R v Lundy
[2014] NZHC 2527
•15 October 2014
ORDER PROHIBITING PUBLICATION OF THIS 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
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2001-054-832244 [2014] NZHC 2527
THE QUEEN
v
MARK EDWARD LUNDY
Hearing: 22-30 September, 1 October 2014 Counsel:
P J Morgan QC and B D Vanderkolk for Crown
D S Hislop QC, R Burns and J-A Kincade for DefendantJudgment:
15 October 2014
JUDGMENT OF THE HON JUSTICE KÓS (Section 344A application)
[1] On the morning of Wednesday, 30 August 2000, Mr Mark Lundy was stopped by police as he was driving home to Palmerston North. He was returning from an overnight trip to Wellington. He was doing so in some haste. He had been told a large number of police officers were at his house.
[2] The police were at Mr Lundy’s house because the bodies of his wife Christine and their seven year old daughter Amber had just been found there. Both had terrible head injuries, consistent with an axe attack.
[3] After stopping him, police officers placed Mr Lundy in a police car for his own welfare. His car was towed away to a police yard. Three days later a search of
luggage in Mr Lundy’s car produced a blue-striped polo shirt. Mr Lundy admitted
R v LUNDY [2014] NZHC 2527 [15 October 2014]
the shirt was his. And that he had worn it on the evening of 29 August 2000, the evening the Crown alleges his wife and daughter were killed.
[4] Forensic examination of the shirt almost two months later, on 27 October
2000, identified two stains. Crown forensic opinion evidence at Mr Lundy’s subsequent trial for murder was that the stains contained both Mrs Lundy’s DNA and, more importantly, tissue from her central nervous system (CNS).
[5] The defence did not contest that opinion at trial, based on the advice of its experts at that time. As the Court of Appeal was later to put it, the identification of the stains as his wife’s CNS tissue was the Crown’s most cogent piece of evidence against Mr Lundy. He was convicted of the murder of his wife and daughter in March 2002. He was sentenced to life imprisonment, with a minimum non-parole period of 17 years. The Court of Appeal increased that to 20 years.
[6] In October 2013 the Judicial Committee of the Privy Council allowed Mr Lundy’s appeal against conviction. New defence evidence was admitted on appeal on three issues.
[7] First, on time of death. Crown forensic evidence, based on post mortem
examination of the victims’ stomach contents, had put their time of death at 7.00 to
7.15 pm on 29 August 2000. This was important because Mr Lundy unquestionably was in Petone, in the Wellington area and 145 kilometres away from his house, at both 5.30 pm and 8.28 pm that evening. New defence evidence admitted on appeal suggested stomach contents were in fact unreliable as a means of determining time of death.
[8] Secondly, on potential tampering with the Lundy family computer. This had been turned off at 10.52 pm on the evening of 29 August 2000. At that time, too, Mr Lundy unquestionably was in the Wellington area. New evidence was admitted on appeal contesting the Crown case that the disordering of computer registry files – said to be evidence of tampering by Mr Lundy – could not have been caused by a virus.
[9] Thirdly, most relevantly, new evidence was admitted challenging the methodology by which the Crown witnesses, and in particular Dr Miller, concluded the stains on the shirt contained Mrs Lundy’s CNS tissue.
[10] Mr Lundy is now to be retried in February 2015.
Changes in the Crown case
[11] The Crown case has changed, significantly. As Mr Morgan QC submitted:
When the killings occurred is unknown and the Crown do not attempt to establish a time of death.
The victims were alive at 6.56 pm on 29 August 2000 (when Mrs Lundy spoke to a friend on the telephone). At 9.00 am on 30 August 2000 their bodies were found. The Crown’s case now is simply that they died between those times.
[12] The Crown now proposes to call a wide array of scientific opinion evidence to establish that the two stains on Mr Lundy’s shirt contain Mrs Lundy’s DNA, together with CNS tissue which is probably human in origin.1
Application: the Crown’s scientific evidence for retrial
[13] In May 2014 Ronald Young J directed that challenges to Crown scientific evidence would be heard in September 2014. All Crown scientific briefs were to be served by 25 August 2014, defence objections were to be served by 8 September
2014, and (in that event) a Crown application for pre-trial orders determining the admissibility of the impugned scientific evidence was to be filed by 15 September
2014.
[14] This judgment determines that application. The Crown asks the Court to find admissible:2
The evidence tending to prove that tissue (cellular material), found on the
accused’s shirt (C3003) worn by him on 29 August 2000 and located in his
1 Science cannot make the final link: that the CNS tissue is Mrs Lundy’s. Any such conclusion, if
made, must be purely inferential.
2 The application was amended during the course of the hearing.
car on 30 August 2000, after the murders of Christine and Amber Lundy, was central nervous system tissue (brain or spinal cord) and was probable human CNS.
[15] The scientific opinion evidence in issue in this hearing relies on four distinct analyses:
(a) DNA analysis for specimen 3003/3 (a stain on the shirt sleeve) and
3003/4 (a stain on the shirt chest pocket). DNA was extracted from the cut-out pieces of fabric on which these stains repose. In each case the sample is said to be 450,000,000 times more likely to be the DNA of Mrs Lundy than another unrelated female member of the New Zealand public chosen at random.
(b)Immunohistochemical (IHC) analysis, which is said to show that cellular tissue in both specimens is CNS (either brain or spinal cord) tissue. It does not show whose CNS the tissue is. Nor does it show whether the source is human.
(c) RNA typing, undertaken by the Netherlands Forensic Institute, which is said to show that the tissue in specimen 3003/3 (the sleeve) is CNS, and probably human CNS (as opposed to CNS from common animal species).
(d)Fluorescent in situ hybridisation (FISH) analysis, which is said to show that the tissue in specimen 3003/3 (the sleeve) contains female human tissue fragments.
[16] In one respect or another the defence objects to aspects of, or all of, this evidence. Ultimately:
(a) the defence challenges to the DNA evidence were abandoned, except in one respect;
(b) two peripheral challenges to the IHC evidence were conceded by the
Crown. The remaining defence challenge, apart from challenges to
Dr Miller’s slides (on which that evidence was based), was
maintained only formally;
(c) the challenges to the RNA analysis were maintained with considerable vigour, and form the major issue for determination in this judgment; and
(d)the defence challenges to the FISH analysis were also maintained – and sustained, in the sense that the Crown conceded that this evidence should not go to the jury.
[17] There are also some miscellaneous objections by the defence, primarily to some evidence from an ESR forensic scientist. The objections number, in all, ten. Objection 1 concerns Dr Miller’s slides. Objections 2 and 3, the RNA analysis. Objections 4 and 5 concern the FISH analysis. Objections 6 to 8, the IHC analysis. And objections 9 and 10 concern the ESR forensic evidence, including its DNA analysis.
Principles governing the receipt of scientific opinion evidence
[18] It is best to start this discussion with a review of the province, and therefore role, of the jury.
The province of the jury
[19] Four points about the province of the jury are important.
[20] First, the function of the jury is not to determine the outcome of scientific contests. Its function is to decide simply whether the Crown has proven each essential element of the charge beyond reasonable doubt. In this case, the essential question the jury will have to decide is not whether the Crown has established beyond reasonable doubt that the material found on Mr Lundy’s shirt is Mrs Lundy’s CNS tissue. Rather, it is to decide whether the Crown has proved beyond reasonable doubt that Mr Lundy attacked Mrs Lundy and their daughter on 29 or 30 August
2000.
[21] Secondly, given the more limited question the jury will be addressing, the Crown does not need to prove each alleged fact forming a strand of circumstantial evidence (which in combination with other strands the Crown says amounts to proof of the requisite element) beyond reasonable doubt. As the Court of Appeal put it in R v Guo, “the standard of proof in a criminal case applies to the end result which the
jury must reach, and not the individual elements of each strand of the evidence”.3
[22] In Thomas v R (cited by the Court of Appeal in Guo) the Court of Appeal comprehensively rejected a submission by counsel for Mr Thomas that the facts from which the Crown sought to draw inferences should be “severally proved beyond reasonable doubt”.4 Such an approach, the Court of Appeal said could not be supported. As Turner J said:5
… it has not, except in the exceptional cases which I shall presently mention, been found necessary or even proper, to direct jurors that they must collectively find proved beyond reasonable doubt the circumstantial facts which the Crown puts forward as cumulatively supporting a conclusion of guilt.
[23] Thirdly, the exceptional cases just referred to by Turner J need be mentioned only briefly. It is where a fact or “collateral circumstance” is so essential to the Crown case that although it is not itself an essential element of the crime charged, without it the Crown case must fail “for reasons special to the particular case”.6 The continued existence of this exception was confirmed recently by the Court of Appeal in Milner v R.7 In essence, the exception exists where the Crown case cannot stand without that fact being proved. Without it, ex hypothesi there must be a reasonable doubt. The other strands of circumstantial evidence, taken in combination but without that element, cannot stand the strain of meeting the Crown’s burden of proof. It is not suggested in this case that that exception applies.
[24] Fourthly, it is important to bear in mind that these matters should be the subject of clear directions from the trial Judge. The burden and standard of proof,
the nature of circumstantial evidence and the limitations of expert witnesses will all
3 R v Guo [2009] NZCA 612.
4 Thomas v R [1972] NZLR 34 (CA) at 37.
5 At 41.
6 At 41.
7 Milner v R [2014] NZCA 366 at [15]–[16].
be the subject of direction by the trial Judge in summing up this case. The importance of proper direction by the trial Judge in relation to scientific opinion evidence was emphasised by Gummow and Callinan JJ in Velevski v R:8
The correct position is, in our opinion, that conflicting expert evidence will always call for careful evaluation. So too, because expert evidence by definition deals with generally unfamiliar and technical matters, it will always need careful, and usually more elaborate treatment by the trial judge in directing a jury about it.
