What is going on with the Lundy case?

I don't know about other observers but the Lundy retrial is distorting out of perspective. On day one defence counsel revealed that test of material taken from under the nails of the deceased Christine and Amber Lundy indicated dna from two other persons, probably male. Those tests, as unbelievable that it may seem, were only conducted last year - thank goodness those samples had not been dumped as in the Thomas and Bain cases. Whether Mark Lundy is guilty or not all the evidence pertinent to the case must be considered, the dna evidence is highly pertinent. On day 2 when Christine's brother, Glenn Weggery, was cross examined by defence counsel lead David Hislop QC, more dna evidence emerges in the form of Weggery, who found the bodies. The dna, of a probability in the 70 to 80% region, as that of belonging to the 2 deceased was found in his car boot and his bathroom. There of course may be an innocent explanation for that but Glenn was unable to provide that explanation. Draw a parallel to the downgraded dna found on Mark Lundy's top, argued to have been planted in the first trial, and a successful point on appeal and the case takes new shape - even putting aside the scrapings taken from under the nails of Christine and Amber.

On day 3 the Crown called retired police computer expert, Maarten Kleintjes, who gave essentially new evidence that a computer found in the house showed no signs of having been manipulated, whereas in the last trial he said it had - inference that Lundy had interfered with the computer in order to fit his alibi. Now that the Crown have a 'new' time scenario Kleintjes appears to have had 2nd thoughts. Some readers will remember that Kleintjes evidence in the Bain case was an important reason in having David Bains convictions overturned and will most likely be an important reason why David Bain will be paid compensation. Furthermore, Kleinjtnes did not clone a lap top found in the house despite police notes showing that he was asked to do so. He couldn't 'recall' being asked, even though he was a member of the police and there specifically as a computer expert. Hislop put it to him that he, Kleintjes, had found evidence on the lap top, which didn't fit the Crown case.

The Crown say the Lundy marriage was a bad one, while the late mother of Christine and late father of Mark say it was a happy marriage and that Mark was devoted to the bright, charming, 7 year old Amber. There is sinister talk about a new insurance policy and of course the public will soon hear from the prison inmate who will claim that Mark told him why he had to kill Amber. This case is looking like an attempt to scrape a barrel that has already been scraped clean of any evidence that supported the last Crown case, let alone the new one that appears to have been invented in the last 2 years and which contradicts the first to the point that some 'experts' from the first trial are now irrelevant to the Crown cause whereas formerly they were key components.

This case is very disquieting now. Suddenly for some observers, in a trial which has polled opinions as high as 70% guilty against Lundy, there will be some concern, even alarm that the 'system' fights to save face rather than impartially present all the relevant evidence and provide no investment or opinion one way or the other. The Lundy case demonstrates in graphic detail how in NZ the Crown may get it wrong, deliberately hide facts or evidence, even plant evidence and be allowed to 'give it another go.'

When did the Crown decide they were wrong about the Lundy case?

Mark Lundy's retrial began today with the surprising news that the Crown essentially admitted they were wrong in details of the prosecution of the first trial which they bitterly defended until 2013. Clearly in one of the pre-trial procedures The Crown informed The Court that they wished to drop the original claim of the time of death of Lundy's wife and daughter and shift it further hours into the following morning. On the face of that, it is a risky move. The Crown are clearly saying that Mark Lundy is guilty but that the circumstances of the murders are different to those to which they persisted were correct throughout the original trial, appeal hearings right up until the 2013 Privy Council hearing where, among other things, The PC accepted a defence submission that it could have been 'bad science' that linked Lundy to the crimes and that a new Jury ought to consider those details.

While there appear to be risks for the Crown to change course after some 13 years they clearly consider that dropping the much doubted return trip in a limited time from Wellington to his home, to commit the killings, and then back to Wellington is not significant because they now know something different all these years later. Add to that, one of their witnesses who pin pointed the time of death to fit within the parameters of the drive either has a new time of death or has been dismissed from the case, along with the witness who claimed to have seen Lundy running from the house dressed as a woman in proximity to the former calculated time of death. Some critical observers will react with scepticism that the witness who backed up the incorrect time of death with a physical sighting of Lundy running away, clear enough for The Crown's satisfaction, had not manufactured her evidence for some reason to fit the what now must be seen as a manufactured original time of death. Furthermore, it must be noted that a NZ pathologist had said that DNA found on Lundy's shirt some time after the murders was degraded to the extent it should not be used to convict Lundy as the risk was too great. That advice was hidden from Lundy's defence team in the first trial by The Crown who went onto use a Texas expert whose methods scientists later said were impossibly flawed. Moreover, the defence say, that anyway - dna being found on a spouse's clothing is consistent with day to day living together.

