Mark Edward Lundy v The Queen - [2014] NZSC 184

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
SUPPRESSION ORDERS LIFTED 17 APRIL 2015.

IN THE SUPREME COURT OF NEW ZEALAND

SC 131/2014
[2014] NZSC 184

BETWEEN	MARK EDWARD LUNDY Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and O'Regan JJ
Counsel:	D S Hislop QC, A R Burns, J-A Kincade and M D Birdling for Applicant P J Morgan QC and J C Pike QC for Respondent
Judgment:	11 December 2014

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.

____________________________________________________________________

REASONS

Mr Lundy faces a retrial on charges of murder of his wife and daughter in 2000.[1] The Crown applied under s 344A of the Crimes Act 1961 for orders that certain scientific evidence is admissible at the retrial. In relation to the evidence to which the present application relates, the High Court ruled it was admissible[2] and that ruling was upheld in a majority decision of the Court of Appeal.[3] Mr Lundy seeks leave to appeal against the Court of Appeal decision. The factual background is set out in the Court of Appeal decision.[4]
[1]He was convicted in 2002 and his appeal to the Court of Appeal failed. In October 2013, the Judicial Committee of the Privy Council allowed his appeal against the Court of Appeal decision and ordered a retrial: Lundy v R [2014] UKPC 28, [2014] 2 NZLR 273.
[2]R v Lundy [2014] NZHC 2527 [High Court decision].
[3]Lundy v R [2014] NZCA 576 (Ellen France P, Harrison and French JJ) [Court of Appeal decision]. Ellen France P dissented.
[4]At [1]–[12] per Ellen France P.
The evidence in issue relates to two stains that were found on a shirt that had been worn by Mr Lundy on the day of the deaths of his wife and daughter. The Crown will contend that they contain Mrs Lundy’s DNA along with central nervous system (CNS) tissue which is probably human in origin. It is now accepted that the stains contain Mrs Lundy’s DNA and CNS tissue. The Crown seeks to adduce evidence that the CNS tissue is probably human.[5] The evidence is analysis by scientists from the Netherlands Forensic Institute (NFI) involving RNA (a molecular substance found in cells).[6] One of those scientists, Dr Laetitia Sijen, gave evidence at the High Court hearing.
[5]The science cannot provide a basis for determining whether the CNS tissue is Mrs Lundy’s: High Court decision, above n 2, at [12].
[6]The evidence is described in the Court of Appeal decision, above n 3, at [14]–[38] per Ellen France P.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Edward Lundy v The Queen

Details

AGLC: Mark Edward Lundy v The Queen [2014] NZSC 184
Case: [2014] NZSC 184
Decision Date: 11 December 2014

CaseChat Overview and Summary

In Mark Edward Lundy v The Queen, the applicant, Mark Edward Lundy, sought leave to appeal against a decision of the Court of Appeal regarding the admissibility of certain scientific evidence in his retrial for the murder of his wife and daughter. The evidence in question pertains to two stains found on a shirt worn by Mr Lundy on the day of the murders, which contain DNA from his wife along with central nervous system tissue, likely of human origin. The Crown aims to introduce evidence suggesting that the CNS tissue is probably human, based on analysis by the Netherlands Forensic Institute. Mr Lundy argues that the evidence should be reconsidered in light of new expert testimony.

The key legal issues before the Court were whether the majority of the Court of Appeal erred in their assessment of the evidence's reliability and probative value, and whether fresh evidence should be admitted to aid in the appeal's just determination. The Court had to balance the need for a thorough evaluation of the evidence against the risk of prematurely deciding the admissibility issue without the full context of the trial.

The Court held that revisiting the admissibility of the evidence in light of new evidence should occur at the trial level, not at the appellate stage. It reasoned that the principles governing the admissibility of expert evidence were not in dispute, and that the Court of Appeal's role in such matters should not be supplanted by the Supreme Court. The Court concluded that it was not necessary in the interests of justice to hear and determine the proposed appeal before the retrial, and therefore dismissed the application for leave to appeal.

Orders