Wednesday, June 29, 2016

Another part of the Lundy retrial con.

I think most observers of the Lundy case  narrow the evidence against Lundy down to 2 areas: the times of death (tod) of Christine and daughter Amber, and the spots on Lundy's shirt. Putting emotion or feelings 1 way or the other aside - that is the Crown case, that Mark Lundy's wife and daughter died during a period when he could have left Wellington and returned home to kill them for a reason which has never been established. On that point the times of death are critical, the second aspect is a single spot on Lundy's shirt said to be central nervous tissue from Christine (brain matter) which had been chemically enhanced before being tested in an unauthorised for forensic purposes overseas lab, and tellingly later found to contain animal central nervous tissue traces which under any explanation means the spot was changed by chemicals along with being contaminated. That's what you get I guess paying unauthorised folks half a world away to test your samples that no one in NZ will test because they believe them to be too downgraded and unreliable for testing.

I want to deal with another aspect of the times of death. Those with knowledge of the case will remember the late change to the prosecution case against Lundy. 2 weeks before the retrial the Crown suddenly revealed that their benchmark evidence that Christine and Amber were killed around 7pm was revised to have been some 8 hours later at around 3am the following morning. I've been doing a lot of reading on that change. I've never accepted that the Lundy defence were given ample time to prepare with only 2 weeks notice to a major chance to the Crown case, I also believe the Crown must have known about the anticipated change at least a year or 2 earlier. It was a deceitful manipulation of the rules in criminal cases of discovery to the other side, putting the defence under pressure from which, to my observations, they didn't recover despite best intentions.

Everything in a prosecution has a design. In the first trial the Crown had designed it's case around a different time of death, one which barely captured Lundy by time - in fact few people believed the high speed trip Lundy was alleged to have taken from Wellington and back unseen. The Crown case had been in trouble from the moment the Privy Council over turned ML's conviction, in part because of the evidence of Dr Pang who set the time of death at the first trial, and secondly because evidence had been hidden, not held back to the last minute as happened at the retrial - but the impact of which was just as bad. However some evidence was still withheld some of which I mention here later. Anyone interested in this case would routinely be interested in not only the changed tod but how it was made to fit, that is how a witness gave explicit evidence as to a tod of 7 to 7.15 to 15 years later make the unintelligible claim that the victims must have died between the time they were last seen or heard from and when they were found  deceased - a difference between a specific time to a general claim that it could have been at any point within a 14 hour period. That deserves a closer look.

Pang said he changed his evidence after doing more reading. Whatever one's feelings are about this case it can hardly been appreciated that a witness changes his evidence after 15 years as the result of doing some more reading. Pang was a professional man, if he was to change his evidence he needed to provide certain reasons for that, however he never did. He was very vague and that's a clear indication to the design of his changes to the times of death. The Crown needed the times of death to fall from one abandoned specific time, to another that fell outside Lundy' alibi. I should say accidental alibi - because on the new Crown case he didn't need one, so much for that falsity.

The change of the tod at the retrial is the prime example of where the Crown slipped up, and why it certainly looks that Lundy is innocent on the Crown case alone as you will see later. Pang never gave any evidence of realistic weight as to why he had changed his mind. Despite the reading he had done since the first trial, Pang was unable to explain why he had never weighed the stomach contents at autopsy, he was also unable to explain if the had taken body temperatures for fear of disturbing evidence - what they evidence could have possibly been. He also didn't explain something that the Jury were never to know, that he in his complaint to the Broadcasting Standards Authority (BSA) over a documentary that took issue with his tods, he referred to another book he had read where autopsy procedure was to weigh the stomach contents. He obviously wasn't concerned about that enough to tell the Jury and the Crown were quite happy to hide his explanation of supporting facts for BSA, he simply appeared to just want to change the times of death in a vague way so as to allow the Crown to claim that Lundy could have murdered his family in at 3am in the morning.

