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.

Special agent X in the Lundy case.

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

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

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

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

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

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

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

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

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

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

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

Some of the ridiculous things about the Lundy case.

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

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

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

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

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

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

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

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

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

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

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

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

Why it looks like Lundy got framed.

That the police changed their story is only 1 thing.

In assembling a list there look like two sources of information that give a clue as to why Lundy may have been framed. The first is the evidence and conduct of the officer in charge of the case Grantham, the 2nd is what the Courts have had to say about the retrial.

There is only 1 key issue, Lundy's shirt said to have either his wife's brain matter on it, or spinal cord matter from an animal arriving there from a food splash. There is no proven motive for Lundy, there are no sightings of him having been at his family home on either the evening or early morning in which it is known his wife Christine and young daughter Amber were killed. He was confirmed to have been in Wellington. There was no evidence found at the scene which link Lundy to the killings. He was not a violent man and there are no reports of any domestic situation between Lundy and his wife that was untoward. Not a single witness anticipated that there were problems within the family other than of a type facing any ordinary family.

So it is the shirt that matters. Matters from the time when if was confiscated from Lundy and matters to this day. Everything surrounding the shirt is still accessible to testing, whether Lundy has the resources to do that, or if funding could be provided by Legal Aid that shirt needs \more testing.

Proceeding towards his retrial, and on late brief the Crown gave notice that it was going to change it's allegations after 14 years of sticking to them like glue. Essentially, 90% of the original Crown scenario was gone or changed, an unprecedented situation in NZ and perhaps even the world. What remained was the shirt, bolstered by supporting evidence of a test procedure only used a handful of times in the millions of cases where defendants have been prosecuted world wide for murder since 2001. In short a novel system to bolster a finding heavily criticised by the Privy Council who ordered that Lundy's first conviction be set aside while leaving the decision of any retrial to rest with the NZ prosecution authorities. At that point the Court was introduced as the second or responding voice to the first source, the testing of and handling of Lundy's shirt.

The Court was asked to ruled the new supporting evidence of the original tests on Lundy's shirt as inadmissible. Here is the time to make the point that the Courts were never asked to consider the conduct of Grantham in respect of the way he handled the shirt, or secondly if Grantham had samples of Christine's brain released to him before he took the shirt overseas for testing. That testing, following  the refusal of any New Zealand scientist to test the shirt because, at least in part, that the original pathologist Dr Teoh, who when examining the shirt said that the material was too down graded to put a man's life at risk by trial. Here is the time to mention that 2 other deposits of Christine's brain found on a phone and table mat hours after the killing were also too down graded to be tested. Brain and stem cell material rapidly deteriorates outside the body, I do not know if the two samples found in the house were tested for neurons or not but of the 2 almost invisible spots on Lundy's shirt examined months later resulted in mixed results, 1 was too far gone to enable reliable testing (just like the 2 found in the house) the other tested, according to Miller, as being human brain matter - but which had no neurons. Every part of the human brain had neurons in greater number in  the outer hemisphere reducing toward the centre, even the lesser neuron capture in the middle brain tests in the millions for neurons - but somehow Miller's miracle sample, the only survivor had none at all. The defence had evidence which was essentially that the stains had tested for animal brain cell material, splattered animal fat from cooking.

This is where the understanding of why Lundy is convicted becomes incredulous. The single evidence against him, the shirt, is a changing mystery. It was never handled properly, was rejected as suitable test material at the outset and got taken to Texas. Before the officer in charge of the case took the shirt to Texas he first of all handled it in a way outside the rules of the police manual. He wrote to the ESR before he left for Texas asking for samples of Christine's brain but has apparently denied being the person who was provided the samples. Surely if a man is faced with going to prison for life, the sanctity of carefully handled material according to the rules is foremost - the very least required is the careful handling of exhibits by members of the police and analyzing scientists employed.

Grantham gave evidence that he put the shirt in special custody because he didn't want Lundy to find out about the spots on the shirt. This beggars belief. First of all there is no way Lundy was going to find out any details about the shirt until he was charged and reached Court for depositions. Police do not reveal evidence to suspects other than deliberately in order to get comment from the suspect or some kind of explanation. The tiny spots were not a secret, other police were not going to tell Lundy about them unless instructed to do so by Grantham - his comments, and handling of the shirt makes no sense but do cause concern. As does the question as to why Grantham 'searched the world' to find somebody who would test the shirt that NZ Scientists would not. Why did Grantham have confidence in Miller who was not a forensic scientist and had no practicing licence as a forensic scientist or an approved Laboratory - a man who presumably would not be allowed to give evidence on such matters in his own country? What ever answers are given to those questions they cannot genuinely dispel the concerns offered by Dr Teoh, or the equally worrying miracle of the single surviving specimen that had 'lost' its neurons.