The Court of Appeal in R v Hutton relied on that passage from Velevsk. 9 It went on to note that a Judge may be required to: (1) identify and explain the critical points on which the experts differ, (2) explain how those differences relate to the elements which the Crown must establish and how they affect the operation of the burden of proof, and (3) suggest a means by which the jury might address the expert evidence (perhaps by offering topics for consideration or a decision tree). As the Court said:10
[I]t is unrealistic to leave the jury to grapple unaided with complex expert evidence in unfamiliar areas.
The same points have been emphasised in other Court of Appeal decisions, such as
Wallace v R11 and Shepherd v R.12
The “Daubert factors”
[25] In the decision giving rise to the retrial of the charges against Mr Lundy, the Privy Council endorsed the approach taken by the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc.13 The United States Supreme Court there listed a number of factors which (as the Privy Council saw it) “could be helpful in evaluating the soundness of novel science”:14
(1) whether the theory or technique can be and has been tested:
8 Velevski v R [2002] HCA 4, (2002) 187 ALR 233 at [181].
9 R v Hutton [2008] NZCA 126.
10 At [143].
11 Wallace v R [2010] NZCA 46 at [41] and [115].
12 Shepherd v R [2011] NZCA 666, [2012] 2 NZLR 609 at [46], [91] and [94] (referring to the decision of the Court of Appeal in R v Atkins [2009] EWCA Crim 1876, [2010] 1 Cr App R 8).
13 Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993).
14 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [138].
Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.
(2) Whether the theory or technique has been subjected to peer review and publication:
[S]ubmission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.
(3) the known or potential rate of error or the existence of standards; and, (4) whether the theory or technique used has been generally accepted.
The Privy Council said it considered that this list “provides a useful template” to examine whether evidence based on a novel technique “such as IHC (novel, at least, in the forensic setting of a criminal trial)” should be admissible.15
[26] Three points should be made about the Daubert factors.
[27] First, it is important to bear in mind that neither the Privy Council nor the United States Supreme Court16 was suggesting that the Daubert factors were a “test” for admission of scientific evidence. Or that failure to meet, for instance, one of the factors identified is necessarily fatal to admission. Consider factor 4: “general acceptance”. Until Daubert, the approach taken by the United States Federal Courts, following the rule in Frye v United States,17 was that expert opinion based on scientific technique was inadmissible unless the technique was generally accepted as reliable in the relevant scientific community. The rejection of the rule in Frye by the Supreme Court in Daubert makes clear that factor 4 is not a necessary precondition of admissibility. Rather, it is something to be weighed in the balance, along with the other factors identified. Or, indeed, other factors also found appropriate for consideration. It is not suggested that Daubert presents a closed list of considerations. As Blackmun J said in Daubert:18
The inquiry envisioned by rule 702 is, we emphasise, a flexible one. Its overarching subject is the scientific validity – and thus the evidentiary
15 At [139].
16 Or the Canadian Supreme Court, whose decision in R v J-L J 2000 SCC 51, [2000] 2 SCR 600 was also cited with approval by the Privy Council.
17 Frye v United States 293 F 1013 (DC Cir 1923).
18 At 594–595. (Footnotes omitted).
relevance and reliability – of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, and not on the conclusions that they generate.
[28] In this hearing Mr Hislop accepted in his closing submissions that the Daubert factors are not a “test”, so that non-compliance with one factor would mean that evidence is inadmissible. But, he suggested, failure to meet all four should point conclusively to inadmissibility of that scientific evidence.
[29] Secondly, it is also clear that Daubert does not set its face against complete novelty. That is evident from factor 2: that the theory has been subjected to peer review and publication. Blackmun J made clear in his judgment that “[p]ublication
… is not a sine qua non of admissibility”.19 He went on to say:20
Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.
[30] Thirdly, Daubert represents a more liberal regime for the receipt of scientific evidence than Frye, but the gatekeeper role envisaged by Blackmun J still meant the exclusion of some relevant scientific evidence:21
We recognise that, in practice, a gatekeeping role for the Judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularised resolution of legal disputes.
Position prior to the Evidence Act 2006
[31] Prior to the mid-1990s the orthodox approach in this country was that scientific method need not be generally accepted to be admissible. Rather, it must simply be sufficiently established to pass the “ordinary threshold” of reliability. This is a lesser threshold than that imposed in Daubert. In decisions such as R v B (an
accused) one looks in vain for a precondition based on helpfulness or the inherent
19 At p 593 (emphasis added).
20 At 593.
21 At p 597. See the discussion of Daubert in Alex Stein, Foundations of Evidence Law (Oxford
University Press, Oxford, 2005) at 196–197.
reliability (by reference to clear indicia) of the expert opinion.22 All that was required was that the opinion be from someone suitably qualified, and the opinion itself be sourced from a recognised branch of science. The prevailing limitations on admissibility depended on the now-abolished ultimate issue and common knowledge rules. A similar approach was taken in England at the time, and perhaps still.23 The regime for the receipt of scientific evidence was, therefore, distinctly liberal.
[32] However, in 1995 Tipping J applied the approach in Daubert, thereby constraining the receipt of scientific opinion evidence in R v Calder.24 In doing so he anticipated legislation a decade later. His decision was influenced by a preliminary paper issued by the Law Commission in December 1991, pre-dating the decision in Daubert.25 The provisional view of the Law Commission, endorsed by Tipping J, was that “[e]vidence from a well qualified expert may still need to be excluded on the ground of unhelpfulness, or because its probative value is outweighed by its prejudicial, misleading or confusing effect.” The Commission suggested that the evidence of scientific experts “must be assessed for scientific reliability, including the validity of the underlying scientific theory and the reliability of the procedures and techniques used in the particular case”. The Court would need to guard against idiosyncratic or unsatisfactory underlying theories which may have an undue influence on the determination of facts. But to require general acceptance by science would be to set too high a standard:26
Theories which are newly developed or which represent the views of a minority may still be reliable and helpful … It will of course always be for the fact-finder to assess the weight to be given to the evidence once it has been admitted …
[33] On that basis, Tipping J concluded:27
Bringing together all the material to which I have referred, I consider that the following approach should be taken. Before expert evidence, such as that in
22 R v B (An Accused) [1987] 1 NZLR 362 (CA).
23 R v Robb (1991) 93 Cr App R 161 (CA) and R v Luttrell [2004] EWCA Crim 1344, [2004] 2
App R 31.
24 R v Calder HC Christchurch T154/94, 12 April 1995. The decision of Fisher J in R v Hohana (1993) 10 CRNZ 92 (HC) also should be noted, favouring a test of whether an expert’s evidence “could be of real assistance to the tribunal of fact” at 96.
25 Law Commission Evidence Law: Expert Evidence & Opinion Evidence (NZLC PP18, 1991).
26 At [63] and footnote 64.
27 R v Calder HC Christchurch T154/94, 12 April 1995 at 7.
issue in this case, can be put before the jury by a suitably qualified person it must be shown to be both relevant and helpful. To be relevant the evidence must logically tend to show that a fact in issue is more or less likely. To be helpful the evidence must pass a threshold test which can conveniently be called the minimum threshold of reliability. This means the proponent of the evidence must show that it has a sufficient claim to reliability to be admitted. If this threshold is crossed the weight of the evidence and its probative force can be tested by cross-examination and counter evidence and is ultimately a matter for the jury.
If the minimum threshold of reliability is not crossed, the evidence is deemed unhelpful and is excluded. The rationale for such exclusion is that evidence which, although relevant, fails to cross the threshold is regarded as more prejudicial than probative. It is possible, albeit unlikely, that evidence which is relevant and has crossed the threshold may still be found more prejudicial than probative. If so it will be excluded. Thus in short the proponent must show that the evidence in question is (a) relevant (b) helpful and (c) more probative than prejudicial. As the proponent has the onus of persuasion any real doubt should be resolved in favour of exclusion.
[34] In Calder the defendant, a hospital chemist, was accused of poisoning her partner with acrylamide. The Crown expert, Dr Heenan, used mass spectrometry to test the husband’s hair for the distinctive by-product CEC (produced when acrylamide is ingested and binds to haemoglobin in blood). The evidence was probative of two things. First, that the victim had sufficient amounts of acrylamide in his body to account for his illness. Secondly, that the source of the acrylamide was artificial ingestion (through ingestion in the husband’s food) rather than natural origins (low levels produced by the body or found in the water supply).
[35] Mass spectrometry had never been used before to test for CEC in hair. Tipping J held that the evidence had a sufficient claim to reliability to be admitted.
[36] One consideration, consistent with Daubert, was whether mass spectrometry of hair had general acceptance in the scientific community. The analysis of hair to test for a “variety of chemical compounds” using other scientific techniques was not a new field of scientific endeavour.28 Nor was the use of mass spectrometry to test blood for the presence of CEC. Testing hair for CEC with mass spectrometry was
new, but while:29
28 At 8.
29 At 9.
… the application of the same techniques as used for blood to the hair analysis is novel, it seems to me from the evidence which I heard from Dr Heenan, to be a logical and rational development resting on perfectly intelligible scientific reasoning. I am therefore of the view that what Dr Heenan did, while novel in a sense, can hardly be described as a wholly novel new scientific theory or technique. It was simply a logical development within the field of toxicological analysis of body samples; a development from blood to hair. While Dr Heenan is apparently the first person ever to test hair for CEC the parallels, as explained by Dr Heenan, between blood and hair can hardly be described as speculative or conjectural.
[37] Consideration was also given to whether the test was falsifiable. There was unchallenged evidence that mass spectrometry is highly specific. The test could be falsified through the use of a control set of hairs which showed far lower levels of CEC.30 There is no discussion of whether Dr Heenan’s methodology had been published. Given it was accepted that no-one had done mass spectrometry testing for CEC on hair before, one may assume not. But Tipping J pointed out that there was at least a possibility of peer review. Enough of the sample was left to enable independent testing to be conducted by the defence.31 As to the known and potential error rate, Dr Heenan accepted that his results “only show an approximate level”. There was a margin of error of up to 50 per cent in his results.32 Ultimately that did not matter. Even assuming the maximum error percentage had occurred, the Court could be confident that the husband’s hair had at least 25 times more CEC in it than the control sample (rather than 50 times more).
