R v Lundy
[2014] NZHC 1315
•11 June 2014
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITED.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2001-054-832244 [2014] NZHC 1315
THE QUEEN
v
MARK EDWARD LUNDY
Teleconference: 11 June 2014 Counsel:
P J Morgan QC for Crown
D Hislop QC, R Burns, J-A Kincade and M Birdling for
DefendantJudgment:
11 June 2014
JUDGMENT OF THE HON JUSTICE KÓS
[1] The defendant, Mr Lundy, is for retrial on two counts of murder, commencing
9 February 2015.
[2] The Crown is obliged to disclose briefs of evidence of all its witnesses (including scientific witnesses) by 25 August 2014. It is anticipated that there will be challenges to the admissibility of some of that evidence. Two weeks have been set aside for pre-trial hearings before me, commencing 22 September 2014. Time has been scheduled for any appeal to the Court of Appeal, commencing 4 November
2014 in that Court.
R v LUNDY [2014] NZHC 1315 [11 June 2014]
[3] This judgment concerns a Crown application. On 30 May 2014 the Crown applied for orders approving conditions as to destructive testing of certain exhibits.
[4] First, there is mRNA testing to be done on three fabric samples from a shirt owned by Mr Lundy. Some material previously cut from that shirt has been preserved in paraffin blocks, exhibits numbers C3003/3/1 and C3003/4/1. However there are three additional fabric samples, exhibits C3003/3/2/1-2, C3003/4/2/1-12 and C3003/5/2/1-2, which have not been preserved in paraffin. The fact that this additional material has not been preserved in paraffin may be important. Paraffin preservation may, over the years, have reduced the extractable cell material. Those exhibits are presently in the possession of the Netherlands Forensic Institute at The Hague.
[5] Secondly, there is to be laser micro dissection (in New Zealand), followed by electron microscopy in the United Kingdom, of three slides: an ESR dab slide, exhibit C3002/2, and two further slides prepared by Dr Miller (a forensic expert for the Crown in the original trial), exhibits 3003/3/1/1 and 3003/3/1/77.
[6] The testing proposed will be destructive of the exhibits. As is conventional, the Crown has proposed certain conditions under which that testing will take place, calculated to give the defence a fair opportunity to observe and propose alternative courses of action. The conditions proposed by the Crown are as follows.
[7] First, in relation to the mRNA testing:
13.1Any destructive testing by the NFI be carried out on a date or dates selected by the NFI but notified to Dr Vennemann fourteen days prior.
13.2Any such work to be carried out by the NFI at a time and place convenient, so far as is reasonable, to Dr Vennemann for her participation and observation in such testing.
13.3All reasonable steps are taken to ensure the outcome of such tests are made available to or reported to Dr Vennemann as and when such work occurs in accordance with normal scientific protocols.
Dr Vennemann, I note, is retained by the defence.
[8] Secondly, in relation to the laser micro dissection testing:
16.1Any LMD testing by ESR to be carried out on the date or dates selected by ESR but notified to counsel for the accused or any expert nominated on their behalf fourteen days prior.
16.2Any such work carried out by ESR to be carried out at a time and a place convenient so far as is reasonable, to any scientist nominated by counsel for the accused for their participation and observation of such testing.
16.3All reasonable steps are taken to ensure the outcome of such tests are available to or reported to the nominated expert as and when such work occurs in accordance with normal scientific protocols.
16.4Any electron microscopy carried out by Dr Daniel du Plessis occurs with reasonable notice to Dr Colin Smith.
Dr Smith is a defence expert.
[9] In the hearing before me this morning Mr Morgan QC, for the Crown, enlarged on what the word “participation” meant in conditions 13.2 and 16.2. It is to allow the defence experts to make suggestions as to different or additional testing. Whether the defence experts wish to take that opportunity is a matter for them, of course.
[10] The defence response to the application was initially wholly oppositional. By memorandum dated 3 June 2014 the defence submitted that the application ought to be dismissed, that there was no imperative need for the testing to proceed now, and that it was unlikely to succeed in producing worthwhile scientific evidence over and above non-destructive testing. As defence counsel put it, “any destructive testing may deprive Mr Lundy of the opportunity to conduct scientific testing of his own either now or in the future.” Without saying so in as many words, the defence really sought to veto any destructive testing.