The Crown in their opening address  persisted that the DNA was of a sufficient standard to be identified as that of Lundy's wife Christine. Not only that, they now have, beside their new scenario of when the murders happened, a prison inmate to say that Lundy told him that his daughter Amber was killed because she had witnessed the slaying of her mother. They argue that Lundy and Christine were running an insolvent business, didn't have a good relationship and that was the reason for Mark Lundy killing her. The strong emphasis on the marriage purportedly being in a bad way when according to the defence that was not the case, is troubling, when considering that The Crown are having another bite at the cherry having once stuck with their fairly implausible time scenario for over a decade. While The Court gave permission for The Crown to take a new tack it nags away that the Crown were once adamant about a high speed return trip, an eye witness, an expert witness determining the time of death only to now abandon them. It must have been a closely run decision for Justice France to allow The Crown to depart one case and start another, particularly if the issue of 'bad science' remains alive.

The defence have an apparent problem with paint flakes found on the victims which were a match to tools belonging to Mark Lundy. However, there are no tools produced  that are painted as solitary items, only as a manufactured run of thousands - most always in the same colour representative of the maker. On the other hand the most significant, and apparently fatal news for the Crown in today's openings was the assertion by defence counsel that in a test of scrapings taken from the nails of both mother and daughter, but not tested until last year,  it was disclosed to be the dna of two unknown individuals. Somehow the dna of the prime suspect, Lundy, was not found under the nails of his wife or daughter, but that of 2 unknown individuals was. Having written about 'prison stool pigeons' before, notably in the Watson case, the new direction The Court has allowed The Crown to take is one thing, but dna of 2 unknown individuals found under the victims fingernails, having been untested for a dozen years is quite another. A 'theory' of a high speed trip, and Lundy identified 'in drag' running from his house in apparent disguise despite being a very large and unfit man, now being abandoned, is not  giving confidence that the Crown have suddenly found the truth from the mouth of a prison inmate singing for his supper.

If this were the hand of David Bain instead of his father, Robin.

http://i.imgur.com/2CPr9Hi.jpg

 

Click on the above for a photo of the deceased Robin Bain's hand. If you look at the enlarged copy you will see what is most likely blood wash in the large creases of his palm. This material to my knowledge was never tested, said to have been too small amount. Of course we can go elsewhere for confirmation - the fresh blood found on a towel in the laundry the morning of the Bain family murders. Blood which for many years was assumed (how dreadfully tragic that in a murder case, assumptions are made on items which are capable of being sources of hard evidence) to have been David's blood but which finally on being tested was found to belong to his father Robin. The blood was fresh and the laundry in the household was done daily. Even putting aside the possibility of Robin's nose bleed the morning of the murders and the cuts to his hands there was blood found on the laundry towel, fair assessment that the red material found under Robin's nails by the forensic team and that shown as visible in the creases of his hands was as the result of him having washed or wiped his hands either directly following the killings or before turning the computer on. I am unaware if, and how finely examined, the computer key board and switches were examined, they may not have been more that superficially screened because by then the focus was on the message left on the computer. Would there be any surprise that the computer had not been tested for blood or observed closely for a colour matching that found on Robin's palms. The answer is no when we reflect on police failing to test the towel in the laundry for over a decade and in fact throwing out blood samples taken from Robin's trousers but keeping the trousers.

 

However, what is clear is that Robin washed or wiped his hands before his death. As any fisherman or fisherwoman knows blood is hard to remove even without the pressure of pending discovery. With all other factors taken into account, including of course other blood found on Robin's hands in particular, it is safe to say that the creases more than likely held blood wash - significant by any degree. But what the photo also shows, rather dramatically in fact, just above the forefinger, is on the BOP gunshot residue. Again this was never tested. Followers of the case know that Robin's hands were not 'bagged' in order to be later tested for GSR. Many will also know that GSR unlike blood is entirely fragile and deteriorating from its form soon after in conception.