[38] Tipping J was satisfied that in conjunction with other medical evidence, the evidence was probative of oral ingestion of acrylamide. It also showed that he had ingested much larger quantities of acrylamide than normal. Medical evidence at trial could well establish that this was sufficient to account for his illness. As Tipping J put it:33
… Dr Heenan’s evidence of the hair analysis has a sufficient claim to reliability to justify its being put before the jury. I am not persuaded by the point that this is the first time hair has been analysed in this way. Nor do I think that what Dr Heenan did can properly be described as a scientific experiment.
30 At 10.
31 At 11.
32 At 10.
33 At 11.
The evidence was admissible because it was relevant, helpful and more probative than prejudicial.34
Law reform: the Evidence Act 2006
[39] The admissibility of expert evidence is governed by s 25 of the Evidence Act
2006. The introduction of s 25 saw a shift away from the rule that novel scientific evidence only need meet the ordinary threshold of reliability to be admissible. Rather, expert evidence must now be “substantially helpful”:
25 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
…
[40] Section 25 is based closely upon the Evidence Code drafted by the Law Commission in 1999.35 The Commission noted that the provision was “not intended to change fundamentally the admissibility inquiry that a judge undertakes”.36 Judges were already using a “substantial helpfulness” test anyway. The guidelines for assessing the reliability of scientific evidence set out by the United States Supreme
Court in Daubert v Merrell Dow Pharmaceuticals Inc37 had been followed in New
Zealand cases.38 The Law Commission said the Daubert factors would:39
… continue to be important in the inquiry about reliability that is inherent in the substantial helpfulness test. As the Court in Daubert emphasised, “The focus . . . must be solely on principles and methodology, not on the conclusions that they generate”.
34 At 13.
35 Law Commission Evidence (NZLC R55, 1999) vol 1 and 2.
36 Law Commission Evidence (NZLC R55, 1999) vol 1 at [76].
37 Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993).
38 Law Commission Evidence (NZLC R55, 1999) vol 2 at [C100]; R v Calder HC Christchurch
T154/94, 12 April 1995; R v Brown HC Auckland T126/95, 19 September 1997.
39 Law Commission Evidence (NZLC R55, 1999) vol 2 at [C100];
[41] The Commission went on to say that the substantial helpfulness test was an “additional safeguard” to assess “the reliability and value of the expert opinion”. It would exclude opinion evidence even from properly qualified experts where:40
…[t]he evidence is based on an underlying scientific theory whose validity has not been established; or where questions about the reliability of the procedures and techniques used in a particular case have not been satisfactorily answered.
[42] It follows of course that the s 25 filter is additional to ss 7 and 8, and reinforces the requirements of those provisions for relevance, for probative value to outweigh any unfair prejudicial effect – and for something more, what Tipping J called a “minimum threshold of reliability”, or a “sufficient claim to reliability”. That is, that the evidence has sufficient reliability to go to the jury at all (whose members may then weigh it as they see fit, subject to the trial Judge’s directions). As
Mahoney, McDonald, Optican and Tinsley note:41
As the substantial helpfulness test is a threshold reliability assessment (along with relevance and probative value), it is to be expected that admission of expert opinion evidence may be challenged on the basis that the opinion is unreliable. For example, it may be claimed that the evidence is unreliable because it is based on a novel technique; … because a reliable technique has been misused; or because of a lack of reliability in the conclusions drawn by the witness.
[43] The Court of Appeal has suggested that s 25 is really an amalgam of all three filters: relevance, reliability and probative value.42 It involves a higher threshold than mere probativeness.43 However each element should still be considered in its own right, rather than just defaulting to an amalgamated examination under s 25.44
Subsequent application of s 25
[44] Section 25 has been the basis of exclusion of expert opinion evidence in a number of cases. Interestingly, none appear to have involved novel scientific
40 Law Commission Evidence (NZLC R55, 1999) vol 2 at [C99].
41 Mahoney, McDonald, Optican and Tinsley The Evidence Act 2006: Act & Analysis (3rd ed, Brookers, Wellington, 2014) at [EV25.02(3)].
42 Mahomed v R [2010] NZCA 419 at [35] (not varied on appeal: [2011] NZSC 52, [2011] 3 NZLR
145); Blagojevich v R [2011] NZCA 217 at [29].
43 Platt v R [2010] NZCA 43 at [39]; Lichtwark v R [2014] NZCA 112 at [27]; Robinson v R [2014] NZCA 249 at [26].
44 See R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
opinion evidence. Indeed Calder may still be the only case prior to Lundy where truly novel scientific techniques have had to be examined under s 25 (or its common law precursor). R v Calder almost certainly would have been decided the same way today in light of the adoption of s 25 in New Zealand, and subsequent authorities applying that provision.45
[45] Cases in which exclusion has occurred on the basis of s 25 include Mahomed v R which concerned defence expert evidence as to the defendant’s intellectual capacity.46 The evidence was excluded, but on the basis that it was not in fact probative of any fact in issue. To that extent the decision is explicable on the basis of failure at the hurdle of relevance, rather than the further hurdle of substantial helpfulness. Similarly in Lichtwark v R the defence had sought to lead evidence from an ESR scientist.47 A fact in issue was when methamphetamine might have been manufactured or smoked in the house. The scientist’s technique was to analyse the hair of a child living at the address when the offending was alleged to have occurred. A strand of hair 27 centimetres in length was taken from the girl. The presence of methamphetamine was found in two segments, each six centimetres in length, closest to the scalp end of the strand. The scientist’s evidence was to the
effect that the child had been exposed to methamphetamine during the period of time it had taken those 12 centimetres of hair to grow. So far so good. The scientist’s problem was to connect that growth to a specific time period. That depended on the growth rate of hair of that particular child. The witness conceded that hair growth rates were highly variable. The District Court trial judge ruled that evidence inadmissible, on the basis it was not substantially helpful under s 25. He said the evidence was “of very low quality indeed, and, at best, “guesstimate” material”. The Judge said:
It could not, for example, be suggested to the jury that there is a scientific basis for suggesting that there is any time frame which could be put with any certainty at all.
On appeal in the Court of Appeal, that Court accepted that the evidence was better
than a “guesstimate”. It also accepted that the evidence was relevant. But the
45 R v Calder HC Christchurch T154/94, 12 April 1995.
46 Mahomed v R [2010] NZCA 419 (not varied on this point on appeal: [2011] NZSC 52, [2011]
3 NZLR 145).
47 Lichtwark v R [2014] NZCA 112.
reliability and probative value of the evidence was low having regard to its inherent uncertainty. Its exclusion under s 25 was upheld.48 The case is best analysed as one where the expert was either insufficiently qualified to tender evidence on hair growth, or where the subject matter (hair growth) was too inherently uncertain, given individual human vagaries, to be expressed with any scientific rigour.
[46] Reference should also be made to Robinson v R.49 The appellant had been convicted of arson. The allegation was that he had caused ignition to occur by remote computer access (at a distance of over 350 kilometres). The Crown theory was that the appellant thereby caused the computer printer at the receiving end to malfunction and catch fire. The Crown’s expert evidence was that this could all be done. The Court of Appeal held that the evidence failed to meet the requirements of s 25, because the expert simply could not establish that a print command had been sent from the remote computer to the home computer. Nor could he establish that the home computer had software that would have activated the printer in the way the Crown theorised. The Court of Appeal held that if those two deficiencies could be rectified, the Crown might renew its application under s 344A.
[47] In contrast, the following decisions dealt (at first sight) with novel scientific methodologies. R v Lepper50 and R v Reid51 both dealt with low copy number (LCN) DNA analysis. Lepper was the first occasion on which LCN analysis had been used in a criminal proceeding in New Zealand. The trial took place in June 2004. However by that stage LCN analysis had been used in the United Kingdom for at least five years. The Crown expert in Lepper was English, and had given LCN-
based evidence in approximately 60 court appearance in the United Kingdom. As the Court of Appeal noted, the authorities indicated that evidence of DNA profiling resulting from LCN analysis now had general acceptance in British criminal courts.52
That fact, in combination with the full opportunity given to question the expert witness about the reliability of profiling using the LCN technique and satisfactory
chain of custody evidence excluding a real possibility of contamination, meant that
48 At [30].
49 Robinson v R [2014] NZCA 249.
50 R v Lepper CA334/04, 1 December 2005.
51 R v Reid [2009] NZCA 281.
52 R v Lepper CA334/04, 1 December 2005 at [32].
the evidence had sufficient reliability to go to the jury. It is, therefore, a case in which the scientific technique was novel in New Zealand, but not “novel science” when regard was had to the international scientific (and judicial) community.
[48] Other cases which at first sight might be thought to involve novel scientific methodologies prove to have a rather different emphasis. In Shepherd v R the issue was identification.53 A s 25 challenge was made to “facial mapping” evidence. This is a photographic forensic technique that compares CCTV footage with photographs of an accused person. Prior to Shepherd’s case, the methodology had been used in one New Zealand case only. No statistical database existed, either in the United
Kingdom or New Zealand, to indicate the likelihood of similarities between faces across a wider population. The Court of Appeal followed its English counterpart in R v Atkins54 in concluding that the absence of such a database did not preclude the offering of an expert opinion. Following Atkins, the Court noted that the correct approach was not to prevent experts from expressing informed opinion, but to ensure that that evidence was examined and criticised by an expert of equal experience and
skill, subject to rigorous testing by cross-examination, and subject to “careful judicial exposition to the jury of the difference between, on the one hand, arithmetical measures and, on the other, subjective, but informed, judgments”.55 The Court of Appeal did not consider the absence of a database should preclude admission of this evidence. But in any event it noted that evidence of this kind was not different in substance from the evidence of a witness giving circumstantial
evidence tending to identify an accused based on physical appearance or clothing. Such evidence was capable of being more reliable (and therefore more probative) than a “fleeting glimpse” caught by an eyewitness.56 Shepherd is, perhaps, of modest relevance in this case.
