Lundy v R

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 09 October 2018
• Neutral Citation: [2018] NZCA 410
• Docket Number: CA232/2015
• Court: Court of Appeal
• Date: 09 October 2018

Between

Mark Edward Lundy

Appellant

and

The Queen

Respondent

[2018] NZCA 410

Court:

Cooper, Winkelmann and Asher JJ

CA232/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Law — murder. Evidence — admissibility, expert evidence. Criminal Practice and Procedure — lies direction, demeanour direction.

Counsel:

J H M Eaton QC, J Oliver-Hood, J-A Kincade and H C Coutts fo Appellant

P J Morgan QC, B D Vanderkolk and M L Jepson for Respondent

• A The appeal is dismissed.

• B The applications to adduce further evidence for the purposes of the appeal are granted or declined in accordance with the attached schedule.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

	Para No
Introduction	[1]
The murders	[5]
The first trial and appeals	[10]
Trial	[10]
Appeal to this Court	[16]
Appeal to the Privy Council	[22]
Time of death	[25]
CNS tissue	[27]
The computer issue	[38]
The appeal allowed	[41]
Pre-trial applications and appeal to this Court	[44]
Dr Miller's slides	[49]
IHC analysis	[52]
The mRNA evidence	[62]
The second trial — overview	[90]
The issues on appeal — overview	[110]
Abuse of process	[113]
Admissibility of the IHC evidence	[132]
The evidence at trial	[132]
Appellant's submissions	[183]
Analysis	[200]
Admissibility of the mRNA evidence	[205]
Fuel consumption	[259]
Failure to give a demeanour direction	[288]
Failure to give a lies direction	[313]
Miscarriage and fair trial	[322]
Result	[394]
Schedule

Introduction

1 Mr Lundy appeals against his conviction for the murders of his wife Christine and his seven-year-old daughter Amber at the family home in Palmerston North early in the morning of Wednesday 30 August 2000. He had previously been convicted, but the convictions were set aside on appeal to the Privy Council and a retrial was ordered. 1

2 The principal issues advanced on appeal relate to the probative value and prejudicial effect of scientific evidence relied on by the Crown to link Mr Lundy to the murders. But it is also said that there were significant omissions from the Judge's

summing-up, 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

3 This judgment deals with each of the issues raised in support of the appeal. For reasons that we explain, we have decided that evidence relied on by the Crown based on messenger RNA (mRNA) tracing was inadmissible, notwithstanding that it had been ruled admissible pre-trial by the High Court, a ruling confirmed by this Court and the trial Judge. Every other ground of appeal is rejected.

4 The exclusion of the mRNA evidence has required this Court to consider whether Mr Lundy would have been convicted notwithstanding the evidence which we have ruled inadmissible. Because Mr Lundy was retried on an indictment first presented in February 2002, the consideration of that issue takes place under the proviso to s 385(1) of the Crimes Act 1961, as if it had not been repealed. We are required by its terms to consider whether, notwithstanding the determination that the mRNA evidence was inadmissible, the appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred. We are also required to consider whether the trial was fair. Having considered those issues we have decided that the proviso should be applied and the appeal dismissed.

The murders

5 The bodies of the deceased were discovered around 9 am on Wednesday 30 August. They had been hacked to death, likely with an axe or tomahawk used to attack their heads. The murder weapon was never found.

6 The bodies were discovered by Mrs Lundy's brother Glenn Weggery. Mr Weggery was an owner/driver for a freight company, and he had gone to the property to inquire after progress being made by Mrs Lundy with his tax returns with which she regularly helped him. He entered the house through a single sliding door at the rear which he found half open. When he called out there was no response. He commenced to walk down a hallway, when he observed Amber lying face down at its far end. He then rang for the emergency services. Having been put through to the ambulance service, he said he needed to report a murder. Shortly afterwards, ambulance officers arrived, followed by the police. Mr Weggery was at one time considered a possible suspect by the police but eliminated from their inquiries on the basis that there was no evidential foundation showing his involvement.

