COMPLEX CASE
What’s behind Mark Lundy’s appeal?
Everyone who sat through Mark Lundy’s retrial will have different opinions on his guilt or innocence – if he killed his wife Christine and 7-year-old daughter Amber in their Palmerston North home on the night of August 30, 2000.
But it is safe to say they will agree on one thing – the scientific evidence was extremely complicated.
Lundy was found guilty of the murders in 2002, but the Privy Council quashed the verdicts in 2013 and ordered a retrial, which took place in 2015. He was again found guilty and sent back to prison to continue serving his life sentence with a minimum term of 20 years. His case is once again before the Court of Appeal this week, starting on Tuesday.
Some parts of the case were presented differently between the first and second trials, with the Crown’s introduction of messenger RNA evidence one of the most controversial differences. RNA stands for ribonucleic acid and it is similar to DNA. Did it indicate there was human brain or spinalcord tissue on Lundy’s shirt?
Lundy’s legal team failed in both the Court of Appeal and Supreme Court to have it thrown out before the retrial. That evidence will once again be challenged, according to
Lundy’s notice of appeal.
‘‘It was crucial and central to the
Crown case, and remains in real scientific dispute,’’ the notice says. ‘‘I say that it is inappropriate and unrealistic to expect a jury to determine such complex issues of scientific dispute.’’
There was never dispute that one of Lundy’s shirts had stains containing central nervous system tissue. The stains also contained DNA from the victims.
The DNA being there is not surprising, considering the trio lived together. The tissue was the issue.
The Crown said it was probably human tissue from Lundy’s wife. Crown prosecutor Philip Morgan, QC, in his closing address at the retrial, let the jury know how bad that looked. ‘‘No man should have his wife’s brain on his shirt.’’ The defence, however, said the tissue could have come from a piece of offal in a pie or a neck chop Lundy may have cooked.
No-one at the trial gave evidence about Lundy eating neck chops. There was a pie wrapper in his car door console, but no pie maker in the witness stand saying exactly what goes into a pie.
The Crown called on Dutch scientist Dr Laetitia Sijen to conduct RNA testing on the pieces of shirt that had been preserved, in an effort to strengthen the case against Lundy.
While DNA can tell you who a piece of body tissue comes from, it cannot say what it is. But RNA works the other way around, making it possible to say if tissue came from a leg, an eye or a brain.
Sijen did not find any tissue on one shirt stain, but seven out of 12 tests on a shirt sleeve stain came back positive for human central nervous system tissue. That made it 58 per cent probable the tissue was from a human brain or spinal cord, she said.
But a different expert, Professor Stephen Bustin, said Sijen’s testing was flawed. Control samples did not bring back the expected results, some processes were highly variable and the RNA material was likely unstable, he said. However, he could not say anything about Sijen’s results with absolute certainty, only going as far as being ‘‘very reluctant’’ to accept the results due to ‘‘fundamental flaws’’ in the testing.
That still left Lundy with the undisputed evidence – the shirt stains contain central nervous system tissue and the victims’ DNA.
But none of that matters if it was impossible for Lundy to commit the murders because he wasn’t there. He was staying at a Petone motel the night of the murders. Cellphone polling data had his phone being used in Petone at 5.30pm and 8.28pm.
A computer at home was turned off at 10.52pm. He saw a prostitute in his motel room at midnight. The next confirmed sighting of him was by the motel manager at 7am when he asked for batteries for his electric shaver.
At the first trial, the Crown claimed he left Petone at 5.30pm, committed the murders at 7pm, messed with the computer to show a later shutdown time, staged a home invasion and got back to Petone by 8.28pm – all through rush-hour traffic.
The Crown produced a more plausible theory at the second trial – that Lundy committed the murders between seeing the prostitute and motel manager.
Lundy’s retrial lawyer David Hislop, QC, said in his closing address there were three things showing it was impossible for Lundy to commit the murders: His car could not hold enough petrol; the victims’ stomachs were full when killed, but should have been empty; and a neighbour said a sliding door on Lundy’s house was open at 11pm.
Lundy’s appeal notice states issues around the petrol will be challenged.
The petrol consumption evidence at the retrial was problematic. His car, a 1998 Ford Fairmont EL, only held 68 litres, but police tests found he needed 75.95 litres of fuel. But the testing was carried out on the basis of the first-trial timing, which would have wasted much more petrol through high-speed driving.
Another issue was no-one tested the exact model Lundy drove in time for the retrial. The next best on offer was a Ford Fairmont Ghia EL, which had a weaker engine than the straight Fairmont EL. The best figures any lawyer could offer were mileage estimates taken from a website.
The sliding-door impossibility theorises the murderer was inside by 11pm, before Lundy had seen the prostitute, while the final impossibility relates to digestion.
The first trial’s version of events was largely based on pathologist Dr James Pang’s estimate the victims died an hour after eating. A visit to Mcdonald’s by Christine and Amber at 5.45pm would result in a time of death about 7pm.
But that was abandoned at the retrial, after the Privy Council tore Pang’s estimate to shreds. The victims still had food in their stomachs, which Hislop said should not have been there if they had eaten at 6pm and were killed between 1am and 5am.
Lundy is being represented on appeal by Jonathan Eaton, QC, and Julie-anne Kincade, the last remaining member of the retrial defence team.
Morgan and Palmerston North Crown solicitor Ben Vanderkolk are appearing for the Crown.
There was a pie wrapper in his car door console, but no pie maker in the witness stand saying exactly what goes into a pie.