The Queen v Lundy

IN THE COURT OF APPEAL OF NEW ZEALAND

CA106/02
CA137/02

THE QUEEN

MARK EDWARD LUNDY

Hearing:	31 July 2002
Coram:	Tipping J McGrath J Glazebrook J
Appearances:	M J Behrens and O S Winter for the Appellant J C Pike and B Vanderkolk for the Crown
Judgment:	13 August 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

Mark Edward Lundy appeals against his conviction for the murders of his wife and his seven year old daughter, Amber. His appeal is based on the ground set out in s385(1)(a) of the Crimes Act 1961 that the verdicts of the jury should be set aside because they are unreasonable or cannot be supported having regard to the evidence. An appeal on this basis does not involve this Court in conducting a re-trial. What the appellant must demonstrate is that the jury, after properly considering all the evidence, must have been left with a reasonable doubt. If, on all the evidence, it was open to a reasonable jury to convict, this ground of appeal cannot succeed.
The Crown’s most cogent piece of evidence supporting its contention that Mr Lundy was the person who killed Mrs Lundy and Amber, was the finding of Mrs Lundy’s brain tissue on Mr Lundy’s shirt. His shirt was seized by the police from his car on his arrival back home on the day following the murders. There was evidence, which the jury was entitled to accept, to the effect that when the brain tissue made contact with Mr Lundy’s shirt, it cannot have been outside Mrs Lundy’s body for very long – seconds or minutes was how it was put by Dr Millar, the overseas pathologist called by the Crown. The inference available to the jury from this evidence was that Mrs Lundy’s brain tissue reached Mr Lundy’s shirt while he was in the course of killing her and that he killed Amber because she was a witness to the killing of her mother. Mr Behrens QC argued that it was not open to the jury to draw this inference because of other evidence which demonstrated that it was physically impossible for Mr Lundy to have been the murderer.
The jury was entitled to accept evidence to the effect that the murders took place at or just after 7pm. Other evidence demonstrated that Mr Lundy was in the close proximity of a motel in Petone at 5.30pm and again at 8.28pm on the same day. These times are established by cellphone records. Mr Lundy’s contention, put in simple terms, is that there was not enough time between 5.30pm and 8.28pm for him to have driven from Petone to his home in Palmerston North, committed the murders and returned to Petone so as to be back there by 8.28pm. He therefore contends that the inference available against him from the presence of Mrs Lundy’s brain tissue on his shirt, is matched by the physical impossibility of his having committed the murders. Hence, so Mr Behrens argued, it was not open to the jury to convict him and their verdicts were unreasonable and cannot be supported having regard to the evidence which, in Mr Lundy’s submission, demonstrates that he could not have been the murderer.
The appeal therefore turns essentially on whether the jury must have been left with a reasonable doubt on the basis that Mr Lundy could not have committed the murders, in spite of Mrs Lundy’s brain tissue being found on his shirt, and the other evidence supporting his guilt.

An overview

The murders took place on Tuesday 29 August 2000. On that day Mr Lundy was on one of his relatively frequent visits to the Wellington area on business. He was due to stay the night at a motel in Petone. Mrs Lundy and Amber were in the family home in Palmerston North. At 5.30pm Mrs Lundy rang Mr Lundy on her cellphone. He received the call on his cellphone. The call lasted eight minutes. At its commencement Mr Lundy was in the close vicinity of the motel. On the evidence the jury could reasonably have found that Mr Lundy was on the point of leaving the motel in his car. This inference derives from the lack of cellphone reception, through the relevant site, inside the motel, coupled with the fact that cellphone site data fixed his position as being very close to the motel. Mrs Lundy purchased a meal at McDonalds in Palmerston North at 5.43pm. It would have been a reasonable inference for the jury to draw that she returned to her home and that she and Amber ate the meal at about 6pm. Mrs Lundy received a phone call from a friend at 6.58pm. She was therefore still alive at that time.
Her body was found next morning lying naked in her bed. Amber was dead too. They had both been hacked to death by means of blows to the head with a weapon such as a tomahawk. As mentioned earlier, the jury was entitled, on the evidence, to find that the time of death was shortly after the 6.58pm phone call, ie. 7pm or a little later. Mr Lundy claimed he had remained in Petone following Mrs Lundy’s 5.30pm call. There was no evidence other than his own to support that contention. The jury could reasonably have come to the view that it was more than a coincidence that the time of death was almost exactly half way through the period from 5.30pm to 8.28pm during which, if they rejected his evidence, Mr Lundy could have been absent from Petone. As the appeal turns substantially on the alleged impossibility of Mr Lundy having committed the murders it is appropriate for us to examine the evidence in that respect first. We will then refer to other aspects of the evidence referred to by counsel.

