Mark Edward Lundy v R

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] NZSC 152
• Court: Supreme Court
• Docket Number: SC 95/2018
• Date: 20 December 2019

[2019] NZSC 152

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

William Young, O'Regan, Williams, Arnold and Miller JJ

SC 95/2018

Between

Mark Edward Lundy

Appellant

and

the Queen

Respondent

Counsel:

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

P J Morgan QC and M L Wong for Respondent

Criminal — appeal against conviction for murder — law of the proviso under s385 Crimes Act 1961 (determination of appeals in ordinary cases — must allow appeal if miscarriage of justice) — wrongful admission of evidence and the proviso — whether admission of evidence was an incurable error

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

(Given by Miller J)

Table of Contents

Para No

Introduction	[1]
The trials of Mr Lundy	[12]
Law of the proviso	[23]
Wrongful admission of evidence and the proviso	[37]
Miscarriage established	[44]
The challenge to the application of the proviso	[45]
Was admission of the mRNA evidence an incurable error?	[46]
The mRNA evidence	[48]
Use of the evidence by counsel	[62]
The Judge's directions about the evidence	[67]
Centrality and cogency of the evidence	[71]
Impact of the evidence on the defence case	[78]
Overall assessment	[80]
The Court of Appeal's references to the jury's opinion	[81]
Application of the proviso	[87]
The tissue on the shirt came from Mrs Lundy's brain	[88]
No evidence of possible contamination to explain the tissue on the shirt	[91]
Amber's DNA	[94]
The paint fragments	[95]
A staged burglary	[101]
The car's odometer readings and fuel consumption	[108]
Mr Tupai's evidence	[124]
Time of death	[127]
Motive	[131]
Evidence of another offender?	[134]
Other evidence	[135]
Overall assessment	[136]
Decision	[139]

Introduction

1 On the morning of Wednesday 30 August 2000 the bodies of Christine Lundy, aged 38, and Amber Lundy, aged 7, were found in their family home at Palmerston North. Sometime the previous night someone had entered the house and attacked them with a weapon, likely a small axe or tomahawk. They died from head wounds.

2 Mark Lundy was Christine's husband and Amber's father. He was a travelling salesman whose work had taken him by car to Petone, about 150 km away, the previous day. There he had booked a motel for the night. He was undoubtedly at the motel between 11.50 pm on 29 August and 12.50 am on 30 August. The Crown says that he then drove to Palmerston North, murdered his wife and daughter, and returned to Petone where he resumed work the following morning until called home after the bodies were discovered.

3 Police stopped Mr Lundy near the family home and seized his car. Found in a bag on the back seat of the car was a polo shirt that he admitted wearing the previous evening. It carried two visible stains, one on the left breast pocket and the other on the left sleeve. The sleeve stain contained a “lump of substance”.

4 Scientists tested the stains using immunohistochemical (IHC) analysis, 1 which can identify specific proteins found in the brain. Crown and defence experts at Mr Lundy's 2015 trial — his second — agreed that IHC analysis proved the stains contained tissue from a central nervous system, meaning the brain or spinal cord. Because it was smeared in the fabric it had been fresh, or near-fresh, when it encountered the shirt. However, IHC analysis could not identify the species from which the tissue came, and so could not exclude the possibility that it originated in meat that Mr Lundy had handled.

5 When the same stained parts of the shirt were first tested in 2000 forensic scientists extracted the DNA of Christine Lundy. 2 It was not trace DNA that might have been left by touching; rather, it came from a rich source. Central nervous system tissue is a rich source. So is blood, for which the stains tested positive. But the experts could not say when the DNA arrived on the shirt, or what was its source. It could have come from the central nervous system tissue, or the blood, or some other source such as mucus that Mrs Lundy might have sneezed onto the shirt.

6 The Crown invited the jury to find that Mr Lundy had his wife's brain on his shirt. She had been hacked to death and brain tissue was spattered about the scene. The Crown relied on the expert evidence that the tissue on the shirt was central nervous system tissue and on its co-location with large quantities of Mrs Lundy's DNA.

7 The Crown also tried to prove the tissue was human, so foreclosing the possibility that it came from meat. The evidence relied on the properties of messenger RNA (mRNA), which is found in human and animal cells. The tissue was tested by the Netherlands Forensic Institute (NFI) using mRNA markers chosen because they could identify human, as opposed to animal, central nervous system tissue. The results indicated that it was more probable that human central nervous system tissue was present than tissue of any of the eight food chain or pet species tested.