Back to the second source creating both doubt and concern in this case: includes the Judgement by Justice Kos as to the admissibility or inadmissibility of Miller's evidence he said that it was a 'curiosity' that a single sample had survived, that it was a 'curiosity but nothing more than that.' I would agree that it doesn't look as though Kos was asked to consider whether ot nor it was also a curiosity that the officer in charge of the case had handled the surviving sample in a manner outside the instruction manual, that he had ignored local professional advice by those qualified to give such opinions and instead had gone fishing for another 'expert' of less professional standing to discover the miracle that only Grantham appeared to know existed in spots roughly the size of grains of salt (pause here to consider when looked at on the shirt compared to when looked at on a slide the alleged same material from the same source was unrecognizable in its second situation compared to his first - it's appearance had changed,) - one could think that surely the status of the evidence was more than a curiosity but rather a reason for alarm. It also doesn't appear that Kos knew about samples of brain being released to some person before Grantham's trip to Kansas, or indeed about letters requesting such samples. He should have been told if he wasn't. Such information may have or should have built the curiosity to the point where the evidence should have been disallowed. Not least because of it's late arrival in the piece, why Lundy's lawyers didn't seek the opportunity for a delay in order to provide time for further research must have been a marginal call - perhaps they did not know all the details that time since has provided.

What Lundy's lawyers did do was appeal the Kos decision to the Court of Appeal where in a minority Judgement by France E, the president of that Court, rejected the evidence in a Judgement of astounding clarity compared to the shorter majority Judgements which to my mind provided no answers to the 'curiosity,' the lack of status of Miller in this field of forensics or indeed the rejection of Teoh of the samples - which incidentally where withheld from the first Jury by one person - yes, Grantham. Where ever there is irregularity in the handling of Lundy's shirt or information about it comes back to 1 man. It appears no argument was raised by the defence concerning the handling of the shirt but the President of the Court of Appeal appears to have clearly understood, from what evidence before her, that the shirt evidence was not admissible.

The 3rd leg of Judicial input goes to the trial where from memory the trial Judge France J made no comment on the Kos observation of a 'curiosity' between live and dead specimens. France J when commenting about the conflicting evidence regarding the shirt was not permitted to disclose to the Jury the very important factor that the President of the COA had rejected the evidence. All that evidence was temporarily suppressed. Why a Jury were not entitled to the comfort of knowing that if they considered the evidence suspect (without even knowing about the odd handling of the specimens) then no less than the President of the COA had found it wanting.

The average person on a Jury is possibly unable to understand all the technicalities of the forensics in the Lundy retrial, but what they could have understood, and which imo they should have been told was the OIC had handled the exhibit in a non specified way, also that there were claims other slides had been released to him before he went to meet Miller. If a reader asks why a Jury should have been given that information then there is a simple answer which the Courts and Prosecution overlook unless it raised by the Defence. It's understandable that the Prosecution prefer that route (suppression) because it is obvious it weakens their case, but why France J left it aside is of concern. This observation is not directed at France J specifically even though in this specific case it could be seen as important that the Jury were not told all the relevants facts about the controversial evidence, that it was hidden is a blight on Lundy's conviction. I'll give one example why.

When convictions are eventually overturned on the grounds of a miscarriage of Justice in NZ, at least in recent years it has been by the Privy Council. This is true of Lundy, Bain and Pora. These cases are looked at in isolation, it appears nothing is learnt from them and others following on the same path can easily fall prey to Miscarriages of Justice because the Judiciary take no stand on it, in fact appear compliant. Thus the reason why Joe Karam ensured that the Jury in the Bain retrial knew about the conduct of ex detective sergeant Milton Weir who like Grantham hid evidence from the first jury, acted outside the protocols of the manual and misled a Jury. Whether that should have been left up to the Judge to decide in the Bain retrial was not left to chance, Karam ensured that the retrial Jury knew about the way Weir had acted before the first trial and during the trial. Here is a relevant time to compare what Weir admitted doing compared to what we know of Grantham's actions.

Weir searched a crime scene after hours even though his role was an a exhibit officer.
Grantham assumed the role of exhibit officer in terms of a single piece of evidence, although it was not his job.
Weir was told before the first trial that glasses said to belong to David were actually his mothers. Weir was told by a witness that he, the witness, had been mistaken and the glasses actually belonged to Margaret Bain. Weir told the witness he would have that put in evidence but never did. In fact Weir sat silent despite the Jury returning to ask about the ownership of the glassesk because David Bain had truthfully denied they were his.
Similarly Grantham was told by Dr Teoh that the samples on the shirt, like the samples on the phone and the table mat were too down graded to be reliable, but Grantham never told either the Court or the Jury that information in Lundy's trial. He sat silent as the reliability of the shirt evidence was gauged.

So the similarities: both men stepped outside their designated roles, both men held silent on vital information at the first respective trials. The courts in both situations, indeed the prosecuting authorities brought no charges against either man. In the Bain retrial however Karam made sure the 2nd Jury knew. In Lundy the 2nd Jury did not know because the Defence, the Crown or Judge did not raise it - there was no impeachment on Grantham for hiding material facts from the first trial. Additionally in the Lundy retrial Kos's comment about the curiosity of the brain matter samples was not mentioned to the Jury and the views of the President of the COA as to the admissibility of the forensic evidence were kept secret. Fair, in all the circumstances? Absolutely not. Have the Courts got their heads in the sand over such matters? Yes. The small light shining in the distance is that an ex Minister of Police charged under the Electoral Act had charges thrown out because evidence had been with held. A small step for progress but not for Lundy. In the case of the ex MP there was a prima facie case against him and he had been convicted, without the special miracle evidence of Miller there was no evidence against Lundy of note.