Because Pang couldn't do that without getting more egg on his face the Crown called Dr Sage, something of a hotshot Forensic Pathologist with over 9000 autopsies of experience. The Crown appears to have clearly understood that that it needed to combat a point of evidence that Pang had recorded - stomach contents and an empty duodenum (part of the small intestine). The literature says that if there is no waste found inside the duodenum at autopsy in circumstances where the stomach has food then digestion has not taken place, or begun. Digestion was a big fail in the Crown's case at the retrial and Sage's evidence was an effort to get around that. Not an effort to ensure Justice, but something to bolster its weak case. If you argued that the Crown were right because the Jury convicted then you haven't considered what the Jury didn't hear and how they were manipulated by possibility that has scant scientific basis. That is what Sage did.

Firstly before forwarding to Sage's evidence one must consider something we all know, that a person cannot have surgery until 6 hours after eating when the stomach is empty. The formula is accepted as that as little as 4 hours is required - but the safety margin is increased to 6 hours. One must also consider that on the issue of stomach contents and digestion, times that may have assisted with establishing a tod that the defence specialist Dr Horowitz, co author of publication on digestion and related subjects, told the Court that he had not been able to read Pang's retrial evidence in order to allow him to comment on that evidence specifically. He also gave evidence about the lack of time to prepare generally. I have no idea how a Court could ignore that advice from Horowitz and it must surely be a point of appeal even before considering that Horowitz was also not made aware in Pang's submissions to the BSA  he was mentioned as a contributor for a scientific journal he wrote along with a Professor Pounder. Bad enough that Pang's retrial evidence was not made known to Horowitz by the Judge at the retrial, but to also now know that Pang specifically quoted data from the Horowitz and Pounder book to prove his tod at 7 to 7.15pm and that with the author of that book standing before the Jury not knowing about the Pang submission he was unable to respond to the earlier claim by Pang that his reading had included the trial witness Horowitz who did not in fact support a 3am tod. Horowitz in his evidence could have assessed if Pang, as he claimed to the BSA, had followed the authority quoted by Pang from his, Horowitz's book, and  therefore if the claims were consistent with what the author had written and which was peer reviewed internationally. Even more enlightening (or worrying) was that the excerpt from Horowitz's written work included weighing the stomach contents and else where in the work discussed taking body temperatures of deceased persons - both of which in his evidence Pang admitted failing to do. Remember again he said he didn't want to disturb potential evidence, but in fact it was his job to collect the evidence - and of course take samples, weigh the stomach contents, record the details and photograph the contents. So this was the man Pang standing between Lundy and his freedom, having once quoted from a book to support his complaint was now wholly silent on the matter along with a complicit Crown hiding evidence, again.

Onto Sage whose evidence is below. Even in the revelation of his evidence the Jury were duped because for some reason the trial Judge France allowed, during the re-examination of Sage by the Crown lawyers, the introduction of new evidence thereby preventing cross examination on it. I don't know how that happened but it did and the evidence is below. Bad enough before reading the evidence and understanding that what Sage says has no impact on explaining how the stomachs had undigested food in them, which according his his evidence, could have meant that Amber and her mother were eating after midnight. Before turning to that consider this peer reviewed statement on which to approach scientific calculation:

In the paper “Postmortem Changes and Time of Death”, Prof. Derrick Pounder refers to the importance of what is known as “anamnestic evidence”, that is what is known about the deceased’s ordinary habits, known movements, and normal and/or known activities leading up to their death.

In Sage's evidence he stressed and emphasised that 'we do not know' when Christine and Amber last ate. Why was he doing this when at the first trial the Crown had been specific that the pair ate McDonald's shortly after arriving home with them at 6pm. Dr Sage didn't want the Jury 'to know' about anamnestic evidence which scientists applied to deceased person's ordinary habits, he ignored that which had been applied in the first trial because he could use that to puzzle the Jury into thinking that Amber in particular might have some how been allowed to break her before school routines and not go to bed at 8pm and would somehow be eating a cold or reheated McDonald's meal after midnight. Because that could explain, by Sage's evidence, her stomach contents for a tod of around 3 am. Why do I say after midnight? Not rocket science, just a simply reliance on what we all know, before an operation it must be confirmed that the patient has not eaten for 6 hours, 4 hours for the normal course of digestion stretched to 6 as a safety margin. Therefore according to Sage a 7 year old girl was up in the early morning, close to midnight eating, what nonsense with no scientific data in support but actual anamestic evidence in denial as given under oath by her grandmother.