 

Going back to the towel and the blood wash found on Robin's palms (let's be generous for a moment and call that blood wash dirt - as the sisters so often plaintively cry, to do this we have to ignore is colour and corroborating evidence in order to bring the gsr to its most simple helpful exposure,) after Robin had washed his hands, or simply wiped them on a towel leaving creases of blood (or dirt) something fragile and which would disappear in hours presents itself in this photo. If it was gsr it would soon be gone, if it was dirt or grease of some other durable material it would have been seen and hopefully recorded in notes even hours after the crime discovery when Dr Dempster was 'allowed' to examine the crime scene, having been kept outside for hours police despite being the most experienced forensic examiner in Dunedin. But it was in fact gone or left undiscovered until I understand quite recently in photos taken on the day of the murders. Some readers will also recall that Dr Dempster when reviewing the file prior to the retrial found photos that showed further blood wash on Robin's palms and released them to both the Crown and the defence. Plainly, this is Robin's right hand, that which would have been used in loading the rifle or removing the magazine with the jammed round stuck above the spring lift.

 

I imagine this photo along with others, and possibly that indicating Robin had a nose bleed that morning exhibited by a red substance showing in his moustache and a blood trail across his chin that did not appear possible to have come from his temple, will form a valuable part of the reconstituted petition by David Bain for compensation for false imprisonment. As the Bain case has continued the evidence against Robin has continued to grow, even though it could be argued that the above photo was enough to prove he was the perpetrator. In the continued search for hard evidence against David before his retrial there were something like 27 detectives employed full time to find that hard evidence and failed. What they needed was evidence such as this photo but of course this photo is of the hand of the real culprit, the man who fired the gun and not the son. 

The Bain case, another page turns.

From the time the previous Minister of Justice resigned from her role there seemed to be an inevitability that David Bain's application for wrongful imprisonment would revert to due process. Somehow the former Minister Judith Collins had taken on a role far beyond mandate. Most interestingly it now becomes plain that the Collins created a crisis where there was no need for one. She claimed that she couldn't put the Ian Binnie report in David Bain's application before Cabinet, that was absolute nonsense. Cabinet are not to be protected by a Minister confused about her role. Collins had taken the English Law back to pre Magna Carta days, she took the mantle of absolute ruler, overriding principles of Law that are centuries old. Due Process and fairness were right out the door, she even attacked her own messenger using the media to undermine him whilst at the same time sharing details of the application and its progress with everybody apart from the petitioner.

Of course Collins had already sharply dropped an arrangement between her predecessor and the Bain team, she refused to honour an agreement - and why? Well, for no known or acceptable reason because Due Process rules, as do undertakings by a Government even when personnel changes. We may hear more about those decisions one day although it seems unlikely because the details of a new agreement reached between the Government and David Bain are confidential. It is clear that David Bain has already put his case forward, one for which there now I even more supporting evidence so it can assumed that what must remain confidential is evidence that showed just how unfortunate the errors of judgement and machinations of the former Minister were.

On the one hand the news for David Bain is good, encouraging, and will undoubtedly be have more depth that what is been revealed. On the other hand the Country may well have benefitted by having the Courts considering the use and checks of Executive Power. I think that would have been a big part of the decision of the Government to compromise, that along with the recognition that the zealous former Minister had looked to take the Law back a 1000 years.

What is interesting now is how much of the deal will be revealed in subtle ways. It was fairly obvious that the last preliminary hearing of the JR had its details suppressed as the parties worked toward a resolution. That bargaining by necessary arrangement would have taken into account how strong the evidence was that Collins had acted maliciously, and how this Government would have been exposed by that. Whether the Fisher reports remains part of the consideration now, and if it does whether it is rightly used in the positive way the former Minister refused to acknowledge - its support that Binnie may well have reached the same conclusions even had he taken the route apparently preferred by Fisher.

One thing for sure is that Joe Karam and Michael Reed had a strong hand from which to negotiate, and an even stronger commitment to their cause. For them, from what can be seen between the lines, their case for Judicial Review was uncompromisingly strong due to the errant actions of Collins. She had given them all the power they needed to succeed in Court in an almost blind to reality  and arrogant fashion. It's no wonder there is an over riding feeling that Collins had lost the plot and was a threat not only to Due Process but to the current Government trying to move on from controversy she had in part heaped upon them.