I include here the considered thoughts of 2 men who were involved in the Amanda Knox case to enlarge upon that shirt evidence.

charlie_wilkes wrote:

The Lundy case represents a challenge, but also an extraordinary opportunity. It should be possible to test substances other than brain tissue - like sausage residue - using Miller's technique. If a scientist could show that other substances will react and produce slides like the ones used to convict Lundy, the substantive case against Lundy would evaporate. The court would be under immense pressure to overturn the conviction. Would the prosecution then attempt a third trial, with the "brain tissue" evidence off the table? I doubt it.

I have discussed this with (withheld). It would be a complex and expensive project. I think someone should do it. Lundy's defense team was not up against a redneck with a dog that can be discredited with a simple test. They had to contend with a claim based on experimental research, performed by a medical doctor. No defense team can possibly address such a claim without a huge budget. A jury cannot be expected to evaluate the quality of such evidence. 

Miller needs to be debunked. The repercussions of doing so could extend far beyond Lundy. This case could be a big deal. It could help the criminal justice system recognize that forensic evidence must be regulated and vetted before it ever gets to a courtroom.

charlie_wilkes wrote:

You'd have to look at the details of his test. He extracted gunk smeared on Lundy's shirt and subjected it to a specialized staining test designed for medical diagnostic purposes in narrow, specific conditions. Lo and behold, it stained the same as CNS tissue. So it must be CNS tissue, eh? That was his scientific conclusion.

Then, in preparation for the re-trial, he took known human CNS tissue, smeared it on a shirt, did the same test and got the same result. This is his proof that it works, i.e., a positive control.

What no one has done - what has to be done - is a series of negative controls to ascertain whether this test would react to something other than CNS tissue, like a food stain from cooking sausage.

The presence of pig and cow DNA in this putative specimen of brain tissue, as confirmed by a university lab in California, suggests the likely result of such an assay...

Name withheld wrote:

(...)

With respect to Dr. Miller, he is very dismissive of criticism, and the technique he used was designed for a non-forensic purpose. His lab may have been the source of some female DNA found on the shirt. He publicly indicated his belief in Mr. Lundy's guilt. Deciding whether or not someone is guilty is the job of the CJ system: being the voice of the data is the job of the forensic scientist. I think that crowd sourcing some funding for the testing that Charlie suggests might be a good way to proceed.

In all reality it looks like Lundy got framed - twice.

One thing is sure in the Lundy case.

Well, 2 things actually. The 2nd being that Mark Lundy was never proven to have taken the drive back to his home where he allegedly killed his wife and young daughter. That is not proven. The police said that the crime happened before midnight and then later said that it happened after midnight. Nobody saw him on the drive or in the vicinity of the house although in the first trial he was said to have been seen running away, all 140 or so kilos of him dressed as a lady. Nobody ever found those clothes and that evidence was dropped for the retrial. It's easier to say that nobody saw the car trip, than that the car trip happened but nobody saw it. Doesn't take much to work out.

Either does the 1 sure thing in the Lundy case take much to work out, that  which has been buttressed inside the case for 16 years - the scientific evidence attempting to place guilt beyond reasonable doubt has not worked. The claim  that his wife's brain matter was found on his shirt on patches identified as having been her dna has not been proven. Dna which could only have attached there by a cough, saliva, a sneeze or transported by other body fluid, of course not excluding blood. It's important to remember the blood or other body fluid being required to show first of all if Lundy killed his wife and daughter in a manner which contemporaneously transferred matter from deep in Christine's brain onto his shirt in 2 smalls spots, with one taking the role of background and the otlher according to police, pressed into the shirt and the dna stain but holding no blood or neurons. So the sure thing is that the forensic proof is not, and never has been clear proof beyond reasonable doubt of Lundy's guilt. The forensic 'proof' hasn't worked so far, deep into the second decade since Christine and Amber were killed.

When someone's head is split open with an axe causing their immediate death, one has to wonder what splattered out from the pressure of released blood and other fluids containing the unbloodied brain matter. I shall try to explain that again as I understand it. Fluids spilt from Christine as she was murdered and landed on the shirt of her husband, when those fluids spilt out - necessarily from her brain so did 2 small spots of her brain - all apparently in order by the police account but there was no blood or neurons in the sample.  Some fluid, at some time, had become hardly visible as a stain and the brain matter was pressed onto the shirt to be found later,  becoming then  the greatest doubt as to the guilt or innocence of Mark Lundy. That alleged brain matter once taken from the shirt and put on a slide would never again look to be a match to its source on the shirt. From the shirt to the slide there was an unexplained change in appearance of the sample. Remember the deposit found on the shirt was pressed in, no doubt if a person with the nefarious intent of placing a sample on Lundy's shirt because they believed he was the murderer they would indeed have to make sure the sample stuck - pressing it on would be one way to do that, there might be others but pressing is certainly an answer if the evidence was planted. If it wasn't planted then answer isn't so clear, and attempts to do so have been awkwardly constructed. Haven't worked in fact.

