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.
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.
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?
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
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.
Q. And similarly,
Christine Lundy is found on her back in the scene?
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?
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?
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.
EXHIBIT C13 PRODUCED
– WITNESSS DIAGRAM
QUESTIONS FROM THE COURT
Q v M LUNDY –
CRI-2001-054-832244 (09 February