Petrol, public perception, science
Mark Lundy has to be the man who murdered his wife and daughter, as the evidence points well away from it being a random burglary gone wrong, the Crown says.
Lundy is appealing against his convictions for murdering his wife Christine and their 7-year-old daughter Amber in August 2000 in their Palmerston North home.
Lundy was first convicted after a jury trial in 2002, but won a retrial after the Privy Council overturned the verdicts in 2013.
He was again convicted after a retrial in 2015 and filed his appeal soon after.
Crown lawyer Philip Morgan, QC, told the Court of Appeal in Wellington on Wednesday the defence theory the murders could have been a burglary gone wrong did not stand up.
The only item taken was a jewellery box, despite Christine’s bag being open in the kitchen, and there was paint in Christine’s and Amber’s wounds that matched paint from Lundy’s tools and his garage.
But it was the level of violence used in the attack that buried the burglary theory, Morgan said.
‘‘What random burglar gets access to the garage, takes one of [Lundy’s] tools, gets into the house without breaking a window and attacks [Christine] in her bed while she is asleep in ferocious way.
‘‘Then, observed by a little girl – she was only 7 – they kill her. ‘‘Who kills a little girl?’’ The burglary would then have to get out of the house without moving blood or brain matter from the bedroom, despite being covered in it, Morgan said.
The only blood found elsewhere was on a part of a window that would usually be covered when closed, he said.
‘‘The killer, quite remarkably, managed to get out somehow, without leaving another trace.
‘‘It is an inside job by someone who wanted Christine Lundy dead and didn’t want to get caught.’’
Morgan said Lundy has a major problem in appealing his case – two stains on the shirt he told police he wore the day before the victims were discovered..
It was undisputed that Christine’s DNA was found in two stains on a shirt Lundy admitted to wearing the day before the bodies were discovered.
Those two stains also contained central nervous system tissue, Morgan said.
‘‘Hence the Crown’s submission in the [retrial], and again in this court, is that these features together, with the rest of the evi- dence... demonstrated that this was brain tissue from Christine Lundy.
‘‘It is an inference. Right from the outset this was an inference case.’’
The defence had suggested the tissue got on the shirt either through police error or food, which Morgan said was not a strong argument.
A big sticking point between the trials was the petrol in Lundy’s car, as the Crown says he drove from Petone to Palmerston North, committed the murders, then drove back.
There is no argument he then drove at breakneck speed from Johnsonville to Palmerston North after being told there were police at his house, averaging speeds above 100kmh.
Lundy’s lawyer, Jonathan Eaton, QC, said the defence team tried to get an expert to give evidence about this subject at Lundy’s retrial, but the trial judge said the expert was not properly qualified.
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 – at steady and fast speeds.
The results found Lundy’s car used three times more petrol than the Crown alleged he did when making the trip from Johnsonville, making it impossible for him to fit in the trip to commit the murders, Eaton said.
Eaton said the footage of Lundy being emotional at the funeral was not properly dealt with at the trial.
‘‘Everyone in New Zealand has been exposed to the funeral scene. It was played last night. It was played in the buildup to the trial.
‘‘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 two videos while deliberating – one of the murder scene and one where Lundy is interview by police before his arrest, he said.
The jury asked for the second video to be played from a specific point – where Lundy was shown photos of his murdered wife and daughter.
‘‘You can see his response to that... loud, disturbing, physical, audible,’’ Eaton said.
‘‘It has parallels to the funeral scene.’’
The video was played in the courtroom with the jury, the judge, lawyers, media and Lundy present, and some noticed how one juror kept their eyes on Lundy while the video was played, Eaton said.
Justice Raynor Asher said the jury was given a direction to ignore anything from outside the courtroom and the defence lawyers at the trial mentioned it in their opening.
But Eaton said the jury should have been given a much harder direction about ‘‘demeanour reasoning’’, noting the Gable Tostee case in Australia.
Tostee, charged and ultimately found not guilty of murdering New Zealand woman Warriena Wright, made posts on social media before the trial, Eaton said.
‘‘All of it made him look like a complete plonker. It was completely unhelpful to the defence case.’’
But Tostee’s lawyer brought it up because everyone would have read about it in newspapers, Eaton said.
‘‘He described it as the elephant in the room.’’
Eaton also spoke on Wednesday about a test used to find central nervous system tissue on Mark Lundy’s shirt, which he says is unable to stand up to scrutiny.
On Tuesday, Eaton focused on the science used to find central nervous system tissue on the shirt Lundy said he wore on the night of the murders.
He continued to press the point, saying RNA testing, which found central nervous system tissue in stains on one of Lundy’s shirts, should not have been used.
The test used on Lundy’s shirt stains was developed specifically for the case and has not been used since.
The scientist who performed the test, Dr Laetitia Sijen, said the results showed the tissue was more probably from a human than an animal.
The test initially returned positives for animal tissue, but those positives dropped out as the test was developed, Eaton said.
Sijen ruled the animal detection to be false positives, but did not carry out more testing to see if they kept coming up.
‘‘The Crown accepts... they can’t establish an error rate, but maintain it’s reliable,’’ Eaton said.
‘‘That doesn’t withstand scrutiny.’’
The defence team is also expected to on Wednesday discuss if it was impossible for him to commit the murders because he did not have enough petrol in his car.
The Crown says Lundy drove from Petone to Palmerston North and back to commit the murders, pointing to unexplained mileage on his car.
Eaton spoke briefly on Tuesday about Lundy’s public perception, describing it as ‘‘the elephant in the room’’ at the retrial.
‘‘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.’’
Morgan, Mark Jepson and Palmerston North Crown solicitor Ben Vanderkolk are appearing for the Crown.
Eaton, Julie-Anne Kincade, Jack Oliver-Hood and Helen Coutts are appearing for Lundy.