Some followers of the Lundy case, and I am only relatively recently one of those, will note that the former hot topic of the debate as to the Lundy's alleged drive home to Palmerston North and back to Wellington. I detect that interest in that debate has gone, that for some Lundy's polo shirt is the only answer. I'd even say that many don't care about the details of the trip because of the shirt and who can blame them. Others dismiss the drive for other reasons, more important and consistent with the evidence, Lundy was never seen on this trip, or entering and leaving his house. There were strong submissions on this by defence counsel at the trial which were quite compelling. The Judge instructed the Jury if that evidence was accepted by them then they should acquit Lundy, of course they didn't. That can only have left the forensic evidence as  the reason for the conviction - therein lies the grave question, was Lundy convicted on strong forensic evidence or not. The answer looks to be no.

Remembering that Lundy is again serving a life sentence for a crime now said to have been committed at a different time than that claimed at his original trial, also now it is no longer said that he tampered with the family computer times to lay a false time trail. It is now said he committed the crimes at an later time than that set by Dr Peng - previously Dr Peng was a world expert in smelling the stomachs contents of the dead in order to establish their times of death. The evidence of a woman who saw Lundy purportedly dressed as a woman running off from his home early in the evening leaving his wife and daughter dead is gone. All of that out.

So what is left? Only that 1 thing which there is certainty about in this case now - the absolute uncertainty of the forensic evidence against Lundy, in particular the evidence found on his shirt some 2 months after the deaths. If all previous telling evidence against Lundy as listed above from the first trial is gone the shirt remains the only evidence, controversial, seemingly flawed perhaps, changed in appearance from when it was first observed until the time it went onto a slide only to be said by several witnesses as not recognizable as the same alleged Central Nervous System matter found on Lundy's shirt.

Before going into that in greater detail I first need to say that Witness X happened along for the second trial, he said he was at pains to contact police when he discovered that Lundy was going to be retried. Witness X was a paid informant goal bird. He got right on the phone to his police handler and told him about Lundy's alleged confession to him. Like the Thomas, and Pora miscarriages of Justice in the past there was suddenly in the Lundy case a stool pigeon singing for his supper. Frankly, any case that gets hit with a credibility problem at least ought to avoid the temptation of rolling out a confession from someone with a history of selling information to police. It's a blight on the desperation of this case and for many it will draw comparisons as to what appears to be wrong, or at least doubtful about the forensic evidence, as hotly contested as it is. There is plenty that makes no sense about the forensic evidence re the shirt. Only one NZ Judge, the head of the Court of Appeal has ruled against it in an appeal by Lundy that it should not be used. That Appeal was against a pre-trial decision by Justice Kos who said the controversial forensic evidence could be admitted, relying on the trial judge to explain it fully to a Jury.

Going back in time to Lundy's successful appeal to the Privy Council. It was that court that made comment about the forensic procedures adopted by the prosecution's witnessDr Miller, it is correct that the testing procedures are controversial, novel, and virtually without written support or peer review. Not only that, but also the handling of the samples - which seems to have been of little exact concern to the Courts so far. Why is that? Well, one reason no doubt is that the Lundy camp have been conservative in not pushing what others may feel is obvious. I'll list those things here.

1/'Chunks', as Simon France J put it to the 2nd Jury, of Christine's brain were found on a phone and a table mat immediately after the killings, a least within hours of discovery of the bodies. That brain matter (also called Central Nervous System or CNS) was too down graded to be tested. Central Nervous System tissue is highly fragile out of the body and subject to rapid deterioration. I do not know if those samples bore blood and neurons but am trying to find out.

2/The same day of the killings Lundy's car was seized along with a blue striped polo shirt he had been wearing. 2 months later spots were found on the shirt said to be brain matter, unlike the 'chunks' found immediately in the crime scene the  shirt spots also deteriorated according to the Pathologist Dr Teoh.  Heat, facilitates deterioration of CNS material, so the spots wrapped in fabric were not deteriorated according Dr Miller many months but those exposed in air at the crime scene were. That's a big change right within the Crown case. Samples inside the house found shortly after the murders deteriorated, others smaller (and therefore with less mass to withstand deterioration) were capable of providing test results, Results which the NZ Pathologists Dr Teoh said would be too unreliable to present as evidence.