Sage, as you will read from his evidence on which he was never able to be cross examined, would deepen the confusion. Noting that the duodenum when opened at autopsy if empty indicates that digestion has not started, which was Pang's consistent evidence in both trials, Sage was handed the job of re-designing that evidence. He said that a body lying on it's back could force out digested material from the duodenum into the lower bowel. Of course this allowed for Sage to say that Pang's observation didn't take into account that digested slurry may have been forced out of the duodenum. I'm not sure if Sage gave evidence after Pang or not, but I do know the Defence never had an opportunity to cross examine Sage on this evidence, and even more importantly put it to the operating Pathologist Pang. Pang said the duodenum was clear and no fluids present, Sage wanted that to be taken as absolute sign that it may have emptied because of the bodies being on their backs - but there was no evidence given by Pang of even any residue of slurry in the duodenum, he said it was clear. So not only did Sage want to say it could have been forced out, but also to say that it could have been forced out and not left even a trace or any fluid. Presumptive bullshit, if not in isolation then in accumulation because while I like bullcrap to some extent it has to stand scrutiny. So, not only a clean as a whistle duodenum but also another factor follows. The amazingly wonderful Sage performed his autopsy procedures of the duodenum having first tied off the ends. Seems logical and possibly best practice although the Jury never got to hear how Pang performed this aspect of his autopsy procedures and why. But taken to an logical, even if I may use the word, anamnestic conclusion Sage never gave any details of the autopsy procedures generally employed in 2001 and 2000 or any results that provide adverse comment on the alternative Procedure Pang or any other Pathologist may have used. However, there is something even more simple to consider here. The bodies were placed on their backs at the murder scene, removed to the morgue in that fashion, placed on the autopsy table in that fashion - surely by then even another Pathologist as remarkable as Dr Sage would have been able to say that was ample time for the duodenum to clear out, and if by some miracle could say why no trace of fluids or slurry would remain. The duodenum is like a small hose, does anyone expect a hose to be completely empty of water when it's turned off, not straightened out and curved on the ground not to have water retained - even on a slope? The answer is no.

Before proceeding to the evidence of Sage below I point out again what I have blogged about earlier. In his evidence at the retrial Professor Horowitz not only  told the Court that he had not been able to read Pang's retrial evidence, but he also asked the Court for details from that evidence - specifically, how deep into the duodenum Pang had cut. That was never answered. What the Jury heard was nonsense from Sage that couldn't explain the food found in the stomachs of Christine and Amber, the clean duodenums, both answered by a claim about bodies lying on their backs which was never able to be challenged by the Defence. This all points to there being no critical explanation of what evidence the Crown had in 2015 to explain the change of the tods. It was never explained to the Jury why the stomachs of the deceased had the same contents, that as it was argued they had at 7pm in the first trial, as they did 8 hours later when digestion to empty could have, according to the science, happened twice. This is not to say that Christine might not have snacked again after she ate with Amber when Amber was already in bed and asleep, but that she certainly did not eat after she went to bed at 11am, a time, from which point her stomach would not have been quite full but which by accepted times of digestion would have either been empty or quite empty at 3am.

A design fail. A miscarriage of Justice with material hidden,witnesses asked to comment on evidence they had not read - a bloody disaster that has put an innocent man in prison, for the second time.