Driving time

The Crown accepted at trial that if it was impossible for Mr Lundy to have driven the distance from Petone to Palmerston North and back, and committed the murders, in the period of just short of three hours said to have been available to him, he should be acquitted. The Crown’s case to the jury was, however, that this was not impossible and, in the light of all the other evidence, Mr Lundy must have done so. The jury obviously accepted the Crown’s contention. It had evidence of the distance involved and of the absence of roadworks and temporary speed restrictions when Mr Lundy was said to have made the round trip. There was evidence of Mr Lundy’s ability to drive and choosing to drive at very high speeds on occasions. He was on this occasion driving a large and powerful car. The Crown did not attempt any reconstruction of the journey which it submitted the appellant must have undertaken, albeit some data was elicited from police witnesses in cross‑examination.
The defence called a licensed private investigator, Mr Bass, who was allowed to give evidence of three replicated journeys from Petone to Palmerston North which he undertook a year later. There were of course obvious difficulties with such evidence in that there was no way in which traffic and other conditions could reasonably be compared. Mr Bass did not use an entirely comparable car, nor did he necessarily follow the same route. He was not as familiar with the potential routes as Mr Lundy. He did not take the same kind of risks that a person in Mr Lundy’s circumstances might have taken. Mr Bass encountered roadworks which Mr Lundy would not have encountered. In summary, there was nothing in the evidence of Mr Bass as to the times it took him to make the journey on his three occasions which made it unreasonable for the jury to conclude that Mr Lundy could have made the return trip and committed the murders in just under three hours. Nor was it unreasonable for the jury to have concluded, as they must, that the car similar to Mr Lundy’s, seen in the motel car park a little after 6pm, was not in fact Mr Lundy’s car.

Petrol consumption

There was evidence that Mr Lundy had filled his car with petrol during the afternoon of the day on which the murders were committed. The police drove the distance Mr Lundy was said to have travelled in order to establish precise distances and petrol consumption. By dint of evidence obtained from filling Mr Lundy’s car with petrol after it was seized the following day, the police were able to establish that if Mr Lundy had not made the return trip from Petone to Palmerston North, and had done only the mileage he had claimed to have done, he would have used fuel at 27 litres per 100 kilometres, approximately twice the normal rate that might have been expected. Mr Lundy explained this by the speed at which he had returned to Palmerston North the following morning. About five months later he raised the suggestion of theft from his petrol tank but he resiled from this suggestion when giving evidence at his trial. The jury was entitled to regard the petrol consumption evidence as significant in that Mr Lundy’s actual fuel consumption was broadly consistent (if some petrol had been bought en route) with the distance the Crown contended he had travelled, ie. three trips between Petone and Palmerston North. The evidence was not consistent with Mr Lundy having undertaken just the one trip the following morning, as he claimed.

Amber’s DNA on Mr Lundy’s shirt

Not only was Mrs Lundy’s brain tissue found on Mr Lundy’s shirt but analysis also showed DNA from Amber on the shirt. The most probable source was her blood. While there was always the possibility that the blood could have got on to his shirt innocently on a previous occasion, the jury were entitled to regard this evidence as significant. It was a strange coincidence if Mr Lundy was innocent.

Paint flakes

Bone fragments from Mrs Lundy’s skull were found to have fragments of paint adhering to them. There were two colours in close proximity. These two colours and the chemical composition of the fragments were the same as those with which Mr Lundy painted his tools. Mr Behrens stressed the presence of other paint flakes which did not match these colours. While that is so, the jury were entitled to regard the presence of the matching flakes as more than a coincidence. One colour match would have been a strange coincidence in itself but two colours exactly matching the paint found in Mr Lundy’s shed and with which he was known to paint his tools, could have been regarded by the jury as stretching the long arm of coincidence too far. A reasonable inference available to the jury was that the weapon which killed Mrs Lundy and Amber, and which was never found, was linked in this way to Mr Lundy. That fact coupled with the brain tissue evidence constituted strong evidence that he was the murderer.

