach is empty.” And this is you quoting from this textbook that your

25 referring the Chief Executive to the TVNZ to, is that right?

A. That's correct, yes.

Q. And then you say, “The demonstration of significant stomach contents at

Christine and Amber’s post-mortem therefore makes Mr Bruce’s

assertion of death at 2.00 am or even 3.00 am quite wrong.” Do you

30 agree that's what you were saying then?

A. That's correct, yes.

Q. And do you agree, are you saying that that is still right today?

A. That is correct for the majority of individuals.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. And then you go on, “Therefore the thesis of Mr Bruce’s presentation

and assertion that murders occurred at 2.00 am is inaccurate, it is

misleading to the viewers,” yes?

A. Yes, that's correct.

Q. And you go on at the last page of that 5 letter, “Mr Bruce’s solution which

is that the murders took place at 2.00 am simply does not work,” yes?

A. Yes, correct, yes.

Q. And that was your view then and that's your view now, is that right?

A. That's my view now for the majority of individuals.

10 Q. Among the reports that you doubtless have read is a report of the

12th of February 2015 from a Professor Horowitz. Have you seen that

report?

A. No I haven't.

MR HISLOP QC ADDRESSES THE COURT – EARLY ADJOURNMENT

15 COURT ADJOURNS: 3.19 PM

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COURT RESUMES: 3.41 PM

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. Dr Pang, over the short adjournment have you had an opportunity to

look at the report dated the 12th of 5 February of this year by

Professor Michael Horowitz?

A. Yes I have.

Q. You would agree wouldn’t you that he is very well respected in this

particular area?

10 A. Yes, correct, yes.

Q. You will see that it’s his view that your observations that no gastric

emptying had commenced was really the crucial point in the case of

Christine and Amber Lundy?

A. That's correct, yes.

15 Q. And indeed I think that was, in fairness to you, your position for a very

long time, yes?

A. It was my position beforehand, that is still my position now.

Q. And because Professor Horowitz says that generally trying to determine

time of death by gastric contents is by and large unreliable. That’s his

20 first premise isn't it?

A. That's correct, yes.

Q. But he says, doesn’t he, that this case presents a circumstance where it

can be reliable if you were accurate in your findings that the digestive

process had not started, do you agree?

25 A. Yes, yes, that's correct.

Q. That's correct. And so, in essence he says, if Dr Pang’s right in his

observations, what he could and couldn’t see in the small intestine, if

he’s accurate then I can determine time of death in the order of about

tQ. You are familiar aren't you with schedule 4, the Code of Conduct for

10 Expert Witnesses?

A. No, sorry.

Q. You're not? Well perhaps I’d better show you a copy.

A. Okay, yeah.

Q. Thank you Mr Crier.

15 WITNESS REFERRED TO CODE OF CONDUCT FOR EXPERT

WITNESSES

Q. Paragraph 1 you'll see Dr Pang, “An expert witness has an overriding

duty to assist the Court impartially on relevant matters within the experts

area of expertise.” “2; an expert witness is not an advocate for the party

20 who engages the witness.” Basically, Dr Pang, that means you're not

here to just bat for one side. You've got a duty to the Court to be

impartial?

A. That's correct, yes.

Q. Right now let us, knowing that, let us look at the evidence that you gave

25 at trial and see where it takes us.

THE COURT ADDRESSES MR HISLOP QC – LAST TRIAL (14:38:06)

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. And so if you pick up in front of you the transcript please and let me take

you to a number of passages and we will see whether we can find your

30 rough estimate.

A. Yes.

Q. Page 802 at the top please. And it’s line 17.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

A. Mhm.

Q. I’ll take it back. The learned prosecutor said this at line 16, “I want to

come back to this after we’ve dealt with the post-mortem of Amber but

can you describe, in brief terms, the stomach contents as you saw

them?” And your answer was this, “The 5 stomach contained a large

meal consisting of potato chips and probably fish, which showed no

obvious signs of digestion and no obvious smell of gastric juices.” “And

doctor, do you confirm that this is a routine part of a post-mortem

examination to inspect the stomach contents?” “That's correct, yes.”

10 THE COURT ADDRESSES MR HISLOP QC – REFERENCE PAGE

(14:39:32)

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. And you agree that that’s an accurate reflection of what was asked of

you and the answers you gave, yes?

15 A. Yes that's correct.

1440

Q. And then can I take you to 823 please and you're still being asked

questions by the learned prosecutor. Now I'm going to have to take you

through most of this page. “Dr Pang, you told us you examined as you

20 routinely do, the stomach contents of both Christine and Amber?” Your

answer is, “That's correct, yes.” “And you found what you described as

a large meal in both stomachs, appeared to you to be fish and potato

chips?” “That's correct.” “Page 125 that shows food particles,” you've

been referred to a photograph, “taken from the stomach of

25 Christine Lundy?” “That's correct, yes.” “And to the right of the

photograph is what, is part of a meal, and you say, “Potato chips.” And

then it goes on, “And to the left they appear to be what?” And you say,

“Some fragment of fish.” Now I think we actually have a copy of the

contents of Christine Lundy’s stomach and I wonder if you could have a

30 look at it please. Does that look like the photograph that you're referring

to and that which was being put to you in trial one?

