Lundy to have final hearing

Mark Lundy has been granted leave to have his case heard in the Supreme Court.

Lundy has twice been convicted of murdering wife Christine and 7-year-old daughter Amber in their Palmerston North home in August 2000.

He was first convicted in 2002 and won a retrial through the Privy Council but was again convicted in 2015.

The Supreme Court yesterday granted him the ability to have his case heard, after hearing arguments last week. But the appeal to the country’s highest court will be on only one of the three issues his lawyers raised: the proviso argument.

A proviso argument means if the main argument in a case does not check out, the Crown falls back on other evidence to say it can still prove guilt.

In Lundy’s case, the proviso argument relies on two stains on one of his business shirts.

Those stains contain Christine Lundy’s DNA and other biological material. Two different tests were carried out – immunohistochemistry [IHC] and mRNA – to identify that material.

The IHC test found the material was brain or spinal chord tissue but could not pinpoint where it came from.

The mRNA, however, found the brain or spinal chord tissue was more likely than not to come from a human. The Lundy case was the first time either test was used in a forensic setting, and neither technique has been used like that since.

The Court of Appeal threw out the mRNA testing but accepted the Crown’s proviso argument: the IHC testing, combined with the DNA, proved Lundy’s guilt.

The Supreme Court will not hear two other issues Lundy’s lawyers raised: the jury should have been given a demeanour direction; and the IHC evidence should not have been allowed.

His lawyer, Jonathan Eaton QC, said the jury should have been told to specifically ignore how Lundy reacted at the funeral for his wife and daughter, especially as people have described it as acting.

Eaton also submitted the IHC testing was not up to scratch.

The Supreme Court said there was no chance of a miscarriage of justice for not giving a demeanour direction. In regards to the IHC test, the court said there was no challenge to the fact the matter on his shirt was brain or spinal chord tissue. Experts the defence called at trial accepted it was that kind of tissue.

A date has not yet been set for the hearing. The Supreme Court is the last court which can hear Lundy’s case.

The Lundy case was the first time either test was used in a forensic setting.