The crux of the case
Mark Lundy, twice convicted of the August 2000 murders of his wife Christine and 7-year-old daughter Amber, had his case heard in the Court of Appeal in Wellington this week. Reporter Jono Galuszka breaks down the key points from the appeal, and what each
Mark Lundy was first convicted after a jury trial in 2002, where the Crown said he committed the murders about 7pm on August 30, 2000. But he won a retrial after the Privy Council overturned the verdicts in 2013.
He was again convicted after a retrial in early 2015, where the Crown said the murders happened sometime between 1am and 5.30am.
Lundy’s lawyer at appeal, Jonathan Eaton, QC, said the retrial should have been subject to a stay as the defence team were not told about the change in time of death until a few weeks before the retrial.
That gave no time to focus its inquiries at that window, making the case extremely difficult to defend, he said.
But Crown lawyer Philip Morgan, QC, rejected that argument.
The change in time of death was required because the Privy Council found evidence which shaped the first trial narrative to be unreliable.
The defence team was told in June 2014 the Crown would not stipulate an exact time of death, and they were also provided with three possible times of death, Morgan said.
The tissue is the issue
Morgan did accept parts of the Crown case changed, but said the core case was solid throughout Lundy had his wife’s brain on a shirt he said he wore the day before the murders.
Fifteen years after the murders, two stains on one of Lundy’s shirts still provide, arguably, the key evidence for the Crown.
Both sides agree the stains contain central nervous system tissue, which can only come from a brain or spinal cord, and high levels of Christine’s DNA.
But the argument was about where the tissue came from. The Crown said it came from Christine’s brain, while the defence said it could have come from food.
The Crown got Dutch scientist Dr Laetitia Sijen to analyse the shirt stains before Lundy’s retrial. She used a method that searched for RNA - a compound similar to DNA.
While DNA can say who tissue comes from but not what the tissue was, RNA works the opposite way around; we all have the same eye RNA, but you could not say who an eye came from using RNA.
The big issue the defence had with Sijen’s test was the fact she created a new technique to find the tissue was more probably human than animal.
The defence fought to have Sijen’s testing kicked out before the retrial, going all the way to the Supreme Court, but failed.
Eaton continued the same argument on appeal, saying New Zealand courts lacked rules for ‘‘novel science’’ in criminal cases.
Sijen’s testing was not subject to peer review, meaning it could have flaws.
While Professor Stephen Bustin gave evidence at the trial and found multiple issues with Sijen’s test, Eaton said that left the jury ‘‘swimming in a sea of science’’ trying to figure out if Bustin or Sijen were right.
‘‘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,’’ Eaton said
The pre-trial decisions about the testing described it as ‘‘pivotal’’ and ‘‘important’’, and the Crown had played up how solid it was at trial, he said.
‘‘When you go through other facets of the case, you can make an argument both ways but there were no knockout blows either way. But if the jury is persuaded it’s Christine Lundy’s central nervous system tissue, then he is guilty.’’
Crown lawyer Philip Morgan, QC, got a grilling from the appeal judges about the RNA evidence, but maintained it was solid science.
Sijen’s testing was based on established science, so had a firm foundation, Morgan said.
There were also questions about how the tissue could have got there if it was not from a brain, with Justice Raynor Asher exploring the submission it could have come from a chili beef and cheese pie Lundy had eaten.
But Morgan said experts decided the tissue had to be fresh, and the defence still had to explain how Christine’s DNA was there in high quantities.
New ‘impossibility’ evidence
The defence team at his retrial raised three ‘‘impossibilities’’ showing Lundy was not the murderer.
Two of those – a door at the Lundy’s home was open at 11pm at night, and the victims’ stomachs were full of food when they should have been empty – paled in comparison to the third: Lundy did not have enough petrol to do the required round trip from Petone to Palmerston North.
Eaton said the retrial defence team got testing done on the petrol issue after they learned about the time of death changing in January 2015, but the trial judge said the tester was not properly qualified to be an expert witness.
Since then, the defence team engaged Bruce Robertson, from the University of Canterbury engineering college, to carry out tests. He got a professional driver to drive two cars – one the same model Lundy drove, the other a BMW – at steady and fast speeds on a racetrack.
The results found Lundy’s car would have used three times more petrol than the Crown alleged he did when making the trip from Johnsonville. It meant it was impossible for him to fit in the trip to commit the murders, Eaton said.
Morgan said no new evidence should be admitted so late on, as the defence knew there would be no exact time of death at least nine months before the retrial.
There was also sufficient evidence at the retrial about petrol consumption, which showed Lundy had just enough for a slow return trip to commit the murders before a fast dash home the next day, Morgan said.
Judged on emotions
Eaton accused the jury at Lundy’s retrial of taking part in ‘‘demeanour reasoning’’ during deliberations, which would have resurrected the infamous Lundy funeral scene.
He described it as ‘‘New Zealand folklore’’ and ‘‘the elephant in the room’’ which was not properly dealt with at the retrial.
‘‘Everyone in New Zealand has been exposed to the funeral scene.
‘‘Every time the Mark Lundy case is mentioned, they play it. Everyone talks about it, this performance, this feigning of grief.’’
It was also played on 6pm television news both on the day the trial opened and while the jury was deliberating, Eaton said.
That was especially concerning in the context of the case, as the jury asked to watch Lundy’s police interview while deliberating.
The jury asked for it to be played from a specific point – where Lundy was shown photos of his murdered wife and daughter.
But Morgan said the trial judge, Justice Simon France, did everything right.
He told the jury to keep anything from outside the courtroom out of their minds, only focusing on the evidence from the trial, Morgan said.
‘‘If the funeral scene was genuinely an issue, then it is up to the defence to raise it. If they were to raise it, what was the judge to do?’’
What happens now?
It is highly unlikely we will see a decision from the three judges who heard the case – Justices Mark Cooper, Helen Winkelmann and Raynor Asher – before 2018.
Lundy’s team have Bustin doing research into the RNA technique Sijen created, with his results not expected until November.
The Crown then has the right to have an expert look at Bustin’s work.
Cooper was concerned about the science getting out of control, telling the lawyers they had to limit submissions on that testing to 10 pages.
He also wanted feedback on a submission Morgan made orally during the appeal, that Lundy would have been convicted even if the RNA evidence was ruled out known in legal circles as a proviso argument.
Eaton said that was different to Morgan’s written submissions, which said everything about the case was fine.
For the appeal judges to accept Morgan’s proviso argument, they have to be sure Lundy would have been convicted without the RNA evidence.
Eaton said there was simply no way to be sure, as there was no way to tell how important the RNA was.
‘‘Can this court be sure that the jury would nevertheless have convicted [Lundy]?’’
Finally, Cooper wanted both sides to make submissions regarding the process if Lundy’s appeal was successful, specifically asking them to address if it would be proper for the case to go to a third trial.