3/Before advancing to those test results and procedures. We have to consider the conduct of the Officer In Charge DS Grantham.  At the first trial Grantham did not disclose to the Court or the defence as he was required, that an ESR Scientist wrote to investigators saying that the shirt samples were too deteriorated to be used to support a prospective life sentence. If Grantham had of accepted that Lundy would never have been convicted, if Grantham was abiding by the rules he would have told the Court of the evidence, and of course the Defence. He never did. That police have continued to allow Grantham control of this case, and that Crown Law have seemingly supported that, it is fair to say that Grantham himself invites special scrutiny as to his honesty. I don't know what explanation Grantham ever gave or even if he did offer an explanation. Which ever was the case I'd like to hear it, but more importantly it was something Kos and the COA should have turned their minds to in some way for comment. Something has been sanitised here, for the Lundy case is a real event and as part of that event Grantham withheld evidence.

4/DNA maybe transferred by coughing, spitting or sneezing according to Simon France J in his summing up. See para [74] a where he points out that Central Nervous System matter is not transferred from the body other than through a wound. So the small patch of DNA on Lundy's shirt which was said to contain Central Nervous Sytem matter (brain) belonging to his wife could have only come from Christine's brain by that situation. How it became embedded on a backdrop of body fluids of some type will never be clear, as will not how it was pressed in somehow. What we do know is the alleged CNS sample (Central Nervous System) did not test for either blood or neurons. Repeating here, at this stage we do not know if the brain matter found at the scene which most certainly belonged to Christine and which by appearance and general agreement was brain matter, but which was deteriorated too much for testing,  did in fact provide either proof of containing blood or neurons. In a room where there was extensive blood spatter, that is a must know for this case.

5/Before getting to the controversial test procedures used by Miller it's important to note that it is claimed that there were written requests by Grantham to ESR for samples of Christine's brain, and reports that the same were released to him on the 16th of January 2001 just before his trip to meet Miller. This trip was after Grantham's failure to find support for testing in NZ of the samples he had been could not provide satisfactory results. I understand that Grantham has provided no record of having been given or not given the samples from ESR but has apparently denied having received the samples. In context, that is something that needs clearing up and is something I have found no record of either Kos or the Court of Appeal having been asked to consider.

6/Evidence was given at the retrial, and possibly the original trial that Grantham did not surrender exhibits said to contain Christine's CNS - choosing to handle them himself in order to keep the inquiry tight or words of similar meaning he gave in evidence. I may be wrong but I take that to mean he didn't trust other police. One reason a police officer might not trust other police, in fact possibly the foremost reason could be that the first officer knew his activities, if known, could be reported.

7/It remains fairly well known that an accused person's counsel are generally reluctant to make accusations against police of foul play in case it is reflected upon their client by a conservative Jury. If that was the case here, and assuming the information is correct, then it looks like Lundy was let down in a matter that could have helped the Jury in the second instance consider all details surrounding the handling of pivotal forensic exhibits, and in the first instance the courts when considering the admissibility of the shirt evidence. Again why hadn't the CNS matter deteriorated on the shirt but had done so immediately on the phone and bed side table. Why did material taken from the shirt and placed on a slide look unrecognizable to experts as being the former. Why was the shirt CNS without blood or neurons. Miller said that answer to the neurons question was easy it came from part of the brain with less neurons but isn't a small amount of water in a large container still water, doesn't all CNS have neurons? If I'm incorrect about that later question I hope someone will let me know.

8/ Here is what Kos said in his decision to allow the admission of Miller's evidence:

[80] Fourthly, it is a curiosity – but I think no more than that – that the dab slide specimen 3003/2, taken from the same area as the stain contained in specimen 3003/3, is so degraded (whereas specimen 3003/3 is not). Even more curiously, the same observation applies to dab slides SO45/1 (taken from tissue material on the telephone on the bedside table adjacent to Mrs Lundy’s body) and dab slide SO51/3 (taken from tissue material on a mat from the same bedside table). The latter dab slides have nothing to do with exhibit 3003 (Mr Lundy’s shirt). The reason may, it seems, have to do with the deeper lodgement of the tissue material in 3003/3 and 3003/4 within the fabric fibres. It is possible that has protected the material from degradation. Dr Du Plessis was of that view, although it was not shared by Dr Smith and Professor Ironside. While the degradation of the dab slide material (all three slides) is curious, I am left with a clear impression that it says nothing material about the reliability or otherwise of specimens 3003/3 and 3003/4. As Dr Du Plessis noted, forensic neuropathologists such as he are often confronted with the assessment of brain material that has been decomposing for some months. While those may be significantly degraded (and more so than the material in specimens 3003/3 and 3003/4), much pathological information can still be obtained from such specimens.

I'm glad that Justice Kos found something curious in one sample surviving from 4, that is 2 from the house and 1 from the shirt that didn't. I also find that curious. However, unlike the Judge, I don't think Professor Du Plessis explanation gave a plausible answer about that curious point. Speaking about 'deeper lodgement' in the thin material of a shirt but which could still be seen, as a reason why only 1 sample out of four was not degraded is a big stretch. Because the Judge willingly noted the 75% percent positive for failure but could accept only the 25% negative (for the Crown) which was the reverse of his test on certain RNA evidence written about here later (and no doubt within the knowledge of those familiar with such things) where a test on the false positives rate for the tests the Crown chose to rely upon in examining the samples 3330/3 and 4 were over 50 percent. I can't help but feel the Crown where getting away with one here. 4 samples, 3 degraded, 2 of those samples within hours of the homicides, the 3rd at an unknown point in time but certainly before Millers tests in 2001 while the fourth miracously survived, tucked in or smeared on Lundy's shirt. Doesn't work, even a bit.

