Double-murderer Mark Lundy looks set to challenge his convictions in the Supreme Court.
In a decision released on Tuesday, the Court of Appeal rejected Lundy’s appeal against his convictions for murdering his wife Christine and 7-year-old daughter Amber.
But his lawyer, Jonathan Eaton, QC, said part of the court’s ruling about inadmissable evidence was “inevitably one that Mr Lundy will ask the Supreme Court to review”.
Eaton said Lundy was very disappointed at the outcome of the appeal.
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“Lundy has long argued that for whatever reason, his case has become the testing grounds for novel science.”
His defence team has argued this was an unreliable basis on which to secure a conviction.
Lundy’s long-running legal battle went back to court in October last year, as he appealed against his retrial convictions.
More than 17 years have passed since Christine and Amber were found bludgeoned to death in their Palmerston North house.
Lundy was convicted of their murders in 2002. After the Privy Council overturned his convictions in 2013, he was again found guilty at his retrial in 2015.
The appeal was heard by Justices Helen Winkelmann, Mark Cooper and Raynor Asher.
Eaton’s reading of the Court of Appeal’s decision was that although evidence that was strenuously contested at the 2015 retrial was later found to be wrongly admitted, it had not given rise to a substantial miscarriage of justice, and did not make the trial unfair.
“That decision raises important issues and is inevitably one that Lundy will ask the Supreme Court to review.”
Lundy’s brother Craig, who accepted the guilty verdicts, said he did not believe the decision would be the end of the matter.
“I just wish it was all over and done with. It’s not over yet. I wish it was.”
The Court of Appeal rejected all but one of the grounds for the appeal.
Stains on Lundy’s shirt were a contentious point of debate in both trials and the appeal. The Crown said they showed brain or spinal cord matter from Christine was on Lundy’s shirt.
The Court of Appeal decided Crown evidence in the retrial about RNA – similar to DNA – was inadmissable. However, the court decided the appeal should be dismissed “on the basis that no substantial miscarriage of justice has actually occurred”.
The court was satisfied the trial was fair.
Lundy’s challenge to the admissability of the immunohistochemistry evidence, advanced by the Crown to establish the presence of central nervous system tissue on two stains on Lundy’s shirt, was rejected.
Lundy also argued there were significant omissions from the trial judge’s summing up of the case, and that the retrial was an abuse of process because of substantial changes to the Crown case compared with that advanced at the first trial.
The court upheld Lundy’s convictions, and his sentence – life imprisonment with a minimum term of 20 years – will continue.
Four key points emerged at the Court of Appeal hearing.
CROWN TIMING CHANGE ‘UNFAIR’
At Lundy’s first trial, the Crown argued Christine and Amber were killed about 7pm on August 30, 2000. At the second trial, the Crown said Lundy committed the murders between 1am and 5.30am the next day.
Eaton said the retrial should have been subject to a stay as the defence team was not told about the change in time of death until a few weeks before the retrial.
But Crown lawyer Philip Morgan, QC, rejected that argument.
The change in time of death was required because the Privy Council found evidence that shaped the first trial narrative to be unreliable.
The defence was was told in June 2014 the Crown would not stipulate an exact time of death, and was also provided with three possible times of death, Morgan said.
“There were no surprises in any of this.”
THE TISSUE IS THE ISSUE
The Crown argued Lundy had his wife’s brain tissue on a shirt he said he wore the day before the murders.
Two stains on the shirt were key evidence.
Both sides agreed the stains contained central nervous system tissue, which could 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.
NEW ‘IMPOSSIBILITY’ EVIDENCE
The defence argued Lundy did not have enough petrol in his car to do the required round trip from Petone to Palmerston North.
The Crown argued Lundy had just enough petrol for a slow return trip to commit the murders before a fast dash home the next day.
The defence also pointed out a door was open at the house at 11pm, which wouldn’t fit well with the Crown’s timing. The victims’ stomachs were also full of food when they should have been empty.
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.
“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.”
WHY THE DELAY BEFORE A RESULT?
There needed to be more scientific tests and the complex science had to be debated again.
The Crown got Dutch scientist Dr Laetitia Sijen to analyse the shirt stains before Lundy’s retrial. Professor Stephen Bustin gave evidence at the trial and found multiple issues with Sijen’s test, but Eaton said that left the jury “swimming in a sea of science”.
Sijen used a method that searched for RNA – a compound similar to DNA.
Lundy’s team had Bustin doing research into the RNA technique Sijen created.
The Crown then had the right to have an expert look at Bustin’s work.
THE CASE SO FAR
August 2000: Christine and Amber Lundy are found brutally murdered in their Palmerston North home.
February 2001: Lundy is arrested and charged with murdering his wife and daughter.
March 2002: Lundy is found guilty of both murders after a trial in the High Court in Palmerston North.
April 2002: Lundy is jailed for life with a minimum term of 17 years.
August 2002: The Crown and defence both appeal. Lundy’s convictions are upheld and his minimum term is raised to 20 years.
December 2002: Coroner Graham Hubbard rules that Christine and Amber Lundy died of head injuries inflicted by Mark Lundy.
November 2012: Lundy’s new legal team lodges the papers with the Privy Council.
February 2013: The Privy Council announces it will hear the appeal.
June 2013: Judges reserve their decision.
October 2013: Lundy’s convictions are quashed, with the Privy Council ruling he should face retrial as soon as possible.
February 2015: Lundy’s retrial begins in the High Court in Wellington.
April 1, 2015: Lundy is again found guilty of the murders, and his life sentence with a 20-year minimum term is reimposed.
May 2015: Lundy files his notice of appeal, saying the case against him was one of the most scientifically complex in New Zealand history.
August 2017: Letters Lundy penned while in prison are published online, in which he proclaims his innocence.
October 17, 2017: Lundy’s Court of Appeal hearing starts.
October 19, 2017: The appeal hearing ends but a result is pushed out to 2018 to allow for more scientific tests and legal argument.
October 9, 2018: The Court of Appeal announces the result.