I think it is fair to be encouraged that the Government has lined itself up with protocol, that a new Minister of Justice is at the helm with, what one can imagine, as a clear eye on process and fairness, not only that but also transparency of cause. It can be said the Collin's transparency was that she was happy to reveal her lack of Judgement, I doubt whether the new Minister or others in the future will observe that the Collins protocol is one worth following.

Happy New Year from way down under.

A thought for the first day of the new year: 'don't dwell on things that make people seem different or foreign but rather feel the freedom of thinking about the things that make us all the same.'

Happy New Year and Cheers.

Robin Bain case: so much for the fingerprints.

 

 

 

Among the hysterics than inundated the Bain case were arguments regarding fingerprints on the murder weapon, David Bain's rifle. No argument that the rifle was used but a simple question as to whom used the rifle was made complex by first a desperate prosecution and then, in turn, by the largely defunct hate-siters who sprang up to support the 'memory' of the late Robin Bain. One of the hate-sites particular area of anguish was that 'nobody spoke for Robin Bain.' I have written about that here earlier, making it clear that it was the prosecution that took up Robin's case, against much evidence that pointed to Robin but which resulted in first a conviction against his son David - that was later deemed an actual Miscarriage of Justice, then finally with the Crown case shredded, resulting in the full acquittal of David at a retrial. The Crown decided to have the retrial rather than accept the evidence had always been that Robin was guilty of killing his wife, 2 daughters, younger son,  and in so doing: leaving clear evidence of his own suicide which the police interpreted, in some mind boggling fashion, as proof that Robin's eldest son, David, had killed not only Robin but the rest of the family.

 

This prosecution despite, that Robin's blood was found deep inside the rifle - indicating a close contact shot with an upward trajectory. In fact complete evidence which has now been independently analysed, and peer reviewed internationally, revealing that Robin's death was 98% probable suicide. How did a police force get it so wrong?

 

Firstly, they overlooked the obvious - blood and injuries to Robin's hands. Simple common sense dictates that a murder victim does not have signs of having been in a fight after which he or she is passively accepting being killed by lying his or her temple against the firearm by which they were despatched. It doesn't happen. But with a willingness to overlook the obvious David Bain was subsequently sent to prison, serving 13 years before his conviction was quashed by the Privy Council along with less than subtle advice that he should not be tried again. David Bain had no injuries to his hands despite that his younger brother Stephen had fought for his life, as it now prevails - resulting in the injuries to Robin's hands, probably a nose bleed to Robin all of which was presented as highly visible to investigators who for some reason kept the most experienced forensic pathologist away from the scene for hours, to protect the evidence, while in fact allowing a veritable horde of inexperienced investigators to trample through the house gathering evidence - literally by throwing potential evidence in blankets and carting it away to the police station.

 

When the Pathologist, Dr Dempster, was finally 'permitted' entry, much evidence had been moved and tampered with. Critically, a magazine from the rifle had been moved to allow it to be photographed in different positions without it's original position being noted. Police had even moved the body of Robin Bain in what clearly looked liked a suicide scene. Dempster considered it to be probably suicide in his preliminary work. By then however, Police had decided that it was David. Yes before the scene had been properly examined, potential evidence tested, in fact within hours of arrival to a slaughterhouse where one person was dead beside a rifle with an upward shot having entered his brain, David was being stripped searched for evidence of being involved in the deaths of his family. This strip search was conducted by a police surgeon Dr Pryde who filled out the prescribed form for such procedures and who was careful to warn David that any evidence found during the search, despite that David had not been charged, and would not be charged for several more days, could be used as evidence against him. It was important later for the police to claim that no such strip search had taken place and it would only be years later that ex Detective Sergeant Doyle would admit to the searches and their intrusive nature. Of course the point the police tried to make in vain, was that David was never suspected, therefore he was not strip searched. Following the claim that he was not 'suspected' was to lend weight to the claim that evidence against Robin had been carefully scrutinised.

