Philip Polkinghorne murder trial live updates: Second defence expert endorses suicide finding for Pauline Hanna
WARNING: DISTRESSING CONTENT
For the fourth time since the Philip Polkinghorne murder trial began in July, jurors sat patiently this morning through the CV and introduction of another respected pathologist - this one siding, albeit with caveats, with the defence.
“I would have given the cause of death as hanging,” Dr Christopher Milroy, a University of Ottowa professor who had been a forensic pathologist for over three decades, told jurors via audio-video link from Canada.
His testimony - as the seventh week of the high-profile case got off to a late start - now brings the tally to two Crown pathologists who said there wasn’t enough information to determine whether Pauline Hanna’s neck compression death was suicide or homicide and two defence pathologists who said they reached a non-homicidal hanging conclusion.
Polkinghorne, now 71, is accused of having fatally strangled his wife of 24 years inside their Remuera home before staging the scene on April 5, 2021, to look like a suicide. Prosecutors have presented a circumstantial case focusing on the defendant’s methamphetamine use, his significant spending on sex workers and alleged serious relationship with Sydney escort Madison Ashton, who he traded intimate messages with shortly after his wife’s death.
The defence has argued consistently that Hanna, 63, had struggled with long-term depression, elevated work stress due to her job helping to roll out the Covid-19 vaccine and a documented history of suicidal ideation.
STORY CONTINUES AFTER THE LIVE BLOG
More on email signatures and draft messages
Andrew Laxon
That ends McClintock's questions.
Mansfield is back on his feet, asking about email signatures.
Shahho clarifies how signatures can change when formatting is stripped after someone replies, and the replies are indented and change colour as they're stripped into a text format.
He says it's also possible to have different email signatures when sending from different devices.
Hanna had various signatures over the years, he adds.
The witness has produced a laptop and is going to check something related to dates and times.
After a couple of minutes he announces he's "found the extraction".
There's a lot of back and forth about email signatures and times.
Mansfield produces an email signature which had changed to include te reo Māori around October 2020, and says the then Labour Government which had then won a majority had begun encouraging the use of more of the Māori language in government departments.
Shahho says he's noticed more te reo being used around Auckland.
"A more enlightened approach, which has now come to an end," says Mansfield.
We've already learned that you're from Australia, says Mansfield. Is Duck Duck Go commonly used there? People in finance or IT use it, he says, because other web browsers take and sell your data. But not Duck Duck Go, he says.
Atakan "Artie" Shahho will return tomorrow for questions on the issue of the so-called draft messages. The defence says Hanna's phone was used to draft two messages, but a police forensic analyst says no, it was a routine security process and her phone was not used to draft messages on the morning she died.
"Thank you very much, we'll meet again soon," says Justice Lang.
We are stopping there for today.
Court will resume at 11.30am tomorrow, a bit later because a juror has a commitment.
'Just bizarre' interjects Mansfield
Andrew Laxon
On to more evidence adduced by police.
It's a message from Polkinghorne to Madison Ashton, on April 11, 2021.
Asked if he was requested to look at any of this, Shahho says "nope".
Then McClintock produces a picture of Polkinghorne taken from Madison Ashton's phone. Ashton is the Australian sex worker Polkinghorne had been involved with over a long period of time.
Justice Lang interjects, saying you didn't look at this phone, did you?
Shahho didn't.
Now Mansfield interjects, saying: "Sir, this becomes just bizarre."
He only got the phones and the laptops from Polkinghorne and Hanna.
Do any of the emails you looked at mention Madison Ashton? asks McClintock.
"Not that I recall, I was given a particular scope," says Shahho.
How many of the emails that you've given us relate to the year 2021? asks McClintock.
There is an email from January and two from March 2021, Shahho says. So three.
Shahho explains he used search terms like Hanna, Polkinghorne and wellbeing.
Hanna's last email and the return of Duck Duck Go
Andrew Laxon
Was the last email Polkinghorne received from Hanna at 10.47pm on April 4, 2021? McClintock asks.
Shahho agrees.
At 11.16pm on April 4, 2021, are there some message records which are deleted? McClintock asks.
Shahho is unsure, it appears that will be covered in his cross-examination tomorrow.
Have you only been asked to look at Hanna's activities, not Polkinghorne's? McClintock asks.
Shahho says he looked at both. But he hasn't seen the data in this format, as portrayed by the Crown.
McClintock asks about data showing Polkinghorne using data and apps from 1.19am to just after 2am on April 5.
Shahho says there was a lot of information about photo usage in the data he looked at.
McClintock asks if he was asked to have a look at Polkinghorne's deleted searches.
"I don't believe I was," says Shahho.
McClintock refers to searches on Polkinghorne's phone about how to delete iCloud storage.
They were shortly after 5pm on April 5, about 20 minutes after his police interview ended, she says.
Were you asked to look at this deleted search via the Duck Duck Go platform, asks McClintock, referring to another document showing a search on April 6, the day after Hanna died. It's searched and then deleted, she says.
Are you aware Duck Duck Go is an encrypted search engine? McClintock asks.
"Duck Duck Go is just another browser that promises not to share your information," Shahho says.
He says there's a "bone of contention" on whether the searches are private, given the search is captured on the browser.
If you check with the company, says Shahho, they say they won't share their information with advertisers, like Google.