2119

Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

WITNESS REFERRED TO PHOTOGRAPH OF STOMACH CONTENTS OF

CHRISTINE LUNDY

A. That's correct, yes.

Q. I wonder if that could be shown to the jury perhaps. We have a smaller

5 version.

THE COURT ADDRESSES MR HISLOP QC – JURY COPIES (14:42:39)

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. Now I think we agreed that was the photo that you were being referred

to, yes?

10 A. Yes, that's correct, yes.

Q. And there then follows questions about how large the meal was and you

say, “In these two post-mortems,” sorry, this is a question being put to

you. “In these two post-mortems both stomachs are quite full and

contained a large meal which were quite identifiable as to the contents,

15 especially potato chips and it's also distinctive in the fact that you could

not smell gastric juices?” And you say, “No, I could not smell gastric

juices.” And then it goes on, “In the absence of that smell did that cause

you to signal an opinion at the time?” “Yes, just a mixture that I was

correct in not detecting, not smelling any gastric juices of which has the

20 smell of vomit,” and it goes on about gastric juices. And then at 824 at

the bottom, “Now having observed that there was no presence, and

that's presence of anything in the duodenum or no smell of gastric

juices, did that assist you?” Line 28.

THE COURT:

25 Q. Just pause. Dr Pang have you got 824?

A. Yes.

Q. About four lines from the bottom.

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. I’ll put this to you again.

30 A. Yes, yes.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. You're being asked about what you observed and the question is, “Now

having observed that there was no presence, and the presence is

referring to what’s in the duodenum or what wasn't in the duodenum, or

no smell of gastric juices, did that assist you, and the observation of the

state of the food particles in determining a time 5 of death?” And you

said, “Yes it does.”?

1445

A. Mhm.

Q. And then it follows at 825, “And before we go onto your determination,”

10 this is the learned prosecutor, “Is there any limitation that you put on an

assessment of the time of death in these circumstances?” And you say,

“In regard,” you, you ask the question, “In regard to stomach contents?”

The prosecutor goes, “Yes.” And you say, “Yes there are factors would

affected digestive process in gastric emptying.” And the prosecutor

15 says, “Pardon, just repeat that please?” “There are factors that can alter

a timing of gastric emptying and the digestive process.” And the learned

prosecutor asks you, “Can you very slowly take us through the factors

that affect gastric emptying?” And you say, “And the most important

one is stress; physical, mental, emotional stress, may alter the timing. It

20 would delay the emptying of the stomach as well as the digestive

process.” And you go on and the prosecutor asks, “Well and in the

circumstances such as Christine and Amber, is that a factor that affects

the stomach emptying process?” And you say, “It might have been a

factor but it would be fairly limited in that taking the wounds of Christine

25 and Amber sustained, taking both the wounds that Christine and Amber

sustained, yes, death would have followed very soon after those

wounds were inflicted.” Then the prosecutor says, “So death would

have been soon after that?” “Yes.” “To the extent that psychological,

emotional stress or physical stress would affect gastric emptying or

30 digestion, it would only be a matter of minutes to alter the timing, at

most a few minutes.” And then the prosecutor goes, “At most a few

minutes?” And you say, “That's right.” Now, you accept that’s what you

were telling the Court?

A. That's correct, yes.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. And that was some of the limitations that you've told us about earlier,

when I asked you about the distinction between what you are saying

now and what you were saying then, do you agree?

A. This limitation is specifically related to the physical injuries sustained.

5 Q. Mmm.

A. And not to, necessarily to other factors.

Q. Well you seem to be saying there that the – any psychological or stress

related delay in emptying of the stomach in this – on the facts of this

case, is limited to a few minutes, that’s what you seem to be saying,

10 yes?

A. At – this is really to, specifically only to the physical injuries at the time

of the attack because death follow quite soon after the injuries.

Q. Can I take you then back to line 23 of the same page and we’ll read it

again.

15 THE COURT:

Just before you do, can you just again clarify please what you say the doctor

said in 2002 and what you say he’s saying differently today so, just we’ve lost

the context – too much reading kind of loses the context.

MR HISLOP QC

20 Sure. What the, what the doctor said back then was time of death, one hour

after eating the meal. He refused to be pressed to one hour 15. He said back

then there were a number of variables that affect gastric emptying including

stress and psychological features but he said that they were restricted to

matters of minutes. What he’s said today is that I can't tell between one and

25 14 hours because there's too many variables and we’ll get to how tight he was

on that in a moment. I’m sorry it’s taken so long.