[49] In Palmer v R, the appellant had been convicted on six counts of sexual offending against a 14 year old girl.57 The scientific evidence in issue on appeal
concerned, in particular, swab testing for saliva. The forensic scientist called by the
53 Shepherd v R [2011] NZCA 666, [2012] 2 NZLR 609.
54 R v Atkins [2009] EWCA Crim 1876, [2010] 1 Cr App R 8.
55 Shepherd v R [2011] NZCA 666, [2012] 2 NZLR 609 at [45].
56 At [60]–[61].
57 Palmer v R [2012] NZCA 287.
Crown had used a proprietary test. The protocol used by the forensic scientist differed from that recommended by the manufacturer. As the Court of Appeal noted, the first question the Court had to decide was whether the failure to follow the proprietary protocol rendered the conclusion scientifically unsound, so as to result in the evidence being inadmissible.58 After considering additional evidence obtained by both sides, the Court of Appeal concluded that the divergence did not mean the result was scientifically unsound. Objection to its admission was therefore rejected. Palmer is a case about departure from approved methodology, rather than novel
science per se.
Conclusions
[55] Reflecting on these authorities, a tentative list of general principles regarding the receipt of scientific opinion evidence may be attempted:
(a) Relevance, relative probativeness versus unfair prejudice, and substantial helpfulness under s 25, are distinct filters that should each be applied to any scientific opinion evidence, as is the case for all expert opinion evidence.
(b)It follows that scientific opinion evidence may be excluded where the scientific technique: (1) cannot yet be said to be reliable (that is to say, its reliability has not been demonstrated to the Court’s satisfaction so as to be of substantial help to the jury); (2) is reliable, but the witness is not expert in its application; (3) is reliable, but the evidence is not relevant, because it does not tend to prove or disprove any fact in issue; (4) is reliable, and the evidence is relevant, but it does not provide the fact finder with substantial help (perhaps because of flaws in performance of the technique, or in the inferences and conclusions drawn from it); and (5) is reliable, and the evidence is relevant, but its
admission would be unfairly prejudicial to the defendant.
58 At [36].
(c) The novelty of a scientific technique is not a per se basis for exclusion. Novel scientific evidence can be received by the Courts in both criminal and civil trials (and often is). As Steyn LJ once said, it would be “wrong to deny the law of evidence the advances to be gained from new techniques”.59
(d)Rather, where a scientific technique appears novel, the Court must take particular care to be satisfied that that evidence, if relevant and not unduly prejudicial, has a “sufficient claim to reliability” to be put to the jury.
(e) In considering whether scientific evidence has a “sufficient claim to reliability”, the “Daubert factors” are relevant, particularly in the evaluation of novel scientific techniques. They include: (1) whether the theory or technique can be or has been tested and, if false, disproved; (2) whether the technique has been subjected to peer review and/or publication; (3) the known or potential error rate, or the existence of standards; and (4) whether the technique has been generally accepted. The Daubert factors are not, however, a closed list. Nor are they a test, where failure to meet one of the factors identified is fatal to admission.
(f) In deciding whether particular scientific evidence has a “sufficient claim to reliability” to be put to the jury, it is important to bear in mind the role of the jury. As noted at [20] to [24] above, it is not there to arbitrate scientific disputes, but it is there to decide whether the Crown has proved each essential element of a charge beyond reasonable doubt. Where a particular fact alleged is crucial to establish the charge, that fact (perhaps expressed as a scientific proposition) may have to be proved beyond reasonable doubt.
Otherwise it does not.
59 R v Clarke [1995] 2 Cr App R 425 (CA) at 429.
(g)“Substantial helpfulness”, for the purposes of s 25, may entail wider considerations than simply whether the scientific technique has a “sufficient claim to reliability”. The ability of a jury to process information which is both uncertain and highly complex, in the whole context of the case, will need to be borne in mind. The nature of the evidential contest will be important.
The DNA evidence
[56] The DNA evidence stands apart from the challenge to Dr Miller’s slides, made from material from Mr Lundy’s shirt and set (as is conventional) in paraffin blocks for preservation. These came from the two specimens 3003/3 and 3003/4. Ms Vintiner’s DNA evidence, to which only limited objection is taken, preceded Dr Miller’s work.
[57] Specimen 3003/3 is a piece of fabric cut from the left sleeve of Mr Lundy’s shirt. On that specimen ESR forensic scientist Mr Sutherland said a whitish-brown smear, approximately 30 millimetres by 20 millimetres could be seen visually.60
Mr Sutherland’s evidence is that a chemical test also indicated the probable presence of blood in that stain. Before the piece of fabric was cut out from the shirt sleeve, a dab slide was applied. That slide is specimen 3003/2. The stain was then cut out, given the identifying number 3003/3, and forwarded to ESR for DNA testing.
[58] Specimen 3003/4 came from the chest pocket of the shirt. It was a visible white smear, approximately 25 x 10 millimetres in size. Traces of blood are said to be visible in the stain when examined under low power microscope. That stain too was cut out, given the identifying number 3003/4, and forwarded to ESR for DNA testing.
[59] The DNA testing took the following form. Each fabric sample, once cut out, was placed separately in solutions of distilled water for 30 minutes, and then gently
squeezed out in that water solution. This process, known as eluting, can be expected
60 There was another measurement of it at 25 x 40 millimetres by an ESR technician.
to transfer 20 to 25 per cent of relevant cell material into the water, leaving the remainder in the fabric (which was then dried).
[60] In this case Ms Vintiner’s evidence is that specimens 3003/3 and 3003/4 both gave optimal amounts of good quality DNA for analysis. That suggested to her that the source was not “trace DNA”, caused by touching (leaving skin cells) or trace amounts of saliva or blood. Although the DNA material may have come from anywhere on the piece of fabric, Ms Vintiner’s evidence was that if the stain comprised (at least in part) CNS tissue, a rich source of DNA, the DNA would likely have come from that. As she put it:
From the amounts of DNA that I recovered, I think it is extremely unlikely that that profile has been generated from unstained fabric. I think it is more likely that it has been generated from the biological material that is present on the fabric, plus also trace amounts on the fabric …
[61] Both specimen 3003/3 and 3003/4 offered a single female DNA profile result. Both were found to correspond to Mrs Lundy’s reference profile, but not to Amber Lundy’s or that of any other individual submitted for testing. Ms Vintiner’s conclusion was that the DNA in each sample was at least 450 million times more likely to have originated from Mrs Lundy than from any other unrelated female chosen at random from the general New Zealand population.
[62] Mr Lundy’s own DNA could not be detected in the shirt sample, despite the fact that he had worn the shirt on 29 August 2000. Ms Vintiner noted that a minor component in a mixed DNA profile can generally only be identified if the minor component comprises at least 10 per cent of the total DNA recovered from the sample. If there was a mixed profile, the minor source may be masked by the major.
The objection
[63] Objection was taken by the defence, at least initially, to Ms Vintiner’s description of specimens 3003/3 and 3003/4 as “DNA sites”.61 That was on the basis that the Crown evidence did not provide any objective scientific means of
establishing that the biological material staining could have come from Mrs Lundy.
61 Objection 10.
Objection was also taken to evidence given in a further statement signed by Ms Vintiner on 15 September 2014 concerning the quantitation of DNA in the two samples. That is, the amount or volume of DNA recovered. However, all these objections were abandoned by Mr Hislop, and in my view quite properly, after Ms Vintiner’s evidence was heard on 26 September 2014.
[64] That leaves a remaining objection to another passage in the same
15 September 2014 statement by Ms Vintiner. She notes in her evidence that as the DNA results were obtained from analysis of the entire fabric sample (in the case of each of specimens 3003/3 and 3003/4), it is therefore not possible “on the basis of profiling results alone” to attribute with certainty the DNA profile from each specimen as having originated either entirely from traces of blood present in either sample, partly from blood and partly other biological material, or entirely from biological material present in the samples.
[65] Mr Hislop submitted that this evidence was not an accurate reflection of her evidence given under cross-examination. Specifically, Ms Vintiner had conceded that a source of DNA might be a sneeze whereby nasal mucus was dislodged and deposited on the fabric.
Analysis
[66] There is no question that Ms Vintiner is appropriately qualified to give evidence as to analysis of DNA and inferences to be drawn from DNA profiling tests. The passage to which objection is taken is a proper qualification, reflecting the possibility that the DNA material in each of specimens 3003/3 and 3003/4 may come from a composite deposit. Ms Vintiner’s evidence was dealing with the possibility of a composite deposit of (1) “other biological material” (which, from the IHC testing, we can infer to be CNS tissue, although not necessarily human) and (2) blood. Mr Hislop put to Ms Vintiner a third possibility, namely nasal mucus. Quite properly, Ms Vintiner accepted that possibility. That represents a further qualification in her evidence, based on a defence theory, but its addition does not mean her original evidence is unreliable or not substantially helpful to the jury.
[67] If Ms Vintiner does not take this third possibility into account in the evidence she gives to the jury at retrial, the issue may be explored further by counsel. As indeed can the question of the likelihood of nasal mucus being the source of the singular DNA profile outcome from each sample in two different locations on the shirt, each of which appears to contain CNS tissue as well.
Conclusion
[68] I do not uphold this objection (objection 10). The Crown has satisfied me that the evidence is relevant, not unduly prejudicial and has a sufficient claim to reliability to go to the jury.
Dr Miller’s slides
[69] The slides taken from the paraffin blocks prepared by Dr Miller were the foundation material for both the IHC and RNA analysis, shortly to be considered separately. It is appropriate therefore to consider the preparation and handling of the slides as a distinct topic.