"So one of its key features is anonymity, can we agree on that?" asks McClintock.
Shahho agrees.
Email sign-off questioned
Andrew Laxon
Auckland Crown solicitor Alysha McClintock begins her cross-examination.
She's asking about a font size difference in an email she found within an email from Hanna he produced. Atakan "Artie" Shahho says it was found on her laptop. McClintock says she has questions about it because it wasn't put to Detective Andrew Reeves, who examined the devices for police.
McClintock says the sign-off "nga mihi nui" differs from the sign-off in another email.
She asks him to show her an email elsewhere that has the same sign-off.
McClintock references other email signature disparities, in font and colour.
Friend's text after Pauline Hanna's death
Andrew Laxon
Court is resuming with more evidence from the defence IT expert Atakan "Artie" Shahho, who examined Hanna and Polkinghorne's devices, retrieving texts and emails, some apparently missed by police.
He reads one more text from the couple's friend Peter Ring to Polkinghorne, on the afternoon of April 5, 2021, hours after he had reported his wife dead by suicide.
Peter says the couple is there if he needs them.
That ends the witness' evidence-in-chief.
'My life is insane' – Hanna
Andrew Laxon
Another email read by Mansfield, from Hanna to family, says "my life is insane".
She goes on to say her role is "incredibly difficult and lonely".
This email has previously been heard by the trial.
Justice Lang says it's time to take the afternoon adjournment.
Court will resume in about 15 minutes.
'Jacinda is going to romp in'
Andrew Laxon
A later email from Hanna to her family overseas was sent around the time of the 2020 election, in October.
"Looks as if Jacinda is going to romp in," she says. "Judith has been doing well but not enough time.
"I dread to think how far our taxes are going to be ramped up."
It goes on to again say Polkinghorne had made it clear he expects to be paid out to the same degree as the shareholders who left in acrimonious circumstances in 2019.
Hanna says the apartment they liked at the Viaduct was now too expensive in leasehold fees.
She was also concerned whether the city would die over the next decade with the "completely inept council" and the development of the Wynyard area.
So they had decided to keep the Upland Rd, Remuera property, she wrote.
Auckland Eye jumped from 'one disaster to another'
Andrew Laxon
Now Mansfield is on to the email frequently read to the jury during this trial.
It says she's has been personally criticised and bullied at work, and says she might be linked in the media to an issue at work.
A later email from Hanna says we jumped from "one disaster to another" at Auckland Eye.
Her husband was hurt, she said, because it appeared his clinic did not want him anymore.
A later email from Hanna to Ben and Bridget Polkinghorne in August 2020 says her mother was no longer recognising her.
Polkinghorne sobs in court as Hanna's emails read to jury
Andrew Laxon
On April 14, 2020, there's another email from Hanna, sent to herself as she frequently did, saying her husband had cooked (misspelled "cooed").
It says it was the 25th day of work in a row "but I am not adding any value".
She had tried to bring it up with her husband but had been told he didn't want to discuss negative stuff tonight.
As a result, she'd had three glasses of wine, and was not expecting to sleep when she went to bed.
"Who knows what might follow."
The email concludes by saying she "had to tell someone, even if no one but God ever sees this".
Polkinghorne has started sobbing quietly in court.
Covid could change 'whole social dynamic'
Andrew Laxon
Hanna said she was curious as to how Covid was going to affect the future.
"The whole social dynamic I think is going to change," she says.
People will be more cautious and won't want to go out and spend money, she says.
Hanna goes on to say "PJP" had been great around the house but there was a lack of income coming in at Auckland Eye.
The new chief executive at Auckland Eye had been "greater than useless", she said.
Hanna worked day and night on Covid health response
Andrew Laxon
Yet another email, again from Hanna to Ben and Bridget Polkinghorne. It appears to be around the time of the first Covid cases and just before the first lockdown.
It says "how are you two darlings" then says "God this [is] scary, terrible, confused".
Hanna says they are at the beach this weekend and were planning to go to Sydney.
She says she's been asked to run the Northern Region supply chain for procurement and had been working all day and emailing into the night.
She was planning to approach Fisher and Paykel about the local manufacture of equipment for the Covid response, she writes.
"It is unbelievable what is happening," she says.
Mansfield is again using Hanna's correspondence to shed light on the level of work and personal stress she faced.
These emails are appearing before the jury for the first time.
Further emails talk about Hanna's guilt driving around even though she's an essential worker.
Polkinghorne had registered for the public system but the hospitals were yet to be too busy.
She had noticed people were walking on the road a lot because they were observing the 2m distancing rule.
Son emails about London apartment
Andrew Laxon
Another email is produced, again from Ben Polkinghorne, who lives in the UK, to his father.
The subject line is "potential house" and it's forwarded on to Hanna.
It asks how his week was and says theirs has been horrible. The email goes on to government schemes to purchase property and an apartment they're looking at.
Hanna goes back and says the apartment block looks superb and that Hackney is lovely. "Well done guys, go for it!" Hanna writes.
The trial earlier heard Polkinghorne later gifted his son more than $100,000 to buy property.
Hanna to brother – "A bit of empathy might help"
Andrew Laxon
Another email. It's from Hanna to herself. She did that commonly before sending it to someone else, says Shahho.