8 In pre-trial decisions the High Court and Court of Appeal ruled the mRNA evidence admissible, finding that although the NFI's methodology was novel and capable of producing false positives, the evidence was sufficiently reliable to go to the jury. 3 After the trial, and with the benefit of the scientific evidence led there and on appeal, the Court of Appeal held that the methodology had not achieved a sufficient level of acceptance among scientists and the jury could not resolve their highly technical disagreements. It had been an error to admit the evidence. 4

9 The Court of Appeal nonetheless upheld Mr Lundy's convictions for murder, relying on the proviso to s 385(1) of the Crimes Act 1961. 5 Under s 385(1)(c) the Court of Appeal, or this Court as the case may be, must allow an appeal if it is of the opinion that there has been a miscarriage of justice. The proviso qualifies that obligation by stating that the appellate court may dismiss the appeal if it considers the miscarriage was not substantial.

10 The Court of Appeal decided that there had been no substantial miscarriage of justice because the trial was not unfair and other evidence established Mr Lundy's guilt beyond reasonable doubt. Among the other evidence was the following: the IHC and DNA evidence justified the inference that the tissue was from Mrs Lundy's brain; red particles on the shirt, consistent with blood, had tested positive for Amber Lundy's DNA; the bodies bore paint chips consistent with paint that Mr Lundy used to paint his tools, suggesting that one of them had been the murder weapon; fuel usage was consistent with his car having made a return trip from Petone to Palmerston North on the night of 29 August; the scene had evidently been staged to make it seem the crime was a burglary gone wrong; a bracelet likely to have been in a jewellery box taken by the killer was found in Mr Lundy's car; Mr Lundy had misled the police in relevant respects; and there was a motive, for Mr Lundy was in financial difficulty and his wife's life was insured.

11 This Court granted leave to appeal the convictions, limited to whether the Court of Appeal erred in applying the proviso. 6 The appeal poses two questions. The first is whether admission and use of the mRNA evidence was an error so fundamental that the trial was unfair. If the answer is yes, the appeal must be allowed no matter how strong the other evidence of Mr Lundy's guilt. If the answer is no, we must answer the second question, which is whether we are satisfied that the admissible evidence proved his guilt beyond reasonable doubt. If the answer to that question is yes, there was no substantial miscarriage and we will apply the proviso, upholding the convictions.

The trials of Mr Lundy

12 A full history of proceedings since 2000 is found in the judgment under appeal. 7 For our purposes a short account will suffice.

13 At the first trial, held in March 2002, the Crown contended that the victims had been murdered early in the evening of 29 August, soon after 7 pm. Its decision to present the case in that way rested, at least in part, on evidence of the pathologist, Dr James Pang, who had expressed the opinion, based on the appearance and smell of stomach contents, that the victims died about an hour after eating their last meal. Mrs Lundy had purchased meals from McDonalds at 5.43 pm. Mr Lundy was known to have used his cellphone in Wellington at 5.30 pm, and again at 8.28 pm. 8 The Crown contended that during that interval he drove to Palmerston North, committed the murders, disposed of the murder weapon, and returned to Petone.

14 To do this Mr Lundy must have driven at very high speed on roads that can be very busy. The Crown case also confronted the difficulty that the Lundy family computer had apparently been shut down at 10.52 pm on the night of the murders. Relying on the evidence of a computer expert, the Crown alleged that Mr Lundy had manipulated the computer's clock to create the false impression it had been shut down at that time, so giving him an alibi. The Crown also called an eyewitness who lived

near the Lundys. She said that she saw a fat man wearing a blond curly wig running away from the scene at about 7.12 pm

15 Central to the Crown case was IHC evidence from Dr Rodney Miller, a pathologist and Director of Immunohistochemistry at a Texas laboratory called ProPath, to show that the stains on Mr Lundy's shirt were central nervous system tissue. The defence did not dispute that the tissue came from Christine Lundy's brain. Its case was that contamination in police custody or in a laboratory must account for the tissue because Mr Lundy could not possibly have committed the crime within the narrow window of time on which the Crown...