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.