Justice Kos may not have known about the facts revealed by DS Grantham at the retrial about locking those exhibits away in his own safe, a practice said by the exhibits officer as unprecedented in his experience. Kos certainly knew that the specimens put on the slides were no longer recognizable as having come from the shirt. I wonder if he thought about whether 1 hadn't, at least not at the time when Christine and Amber were killed. Regardless, of whether Kos already knew about that later evidence about the handling of the critical exhibits, surely as he was about to speculate on reasons he could have turned his mind to the evidence of Dr Teoh as to his impression of the matter which would be ultimately tested by Miller, that the samples were too downgraded to provide reliable results. As the first person to comment about the suitably of the samples for testing he was, and is the utmost authority on the matter. He didn't say that some parts were deteriorated and others weren't. He was explicit, and by reasonable cause completely correct, the samples were not reliable test items, that is until they were handled in an unprecedented way.

8/ Here is a report of what Grantham said about the sample treated outside the care of the exhibit officer.

Earlier, Mr Grantham told Crown prosecutor Ben Vanderkolk that,
realising the importance of a key blood sample on a glass slide and
the need for it to be examined by a range of experts, he kept the
slide in his personal custody.

He had told Mr Behrens how he uplifted the exhibits room keys from the
desk of the exhibits officer to do that.

"It was known to just a select few," Mr Grantham said. "I didn't want
anybody talking about it it outside the inquiry group. I certainly
didn't want the accused to know about it."

Of course we know Lundy wasn't active inside the inquiry group, so it's difficult to know what Grantham was saying. Certainly doesn't provide the option of surrendering to the idea that not only did 75% of the samples fail to prove reliable for testing, but 1 of 2 in the special custody of Grantham survived a period of time extended into months. Remembering that at the coal face, the middle of the inquiry were the ESR Scientist Dr Teoh made his observations  that all chance of reliable testing were extinct That, until after  the Grantham custody and his apparent lack of  being able to disassemble what Dr Teoh had said with the critical support of any NZ scientists

9/What did Granthan introduce at the retrial? First of all a lack of being willing to fess up for the withheld evidence. But we found out more about the science on specimens treated without organised procedures. Here is Dr Miller being reported from evidence about his laboratory which was not approved for forensic examinations. Consequently that could mean that Dr Miller would have been unable to present his methods and evidence in an American Court - a question I gather that may never have been challenged in the NZ Courts. In all fairness it looks as though Miller's evidence should never have been allowed. Not because of any single point in particular but rather because of a continuity of points that began with DS Grantham having first treated the samples in a manner outside normal protocols. That Grantham also failed to reveal the critical evidence of Dr Teoh, the very person at the coal face of firstly examining that cns/dna resulted in the foundation of what Dr Miller would later receive into his Lab as of too uncertain history to be reliable speaks loudly of reasons for alarm.

He thought the samples did not degrade because the material was spread thinly on fabric and "air dried" quickly, almost like mummification.He thought the samples did not degrade because the material was spread thinly on fabric and "air dried" quickly, almost like mummification.

Miller was challenged on the cleanliness of his laboratory and steps taken to avoid contamination between samples.

He said specimens were dealt with separately and equipment cleaned with water or paper towels. Some equipment was treated with hot water between uses.

Contamination was a very serious issue and steps were taken to avoid it, he said. Surfaces did not have to be sterile for his type of work.

"There was nothing that happened in my lab that would explain the appearance of that on the shirt," he said.

He said he did not do cleaning duties in his office.

He agreed his laboratory was not accredited to do forensic work but he said what he did on the Lundy specimen was routine for the type of work they did.

Miller was challenged on the cleanliness of his laboratory and steps taken to avoid contamination between samples.

He said specimens were dealt with separately and equipment cleaned with water or paper towels. Some equipment was treated with hot water between uses.

Contamination was a very serious issue and steps were taken to avoid it, he said. Surfaces did not have to be sterile for his type of work.

"There was nothing that happened in my lab that would explain the appearance of that on the shirt," he said.

He said he did not do cleaning duties in his office.

He agreed his laboratory was not accredited to do forensic work but he said what he did on the Lundy specimen was routine for the type of work they did.

Here are some details about the secrecy DS Grantham chose to exercise with an exhibit in a manner unprecedented in not only the exhibit officer experience, but also in the notable history of Miscarriages of Justice in NZ:

Mr Behrens also asked Mr Grantham about burglary reports from the
area, including a missing blue-handled screwdriver, and items removed
from a car.

The officer in charge of exhibits, Detective David Thompson, formally
introduced the raft of 100-plus trial exhibits.

He told defence counsel Steve Winter he did not go into the Lundy
house until about three weeks after the murder, though he had uplifted
exhibits from the site without entering the house.