[11] Following the exchange of further memoranda from both sides, the defence position has changed. Mr Hislop QC, for the defence, this morning accepted that the defence cannot stop the Crown from performing this testing. He accepts that the Crown does not need an order from the Court to undertake testing. He submits that the Court should not be drawn into providing the Crown with comfort against the
possibility of a future defence application for a stay of proceedings or for the exclusion of evidence. The concern there was that in the event that either of the testing processes results in positive outcomes, the defence would want to undertake its own similar testing. The destruction of material would deny or diminish its ability to do so. That might give rise to fair trial issues in terms of s 24(d) of the New Zealand Bill of Rights Act 1990. The defence does not propose any specific scientific testing at this point by way of alternative. Its position is purely responsive to any positive outcome from the Crown experts’ destructive testing regime. It asks that the defence’s objection to the testing, and the risk it poses to fair trial, be noted.
Legal framework
[12] The destructive testing of Crown exhibits, or relevant evidential material, is not prohibited as a matter of general principle. Criminal trials for serious crimes frequently proceed in the absence of all potentially relevant evidential material. The prime exemplar is the body of a victim of crime. Following post-mortem procedures, it is normally released to family for cremation or burial.
[13] The official destruction of evidence raises two questions which may call for
the Court’s intervention:
(a) compliance with the Crown’s disclosure obligations under s 19 of the
Criminal Disclosure Act 2008; and
(b) fair trial rights under s 24(d) of the New Zealand Bill of Rights Act
1990.
[14] The former requires the Crown to allow a defendant to inspect evidence in the Crown’s possession or control. It does not deal directly with testing, let alone destructive testing by the Crown. It is a live question, not currently addressed by the authorities, as to what it permits the defence to do in the course of inspection. Section 31 permits conditions to be imposed by the Courts.
[15] Destruction of evidence is most likely to arise as an issue under the second heading. The inability to examine or test evidential material may give rise to fair
trial issues. In R v Griffin1 the defendant had been convicted of two charges under ss
138 and 142 of the Crimes Act 1961 of having unlawful intercourse with a severely intellectually disabled complainant. The extent of her disability and perceptibility were in issue. The Crown had called evidence from a psychiatrist and psychologist. They had examined the complainant. The defendant wished to have his own expert assess her. But she refused any further assessment. The defendant’s expert was limited to criticising methodologies used by the Crown experts. A majority of the Court of Appeal concluded there had been a breach of the defendant’s fair trial rights. The inability to examine the complainant led to a material disadvantage in preparation of the defence. It also created an imbalance in the coherence of the respective expert witnesses’ evidence. As the majority made clear in its judgment, what was necessary for the purposes of s 24(d) was to “strike an appropriate balance
between the interests of the accused and those of the complainant”.2
[16] Griffin did not deal specifically with destructive testing. But it is referred to by the two dissenting members of the Court. They noted that physical destruction may mean an “inequality of arms”, but that did not mean that the defendant would thereby be denied the possibility of a fair trial.3
[17] The issue of further testing arose also before Panckhurst J in a pre-trial application in R v Bain.4 In that case (also a retrial) the exhibits (unlike those here) were in the custody of the Court. The Crown applied for release of certain exhibits so they could be examined further by their experts. Some of the exhibits were to be forensically examined, subjected to further DNA analysis. Panckhurst J said (in a passage with which, respectfully, I am in full agreement):
[5] In particular, I consider there is a clear divide between the question whether exhibits should be released for forensic examination and the question whether evidence thereby obtained (if any) should be received at trial. Many of the objections raised in the notices of opposition impressed me as potentially relevant to the second question, but not to the first.
[6] Ordinarily, decisions concerning the scientific examination of exhibits are made by the parties without the involvement of the
1 R v Griffin [2001] 3 NZLR 577 (CA).
2 At [29].
3 At [49] and [106]–[107].
4 R v Bain HC Christchurch CRI-2007-412-14, 5 March 2008.
Court. Almost invariably the items for examination are in the custody and control of either the Crown or the defence and it lies with that party to arrange for and secure an appropriate examination of the intended exhibit. In some instances, particularly where examination is required of something which cannot be a physical exhibit at the trial, the opportunity for a representative from the other side to be present at the examination is afforded. For example, a defence expert may observe the post mortem examination of a victim.