  If you're
 lying on your back with
 the ordinary pressure of
 what’s sitting on top of you, when you come to  open –  conventionally at autopsy, what I do is I clamp this bit  here and I  take this bit here all out  in one go. So I –
 20 Q. Just turn your page
 around a little bit just to the jurors.
 A. – sorry. I clamp,
 tie off here, actually ligate it. Clamp through here  and  take all this section out  as a foregut but all in one go so when you do  that you can actually see  what’s in here when you open your way down  through here with a pair  of scissors. And when you look at that most
 25 people –
 there's only a scant amount of material in here by the  time  they’ve been sitting  on their back, dead for a while. Unless, of course,  you have the unusual  situation that something’s blocking things up  down  here and this bit’s  all dilated and full of fluid and stuff.
 Q. Was there any evidence
 that you saw which suggested there was a
 30 blockage of any
 A. I think Dr Pang would
 have pointed out if either of them had a bowel  obstruction and  there's no comment, it’s not there, I think  reasonable to  say.
 Q v M LUNDY –
 CRI-2001-054-832244 (09 February 2015)
 Q. And if I understand you
 correctly, what you're saying is that lying on  your back just puts  pressure on the stomach and duodenum because of  where it’s located  and it just pushes through into the small intestine.
 that essentially
 what’s happening?
 A. Yes so the –
 assessing then whether you've got 5 more than you'd  expect  or less than you'd  expect in this section here becomes very difficult  to  do at autopsy. I mean,  mainly in the living, if you're looking at them  with  a gastroscope and so forth  it’s much more straightforward or imaging  them with modern x-ray  material but at autopsy it’s very difficult.
 10 Q. So if we take the
 bodies of the deceased from the time of death of  Amber she was lying,  appears to be lying on her stomach at least.
 You've seen that in
 the scene photos?
 A. Yes, but she would have
 been conventionally turned over as she was  removed from the  scene.
 15 Q. Yes and then taken
 to the mortuary?
 A. Yes.
 Q. And then ultimately
 taken to x-ray as we know. Returned to the  refrigerator and then  subject of a post-mortem examination. Is that  enough time for her to be  on her back to empty out the duodenum of
 20 itself?
 A. I haven't got any
 data from which I can say, you know, here’s a  whole  set of people we’ve  tested, here’s the stuff in there. We’ve done  these  things to them, this is  how long it takes to empty, so I don’t know  the  certain answer to  that.
 25 1700
 Q. And similarly,
 Christine Lundy is found on her back in the scene?
 A. Yes.
 Q. Moved, taken on a
 similar course, routine, to the mortuary,  radiography  and then  post-mortem?
 30 A. Yes.
 Q. Can you offer anything
 about her position?
 A. Well, you know, again
 we don't know how long that sort of thing might  have, there’s no,  there have been no studies as far as I know of what  happens in dead bodies  establishing how much is there to start with and
 Q v M LUNDY –
 CRI-2001-054-832244 (09 February 2015)
 how quickly it might
 change, or whether it changes or how quickly it  might change, but my  observation is that looking at that section it's  often  difficult to know whether  there’s a lot or a little.
 Q. So do you remember of
 the view that, as a form of reliability, it's
 5 seriously flawed
 A. Yes I do.
 Q. – despite
 what’s recorded or attributed to Dr Pang?
 A. Yes.
 Q. Now I think my friend
 was cross-examining you about the report
 10 prepared by Professor
 Horowitz of 12 February 2015 and when he first  read to you this passage,  “An exception which appears to apply to  R V Lundy is that when  there is no evidence of gastric emptying –  that  when there is no, that  gastric emptying has commenced, that is in either  a solid or liquid meal,  components are present in the duodenum or more
 15 distally in the small
 intestine,” and you did answer him originally,  my  friend originally by  saying there are three answers to that or three  parts  to that. Do you want to  now give us the three parts?
 A. I may have lost count,
 yes. The two – no I have to think myself now.
 The two points I think
 that were important were that you don't know
 20 when the stomach got
 filled so using that as a, the emptying as a  criterion for how long  since they last ate second guesses when they  might have ingested the  food.
 Q. And in answer to my
 friend you said, if I recall it correctly, that the  statement which is at the  end of the report in parenthesis one and two is
 25 meaningless unless you
 know when they last ate?
 A. Yes.
 Q. And you stand by
 A. Yes. Well one and two
 hours stays one and two hours but you don't  know where you're  counting from.
 30 Q. Sure.
 – NIL
 Q v M LUNDY –
 CRI-2001-054-832244 (09 February



  1. That is a useful summary Nostalgia.
    The plot is extremely dense in texture, the players yet to realise how the official record can capture both good intent and bad.

