Lundy feels treated like a ‘guinea pig’
Rules are needed on how ‘‘novel science’’ is used in court, according to Mark Lundy’s lawyer, who says his client has been the victim of unreliable scientific methods.
The call prompted Justice Mark Cooper, one of the Court of Appeal judges hearing the case in Wellington yesterday, to make a note about how an astrologer was once treated in court.
Yesterday was the first day of Lundy’s appeal and his lawyer Jonathan Eaton, QC, will continue his submissions today.
Lundy was first convicted of the August 2000 murders of his wife Christine and their 7-year-old daughter Amber in 2002, but won a retrial after the Privy Council overturned the verdicts in 2013.
He was again convicted in 2015 and filed his appeal soon after.
Eaton spent the bulk of yesterday afternoon arguing that the court needed to put in place rules about ‘‘novel science’’ in cases.
Two techniques were used to find central nervous system tissue in stains on the shirt Lundy said he wore the day before his wife and daughter’s bodies were discovered. Both were created specifically for Lundy’s case.
There needed to be a high standard for allowing new scientific techniques to be used in forensics. Anything less could end up with the jury deciding if new techniques were good enough – something Eaton said happened in Lundy’s case.
‘‘The courtroom became the substitute for the laboratory – the place a group of scientists should be butting heads together, thrashing out their work and finding out what is consistent.’’
Justice Cooper said he had read about a case where an astrologer wasn’t allowed to give evidence.
‘‘You have an astrologer saying they’re experienced, there’s a body of knowledge and experts agree, yet her evidence couldn’t be considered to be substantially helpful.
‘‘It’s relevant, it’s expert, but it’s not helpful because it’s nonsense’’.
Eaton questioned immunohistochemistry (IHC) – a technique used to find there was central nervous system tissue on Lundy’s shirt.
The technique was used before Lundy’s first trial, but the Privy Council was unconvinced.
The defence for Lundy’s retrial accepted the tissue was central nervous system tissue after the IHC process was analysed further.
A scientist called by the defence at the retrial, UK-based Dr Daniel du Plessis, said the stains contained central nervous system tissue unlikely to come from food.
Eaton said acceptance between the four experts did not mean it should immediately have been used in court. The science was not subjected to proper peer review and fell short of forensic standards.
A report released in 2016 by the United States-based President’s Council of Advisers on Science and Technology laid out how ‘‘novel science’’ like IHC should be used in forensics, Eaton said.
Justice Raynor Asher pointed out du Plessis identified the stains as containing brain material by looking down a microscope.
‘‘How can you criticise looking through a microscope?’’
Eaton said it was all very well for an expert to say they were right because they were an expert, but any process needed to be privy to stringent assessment to ensure it was strong enough to be used in a forensic setting.
Eaton said various ‘‘uncanny coincidences’’ would have had to line up to work against Lundy.
Lundy would have had to get rid of all the clothing he was wearing when he committed the murders apart from a polo shirt, which the Crown says had Christine’s central nervous system tissue on it.
He would have also had to dispose of the still-missing murder weapon, a jewellery box taken from the house, scrub all the material from his glasses, watch and wedding ring, and ensure no brain or blood matter got into his car, Eaton said.
He then would have acted normally the morning after the murders, as people who saw him reported nothing out of the ordinary.
There was no evidence of the murderer cleaning up at the scene or in the Petone motel room Lundy stayed in, Eaton said.
Furthermore, there was animal DNA found in the stains on the polo shirt.
‘‘Lundy not only got rid of his clothing, forensic evidence, the weapon, jewellery box and . . . did so before he got into the car and drove back to Wellington,’’ Eaton said.
Otherwise, he managed to clean all the genetic material on his clothes from his car after the drive.
Eaton hinted that someone else may be the murderer.
There were unidentified footprints, fingerprints and a shoeprint at the scene, while DNA found under Christine and Amber’s fingernails matched to an unidentified male.
There were also hairs found on Christine which did not match Lundy, Eaton said.
Eaton said both trials involved new scientific tests to see if there was human central nervous system tissue on his shirt.
‘‘It is right that Lundy asks ‘why in my case did I become the guinea pig in the world?’ ’’
The test used to find tissue on his shirt for the second trial had not been peer reviewed, as the Crown said it was unlikely to be used again, Eaton said.
‘‘The translation is: ‘It has served it’s purpose. Lundy has been convicted. We created a test to prove [the tissue was] human. It has been accepted in New Zealand courts. Don’t worry about validation or peer review because it has served its purpose’.
‘‘That, as lawyers and judges, should make the hair on the backs of our necks stand up.’’
It was 15 years since Lundy first appealed his convictions on the basis he was a victim of a miscarriage of justice, he said.
‘‘Now, we wind the clock forward to 2017, talking about actions from 2000.
‘‘In the meantime, however, a lot has changed. Saying ‘a lot’ is an understatement.’’ One of the biggest changes had been in the science used to convict Lundy, Eaton said.
‘‘Science which I think we would all agree has become extremely complex.
‘‘At the heart of this appeal, therefore, is this issue of untested and novel science, and its relationship with criminal justice.’’
There had been big differences between the two trials, especially around the time Lundy is said to have committed the murders, Eaton said.
Lundy was said to have murdered his wife and daughter about 7pm on August 30 during the first trial, but that was changed to sometime in the early hours of the next morning at the retrial.
Eaton said no-one in New Zealand history apart from Lundy had been convicted twice on such different sets of facts.
One of the issues that should have been covered at the retrial – ‘‘the elephant in the room’’ – was the public perception of Lundy, Eaton said. ‘‘The Lundy funeral scene.’’ A straw poll asking people about the case would end with most of them talking about Lundy’s emotional reaction at Christine and Amber’s funeral, Eaton said.
‘‘What is it about Lundy that sets him apart from other cases?,’’ he asked.
‘‘There is this view that he is a big fat so-and-so, with an escort on the night, and people saying ‘did you see the unconvincing performance at the funeral? Of course he is guilty’.
‘‘He has engendered no public sympathy,’’ Eaton said.