He said he did not know Mr Grantham had uplifted his exhibit room key
- which he believed to be the only one - to put a forensic slide into
the fridge.

He would not have expected that to happen.

The forensic slide referred to was never in his custody, he said.

(Sorry about the change in letter size from here on in)

Looking at the dissenting Judgement of the President of the Court of Appeal E France J and that of Kos J in the application to exclude Dr Miller's evidence are some interesting comments that challenge if the Courts got in right in allowing the evidence.

In para [20] of his Judgement Kos says: Function of the Jury is not to determine the outcome of scientific contests - but to decide simply whether the Crown has proven each essential element beyond reasonable doubt.

This despite it being clear that the Jury were going to have to Judge a scientific contest. Everything about the forensic evidence was a contest, on the one hand Miller's methods and on the other hand the criticism of them. Not only the criticism but that the Court appeared to willing to let pass unnoticed that, as in the example Kos gave, the curiosity of 3 samples degenerating and one not doing so. Essentially, on this point I think the Court was wrong to overlook the chain of events that led to the samples being taken to the unauthorized, for forensic testing, clinic of Miller. That started with the phone and place mat 'chunks' not surviving outside the body and 1 of 2 allegedly pressed onto the shirt not surviving over a period of not hours but for months. Miller put this down to being air dried or mummified, if one sample on the shirt mummified then why didn't the other. These are all matters not commented upon by the Courts. Additionally, wasn't it also material for the Jury to know that the President of the COA considered that the Court should not have allowed the evidence? That by any measure was relevant to the Jury's consideration. If a single Juror was doubtful and had known that no less than the COA President was also doubtful they may well have held their ground under the weight of all the conflicting opinions.

At [25] Koss said that the Privy Council had said in allowing Lundy's appeal that type of testing used (Immunohistochemical {IHC} analysis was unique in the setting of a criminal trial and ventured the question whether it should be admissible.

At [13] in the dissenting Judgement of the COA Ellen France referred to Kos's judgement where he said that the Netherlands Forensic Institute (NFI) RNA analysis was sufficiently reliable 'by a relatively narrow margin'. He also said that the Jury would not be 'drowning in a sea of science.' In fact this whole case has drowned in a sea of science - a 'relatively narrow margin' is exactly what Dr Teoh sought to avoid when he discarded the samples as unfit for testing. Of 4 samples he was 75% correct. On the 4th of those it's transmission to the unregistered clinic, after being secreted away in a safe away from other exhibits and the knowledge of other police.

At [15] E France J said that parts of DNA used by a specific cell are converted into RNA and RNA then assists in the creation of protein molecules 'in effect directed by the DNA.'

At [75] (a) France J in summing up 'Mr Sutherland made up a glass slide of a bit of tissue he saw on Lundy's polo shirt. When the experts look at that slide it does not look at all as to what is on the shirt.' Samples changed in appearance, to go with samples been stored inappropriately, 1 has a life more extended than the other - a curiosity as Kos put it. Are curiosities and changing appearances not the mystery that Dr Teoh said should be preserved rather than be used to potentially send a man to prison. I think so. Too much doubt, too much mystery and too much concern as to the handling of the samples. All of that before we get to the novel testing procedures.

Just on that summing up, lets look at some other points made by the trial Judge that add to the doubt as to the admissibility of the evidence.

At[88] summing up he pointed out that Dr Venneman observed poor practices at Dr Miller's Lab. A reason for confidence or a reason to exclude the evidence? at [30 to 31] when speaking about the lawyer's addresses he did not say that the alleged late night from Wellington to Palmerston and back needed a positive sighting but at [51] said that 140kph speed average was questionable. By then however the Jury may have already drowned in a sea of science. At [84] he pointed out that Ms Wichman (USA) said she detected small amounts of animal DNA on the shirt consistent with animal spatter, confirming an aspect of the defence. An important aspect because it was a explanation for the CNS tissue on his shirt.

A reliable record of the forensic contest was delivered E France J in her dissenting opinion. An opinion it would be interesting to see how the NZ Supreme Court or the Privy Council might view the Judgement. She clearly pointed out as important Para [38] Dr Vennermen watched the work of Dr Sijen of the Netherlands Forensic Institute. And commented that the NFI use of the 'brain plex' reaction (ie the method used to RNA) is novel and is only validated by the NFI Itself - (my emphasis). Secondly, that the 50% threshhold use by the NFI had not been properly validated. This threshold was argued by Dr Sijen would eliminate the false positives identification for brain tissue overall. Dr Vennerman referred alsonto the lack of stability of RNA compared to DNA.

In Para [17]  the Judge referred to  a book written by NZ Scientist Dr Sandiford. From the text 'Forensic Science and the Law' - 'that unless a DNA result is taken from an obvious body fluid stain such as a bloodstain, a question may be raised as to what cells contributed to the DNA profile.'

She continued 'This is because even though a DNA profile from a swab of a skin surface, the DNA itself cannot on its own indicate the cells from which the DNA was extracted and profiled. This is important where small amounts of DNA have been detected and DNA profiles obtained.'