1450

THE COURT:

Q. Well let's just get a general answer first. Doctor, do you accept that the

30 general thrust of your evidence in 2002 was that the time of death was

likely to be an hour after the meal was eaten?

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

A. Yes an estimate at that time, yes.

Q. And do you accept that you are now not saying that?

A. That's correct, yes, Your Honour.

Q. So you accept that you have changed in that extent?

A. It's now I 5 would not give an estimate.

Q. Of the length of time after the meal was eaten?

A. That's correct.

CROSS-EXAMINATION CONTINUES: MR HISLOP QC

Q. Page 831 please, trial one transcript. 831 and it's line 24. The learned

10 prosecutor puts the following to you, “So you were left with determining

the time of death by reference to stomach contents?” And your answer

is, “That is correct, yes.” And the learned prosecutor, “And based on

your examination and your experience and your knowledge what do you

say was the time of death by reference to the consumption, that is the

15 ingestion of the meal?” And you say, “Taking into consideration all the

factors I would estimate it be one hour,” do you agree that’s what you

were saying then?

A. That's correct, yes.

Q. And then the learned Judge at that time intervenes and he says, “One

20 hour after the ingestion?” And you say, “That is right Your Honour.”

Then your evidence proceeds, learned prosecutor, “Did you express

that view to the inquiry team at the conclusion of the post-mortem?” “I

did, yes.” “In each case?” “Yes, that is correct.” Then the learned

Judge, “So another way of putting it is that it takes about an hour for the

25 digestive gastric juices to flow?” And your answer was, “It would take

less than an hour.” So one hour’s the time bracket?” Your answer,

“Within an hour, within an hour, yes.” Do you agree that's the evidence

you gave back then?

A. Yes, that's correct.

30 Q. And at 838, and it's line 24, “Your opinion is that a death occurred within

one hour of Amber and Christine eating their meal?” And you say,

“That's correct.”

A. Yes.

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

Q. And the learned prosecutor says, “So if Christine and Amber died at

10.30 pm you would say they ate at 9.30 pm?” “That would be correct.”

And the learned prosecutor, “When you say one hour do you accept that

there could be a margin of error in that?” And you say this, “Arriving at

the conclusion of one hour I've allowed for 5 the factors that may delay

gastric emptying.” Question, “Do you accept that there could be a

margin of error in your estimation of one hour?” And you say, “It will be,

it's possible to have a slight margin of error, as I said yesterday, if there

is a struggle or emotional upset there may be a delay in gastric

10 emptying but the extent of several minutes.” “So it could be an hour

10?” And you say, “Possible.” And by the way, this is

cross-examination not my learned friend the prosecutor. And then the

question is put to you by then defence counsel, “An hour and

15 minutes?” And you say, “Arriving at the conclusion of one hour I

15 would be quoting allowance for the margins or different factors.” “So

you could say the margins is more than an hour, maybe up to

10 minutes?” “It's possible, acceptable, but to stretch it beyond I don't

know how far you can stretch the limits of the factors because they

probably would require the expertise of a physiologist rather than a

20 pathologist.” And then it goes on, “So you are accepting that it could go

longer than an hour and a quarter in your opinion?” You say this, “My

opinion is that probably one hour would allow for the other factors in this

particular situation such as fatty food or some psychological upset, but

we can stretch it to one hour and 15. It is in, within my expertise to say

25 that.” So do you see you were saying, taking all the variables into

consideration, “I could stretch it to one hour 15 post eating,” that’s what

you were saying, do you agree?

1455

A. I was giving evidence as the pathologist but I would say the range is to

30 be defined by a gastroenterologist who I knew at the time would be

defining the range for me because I would say that I would not be quite

up to date with the latest information of the range. So the part I knew

would affect the delay is the delay following the physical injuries, those

few minutes refer specifically only to the few minutes after the

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Q v M LUNDY – CRI-2001-054-832244 (09 February 2015)

sustaining, after sustaining injuries. So outside I would referred, defer to

the opinion of a gastroenterologist which I knew at the time would be

giving evidence.

Q. Dr Pang, what you said was this, “My opinion is that probably one hour

would allow for the other factors in this 5 particular situation, such as a

fatty meal, or some psychological upset, but we can stretch it to

one hour and 15 minutes. It is within my expertise to say that.”

A. Yeah, that part is, “within my expertise” is related to the wounds

because I would say the wou – that following those wounds they would

10 die within minutes.

Q. Dr Pang, in answer to His Honour’s questions a few moments ago you

accepted that you'd changed your position?

A. That's correct, yes.

Q. When did you change your position?

15 A. When I give the evidence the last time I said I was not giving evidence

as an expert in this area. The expert in the area will be the

gastroenterologist so I’m (inaudible 14:57:52), trying to define, to give a

limit of the factors I know, which is the physical injury following the

attack.