7 Dr James Pang, a forensic pathologist, attended the scene at about 5 pm, when he examined both bodies. The next day, 31 August, he carried out a detailed post-mortem examination of Amber's body at the Palmerston North mortuary. He carried out a similarly detailed post-mortem on Mrs Lundy's body on 2 September. In each case he was able to describe multiple and very severe wounds to the head, and in Mrs Lundy's case to the face. She had been attacked as she lay in bed. Dr Pang gave evidence of various injuries to her arms and hands consistent with her trying to defend herself from the attack. The wounds sustained by Amber and Mrs Lundy were consistent with having been inflicted by the same weapon.

8 Mr Lundy was a travelling salesman, whose work often took him away from home to various cities and towns in the lower half of the North Island. On the night of the murders he had been staying in the Foreshore Motor Lodge in Petone. He had utilised the services of a prostitute who came to the motel and was present for about an hour, between 11.50 pm on 29 and 12.50 am on 30 August. Later on the morning of 30 August he was in Johnsonville when he was telephoned by a friend who told him about the presence of police at his house and a police cordon that had been established. Mr Lundy then drove quickly back to Palmerston North. He was stopped by the police at an intersection near his home. His car was seized.

9 The car was searched on 3 September. Mr Lundy told the police that a polo shirt folded inside out in a suitcase in the car was a shirt he had worn on the night of 29 August. The Crown was to claim that central nervous system tissue (CNS tissue) was found within stains on the chest pocket and sleeve of the shirt when, after a delay, the shirt was forensically examined. This became crucial evidence against Mr Lundy, especially since Mrs Lundy's DNA was found on the shirt at the locations of the stains.

The first trial and appeals

Trial

10 Mr Lundy was tried before Ellis J and a jury at Palmerston North, commencing on 5 February 2002. He was convicted on both counts on 20 March.

11 The Crown's case was that the murders took place against a background of disharmony between Mr and Mrs Lundy over the issue of money and the deteriorating state of the couple's finances. Pathological evidence was called to establish that Mrs Lundy and Amber were killed around 7 pm on 29 August 2000. Cell tower evidence showed that Mr Lundy had an opportunity to commit the murders, although barely so. The Crown conceded he would need to have made a very fast car trip between Wellington and Palmerston North, but claimed it was not impossible for him to have done that. The Crown called evidence of the distance involved, the fact he was driving a large and powerful car and was used to driving at high speeds. This was supplemented by evidence that Mr Lundy had filled his car with petrol on the afternoon of 29 August and of fuel consumption when the police drove Mr Lundy's car the distance he claimed he had travelled after filling up. The Crown contended that if he had only travelled the distance he claimed he would have used fuel at the rate of 27 litres per 100 km, approximately twice the normal rate that might have been anticipated. On the other hand, his actual fuel consumption was consistent with the Crown's case of him travelling at speed to and from Palmerston North.

12 The most significant evidence for the Crown was given by Dr Rodney Miller, an expert pathologist and Director of Immunohistochemistry (IHC) at ProPath Laboratory in Dallas, Texas. He had taken slides from stains observed on the shirt which Mr Lundy admitted wearing on the night of the murders, found in his car. The stains were on the front sleeve and the chest pocket. Dr Miller analysed the stains using a technique based on IHC testing. 2 His evidence was that tissue found on Mr Lundy's shirt was CNS tissue. There was also evidence that Mrs Lundy's DNA had been found on the shirt where the CNS tissue was located. This led the Crown to allege the CNS tissue must have also come from Mrs Lundy, a proposition not

challenged by the defence at the first trial. In addition, DNA from Amber was found on Mr Lundy's shirt. The most probable source was her blood. This was consistent with the Crown's case that Mr Lundy had murdered Mrs Lundy while she lay in bed and had then killed Amber because she had witnessed the murder of her mother

13 Bone fragments from Mrs Lundy's skull were found to have flakes of orange and blue paint on them, justifying an inference that the murder weapon had been marked with orange and blue paint. Other evidence established that Mr Lundy had been in the habit of keeping tools and painting them in those colours.

14 The Crown also alleged that while in Palmerston North Mr Lundy had manipulated the family computer to create the false impression it had been turned off at 10.52 pm on the night of the murders, for the purpose of giving him a false alibi. By that time Mr Lundy had returned to a motel in Petone, from where he telephoned a prostitute at 11.26 pm in whose company he was until about 12.50 am the...