    When the privy council wrote in the Teina Pora case

    "39. In the Board’s view, Dr McGinn’s evidence should be admitted. The process by which admission of new evidence should be determined was stated in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273, at para 120:
    “… the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.”"

    The evidence was considered by a jury, but Amber's stomach was quite full with a large meal at time of death, as stated by James Pang before any policeman or prosecutor could suggest he might have been mistaken. The autopsy was witnessed and confirmed by two policemen, who saw the FOOD.
    It is usual for the stomach to be empty 4 hours after eating because that is what the specialist says before your gastro endoscopy. He says allow six hours and we are quite sure your stomach is empty no matter what you ate.
    So if Amber did not eat a large meal long after her 8pm bedtime, Mark Lundy could not have been there, since she was dead long before his alibi expired at 2 45am.

    Since this means a miscarriage of justice, all autopsy evidence is deemed "fresh" if I understand what the privy council is saying, not once in Lundy, but twice after Pora.
    And by the way, I understand exactly what they are saying.

    1. Eventually it will be widely understood that the only thing new about the Lundy re-investigation and retrial was that police started with an new objective - not to consider that he was innocent and start afresh with their inquiry, but rather to find a way to avoid the high speed car trip, the controversy over the 7 to 7.15 and slot the murders in at the first available time when it could be said he might have returned to his home. That's why this case will fall apart again.



  3. "Abstract
    The time of death estimation plays important role in solving both criminal and civil cases. The inspection of the gastric contents must be part of every postmortem examination because if the time of taking last meal is known, the approximate time of death can be made out indirectly. The rate of gastric emptying varies in man from 2.5 to 6 hours. The length of time required to empty the stomach is variable as it depends upon a host of factors like nature and consistency of food, motility of stomach, contents, environment, emotional/psychological factors and residual variations. The aim of this study is to determine approximate time of death by examination of gastric contents in deceased body brought to mortuary at Civil Hospital Ahmedabad, Gujarat. Present study was conducted on total 100 deceased persons (70 males and 30 females) whose time of death and time of last meal were known. Gastric contents were examined and divided in three categories; semi-digested identifiable food particles, semi-digested un-identifiable food particles, empty stomach. These findings were compared with time interval between last meal and time of death. In present study the identifiable semi-digested food particle were found more commonly in those persons who died 0-2 hours after last meal, un-identifiable semi-digested food particle were found more commonly in those persons who died 2-6 hours after last meal and empty stomach were found more commonly in those persons who died more than 6 hours after last meal. From present study we conclude that indirect estimation of time since death can be possible from examination of gastric content but due to variability of gastric emptying in different individuals we can’t exactly define time since death."
    Viras Patel, Dharmesh Silajiya, Kalpesh Shah, Anand Menat, Mehul Tandel, Sandip Raloti.
    IJCRR. 2013; 5(11): 125-129

    In the stomach the food gradually gets ground up into chyme, in which the food particles are very small.

  4. Thanks Chris. As you know in Christine's case there were undigested chips photographed as having been taken from her stomach. Sage explain the fat content of chips makes the progress of digestion somewhat slower, I suppose he would be comparing that to say boiled potatoes. I don't know of any comment he made about the pieces of fish also contained in the photograph. Fish by it's nature is more digestable that deep fried chips and by the time both have reached the stomach pre-digestion by chewing has already broken down the food. Professor Horowitz says that Pang was closer to being correct in his estimation at the first trial. The stomach contents prove innocence in this case but I think it was lost of the Jury due to the short notice of change of death times allowed to the defence, and other material that was withheld from the 2nd Jury important to their deliberations.

  5. Further note on that Chris, the study you cite, along with the attendant photographs would have made it a lot easier for the Jury to actually see the difference by photographs of chyme compared to undigested food. I think it would have made a difference to the verdict, I also think that the Crown knew a long time before the trial, months maybe even a year, that were, or were likely to be,changing the times of death long before they let the defence know.