[7] If the relevant exhibit is in the custody of the Court, an additional consideration arises. Release of the exhibit is necessary, whether it is in the Court’s custody following a preliminary hearing or following an order for retrial. In considering a request for release the essential concern of a Judge will be to ensure the safekeeping and integrity of the exhibit. Directions to these ends are customarily made.
[8] In my view this background informs the jurisdiction which I am to exercise in the present case where the matter happens to have been dealt with on a basis involving formal application and notice of opposition. That formality does not alter the substance of the issue. As I see it two concerns are at stake. The first is safeguarding the integrity of the exhibit. The second is whether there is a basis to suppose that examination, or further examination, of an exhibit may produce new or improved evidence. This inquiry is warranted in order to ensure that exhibits are not released from the Court’s custody for no good reason. But, this threshold is not high, particularly if the safekeeping of the exhibit can be assured.
[9] Although the applications were argued on the basis that the release of exhibits in the custody of the Court was necessary to enable further testing, it is by no means clear to me that this is actually the true position. In two instances nothing needs to be released. Testing can proceed without recourse to anything taken from the scene of the crimes. In other instances I understand that the items to be retested are not in the Court’s custody. If this is the case, strictly speaking the position is as I described it in para [6]. That is the Crown is entitled as of right to retest items within its custody and control, subject of course to the normal obligation to establish the integrity of such items. However, given that formal applications are before me and the existence of a concern that the defence should be able to observe, or review, any retesting, I shall consider the applications upon the basis they were argued.
[18] Those passages are for the most part relevant here. But, it should be noted,
Bain did not deal with destructive testing.5
[19] From these authorities, some principles may be derived:
5 There is a brief discussion of the prospect of that occurring at [34]–[35], but it was clear that no destruction would in fact occur.
(a) The Court will take a greater supervisory responsibility to ensure the continued integrity of evidence where it takes the form of exhibits in the custody of the Court itself. In that event the approach indicated by Panckhurst J in R v Bain should be followed.
(b)Where the evidence remains in the possession of the Crown, it is normally entitled to test it without further reference to the Court. That includes destructive testing.
(c) It should not, however, engage in destructive testing without reference to the defence. The conventional course, which the Crown has followed in this case, is to give the defence notification of its intent to do so. That is for three reasons. First, so that the defence may attend and observe. The Crown should make reasonable efforts to accommodate that. Secondly, so the defence may make suggestions as to alternative or additional testing that might be undertaken. Thirdly, to enable the defence to apply to the Court to prohibit or limit the extent of destruction, or rule on disputed conditions of attendance.
(d)Only exceptionally will the Court intervene and pre-empt the Crown from engaging in testing it considers necessary to discharge its onus at trial. Conceivably the Court might do so if the defendant had been denied an opportunity to first inspect the evidence, under s 19 of the Criminal Disclosure Act 2008. Equally, the Court might be called on to intervene where the defence has a specific proposal for testing which is at odds with that of the Crown, where both proposals cannot be accommodated. In such a case there might be justification for the Court to make a pre-emptive ruling in light of s 24(d).
[20] But, for the most part, the Crown proceeds at its own risk. In doing so it recognises that it balances the potential benefit of a positive testing outcome with the negative prospect of an application for stay, or for exclusion of Crown evidence, on the basis of the defence’s inability to test the same exhibit and therefore enjoy a fair trial.
[21] In this case it would not have been appropriate for the Court to take any such pre-emptive step. This is not a case where either consideration in [19](d) applies, for instance. The shirt samples have never been tested previously. To prevent the testing proposed would require those exhibits to remain mute when they may yet speak as to culpability or innocence. The proposed conditions will enable the defence to observe the process, and to make suggestions. The defence can, in due course, condemn the processes adopted, and condemn its inability to undertake its own testing, if that proves to be the case. Further applications may flow from the course the Crown has resolved upon taking.
Present application
[22] This application is merely for the Court’s approval of the proposed conditions. Those conditions have been clarified. “Participation” rights for the defence experts will include the ability to make suggestions as to alternative or additional testing.
[23] Beyond that it is not necessary for the Court to go. It is not necessary for the Court to “approve” the conditions. They are primarily a matter for negotiation between the parties directly. In the event of dispute as to the form of conditions, the Court may have a role. But there is no dispute here. The defence does not seek any additional conditions.
[24] Having noted the matters above, then, the application may be dismissed and matters may now take their course.
Result
[25] Application dismissed.
Stephen Kós J
Solicitors:
Crown Solicitor, Palmerston North
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