[70] Mr Sutherland and Dr Miller’s evidence is that specimens 3003/3 and 3003/4, dried after being rinsed by Dr Vintiner to harvest DNA, were delivered to him by Detective Sergeant Grantham at his laboratory in Dallas, Texas on 4 February 2001. After photographing the samples to document their handling, they were placed in plastic tissue processing cassettes and put in dilute formalin to fix any tissue fragments present. Dr Miller and Detective Sergeant Grantham then took the cassettes from his laboratory to the histology processing room at St Paul Hospital in Dallas. Dr Miller placed them in the histology tissue processor, processed them in a conventional manner for tissue specimens taken from human patients, and then uplifted the samples and took them back to Dr Miller’s laboratory. Dr Miller cut the fabric samples transversely into thinner strips. The strips were handed to an IHC technologist to embed in standard paraffin blocks. Once processed into blocks, the blocks could be (and were) sliced, using a microtome, into four-micron-thick sections. These sections were mounted on adhesive coated glass slides, and were used for both IHC and RNA analysis. Dr Miller himself undertook the first IHC analysis.
[71] Slides from the paraffin blocks have been used by all the IHC experts, and by the RNA analysis experts, in this case. All the IHC experts report reliable results from use of those slides. It is, however, a curiosity, and perhaps one of some significance, that other biological material used to construct dab slides, has degraded. In particular, specimen 3003/2, which was the dab slide taken from the same stain now comprising specimen 3003/3 (the shirt sleeve stain).
The objection
[72] The defence says that the IHC and RNA testing cannot be said to be reasonably capable of supporting the prosecution case that the stains on Mr Lundy’s shirt contained CNS tissue from his wife if the substance tested on Dr Miller’s slides was not from the same source as the dab slides 3003/2 – created from Mr Lundy’s shirt 58 days after the murders. The defence says the available evidence indicates that the substance tested was not from the same source. The Crown could not explain, on any objective scientific basis, why there was such a striking difference in the state of preservation between slide 3003/2 (fixed 58 days after the murders) on the one hand and specimen 3003/3 and 3003/4 fixed several months later, but apparently better preserved.
[73] Secondly, the defence objects to the Miller slides being used on the basis that
DNA testing in 2014 on a section taken from the paraffin block comprising specimen
3003/4 identified the presence of DNA from an unidentified female person.
[74] Thirdly, the defence says that deficiencies in the handling of specimens
3003/3 and 3003/4 by Dr Miller, a diagnostic pathologist but not a registered forensic pathologist in Texas, raise real concern about contamination of the samples. All of these, then, are contributory to the potential unreliability of the IHC and RNA analyses.
[75] The objection62 is therefore multi-headed: that the evidence is not relevant
(s 7), insufficiently reliable or probative (s 8) and that it does not satisfy the
requirements of s 25 (“substantial help”).
62 Objection 1.
Analysis
[76] The Crown has satisfied me that the Miller slides – the foundation for the subsequent IHC and RNA analyses – are, collectively, relevant evidence, not unfairly prejudicial, and have a sufficient claim to reliability to meet the s 25 threshold of substantial helpfulness.
[77] First, I note that the fixing of fabric samples in paraffin blocks by Dr Miller is an orthodox scientific procedure. The defence objection concerns technical methodology, rather than scientific novelty. There is nothing novel about the embedding of material, including combined fabric and biological material, in paraffin blocks for preservation and subsequent analysis. Nor was it novel in
2000/2001 when it was done at Dr Miller’s laboratory in Dallas, Texas.
[78] Secondly, the Crown has satisfied me that there are no sufficient issues regarding chain of custody and potential contamination of specimens 3003/3 and
3003/4 that would justify removal of this evidence from a jury. I accept that the processes applied by Dr Miller, a diagnostic pathologist, were less rigorous than a forensic pathology laboratory should apply in 2014. But, on the other hand, all scientific experts associated with IHC analysis – on both sides – are in agreement that the constituent tissue in both specimens is CNS tissue. That is, Drs Du Plessis and Miller, and Professors Brat and Gown, for the Crown, and Professor Ironside, Dr Smith and Associate Professor Sheard (who finally accepted that in a brief filed on the eve of hearing), for the defence. Furthermore, the defence expert witnesses who gave evidence – Professor Ironside and Dr Smith – were explicitly asked by me whether, on the basis of the work they had done and information they had, they had any reason to be concerned about the integrity of the paraffin block sections. Neither had.
[79] Thirdly, it is correct that DNA testing in 2014 of a section taken from the paraffin block comprising 3003/4 identified the presence of DNA from an unidentified female person. That result, however, related to a single slice from that specimen. The balance of the evidence suggests that that profile – which was not detected in Ms Vintiner’s earlier analysis of specimen 3003/4 in 2001 – is probably a
subsequently introduced contamination of that particular slice. As Dr Venneman acknowledged, the contamination could arise from physical mishandling of the slice in 2014. The existence of what appears to be an isolated instance of contamination does not in my view so impugn the integrity of either Ms Vintiner’s original DNA analysis in 2001 or Dr Miller’s creation of the paraffin block material later in the same year.
[80] Fourthly, it is a curiosity – but I think no more than that – that the dab slide specimen 3003/2, taken from the same area as the stain contained in specimen
3003/3, is so degraded (whereas specimen 3003/3 is not). Even more curiously, the same observation applies to dab slides SO45/1 (taken from tissue material on the telephone on the bedside table adjacent to Mrs Lundy’s body) and dab slide SO51/3 (taken from tissue material on a mat from the same bedside table). The latter dab slides have nothing to do with exhibit 3003 (Mr Lundy’s shirt). The reason may, it seems, have to do with the deeper lodgement of the tissue material in 3003/3 and
3003/4 within the fabric fibres. It is possible that has protected the material from degradation. Dr Du Plessis was of that view, although it was not shared by Dr Smith and Professor Ironside. While the degradation of the dab slide material (all three slides) is curious, I am left with a clear impression that it says nothing material about the reliability or otherwise of specimens 3003/3 and 3003/4. As Dr Du Plessis noted, forensic neuropathologists such as he are often confronted with the assessment of brain material that has been decomposing for some months. While those may be significantly degraded (and more so than the material in specimens 3003/3 and
3003/4), much pathological information can still be obtained from such specimens.
[81] At the end of the day, the challenge to the integrity of the Miller slides (and the source material, the paraffin blocks) was relatively modest. It was not of such scale as to justify presumptive removal of this evidence from the jury. A challenge based on contamination, and discrepancy between slide 3003/2 and specimen
3003/3, is a matter that the jury is entirely capable of hearing and discerning.
Conclusion
[82] I do not, therefore, uphold objection 1 to the “Miller slides”.
The IHC evidence
[83] The original Crown IHC analysis came from Dr Miller alone. His evidence at the 2002 trial, essentially uncontested, was that IHC analysis demonstrated the presence of CNS tissue in both specimens 3003/3 and 3003/4. In short, IHC analysis involves using a stained antibody as a probe to bind to antigens (proteins) in tissue samples. The consequent reaction is discernible to a trained pathologist. IHC analysis has been undertaken for over 70 years.
[84] The process adopted by Dr Miller was to first stain tissue material on the slide using hematoxylin and eosin (H&E) stains. This assists in standard microscopic examination of cell morphology (or structure). Examination of specimens 3003/3 and 3003/4 on this basis shows morphology consistent with CNS, but no more. The second stage was more specific. Seven immunostains were applied to the slide material. Some of these stained strongly for proteins present in CNS tissue cells. Others stain for proteins absent from CNS tissue cells (so that a negative result should come from CNS tissue).
[85] The Crown at retrial will now adduce additional expert evidence. Dr Daniel Du Plessis, a consultant neuropathologist and clinical leader of the Department of Cellular Pathology at Salford Royal Hospital NHS Foundation Trust, was I think a particularly impressive witness. Importantly he is not only a diagnostic neuropathologist, but also a forensic one. He has regularly given evidence in the Crown Court in England. His answers were measured and commanding. He replicated Dr Miller’s immuno-staining on tissue material from the two specimens, and supplemented it with additional immunostains. Reviewing Dr Miller’s evidence, he concluded that the staining protocols he had followed were of a high standard, and that the quality of staining achieved was excellent. It raised no reasonable concern of false positive or artificial indiscriminate staining. The choice of antibodies employed was entirely appropriate. The test results obtained were consistent when repeated, and of a similar quality. In short the results obtained, and the quality and character of the staining obtained with each of the positive antibodies, provided “compelling evidence in support of CNS tissue”.
[86] Dr Du Plessis’ conclusions were also reached, independently, by two other witnesses for the Crown: Professor Daniel Brat, Professor of Pathology at Emory University School of Medicine in Atlanta, Georgia, and Professor Alan Gown, Professor of Pathology at the University of British Columbia in Vancouver. As Professor Gown put it:
The immunohistochemical studies I performed confirmed, without any equivocation or doubt, the presence of [CNS] tissue in the fragments interspersed among the shirt fibres …
These witnesses also gave evidence as to the reliability of IHC. As Professor Gown put it:
IHC is a reliable technique. Decades of experience with IHC has proven it to be robust and extremely reliable and it is currently a cornerstone of pathology diagnostic practice.
[87] Dr Du Plessis noted in his evidence that the use of IHC in a forensic setting is not a novel practice. In his own case he instanced the use of IHC to identify desiccated nondescript tissue found in unlabelled specimen containers. As Dr Du Plessis put it:
Histopathologists are highly trained in tissue histology and the recognition of cell and tissue sub-types. This, aided by immunohistochemistry, has permitted the recognition of various tissues – organ sub-types – in such desiccated/mummified specimens including brain tissue.
