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R v Lundy

R v Lundy

Case [2014] NZHC 2527 15 October 2014

Appeal

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Admissibility of Evidence

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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 Defendant

Judgment:

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Lundy

Details

AGLC: R v Lundy [2014] NZHC 2527
Case: [2014] NZHC 2527
Decision Date: 15 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand Wellington Registry CRI-2001-054-832244 [2014] NZHC 2527, the Queen v Mark Edward Lundy, the defendant, Mark Edward Lundy, is appealing the admissibility of certain scientific evidence in his retrial for the murders of his wife, Christine, and their daughter, Amber. The Crown's case has changed significantly since the original trial, with the focus now being on establishing the time frame of the murders rather than a specific time of death. The Crown proposes to call a wide array of scientific opinion evidence to establish that the two stains on Lundy's shirt contain Christine's DNA, together with CNS tissue which is probably human in origin.

The defence objects to various aspects of the Crown's scientific evidence, including DNA analysis, immunohistochemical (IHC) analysis, RNA typing, and fluorescent in situ hybridisation (FISH) analysis. The court considers the principles governing the receipt of scientific opinion evidence, including the role of the jury, the Daubert factors, and the Evidence Act 2006. The court also examines the admissibility of the evidence in light of the substantial helpfulness test under s 25 of the Evidence Act 2006.

After considering the evidence and arguments presented by both parties, the court concludes that the DNA evidence is relevant, not unduly prejudicial, and has a sufficient claim to reliability to go to the jury. The court also finds that the Miller slides, which are the foundation for the subsequent IHC and RNA analyses, are relevant, not unfairly prejudicial, and have a sufficient claim to reliability to meet the s 25 threshold of substantial helpfulness.

The court upholds defence objections 6 and 7 (concerning aspects of the IHC analysis), but does not uphold defence objection 8 (the principal IHC analysis). The court finds that the RNA evidence is relevant and not unfairly prejudicial to the defendant, and that the Crown has demonstrated a sufficient foundation of reliability for the NFI RNA analysis evidence to go to the jury.

Finally, the court upholds defence objections 4 and 5 (all of the FISH analysis), and 6 and 7 inclusive (concerning aspects of the IHC analysis). 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. The Crown application is therefore granted, subject to the defence objections just upheld. The court makes 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.

Orders