The email was later sent on to Bruce Hanna, her brother. It relates to the care of their mother and appears to be around the time she was about to be moved from the family farm near Havelock North to a care home. Their mother died in 2021, two months before Hanna's death.
The email urges him to respect that the property is her family home.
"I know that you have worked on the property, that is what life is about, building your future."
It urges him to think about how he spoke to her.
"That was brutal and hurtful... particularly your implication that I am a poor aunt to Rose."
Hanna goes on to say she does have memory fades at times, but usually the reason she makes changes is that she was juggling a lot of balls.
She says she's had an enormous amount on that he has no idea about.
"But a bit of empathy might help when I do err," she writes.
A later email is produced by Mansfield. It's dated November 2019 and is from Hanna to Polkinghorne son's Ben and his wife Bridget.
She thanks them for sending her husband a gift and recounts a shareholders dinner, "where everyone told me how brilliant PJP was". PJP stands for Philip John Polkinghorne.
Hanna goes on to talk about an apartment they are looking at in downtown Auckland. The body corporate fees were $32,000 but this pales in comparison to the $100,000 they spent annually on the care of their properties in Rings Beach and Remuera, she said.
Messages between Hanna and Polkinghorne revealed
Andrew Laxon
Mansfield produces some exhibits. One is an email from May 9, 2020, extracted from Hanna's laptop. Another contains April 2019 text messages from her iPhone.
He's also produced some family photos and texts between Hanna and her friend Pheasant Riordan, alongside some messages between husband and wife. The texts aren't being read to the jury.
Shahho confirms one of his tasks was to look for communications shedding light on Hanna's wellbeing, and her communications with Polkinghorne via mobile phone and email.
He provided at least a year's worth of text messages between Hanna and Polkinghorne, the jury hears.
We move on to the emails.
One is from Polkinghorne to Hanna's work email, dated August 16, 2019, at 6.44pm.
It relates to Kiwi Wealth managed funds, and is signed off "P x" as Polkinghorne always signed off his emails, say Shahho.
Mansfield produces another email, from Hanna to several family members, including her daughter-in-law Bridget.
It says: "In terms of PJP he is very relaxed since we got back despite the fact that things at [Auckland Eye] are not great."
Mansfield says from the content of this message, she is talking about things at his ophthalmology clinic Auckland Eye, and how her husband was concerned he needed to go back on to the board, and she supported that.
Expert gained extra access to Hanna's phone
Andrew Laxon
Police could have got into her work phone laptop by requesting a password reset, then having her DHB manager provide the reset code, says Shahho.
When he did the clone himself of Hanna's phone, he was able to make a verbatim copy very different than the copy police had, both because he had access to the cloud and because he had the physical device, he says.
Shahho confirms he looked at evidence on the devices relating to Hanna and her relationship with her husband.
Like 'breaking into a filing cabinet'
Andrew Laxon
Mansfield is questioning Shahho about how police clone and then examine cellphones using the Cellebrite software.
Cellebrite has to update itself via the Jailbreak technique, software used to circumvent the phone's security software.
The most recent version of the iPhone software isn't penetrable Cellebrite. Previous versions are penetrable and Cellebrite and ethical hackers share that information with the police digital forensic unit, the trial hears.
Shahho compares it to breaking into a filing cabinet and turning the files into something searchable.
Trial set to resume
Andrew Laxon
The trial is about to resume and the public is following members of the Hanna and Polkinghorne families back into the gallery.
Ron Mansfield KC resumes, leading the evidence-in-chief of Atakan "Artie" Shahho, an Australian IT specialist asked by the defence to examine Polkinghorne and Hanna's electronic devices.
Earlier, Shahho confirmed he's prepared a report regarding whether Hanna's phone could have been used to draft two messages on the morning of her death.
But that evidence will be put off until tomorrow at least, so the police digital forensic analyst – who rejected the evidence Hanna's phone was used to draft messages – can be present to respond.
To recap, that analyst, Jun Lee, said the supposed draft messages were really just an automatic security look-up process by the phone. There was no sign of her phone having been used or turned on about 4am on April 5, when the defence says the messages were drafted, Lee said earlier in the trial.
Trial adjourns for lunch
Vera Alves
"We'll take the lunch break now," says Justice Lang.
But we are returning a bit earlier, at 2pm.
There's no chance the defence case will finish today, and Mansfield hinted, during the evidence of the latest witness, that it could even continue beyond Wednesday.
Vera Alves
On June 13, 2024, IT expert Atakan Shahho travelled to New Zealand to obtain the information needed for his forensic IT analysis.
He was also physically handed Hanna's phone and her Middlemore HP laptop.
Shahho said police weren't able to get into the laptop because they didn't know the password. He asked to try and circumvent the password but was denied.
Shahho said he created his own clone of Hanna's iPhone.
He was also provided a range of electronic devices belonging to Polkinghorne.
Details of report into Hanna's phone to be revealed tomorrow
Vera Alves
IT expert Atakan Shahho confirms he's prepared a report regarding whether Hanna's phone could have been used to draft two messages on the morning of her death.
But that evidence will be put off until tomorrow at least, so the police digital forensic analyst – who rejected the evidence Hanna's phone was used to draft messages – can be present to respond.