[88] The defence called two equally impressive witnesses expert in the use of IHC. Both gave thoughtful and careful evidence. First there was Dr Colin Smith, Reader in Pathology at the University of Edinburgh. Plainly he has a very good working relationship with Dr Du Plessis. It was he who recommended his retention by the Crown. His evidence was that specimen 3003/3’s immunoprofile “is convincingly that of CNS tissue”, without any false positive concern. Similarly, in the case of specimen 3003/4. There could be “no doubt” that the tissue in the shirt was CNS tissue. The second defence witness on IHC matters was Professor James Ironside, Professor of Neuroclinical Pathology, also at the University of Edinburgh, and Honorary Consultant in Neuropathology at NHS Lothian. Professor Ironside was in full agreement with Drs Du Plessis and Smith that specimens 3003/3 and
3003/4 represented CNS tissue. Professor Ironside considered there was no doubt
that it was. But he could not say whether it was human CNS tissue, in contrast to diagnostic neuropathology where the source is not in doubt.
Objections
[89] Defence objections 6 and 7 as to IHC challenged aspects of Drs Miller, Brat and Gown’s evidence which suggested that the CNS observed in specimens 3003/3 and 3003/4 was (1) brain (as opposed to spinal cord) and (2) human.63 To the extent that Prof Brat did so, and Prof Gown referred to the material as human, both moderated their evidence to state that what was seen in specimens 3003/3 and
3003/4 was CNS, but of uncertain origin. For that reason, the Crown conceded defence objection 6 and 7.
[90] The remaining objection, objection 8, was to the use of IHC to analyse tissue from unknown sources.64 The defence accepts that IHC is not a novel process. Its objection is its use in this case, which is said to be novel and experimental. As Mr Hislop put it:
[H]ere … IHC is being used for the purpose of identifying an unknown substance on fabric which has been stored in unknown conditions for over five months. This is some distance away from the accepted uses of IHC, which (to generalise) involves its use in controlled circumstances to identify the presence of disease in known tissue.
[91] In closing, however, Mr Hislop maintained objection as a matter of formality, and did not seek to advance any further submissions on the topic. That approach was realistic in light of the evidence.
Analysis
[92] I can be brief. The Crown has satisfied me that its IHC evidence is relevant, not unfairly prejudicial, and has a sufficient claim to reliability to meet the s 25
threshold.
63 Objections 6 and 7.
64 Objection 8.
[93] Although the use of IHC to identify tissue material from an unknown source is relatively unusual, it is not novel. I accept the evidence of Dr Du Plessis that it can and has been used for that purpose, and successfully.
[94] Secondly, none of the expert witnesses called to give evidence, from either side, had any concern about the use of IHC to identify tissue from an unknown source. That is, Drs Du Plessis, Smith and Miller, and Professors Ironside, Gown and Brat.
[95] Thirdly, none of those experts was left in doubt as to the outcome of IHC analysis of specimens 3003/3 and 3003/4. That is, that it represents CNS tissue. IHC analysis could not, however, confirm either source or gender.
[96] Fourthly, the CNS evaluation by the experts is also supported by electron microscopy undertaken by Dr Du Plessis. That focused on identifying myelin, membranous sheaths found in CNS tissue. Electron microscopy, as Professor Ironside explained, involves extremely high magnification of intracellular components, such as the nucleus of the cell and its constituent parts. It is a distinct technique from IHC.
Conclusion
[97] While I uphold defence objection 6 and 7 (which were conceded by the
Crown), I do not uphold defence objection 8.
The RNA evidence
[98] Tissue samples from specimens 3003/3 and 3003/4 were subjected to RNA typing analysis by Drs Sijen and Maaskant-Van Wijk of the Netherlands Forensic Institute (NFI). Only Dr Sijen gave evidence for the Crown at the s 344A hearing. I accept that her colleague Dr Maaskant-Van Wijk might have had little extra to say. But in light of the all round attack on her evidence by the defence, and in particular its witness Dr Venneman of the University of Munster, it would have been desirable for the Crown to have called peer review evidence, even at a conceptual level, from an independent expert of high standing. Access to such evidence certainly assisted
me to conclude that the Crown had shown its IHC analysis had sufficient claim to reliability to be admissible.
[99] Dr Sijen herself was an impressive witness. Her evidence was cautious, and she appeared to me to carefully resist overstatement of the impact of her evidence. Her analysis, as noted, was focused on RNA, and in particular mRNA (messenger RNA), rather than DNA. RNA is a molecular material found in human and animal tissue cells. Parts of DNA are converted by a cell into RNA, which in turn has a fundamental role in the creation of protein molecules, in effect directed by the DNA. Each cell type has a specific set of RNA molecules. As Dr Sijen put it:
Blood cells … have an RNA set that is different from that of skin cells. The RNA set that is specific for a certain cell type is the same for each person. In order to determine the nature of cell material in a trace, an examination is undertaken, denoted RNA analysis, to determine which (combinations of) RNA markers reside in a trace, from which the cell types that are present in a trace are inferred.
[100] The NFI undertakes two forms of RNA analysis in its forensic casework. The first, of earlier origin, is RNA cell-typing. This is RNA analysis for the presence of blood, semen, saliva, skin cells, nasal mucosa, vaginal cells and menstrual secretion in a trace. It is used mainly in the case of sexual assaults where the presence or absence of vaginal cells and/or menstrual secretion may be decisive. The second method, which appears only to have been the subject of publication in the last 12 months or so, is RNA organ-typing. This involves RNA analysis for the presence of skin cells, blood, brain tissue, lung, liver, muscle, heart and kidney in a trace. This method of RNA analysis is used by the NFI particularly in the case of violent incidents, such as shootings. Organ-typing has been applied in approximately ten cases to date.
[101] In this instance the existing NFI organ-typer was considered insufficiently specific for human brain cells. Neuropathological analysis of photomicrographs of the tissue in specimens 3003/3 and 3003/4 indicated the presence of astrocyte cells and (possibly) oligodendrocytes and microglia cells. The existing organ-typer targeted only neurones in brain material. The NFI therefore identified additional markers that would target this additional cellular material. A five marker “brainplex” was created: GFAP, ACSBG1 and S100B are astrocyte markers. OPALIN is an
oligodendrocyte marker, and 18S-rRNA is described as a “sensitive housekeeping marker”. It is a control marker, expressed in all cells, and not CNS-specific. The new brainplex was tested against 21 known-source human tissues, and six bodily fluids, commonly experienced in forensic work.65 No cross-reactivity (that is to say a positive signal for non-CNS tissue) was demonstrated by three of the four brain markers. One, S100B was cross-reactive to five non-CNS tissues. None of the brain
markers were cross-reactive to the body fluids. The brainplex was then tested on eight animal brain tissue samples.66 False positives were identified at the standard annealing (binding) temperature of 60°C. Increasing this to 64°C appeared to eliminate these false positives. The brainplex was also tested on a replica control sample involving human brain tissue smeared on fabric, prepared by Dr Miller. The resultant RNA profiles indicated the presence of human CNS tissue in that test slide.
[102] Applying this new brainplex methodology to slides from specimens 3003/3, the brainplex indicated the presence of human CNS tissue. The detailed results are provided in the evidence of the defence expert, Dr Vennemann, who observed Dr Sijen’s use of the brainplex. The cellular material given to NFI from specimen
3003/3 was (by expert agreement) pooled into a single sample, sample 22. Sample
22 was then given three replicate tests. The results for the four brain markers were as follows:
S22 (3003/3) ACSBG1 GFAP S100B OPALIN S22 + + S22 rep 1 + + + S22 rep 2 + + [103] Three analyses with four markers gave 12 potential results, of which seven (or 58 per cent) were positive. In contrast, the reference testing of two parallel samples from Dr Miller, using what undoubtedly was human brain tissue (from a source in the United States) smeared on a t-shirt, “showed all brain specific markers
except ACSBG1”.
65 Those fluids referred to at [100] above.
66 Cattle, cat, chicken, pig, sheep, dog, guinea pig and rabbit.
[104] In contrast to specimen 3003/3, brainplex analysis of specimen 3003/4 (the chest pocket stain) gave no indication for the presence of human CNS tissue.
[105] Dr Sijen therefore concluded:67
In my opinion, the RNA typing results are more probable if the slides from [specimen 3003/3] contained human brain tissue than if they contain brain tissue of the animal species examined. It is not possible to determine how much more probable these results are (i.e. to assign the exact weight of the evidence to the results).
[106] The defence called one witness to rebut Dr Sijen’s evidence. Dr Vennemann, from the University of Munster, Institute of Legal Medicine was also an impressive witness. She has written quite extensively on RNA profiling. She had the opportunity to observe Dr Sijen’s testing methodology, and to make suggestions. Many of these (and perhaps all) were accepted by Dr Sijen. Dr Vennemann is clearly expert in the subject area, but has significant reservations about the use of this technique for forensic purposes, both generally and in this instance. I will endeavour to summarise those. I will focus on the analysis of specimen 3003/3, which alone produced a “brain positive” result using the NFI brainplex. Dr Vennemann’s criticisms of that analysis (with Dr Sijen’s responses) are as follows.
[107] First, the brainplex reaction is novel, and only self-validated by the NFI. It has not been used in other cases. It has not been published in peer-reviewed scientific journals. Nor has it been accepted by the scientific community generally. Dr Sijen’s response to this, in cross-examination, was that the brainplex is an extension of an extant organ-typer methodology, which has been subject to forensic use, and peer-reviewed publication (albeit only within the last 12 months or so). What was added to that existing organ-typer were four markers that demonstrate specificity for human brain, a well studied subject and not a difficult extension of the existing methodology. However, in cross-examination Dr Sijen acknowledged that “the brainplex as such has never been used in a Court before or submitted for peer
review”.
67 The references to “brain” should be read “CNS”.
[108] Secondly, Dr Vennemann was concerned that the 50 per cent minimum threshold applied by the NFI is arbitrary and not properly validated. Even if validated, the 58 per cent score for the samples in specimen 3003/3 is very close to the threshold adopted by the NFI. Dr Sijen however describes that threshold as conservative and validated by use originally in DNA low template analysis, published in 2011, and since applied in over 70 cases by the NFI. She also states that it has been tested at EUFORGEN, a European inter-laboratory exercise and found to be robust.