 

The careful scrutiny would be exposed as a sham when photos were revealed from Dempster's file of blood wash on Robin's palms. Yes Robin had been washing or diluting blood off his hands before his death. He also had blood spatter on  one of his shoes 'occluded' from having come from his temple wound. In a few more years a Waikato farmer David Giles would examined a photo inadvertently supplied by one of the hate-siters which showed imprints on Robin's thumb exactly matching the lips of the magazine that the police had moved around the morning of killings. Robin had loaded the gun which had killed him. The 'Bain case' is far more expansive than which can be discussed here. In fact in the interests of keeping it simple and not launching into the convoluted mire of the Crown case I've simply spoken about some of the forensic evidence that proved beyond doubt Robin's guilt and David's innocence. Included in this of course is evidence key to the final death scene. Part of that evidence was 'non evidence.'

 

The 'non evidence' was the 'lack' of prints from Robin on the rifle. When this not existing evidence was presented by the police or hate-siters it was said to 'prove' David's guilt. In fact for decades the misapprehension by the public generally about prints on guns has been well known to investigators, and, in the Bain case, used to confused a Jury while convincing public opinion that 'non evidence' was in fact evidence against David. The paper clipping at the outset makes a lie of the police proposal about evidence that didn't exist - the best that could be said is that there were no identifiable prints belonging to Robin on the rifle, though there were unidentifiable prints and partial prints of both of his sons one of whom owned the rifle. This was touched upon in the unsuccessful Crown retrial. Prints can exist in pristine condition for years, moreover prints that the police destroyed could under current technology exclude known suspects. Not that Robin could ever be excluded from having killed his family, but the destroyed prints, despite their smudging may not have excluded him from having handled the rifle, for which Gile's evidence shows, Robin loaded the magazine, and which an International Forensic Science paper reveals 98% positive that Robin Bain also used to kill himself.

 

The Bain case will continue in the new year in a fashion little to do with the fact it is reconciled, scientifically, that Robin Bain killed himself after killing 4 of his family - but more to do with keeping the NZ public, and international interest from the truth. Much the same way Dunedin's most experienced forensic investigator was left in the cold the morning Robin shot himself when police first began the attempt of putting a square peg in a round hole.



Auckland campaigner Penny Bright knocks out Council?

The Auckland Super City Council certainly started with a puff and a roar, somewhat like a super fit champion going into a boxing bout. One thing I've learnt about boxing, or enduring fights is the first telling blow. The blow that might give confidence in the test of the opponent and how readily they may be hit. In the bout of Penny Bright against first the Auckland City Council, and its successor, The Super City Council, she has landed heavy blows against both as the fight continues on to their probable defeat.

From the recent hearing on the case in the Auckland District Court a clear picture emerges of the Council against Penny. She refuses to pay council rates because the Council, in her opinion, refuses to have open books on its spending. Thinking about that it may be strikingly clear that not paying for something not delivered is clearly a civil dispute, an allegation of breach of contract in fact. Nobody should pay for undelivered product or services that is the common view on which fair trading is anchored.

However, Auckland Super City wants to sell the house of Penny Bright in order to ensure services and accountabilty she says it has not been provided -  that is transparency of how it spends her money and that of all rate payers. District Court Judge Mary Beth Sharp refused Penny Bright's application to have the case sent onto the High Court saying that it could be decided in the District Court. Hardly a set back when considering that Judge Sharp said that the Council's inaccurate assessment of rates owed by Bright didn't give confidence in the integrity of the Debtors Judgement Ms Bright was appealing. In response Council chief financial officer said the errors with the bill were due to it being a complex case. So a staff of some 11,000 unable to work out the amount of one rates bill is because it is too complex - small wonder that would provide little confidence to over 200,000 other rate payers who recently faced rate increases.

Judge Mary Beth Sharp also disclosed the view that the 'imperative' for a rate payer to pay their rates did not 'crystallize' until the Council had fulfilled its obligations to rate payers. In other words kept it's part of the deal. A deal which Penny Bright says is not complete because Council has not disclosed all its spending as the Law requires. I hope it is revealed if it hasn't already been how much the Council have spent on pursuing the debt in this 'complex' case. Just as I hope the Court will rule on the 'crystallisation' of the Council's financial disclosure obligations sought by Penny Bright, perhaps with a substantial order of costs, including perhaps damages for the pressure placed on a single ratepayer who asked to know how her money, and that of all rate payers, is spent.

There will be many in the city with objections as to how Council spend rates (and increases debt) to know that one of their number, who has objected by refusing to pay her rates, is threatened with having her house sold.