To recap, that analyst, Jun Lee, said the supposed draft messages were really just an automatic security look-up process by the phone. There was no sign of her phone having been used or turned on about 4am on April 5, when the defence says the messages were drafted, Lee said earlier in the trial.
iCloud's secure enclave cannot be accessed with Pin codes – IT expert
Vera Alves
IT expert Atakan Shahho confirms he's familiar with Cellebrite and AXIOM – the software used by the New Zealand Police to clone and examine phones and computers respectively.
He has 10 years of experience in Cellebrite. Less with AXIOM, because he prefers to "break into the computers" and examine the devices themselves, the jury hears.
Apple has a secure enclave in iCloud which cannot be accessed without the Pin codes.
If you break into a phone without the Pin code, you risk losing the data, Shahho agrees.
Even Apple can't break into the encryption, he says.
There were many cases where the FBI had wanted access to the phones of deceased people but Apple couldn't get in, he adds.
"They choose not to have the backdoor."
Defence lawyer Ron Mansfield moves to his witness' involvement with law enforcement agencies. Shahho confirms he works for barristers in Sydney and deals with the Australian Federal Police and their equivalent of the digital forensic unit regularly.
Defence calls IT expert as new witness
Vera Alves
Defence lawyer Ron Mansfield has called Atakan Shahho. He's a director and senior technician at a company called Our Computer Guy.
Shahho says they specialise in data security and medical software integration, predominantly in health and law.
He started as a junior IT technician in the late 1980s, working with an Apple software developer.
Shahho says they worked with Nasa and he also had a lot to do with medical systems and integrating them into the new era of software.
He also worked on ophthalmological devices to scan eyes, but he's never met the accused.
His role was to forensically examine the material disclosed to the defence from the police as part of the investigation.
Specifically, he looked at the cloned Cellebrite phone data, and the laptop data.
He has provided forensic analyses of cellphones and computers previously, the jury hears.
Shahho is from Australia, it emerges.
Part of his company's work recently was to help St Vincent's Hospital in Sydney deal with a ransomware attack.
Shahho says he and his firm are currently working on a defamation case, providing forensic analysis of electronic devices.
Apple technology is pretty much my bread and butter, the witness says.
"I know Macs inside and out," Shahho says.
Polkinghorne's occupation not relevant – pathologist
Vera Alves
Defence lawyer Ron Mansfield refers to an earlier question about how many strangulation cases by a surgeon he had seen.
"I'm not aware of one," says pathologist Dr Christopher Milroy.
What relevance might someone's occupation, including whether they were a surgeon, in this case an ophthalmologist, affect whether someone might be able to strangle someone without leaving any forensic trace?
Milroy says he's not aware of non-forensic specialists receiving any training in neck compressions.
Mansfield begins asking if an ophthalmologist would receive any such training regarding neck compressions or similar
Justice Graham Lang says he's not sure that's relevant.
"That's my point," says Mansfield. "My learned friend raised it, not me."
No further questions. It's 8.30pm in Ontario and Milroy is free to go.
Pathology not a 50/50 coin toss, witness says
Vera Alves
Crown prosecutor Alysha McClintock has no further questions in her cross-examination of pathologist Dr Christopher Milroy.
Defence lawyer Ron Mansfield has some questions in reply, about the use of the phrase possibilities.
"My learned friend has asked you whether the pathology was neutral and I think your answer was that, viewed by you, the pathology was not neutral?" asks Mansfield.
"The pathology certainly favours suicidal hanging in the context of suicide versus homicide because of the known findings in soft-ligature, partial-suspension hanging and the absence of injury on the neck," says Milroy.
It's certainly not a 50/50 coin toss, the witness adds.
Milroy says if he had a negative autopsy, he wouldn't say he can't exclude smothering, he'd just say it was undetermined.
Milroy says he's never seen a report on a suicidal hanging where someone has put in the caveat "I can't exclude homicidal neck compression". In the last 10 years, his forensic pathology unit in Ontario has done 1000 hangings, he says.
That caveat would have to have been given in each case unless there was cogent evidence like a video of a door showing no one else entering the home.
Milroy says he's only ever seen one case of an attempted concealed homicide where someone had tried to make it look like a suicide. In his career, he's examined 600 or 700 self-inflicted hangings, Milroy says.
What are we reliably looking for in a homicidal strangulation? asks Mansfield.
Internal and external injuries, says Milroy. The actual evidence from cases is people are not unconscious that quickly because of evidence of a struggle and associated injuries, he adds.
Mansfield says Hanna's blood-alcohol level was 27mg per 100mL.
Milroy says the legal limit is 80 in Canada and Hanna's level was equivalent to one or two glasses of wine.
Did that, or the zopiclone, provide any information we need to be aware of? Mansfield asks.
Milroy says there's some evidence of her having an alcohol use disorder. That indicates she would have an alcohol tolerance, as she may have done for zopiclone, says Milroy.
'Cannot exclude possibility of homicidal hold' - defence pathologist
Vera Alves
Pathologist Dr Christopher Milroy says the alcohol and zopiclone interact synergistically, both increasing the potency of the other.
Crown prosecutor Alysha McClintock asks if zopiclone is sometimes used to sedate people.
Mansfield looks up sharply from his note-taking as the prosecutor clarifies that's not what she's suggesting happened here.