That no doubt for E France J was very instrumental to clearer understanding of the issues in her dissenting decision which I am sure will be referred to many times in the future. She did the critical homework.

Later from the Judgement. 'Oxygen typing with RNA analysis is relatively new, used in about 10 cases forensically. Evidence before us is that 2 labs use RNA testing being the NFI and ESR NZ. No evidence as to use by ESR in testing. Dr Sandiford reports ESR use it to distinguish between body fluids.'

[52] Limited peer review and publication - 5 articles of which  only 1 dealt with RNA profiling for oxygen tissues - in which the authors explained that the process was complicated when little cell material was present. RNA has emerged as a sensitive human specific method for the simultaneous inference of several body fluids and cells.

Continues: RNA molecules less stable tha DNA molecules. E France decided from the single article, and other contributions of data, that the technique, while 'promising' was still experimental in terms of its application forensically.

[56] Dr Sijen accepted that no international standards had been set for RNA profiling.

[58] RNA organ typing can't be said to be generally accepted in its use in forensic cases.

[59] The brainplex method has never been undertaken before in a forensic context. Only validated by the NFI itself. Dr Vennerman and Dr Sijens both of unquestioned expertise disagree on the process.

[60] E France disagrees withi Kos's view that the process was 'hard science' and that the retesting of samples could prove results wrong. - overlooking (IMO as the writer commenting) that any result that might be disproved 'later' does not establish the reliability of the testing procedure. What will it mean in 20 years for Lundy if the unreliability of the testing is proved.

Harrison and French in their majority decision in the same COA Judgement.

at [78] Morgan (the prosecutor) emphasized that the stain was located on the interior bicep of Lundy's shirt. My comment, what apparent value is that?? :Later they agree with Kos at [82] where they express some expected comfort from the benefit to the Jury of forensic evidence 'expressed in cautious and conservative terms.

How 'cautions and conservative terms' overcomes intelligible science to a reasonably informed Jury threatens belief. In refusing to consider evidence of one scientist Professor Busten the court said that it would not be ideal for itself to be hearing complicated scientific evidence effectively as a court of the first instance. I suppose that means the court was unable to follow complicate science without a guarantee of some sort that the argument would be cautious and conservative terms. I read a lot of crap, that would rate up there. 

I shall finish shortly here in the hope I have not from my own confusion in reading this case confused others, with a little more from the Judges summing up in the trial and then of reflection of the COA dissenting Judgement.

In para [13] the Judge offered that an important witness Tupai could be criticized as uncertain when he gave evidence of seeing the Lundy homes conservatory door open before the time Lundy had allegedly left Wellington. I didn't read any criticism from him about the uncertainty of the unseen car trip, or indeed the multi headed forensic proof. In the same para the Judge said he didn't want to be seen as steering the Jury in way or the other, although he had just steered them away from what Tupai had said. An eye witness no less, not as close as Dr Teoh forensically, but right next door.

I think E France J, President of the Court of Appeal got it right in declaring it a draw in the forensic battle epitomised by the positions of Vennerman and Sijen and voting to disallow the shirt evidence which is on the one hand difficult to follow and on the other highly suspect for its lack of continuity of logical truth and proven procedure. Her referrals to the writings of Dr Sandiford uncovered that the exact known use by ESR NZ is for organ typing to distinquish body fluids indicating that wasn't practical support for the work of Dr Sijens. There are reasons to be concerned that Dr Sijens peer support is from the organisation NFI that she works for. One article explained the RNA profiling process was complicated when little cell material was available..mRNA has emerged as a sensitive, human specific method for simultaneous inference of several body fluids and cells. Fluids were dried out in the only sample that 'survived' into the hands of Dr Miller. Leaving one to think that Ellen France J has had the last word on what is known about RNA profiling. Her Judgement should perhaps have been considered by a higher Court before trial, or at least should be now.

We should not forget the evidence of Mrs Wichman of finding traces of animal CNS on Lundy's shirt, nor should we forget the 'curiosity' that Kos J identified about the 75% sea of un-testable specimens and the lone 'specially handled' survivor.

For a quick look as to whether the Jury were able to absorb the detail of the forensic sea it is noted they returned to ask at least one question. A question that directs what they grappled with. They wanted to see the Lundy interview tape again, a very telling example of what influenced them. On that tape parts of it were redacted by request from the Crown, parts which clearly showed that police had formally believed in what Hislop said was the broken promise they gave the Jury in the first trial. The Jury should have seen all of that tape, where Lundy was being yelled at for events claimed by police at the time but which were later abandoned - just as this case should have been.

Once again, happy to receive any correspondence on this. I freely admit that I must not have the intelligence of the average Jury member as according to the view of the majority decision of the COA. By their question it looks like the Jury struggled as I have to assemble the rafts of scientific detail in order. As a practical person, I prefer the good sense of Dr Teoh, the man who inadvertently sent Grantham off on a secret crusade and who returned with bluster and even more uncertainty. In a scientific world were samples have naturally deteriorated it seems only a fool ventures to use new science partly created from the gut instinct of a police officer half a world away.