Mark Edward Lundy v The Queen
[2014] NZSC 184
•11 December 2014
| 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. |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 131/2014 [2014] NZSC 184 |
| BETWEEN | MARK EDWARD LUNDY |
| AND | THE QUEEN |
| 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 |
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.
Counsel for Mr Lundy called evidence in the High Court from Dr Marielle Vennemann, a scientist from the institute of Legal Medicine at the University of Münster, who witnessed the testing at the NFI. She gave evidence that the NFI testing involved novel methods that were not independently validated and expressed doubts as to the reliability of the results of the NFI testing.
In the Court of Appeal, counsel for Mr Lundy applied for leave to adduce new evidence from an expert in gene expression, Professor Stephen Bustin, of Anglia Ruskin University, United Kingdom, criticising the testing methods adopted by NFI. Counsel said the need for this evidence emerged only during the course of the High Court hearing. The new evidence application was not pursued in the Court of Appeal because Professor Bustin’s affidavit was based on a misreading of aspects of Dr Sijen’s evidence. The Court of Appeal refused to adjourn the hearing of the appeal to enable a fresh affidavit to be obtained from Professor Bustin and dismissed the application to adduce new evidence. It considered the matters raised by Professor Bustin had been traversed in the High Court hearing. It did not need to resolve whether it had jurisdiction to hear new evidence in a pre-trial appeal. But it observed that “it would not be ideal for this Court … to be hearing complicated scientific evidence effectively as a court of first instance”.[7]
[7]At [103] per Harrison and French JJ.
The Court of Appeal recorded that there was “no dispute … about the legal principles applicable” to a decision as to admissibility of expert evidence of the kind in issue.[8] The difference of view among the Court of Appeal judges was not a difference in principle. Rather, Ellen France P considered the probative value of the evidence in issue was outweighed by its prejudicial effect and it was therefore inadmissible in terms of s 8 of the Evidence Act 2006. The majority took the opposite view.
[8]At [41] per Ellen France P, adopted by Harrison and French JJ at [71].
As the Court of Appeal decision was on an interlocutory matter, s 13(4) of the Supreme Court Act 2003 applies. The Court’s approach to such appeals was set out in R v Hamed [Leave] as follows:[9]
[12] In most cases where an arguable point of general or public importance arises on an interlocutory application, it will not be “necessary in the interests of justice” to hear the proposed appeal before the proceeding in which the order is made is concluded if the appeal point is open to be taken after the proceedings are concluded. That will usually be the case where evidential rulings are made against the accused in pretrial rulings in criminal cases. In such cases, as has already been mentioned, s 344A(4) makes it clear that first instance rulings are provisional and may be reconsidered by the trial judge.
[13] The requirement that entertaining an appeal before the proceeding is concluded is “necessary in the interests of justice” sets a significant threshold. In s 13(4) those words are to be given their ordinary meaning, rather than the meaning defined by s 13(2) for the purposes of general leave. The threshold may more readily be passed where correction by appeal following conclusion of the hearing is not available. The statutory stricture is also consistent with the proper reluctance of final courts of appeal to supplant the responsibility of the intermediate court of appeal in supervising trial practice, a responsibility that must be exercised with some expedition. In the case of the s 344A jurisdiction, the provisional basis of such rulings, which may be overtaken by reassessment in the context of trial, prompts appellate caution pretrial. There is risk in coming to conclusions dependent on a factual assessment without the advantage of trial context. The consequences of inadequate context are amplified in the case of a court of final appeal.
[9]R v Hamed [Leave] [2011] NZSC 27, [2011] 3 NZLR 725.
The issues highlighted in the application for leave are:
(a)whether the majority of the Court of Appeal erred in concluding the evidence was sufficiently reliable to be considered by a jury (in particular in its application of s 25 of the Evidence Act to the evidence) and/or that the probative value of the evidence outweighed its prejudicial effect;
(b)whether fresh evidence should now be admitted to assist with a just determination of the appeal. This involves a consideration of the existence or otherwise of jurisdiction for an appellate court to admit fresh evidence in a pre-trial appeal.
The appellant’s submission is that the admissibility of the evidence should be decided with the benefit of Professor Bustin’s evidence. If that evidence were admitted, the Crown may seek to cross-examine Professor Bustin and to adduce evidence from its own expert. The Court of Appeal’s concern at hearing such evidence effectively as a court of first instance applies with even greater force to this Court. In effect, this Court would be both the first and last court to consider the evidence and determine the admissibility issue.
In our view, if there is to be a revisiting of the decision that the evidence is admissible in the light of new evidence from Professor Bustin and any other witnesses, that would be better done by the trial judge. The High Court is the appropriate venue for the testing of any such new evidence. Its decision can be reviewed on appeal in the event Mr Lundy is convicted. We do not see any necessity for this Court to review the Court of Appeal decision at this stage, given that the principles to be applied were not in dispute: in effect we are being asked to undertake an error-correction role. That is not an appropriate role for this Court, especially in the context of an appeal to which s 13(4) applies.
We conclude that it not necessary in the interests of justice for this Court to hear and determine the proposed appeal before Mr Lundy’s trial. The application for leave to appeal is therefore dismissed.
Solicitors:
Crown Law Office , Wellington for Respondent