The prosecutor then asks how quickly someone sedated on zopiclone would wake up.
Milroy says the concentrations of zopiclone were not high, but he concedes that it's uncertain how anyone would have reacted to the drug in terms of how sedated she would have been.
Milroy says the blood alcohol level (about half the legal driving limit, the trial heard earlier) in her blood post-mortem would have reflected the level at the time of death.
Asked whether three to four minutes of sustained compression would be needed to cause death in a strangulation, Milroy says it would be shorter in his view, perhaps a minute or two.
"We're not allowed to do experiments," says Milroy.
McClintock asks about the degree of struggle, and whether it would depend on the body position of the victim, the relative strengths of the assailant and victim, and the impact of sedation.
Milroy agrees.
Late last week, the prosecution raised the possibility Hanna was strangled from behind as she slept on her front, self-sedated, hence the lack of defensive wounds.
This morning, Milroy talked about the use of bedding or a towel as a ligature. He confirms they're less likely to leave signs of injury, as he said was common in prison hangings. But manual strangulation or throttling has a higher chance of internal injuries, especially in older victims like Hanna, he says.
And there are instances of the carotid holds where there's no evidence of injury, he agrees.
"So isn't another way of looking at this, doctor, that the pathology in this case is neutral?" asks McClintock.
Milroy says he wouldn't say the pathology is neutral between homicide and suicide, but "one cannot exclude the possibility of a homicidal hold on the person".
Strangulations staged as suicide are a thing, albeit a rare thing? asks McClintock.
"That's correct," Milroy says. (He said in his evidence-in-chief he was aware of one in his career.)
Crowd continues cross-examination of defence witness
Vera Alves
Auckland Crown solicitor Alysha McClintock is asking Dr Christopher Milroy about what the pathologists described as Hanna's "non-specific injuries".
He confirms non-specific means they could be from an assault, or otherwise. "We can't differentiate," says Milroy.
To recap, they included a bruise on her temple, a graze on the bridge of her nose and a bruise on her temple.
McClintock is now asking about his comments on zopiclone earlier today. He talked about how Hanna may have developed a tolerance, and also how the sleeping pill wouldn't have anesthetised her, so she could still wake up and fight back.
Milroy says he deals with "way too many drug-related deaths, especially in North America at the moment" and confirms he can't be sure of tolerance levels from a post-mortem examination, though hair samples can give an indication of the term of use.
Milroy says the assessment of ESR toxicologist Helen Poulsen is fair, that Hanna had taken the drug over a six-month period, though the frequency and level of use is hard to say.
McClintock asks about the combination of alcohol and zopiclone, and whether its sedative effect is enhanced by alcohol.
Milroy agrees.
Trial about to resume
Vera Alves
Court is about to resume for more cross-examination of the fourth pathologist to be called in this trial, Dr Christopher Mark Milroy OBE.
Trial takes morning adjournment
Vera Alves
Justice Lang has called the morning adjournment.
We will return in 15 minutes.
Crown cross-examines defence's pathologist
Vera Alves
Auckland Crown solicitor Alysha McClintock begins her cross-examination of pathologist Dr Christopher Mark Milroy.
He confirms he provided the report on August 21, 2024, after Dr Stephen Cordner's approach was questioned by Dr Martin Sage during the Crown case.
This was well into the trial.
McClintock says the case he sent Sage was witnessed. But the one referred to by Sage was admitted, but not witnessed, the prosecutor said.
Her point is that there's actually now two cases to have emerged in evidence where there were no external or internal neck injuries in a death by neck compression.
"I know they are separate cases," says Milroy.
He adds that the case he referred to was a neck hold, not a strangulation.
Milroy cofirms he has been a sworn coroner. McClintock then asks if the coroner in Canada looks at factors beyond the forensic pathology.
Milroy says forensic pathologists do obtain scene photos and context.
Coroners in suicides in Ontario additionally obtain information from witnesses and the police, plus device examination results, he agrees.
In Canada, the burden of proof in a suicide is in the civil jurisdiction, a lower bar of "more likely than not" than used in the criminal realm, the trial hears.
McClintock asks if he's familiar with the term non-fatal strangulation. Milroy says in England he would occasionally see cases of people who had been strangled and survived.
McClintock asks if these non-fatal strangulations can often leave little or no non-fatal injuries. Yes, Milroy says, but he's also seen non-fatal cases that frankly look worse than fatal cases.
The other caveat is we don't dissect the necks of survivors, he adds.
Is non-fatal strangulation a common feature of violence against women? asks McClintock.
"Yes," says Milroy.
He also agrees that non-fatal strangulation is a key marker of future violence against the victim.
To recap, Hanna's family friends John and Pheasant Riordan previously told the court that Hanna told them Polkinghorne previously put his hands on her neck as a strangulation threat.
How many of the strangulation cases you've dealt with were by a surgeon? asks McClintock.
None. He can't recall any incidence of strangulation by a medical practitioner.
Milroy agrees he had found Cordner's evidence to be fair, objective and scientific.
Could the same be said of Crown pathology witness Dr Martin Sage? asks McClintock.
Yes, says Milroy, adding he's very cautious about criticising his pathologist colleagues.
Milroy says he wrote in his report for this case that this is a case where people are dealing in possibilities.