[109] Thirdly, Dr Vennemann has serious doubts that the four markers adopted have definitive specificity for (1) CNS and (2) human source CNS only. Notably they did not at the standard annealing temperature of 60°C: marker S100B cross-reacted for other tissue types; marker GFAP cross-reacted for bovine and rabbit brain tissue; and marker ACSBG1 cross-reacted for pig brain. The capacity for false species reaction appeared to be removed by increasing the annealing temperature to 64°C. But Dr Vennemann remains concerned that the detection of RNA markers for non-human species remains possible. Although the temperature adjustment removed false positives for other species, she is concerned that the change might be mass- dependent, so that different product weights may produce different results. In this case the amount or mass of the RNA extracted from the slides for specimen 3003/3 could not be stated. In particular, Dr Vennemann expressed concern that each of the four markers had the prospect of false positive results for other species because of inter-species homologies in the RNA primers: in the case of ACSBG1, cow, rabbit, rat, mouse and pig; in the case of GFAP, sheep, cow, goat, rabbit, rat and mouse; in the case of SB100, pig; and in the case of OPALIN, cow.
[110] Dealing first with cross-reactivity to other human issue types, Dr Sijen’s response to the issue with S100B was that concern could be put to one side, as the other three markers would ensure no false positives for CNS tissue. Dealing then with interspecies cross-reactivity, Dr Sijen explained that the existence of inter- species mismatch in the “three prime half” of primer sequences, especially close to the right hand end of the sequence, averts the risk of a false positive for other species. If the homology is close overall, but not exact in the three prime half, the primer will not bond and will not declare a false positive result for human CNS
tissue. Even if one did misreport, the use of four markers and a conservative 50 per cent minimum scoring approach would safeguard against false positive reporting. Additionally, the risk of cross-reactive false positives in the case of SB100 is reduced by the fact that only pig has a comparable product length that could bind. In subsequent cross-examination, Dr Vennemann largely agreed with Dr Sijen’s evidence, but maintained the possibility of binding despite a single mismatch in the three prime half pair.
[111] Fourthly, Dr Vennemann explained in evidence why she had rejected, in her own words, the use of RNA (or specifically, messenger RNA) testing for forensic application. RNA is less stable than DNA. When taken from non living tissue, its degradation rates are poorly understood. Negative results can be difficult to interpret. Messenger RNA is not necessarily tissue-specific. And reaction replicates do not produce identical results (as indeed was the case here).68
[112] Dr Sijen’s response was as follows. She accepted that generally speaking RNA is less stable than DNA. But, nonetheless, it will remain stable outside living tissue organism if kept dry. RNA profiling remains possible for bodily fluids, so far, for up to 28 years. In any case, degradation really concerns the risk of false negatives. That is of less concern in the case of the brainplex, because the brainplex methodology does not report negatives at all. It reports positives, and the question is what risk there is of a false positive. Dr Sijen’s evidence was that the four markers, but in particular those other than S100B, do correctly target for CNS, although minuscule readings can be given for some other organs. Finally, inconsistency of replicate outcomes is also present with DNA testing, especially where only small amounts of specimen material is available. That is a common problem in forensic work.
The objection
[113] The defence objects to the entirety of the evidence of the Netherlands
Forensic Institute scientists Drs Sijen and Maaskant-van Wijk, presenting the
68 See the table at [102].
Crown’s evidence of RNA typing analysis.69 The defence says that this evidence is irrelevant (s 7), its probative value is outweighed by its prejudicial effect (s 8), and that it does not satisfy the requirements of s 25.
[114] The defence says that the methodology applied by the NFI scientists to identify human brain and tissue is not generally accepted by the scientific community, that the potential error rate in using the technique is unknown and that there are no established and recognised standards governing its use. The defence says also that the evidence is of limited probative value, the evidence of human specificity is particularly deficient, and that this is a “highly technical area of science that a jury would find impossible to evaluate if faced with competing scientific opinion”.
[115] Mr Hislop submits that it is for the Crown to establish that the RNA evidence passes the minimum threshold of reliability, with “any doubt resolved in favour of exclusion”. He contends that the NFI technique produces similar results from tissue from various non-human species as present. In the absence of objective and general accepted scientific evidence supporting the claim to human specificity (and the degree of confidence in that claim) it is unsafe for the claim that the test can differentiate human tissue from that of other animals to go before the jury. Based on Dr Vennemann’s evidence, and on NFI’s findings, it is possible that the tissue in specimen 3003/3 may be non-CNS, and more importantly perhaps, non-human. Beyond these points, Mr Hislop’s submissions essentially re-presented the scientific reservations expressed by Dr Vennemann.
[116] Mr Morgan QC for the Crown submitted that the Court was simply looking at this stage at threshold reliability. Whether the evidence thus is relied on by the jury is a different issue. Dr Sijen’s credentials and expertise were impeccable, Dr Vennemann did not suggest otherwise, and Dr Sijen’s caution was to be applauded. The multiplex organ-typer technique is recognised; the only changes made were to use specific CNS cell-targeting markers. That was a permissible extension of reliable existing forensic science. The method is falsifiable, and
reproducible by the defence. It was carried out in the company of a defence expert.
69 Objection 2.
Only species specificity is directly relevant here; the “key control” is that the substance in specimen 3003/3 is definitely CNS given the separate neuropathological evidence.
Analysis
[117] I have concluded that the evidence is relevant and not unfairly prejudicial to the defendant. I have also concluded, albeit by a relatively narrow margin (given the absence of supporting peer review assistance), that the Crown has demonstrated a sufficient foundation of reliability for the NFI RNA analysis evidence to go to the jury. I summarise my reasons as follows.
[118] First, as I have noted already, novelty is not a per se ground for refusing the admission of scientific opinion evidence. It is a per se ground for caution. It follows, as the United States Supreme Court noted in Daubert, that publication and peer review is not an essential precondition for the admission of such evidence.70
But it does justify a closer, and perhaps sceptical, examination of the novel methodology advanced to ensure that it meets the s 25 threshold.
[119] Secondly, turning to the Daubert factors,71 I find that the NFI brainplex has not in itself been the subject of peer review or publication. It cannot, again in itself, be said to be generally accepted by the scientific community. Its potential error rate cannot yet be stated with assurance. On the other hand, the NFI RNA analysis methodology has been tested. It is “hard science”, in the sense that we are dealing with theories capable of objective proof or disproof by experimentation. The NFI methodology is therefore falsifiable (in the sense that error in it is capable of disproof).
[120] Thirdly, and also on the other hand, the NFI brainplex is an extension of an existing NFI multiplex organ-typer, which has been the subject of publication and peer review. I find that the extension is a credible and logical development of that existing methodology. The 50 per cent minimum threshold draws directly on the
existing methodology, and earlier DNA analysis. The first change is the introduction
70 See at [29] and [55] above.
71 See [25] to [30] above.
of four new markers that focus on particular CNS cellular material other than neurones. The selection of the new markers is plainly rational, given the selection process, and the evidence put before the Court from the BioGPS and GTex portals. The second change is to the annealing temperature used (64°C, rather than 60°C). Tested, then, on (1) human brain tissue, and (2) the eight non-human brain tissue samples, the brainplex did not produce false positive results. Despite that, Dr Sijen is appropriately cautious as to the confidence that can be expressed in the results for specimen 3003/3. I accept the possibility that the brainplex may, as Dr Vennemann fears, produce false positives in certain circumstances, although exactly what those are defy definition at present. But I am satisfied also that (1) the brainplex methodology is not so unreliable as to be unfit to be placed before the jury, and (2) the potential areas of concern as to the prospect of false positives can be explained to the jury by witnesses in a way that they will be able to follow. In short, then, the further development of the brainplex from the existing organ-typer is a refinement
comparable to that considered by this Court in Calder.72
[121] Fourthly, the constituent material in specimen 3003/3 is demonstrably CNS tissue. The IHC analysis evidence, which I have held admissible, demonstrates that convincingly. The defence’s own experts accept that it is CNS tissue, although no IHC expert could state source or gender. In addition, that conclusion was
corroborated by the electronmicroscopy undertaken by Dr Du Plessis.73
[122] Fifthly, the significance of the RNA typing analysis is, therefore, fundamentally at the level of species specificity. That is, to show whether the material is likely to be human CNS - rather than CNS from some other source. Significantly for the defence, it demonstrates that specimen 3003/4, while certainly containing CNS tissue according to IHC analysis, recorded no positive signals for human CNS tissue. From it a jury may well infer that it is unlikely to be human CNS tissue, although that is not certainly the case given (1) that RNA typing is concerned with positives rather than negatives and (2) the DNA evidence (likely, as
Ms Vintiner said, to come from the biological material in the specimen – that is to
72 See [32] to [38] above.
73 See at [96] above.
say the CNS tissue).74 In the case of specimen 3003/3, from the shirt sleeve, the RNA analysis indicates that it more probably is human than the eight animal species selected, as Dr Sijen puts it. Again, I am satisfied that the Crown has shown through Dr Sijen that the possibility of false positives for other animal species is sufficiently low that the brainplex has a sufficient claim to reliability to go to the jury. In particular, I rely on (1) the actual validation exercise undertaken by Dr Sijen;75 (2) Dr Sijen’s explanation as to the limited risk of interspecies homology, given both the location of actual genetic mismatching in the immediate right hand side of the three
prime half portion of the forward primer sequences for each of the four markers, and the additional (albeit limited) protection given by product length differences - an explanation I found cogent; and (3) the 50 per cent minimum threshold requirement. The absence of formal standards at this early stage in the life of RNA organ-typing analysis is of concern. But I am left with the view that the 50 per cent minimum threshold standard adopted, based on DNA analysis, is adequately reliable for the evidence to be considered by the jury. The jury will consider not only the challenge to that threshold, but also the proximity of the actual results for specimen 3003/3 to that threshold. Contrary theories, founded on evidence and justifying jury caution, may be put to the jury.
[123] Sixthly, the required standard of proof as to species specificity is not beyond reasonable doubt – although Dr Vennemann seems to suggest in her evidence that it should be. But this is not evidence that falls within the exceptional class identified in Thomas.76 Dr Sijen does not make any claim of proof to that standard for her analysis. Her conclusion is simply that human CNS is “more probable” than certain other animal species examined. But she noted, carefully, it is not possible to
determine how much more probable. It follows of course that Dr Sijen is not saying that her analysis establishes human specificity beyond reasonable doubt. Quite the contrary. Indeed the proximity of the results to the 50 per cent threshold reinforces
that no compelling conclusion from RNA analysis is possible.
74 See the evidence of Ms Vintiner, quoted at [60] above. This applies to both specimens 3003/3 and 3003/4.
75 See [101] above.
76 See [23] above.
[124] Seventhly, the role of the jury will not be to resolve the scientific debate between Drs Sijen and Vennemann. It is to decide whether the Crown has proved beyond reasonable doubt that Mr Lundy attacked and killed his wife and daughter. The RNA analysis will be very important evidence, alongside other circumstantial evidence, including the DNA and IHC evidence. But the jury will be assisted in not overweighting the RNA evidence by hearing from Dr Vennemann, and by
appropriate jury directions.77 The challenge to the RNA analysis evidence will be
the major scientific contest the jury will have to hear evidence on. Room remains to challenge Dr Miller’s slides, but there is limited room to challenge Ms Vintiner’s DNA analysis that preceded them. And there is very little room to challenge the combined expert findings on IHC that the material in both stains is CNS. The jury will not be drowning in a sea of science.
Conclusion
[125] For these reasons, therefore, I am left with the concluding views that (1) the NFI methodology is not so apparently unreliable that it should be withdrawn from the jury, and (2) the scientific contest can sensibly be put to the jury for its consideration. I do not uphold defence objection 2.
The FISH evidence
[126] Fluorescent in situ hybridisation (FISH) analysis was undertaken by Dr Miller to ascertain whether tissue in specimens 3003/3 and 3003/4 contained cellular nuclei of human origin. And, further, whether those nuclei are of human female or human male origins. The defence objection78 to this evidence is that Dr Miller was not qualified to provide such evidence, having no evident training, study or expertise in FISH analysis. Secondly, the defence objected that the analysis undertaken by Dr Miller was not shown by the Crown to be reliable.
[127] The defence accepts that FISH testing is not novel or per se unreliable. The defence accepts also that FISH is widely and successfully used in different realms of
biomedical sciences for research and diagnostic purposes. Such use involves
77 See [24] above.
78 Objections 4 and 5.
established, validated and regulated protocols. The defence suggests here that the use of Dr Miller’s analysis of FISH was for an experimental purpose, to discern the nature of unknown tissue. Such use “was not intended, sanctioned or validated by the manufacturer of the probe concerned”. Nor was there any validation evidence. The experimental design was deficient, in that it did not exclude false positives of cellular material from other vertebrate species, in particular other mammals. The number of observations was below the minimum scoring normally recommended for FISH analysis on paraffin sections.
[128] Most importantly, perhaps, another (appropriately qualified) Crown expert, Dr Gown, who undertook FISH testing on the same source material, received only negative results.
[129] On 22 September 2014, the first day of the hearing, the Crown conceded it does not intend to rely on Dr Miller’s evidence on FISH and the use of Stem 1/2/3 (a matter of human specificity). The precise basis for the Crown’s concession was not stated. As a result the defendant did not need to call Dr Volpi to give evidence and I did not hear her evidence.
Conclusion
[130] I uphold defence objections 4 and 5 to the FISH analysis evidence.
Other evidence
[131] I can deal briefly with the remaining evidence to which objection is taken. There are four miscellaneous matters: three in ESR forensic scientist Mr Sutherland’s evidence, and one in Dr Sijen’s.
Dr Sijen’s reference to Dr Kubat’s assistance
[132] Objection was taken to one paragraph in Dr Sijen’s evidence.79 She is the lead scientist from the Netherlands Forensic Institute who undertook the RNA typing
analysis. In her evidence she reports advice received from a senior neuropathologist
79 Objection 3.
in her laboratory, Dr Bela Kubat, identifying the presence of astrocyte cells and (possibly) oligodendrocytes and microglia cells in photomicrographs of the tissue material in specimens 3003/3 and 3003/4. Dr Kubat is not giving evidence.
[133] The defence objects to this evidence as hearsay. However, in closing Mr Hislop advised that this objection is maintained now only as a matter of formality. It is accepted that it has been overtaken by events and that the evidence is not particularly prejudicial.
[134] I do not uphold this objection. The reference to Dr Kubat’s evidence is simply to explain why Dr Sijen devised the brainplex to mark for these three cell types. It is not in itself evidence as to the constituent properties of the slides. The Crown is calling neuropathological evidence from Dr Du Plessis as to what cell material is discernible in specimens 3003/3 and 3003/4. In the circumstances I do not consider the passage to be hearsay evidence as to the constituent properties of the tissue material. I do not, therefore, uphold the defence objection 3.
Mr Sutherland’s observation at the crime scene
[135] Mr Sutherland was a forensic scientist at ESR from 1996 to 2005.80 He holds an MSc degree. He attended the Lundy house crime scene from 30 August 2000 to
5 September 2000. In his evidence he describes the scene examination he undertook, including in particular his examination of the master bedroom. Mrs Lundy’s body was found within the bedroom, on the bed. Amber Lundy’s body lay in the doorway of the same room. Mr Sutherland describes the head injuries to both victims (although there is more detail on those matters from the pathologist witnesses) and the associated blood staining and splatter in the rooms. In a passage on page 6 of his brief, to which objection is not taken, Mr Sutherland says:
On the right side of the bed, there were lumps of what appeared to be brain tissue on items on the top of the bedside cabinet, and on the floor behind the cabinet.
[136] At page 30 he describes the appearance of the telephone on the bedside table
next to the bed, near Mrs Lundy’s body:
80 He now holds managerial responsibilities at ESR.
There were blood stained lumps of probable brain tissue on the receiver and sides of the telephone.
He notes that a slide, SO45/1, was taken from this material. Near the telephone on the bedside table was a placemat. At page 31 he says:
There were spots of blood, lumps of probable brain tissue and pieces of probable bone on the mat.
At page 32 he notes:
A slide for microscopic examination as prepared from one of the lumps of
probable brain tissue on the mat, SO51/3 …
[137] Objection is taken to the statements concerning “probable brain tissue” on pages 30 to 32 (but not on page 6) on the basis of unreliability, or insufficient probative value.81 The defence relies on the fact that the slides taken from the telephone and placemat tissue material (specimens SO45/1 and SO51/3) have degenerated. Neither the Crown (Dr Du Plessis) nor the defence (Dr Smith) can identify the source of the tissue on the slides. They can say no more than it is tissue of some sort.
[138] This point was not pressed by Mr Hislop in his final submissions. Rightly in my view. I do not uphold these objections. While the slides may not corroborate Mr Sutherland’s observations, they do not contradict them. I am satisfied that his training and experience as a forensic scientist, his experience of prior crime scenes involving bodies, and his experience of attending autopsies, qualify him to express an opinion on the probable nature of observed tissue material. I do not, therefore, uphold defence objections 9(a) to (c).
Mr Sutherland’s statement about DNA analysis
[139] At page 36 of his evidence, referring to specimen 3003/3, Mr Sutherland says that:
DNA testing showed that the biological material in this stain could have come from Christine Lundy.
81 Objection 9(a)-(c).
[140] In this passage Mr Sutherland is simply reporting, in summary but accurate terms, the evidence of Ms Vintiner. Ms Vintiner will be giving evidence, and I have held that her evidence is admissible. I am satisfied that Mr Sutherland is entitled to make that statement in his evidence. I do not, therefore, uphold defence objection
9(d).
Mr Sutherland’s statement about the “probable presence of blood” in the stain in
specimen 3003/3
[141] In describing the stain in specimen 3003/3, at page 36 of his statement, Mr Sutherland says:
Chemical tests indicated the probable presence of blood in this stain.
In cross-examination he explained he used two presumptive blood tests, the Kastle- Meyer two stage reagent test, and the Sangur test. Mr Sutherland obtained positive results for blood under both tests, although he could not see blood visually in specimen 3003/3.82 Mr Sutherland recorded his observations in two separate forms. One document is a “Transmission of Forensic Service Centre samples to biology laboratory”. In the case of specimen 3003/3 it records blood as “inconclusive”, but
in the case of 3003/4 as “positive”. In contrast, in Mr Sutherland’s evidence, he described the presence of blood in specimen 3003/3 as “probable”.
[142] The explanation given in relation to the difference was that the conventional approach in relation to the form was to state “inconclusive”, if blood could not be visually be observed. In the case of his evidence, I am satisfied that Mr Sutherland is correct to report the presence of blood in specimen 3003/3 as “probable” given the positive results under both presumptive blood tests. That is the normal evidential protocol for ESR forensic evidence. The absence of visual observation, and the limits of the presumptive test, are matters the defence can of course take up with the
witness before the jury. I do not uphold defence objection 9(e) therefore.
82 Blood traces were visible under a microscope in the case of specimen 3003/4, but not 3003/3.
Result
[143] I uphold defence objections 4 and 5 (all of the FISH analysis), and 6 and 7 inclusive (concerning aspects of the IHC analysis).
[144] Defence objections 1 (the Miller slides), 2 and 3 (the NFI RNA analysis), 8 (the principal IHC analysis) and 9 and 10 (the DNA and ESR forensic evidence) are not upheld.
[145] The Crown application is therefore granted, subject to the defence objections just upheld.
[146] I make an order prohibiting publication of this judgment and any part of the proceedings (including the result) in news media, the internet or any other publicly available database until final disposition of Mr Lundy’s retrial.
Stephen Kós J
Solicitors:
Crown Solicitor, Palmerston North
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