One has to be careful is there is very limited pathology evidence, to use that as proof positive of a homicide, the witness says.
"But, I repeat, I'm not the tryer of fact, I haven't heard all the evidence," says Milroy.
McClintock asks if intent, for example, can't be ascertained from pathology?
That applies to a number of cases, not all of them, says Milroy.
"You're not saying pathology is the one source of truth here?"
"No, no, absolutely not."
Hanna's sleeping pill dosage 'within therapeutic range' – pathologist
Vera Alves
Pathologist Dr Christopher Mark Milroy confirms that beyond minor injuries that are "non-specific", there are no other injuries to Hanna's body, such as those that might suggest a defensive struggle.
"They do not take us further forward in distinguishing the two scenarios proposed in this case," says Milroy.
What sort of injuries would you expect to see in a strangling? asks defence lawyer Ron Mansfield.
In the neck you often see abrasions because the person is moving their neck from side to side, Milroy says. Also you might see black eyes or fingernail marks or other signs of beating on the body.
Mansfield asks about Hanna's use of the sleeping pill zopiclone. Analysis of her blood and hair showed the presence of the drug.
It's always difficult to know exactly what effect a drug might have had from a post-mortem analysis. "The concentrations present in this case are not high," says Milroy.
Even though the trial heard earlier it was twice the normal dose, it was within the therapeutic range, he says.
And, the witness says, her hair sample suggested long-term use and the building-up of a tolerance.
"They're not an anaesthetic," says Milroy. "I would still expect the person to fight back with this degree of zopiclone."
The six-month range of the hair sample, way beyond what you would normally prescribe the drug for, is enough to build up a tolerance, Milroy says.
But you can't determine tolerance post-mortem, he adds.
Forensic pathologists classically deal with people who take heroin, become tolerant and have to take more. They go into prison, stop taking it, come out, then take the same amount they've taken before, overdose and die, he says.
The same can happen with alcohol, Milroy says.
Hanna's hair analysis showing at least six months of zopiclone use suggests tolerance, he says again.
Mansfield asks if, when viewed alongside the lack of neck or defensive injuries, the zopiclone is relevant? Maybe it would have helped them go to sleep, but it doesn't mean they're anaesthetised, he says.
If attacked, they will wake up and struggle, Milroy says.
On to the belt impression on the neck, which had all but disappeared by the time of the autopsy on April 6, 2021, the day after Hanna was found dead.
"I don't think it's helpful. The point is it's not an injury," says Milroy.
He adds the same caveat as Cordner, that disappearing neck marks had not really been studied.
Sometimes hands are tied together on a body during transport, says Milroy.
When they're taken off, there's a post-mortem mark that disappears.
While that's a post-mortem mark, it does not necessarily mean the ligature was applied after death, says Milroy.
Defence pathologist says lack of injuries in strangling victims extremely rare
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Milroy says it's quite common in recent years for pathologists to conduct only external examinations on people believed to have hanged themselves. Typically these days pathologists don't dissect the neck. But early in his career, he would often do full dissections of the neck of suicidal hanging victims.
However, he would still conduct neck dissections where he had some concerns about the cause of death, Milroy says.
Milroy agrees the evidence shows that beyond the fading ligature mark, there were no internal or external injuries to Hanna's neck.
That's not surprising if a soft ligature was used, says Milroy. (Polkinghorne said a woven leather belt was used.)
Milroy says he examined a large number of prison hangings early in his career, because Yorkshire has a large number of prisons.
In prison, often bedding was used and it was not uncommon for there to be no visible injuries.
If it was manual strangulation via throttling, Milroy says he'd expect to see internal injuries.
That's especially the case for a woman of Hanna's age, says Milroy. As you get older, cartilage in the voice box area calcifies and ossifies, becoming more like bone, the jury has repeatedly heard.
In homicidal ligature strangulations, because there is resistance, you'd expect there to be external injuries as well, Milroy says.
Milroy says he's aware of only one case in his career in which the scenario presented by the Crown in this trial occurred; namely, a strangling that was staged to look like a suicidal hanging, the jury hears.
That was an obvious manual strangulation case with a victim who was a 14-year-old girl.
Another case he referred to in his correspondence with Dr Martin Sage was where the victim was in a prone restraint and on cocaine.
The assailant was a member of the public.
Cocaine is a known risk factor for increased struggle.
Milroy said he couldn't rule out whether the cocaine was the cause of death or the neck compression. The trial earlier heard this case had no neck injuries, internal or neck injuries.
Otherwise, all other homicidal strangulations involved obvious internal or external neck injuries, Milroy confirms.
"You expect to see findings in the neck in homicidal neck compression. The absence is in my experience one case that I'm aware of in 30 years of reasonably busy practice in large jurisdictions," says Milroy.
Pathologist says he would have rulled Hanna's death a hanging
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Defence lawyer Ron Mansfield asked how the witness, pathologist Dr Christopher Mark Milroy, became involved in the case. Milroy confirms Dr Stephen Cordner has been a colleague of his for 30 years.
He then confirms the Polkinghorne defence team was referred to Milroy to comment on Cordner's evidence, following the evidence during the Crown case of Dr Martin Sage, who suggested Cordner was "trying too hard" to conclude the death was a suicide.
Milroy has also seen the evidence given by all three previous pathologists who have given evidence in this trial.
He confirms he's aware of the neutrality required of expert witnesses in New Zealand.
Mansfield, recapping, says Cordner concluded Hanna died from neck compression as a result of non-accidental "incomplete" hanging. Milroy agrees that's a fair summary of Cordner's findings.
Mansfield asks if he thinks Cordner went too far in his findings, as Sage suggested.
No, says Milroy, that was a reasonable opinion to give.
Do you think it amounted to becoming "somewhat of an advocate" asks Mansfield, before Auckland Crown solicitor Alysha McClintock interjects. The witness isn't here to narrate or assess the credibility of a Crown witness, and the question goes too far. Mansfield tries again.
"I would have given the cause of death as hanging," Milroy says.
Milroy says he would have further concluded there are features to support partial-suspension hanging.
Do you have any concerns with the opinion of hanging from Cordner? Mansfield asks.
No, says Milroy, but qualifies that it's been raised that the death could be from some other cause of neck compression, followed by a "cover-up" via someone staging the scene.
Milroy says there are different classifications of neck compression, a broad term meaning some form of object has compressed the neck.
The commonest form of neck compression that Milroy sees in his work is from self-inflicted hanging, the jury hears.
The suicide rate in Canada is very similar to Australia and New Zealand, and the commonest suicide method in Canada is hanging, Milroy says.
You can also have a ligature strangulation, meaning the application of a ligature by either the deceased or an assailant, he says.
Another is manual strangulation, application of hands on the neck. "A good old-fashioned term for it is throttling."
Then there are two neck holds. One is the "carotid sleeper" used in martial arts and has also been recommended to some law enforcement agencies, when the objective is to render the subject unconscious before releasing them. The other hold is a "bar hold", where an object such as the police baton is pulled into the neck, slightly different to the carotid sleeper, and said to be more dangerous.
Defence continues to detail witness' CV
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The University of Ottawa is a reasonably large research-oriented university, similar in size to New Zealand universities, Milroy says.
Because it's the capital of Canada, the university offers courses in both English and French , but Milroy says don't ask him any questions in French.
"Don't worry, I'm from the South Island I don't speak it at all," says defence lawyer Ron Mansfield, who is from Waimate.
Milroy continues to work as a forensic pathologist in Canada.
He has also worked as a coroner in Ontario, where coroners have to be doctors, unlike here in New Zealand, where they are lawyers.
As a result, he continued to certify causes of death after moving from the UK to Canada.
Mansfield continues to list his qualifications, which include a Masters of Law.
He wrote his thesis in 1994 on people who kill and then go on to commit suicide.
There's a noise – it's his pager.
"I'm on call and being paged but I'm going to ignore that."
Are you sure? asks Mansfield.
"It's never that urgent in forensic pathology."
Milroy also received an OBE from King Charles as part of the 2023 King's Birthday Honours list for his services to forensic pathology.
The trial hears he has appeared in courts in a number of jurisdictions as an expert witness in pathology.
His department provides the forensic pathology service to the Eastern half of the Nunavut territory, covering an area of the Canadian Arctic Archipelago the size of Western Europe.
But it's his first time appearing in a New Zealand court.
"Welcome," says Mansfield.
He's come here to lecture on two occasions though, on his way to or from Australia, at the University of Auckland and in Christchurch.
The Christchurch lecture was organised by Dr Martin Sage, a pathologist who appeared for the Crown.
Milroy says he was asked whether he'd had any experience of someone who died from neck compression but who had no internal injuries. He'd seen one case in his career, involving a struggle, an arm lock and a man on cocaine, says Milroy.
To recap – the pathologists who appeared for the Crown earlier told the court Hanna had no real internal neck injuries. They agreed she died via neck compression but they could not be sure of the cause of that neck compression. Mansfield's main defence pathologist, Dr Stephen Cordner, said he would have concluded a partial-suspension hanging caused the neck compression, given the lack of defensive or internal neck injuries, the trial heard last week.
Milroy said he has acted as an examiner for people training to become forensic pathologists.
Second pathologist gives evidence in Polkinghorne's defence
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Justice Graham Lang is back on the bench and in comes the jury.
"Good morning members of the jury. Mr Mansfield," says Justice Lang.
Defence lawyer Ron Mansfield has called Dr Christopher Mark Milroy.
He lives in Ottawa, Ontario, and is appearing via video-link from a hospital in that Canadian city.
"I'm originally a Pom. I've been in Canada since 2008. Before that, I was practicing in England," he says.
Milroy is a forensic pathologist. Mansfield, as is usual, is taking him through his CV.
Milroy is appearing from his office in a hospital. His white coat is hung up behind him.
He tells the court he qualified as a doctor 41 years ago, commencing training in forensic pathology in 1990.
He was later placed on the UK Home Office register of forensic pathologists.
Milroy covered Yorkshire after he started work as a pathologist.
He is now a professor at the University of Ottawa.
Before that he was a professor at the University of Sheffield.
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The close friends and families of Hanna and Polkinghorne are filtering into their usual spots in the front row of the public gallery, followed by many of the usual crowd who come to watch proceedings each day. Most are older women from across Auckland – one woman told the Herald she gets dropped off by her husband from Papatoetoe one day a week – but there are a smattering of law students too.
Trial to resume shortly
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The trial will resume shortly.
Security at the Auckland High Court has now established velvet rope barrier, with a sign instructing people to queue here, for the crowds who come to watch proceedings each day. They have been thronging around the doors in a bid to secure a seat, to the chagrin of lawyers and security staff.
Justice Lang has had to ask them to be quiet as they entered the public gallery of Courtroom 11, while a security guard was again last week forced to repeatedly warn the mostly older crowd go get back from the doors.
There's also a photographer from Getty Images in court today, signalling possible international media interest as the end of the trial approaches.
Day 28: Defence case drawing to close after sick juror prevents Monday sitting
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Welcome to the Herald’s live coverage of week seven of the murder trial of Philip Polkinghorne, the Remuera eye surgeon accused of killing his wife Pauline Hanna and staging the scene to look like a suicide.
The trial did not sit yesterday. Justice Graham Lang issued a minute on Monday morning saying a juror told the court they were unwell.
STORY CONTINUES
Milroy, who was made an Officer of the Order of the British Empire earlier this year, said he’s seen roughly 600 to 700 hanging deaths in his career. Although having never before testified in a New Zealand case, he’s visited the country twice for lectures - one time at the invite of one of the Crown witnesses. He was recently tasked with reviewing testimony and reports from Doctors Kilak Kesha and Martin Sage for the Crown and Dr Stephen Cordner for the defence.
Defence lawyer Ron Mansfield KC asked the pathologist almost immediately to referee an opinion from Sage earlier in the trial that defence witness Cordner had gone too far in his finding that Hanna died via non-homicidal hanging.
“In my opinion, that is a reasonable opinion to give,” the latest expert said.
Had he been the forensic pathologist in charge of the case, he would have also given the cause of death as hanging with partial suspension, he said. But he added that the standard for determining suicide in Canada is “more likely than not”, a burden of proof often employed in civil cases. Some other jurisdictions, he noted, have a “beyond a reasonable doubt” standard.
“Of course, I’m aware it’s been raised this could be some other form of neck compression with a cover-up, if you like,” he said. “I really would expect, if it was a manual strangulation by throttling, to see external injuries and internal injuries.”
That might especially be the case given Hanna’s age, in which one would expect to see more brittle bones or cartilage, he said.
In all his career, he said, he’s only seen one case in which “the scenario put by the Crown was present” - an attempt to mask the fatal strangling of a 14-year-old as a suicide. But there were multiple injuries that made it “an obvious manual strangulation”, he said.
There was one other case, he said, where a person died of neck compression and there were no injuries. It involved the assailant on top of the victim, who was facedown on the ground and in an armlock. But a factor of that case was the victim was on cocaine, a “risk factor” which might have been an aspect of the death, he told jurors.
“It’s the only case I’ve encountered in my 30-plus years as a forensic pathologist,” he emphasised. “So what we’re talking about are exceedingly rare events.”
Milroy said he didn’t put much weight on the fact Hanna appears to have taken sleeping pills prior to her death. Crown prosecutor Alysha McClintock had painted a theoretical scenario last week, during cross-examination of the other defence pathologist, in which Polkinghorne climbed on his wife’s back as she was sleeping and began to strangle her before she could put up much of a struggle - potentially causing her to pass out within 15 seconds.
“I think you obviously have to take it into account - it’s there,” Milroy said of the drug in Hanna’s system, noting that it might have made Hanna groggy. “But the point is ... that doesn’t mean they’re anaesthetised. They’re going to wake up if something happens to them, and then struggle.”
During cross-examination, McClintock pointed out that alcohol and sleeping pills can “act synergistically to increase the sedative effect”. Milroy agreed but said he wouldn’t go as far as to call it a “double whammy”, as McClintock did.
The prosecutor pointed out that the expert had been mistaken when he assumed his sole example of a neck compression death without injury was the same example that Sage had given jurors as the only case he was personally aware of. Sage’s example involved different circumstances in which there were no witnesses but the aggressor confessed.
“Although the pathology is important, there are other circumstances that come into the question, right?” McClintock asked.
The expert agreed.
“I’m quite aware I’m not the trier of fact,” he said. “The trier of fact is the jury, and they have to put everything together - not just the pathology information... I haven’t heard all the evidence.”
He also acknowledged that while he found the former defence expert’s approach to be objective, fair and scientific, the same could be said for the two Crown pathologists.
McClintock asked again: “You’re not saying pathology is the one source of truth here?”
“No,” he agreed. “Absolutely not.”
But he disagreed that meant the pathology evidence was “neutral”.
The evidence “much more strongly favours suicide over homicide”, he said, adding: “It’s not a 50/50 coin toss.”
Milroy’s testimony was followed by Australian IT expert Atakan Shaho, who was hired by the defence to view the laptops and mobile phones that have been seized by police.
Most of his testimony is expected to take place this afternoon, with the likelihood it will continue into tomorrow, the defence has indicated.
Testimony, before Justice Graham Lang and the jury, is set to resume after the lunch break.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
The Herald will be covering the case in a daily podcast, Accused: The Polkinghorne Trial. You can follow the podcast at iHeartRadio, Apple Podcasts, Spotify, through The Front Page feed, or wherever you get your podcasts.