The computer

The computer in the Lundy house appeared to have been switched off at 10.56pm on the evening of the murders. That time is of course nearly four hours after the Crown said the murders were committed. There was, however, evidence from which the jury could have concluded that the computer had been manipulated so that the shut down time was false. It was a reasonable inference for the jury to draw in the light of the other evidence that Mr Lundy was the person responsible for the false reading and that he had manipulated the time clock on the computer so as to make it look as if the murders had been committed some time after 10.56pm. At that point he was back in the motel at Petone and not long thereafter in the company of a female escort whose services he arranged by a phone call made at 11.26pm. She left the motel shortly after 12.37am.

Evidence of Mrs Dance

This witness, the reliability of whose evidence was for the jury, lived in the vicinity of the Lundy home in Palmerston North. She had an engagement at 7pm on the evening when the murders were committed. As a result of the arrival of some unexpected visitors, she did not leave her home until 7.12pm or thereabouts. When she drove away she saw an unknown car parked on the street. Its colour and size were consistent with Mr Lundy’s car. It was parked some 400 to 500 metres from the Lundy home. As she drove out of her property she saw someone running towards her on the footpath. She thought the person was running away from something. The person was a male and appeared to be wearing a blond curly wig. The person looked “absolutely terrified or frightened”, he had an odd sort of run as if not used to running, and was “fat, quite a fat sort of person”. Mrs Dance did not see this person’s features “too much”. What really hit her, as she put it, was the “absolute horror struck expression” on the person’s face. In short, Mrs Dance’s description was consistent with her having seen Mr Lundy running to his car after having committed the murders. That it was Mr Lundy she saw was a conclusion open to the jury. They could have inferred that he had parked his car some distance from his home to avoid recognition. The blond wig was explicable as an attempt at disguise.

Time of death

We have already indicated there was evidence, which the jury was entitled to accept, putting the time of death at about 7pm. This evidence related the after death stomach contents of Mrs Lundy and Amber to the time of their last meal, which it was a reasonable inference was eaten at about 6pm. The time of death evidence supported the inference that Mr Lundy had manipulated the computer time clock and the inference which the jury could draw from the evidence of Mrs Dance. Mr Behrens raised criticisms of this evidence but, having considered all that counsel said, we consider the jury was entitled to accept Dr Pang’s conclusion supported as it was by Dr White and Dr Barbezat. There was no defence evidence directed to the time of death. The point was essentially a jury one. The conclusion that the deaths occurred about 7pm was supported by evidence and certainly cannot be described as unreasonable. It is unnecessary for us to go into further detail.

Contamination of evidence on shirt

Mr Behrens advised the Court that although deliberate contamination of Mr Lundy’s shirt with brain tissue was suggested at the trial, that suggestion was not pursued on appeal; but the possibility of accidental contamination was pursued. Counsel argued that brain tissue could have been transferred accidentally to the shirt by someone who had attended the post mortem and had later come into contact with the shirt. Alternatively a person attending the post mortem could have transferred the brain tissue to another person who came in contact with the shirt. The shirt was discovered by the police in Mr Lundy’s car when it was searched some days later. It was found in a suit bag and protected in that way, albeit the suit bag was not closed. The jury’s rejection of the possibility of accidental contamination was said to have been unreasonable, particularly because the Crown had failed to do a further and more specific test called the Myelin test. In this last respect we observe that the jury had to make its decision on the evidence they had rather than on further evidence the Crown might have produced. In any event we regard the possibility of accidental contamination in the ways suggested or indeed in any other way as able to be discounted by the jury as fanciful. The jury were entitled to reject accidental contamination as not being a reasonable possibility. The evidence that the brain tissue had been away from Mrs Lundy’s body only for seconds or minutes before adhering to the shirt virtually ruled out any form of contamination, whether accidental or deliberate. In addition the suggestion of accidental contamination was an entirely speculative one, lacking any objective support in the evidence. We cannot therefore accept the contention that the jury took an unreasonable view of this aspect of the case.

General points

We have considered Mr Behrens’ argument in relation to lights being seen on in the Lundy house later in the evening than 7pm – about 10pm - and the absence of lights being on in the morning. We have also considered the points raised on the bedtime routines and habits of Mrs Lundy and Amber and the circumstance of Mrs Lundy being found naked in the bed. We have considered Mr Behrens’ submissions concerning family relationships and in particular Mr Lundy’s relationship with Amber. None of these points touch directly on the physical impossibility argument which formed the essential basis of the appeal. We have nevertheless given the various points which counsel made careful attention in our overall appraisal of the evidence. We have in similar vein considered the points made in relation to the lack of any other forensic material being found on Mr Lundy or in his car. None of these matters causes us to doubt the reasonableness of the jury’s conclusion.

Fresh evidence

The Court gave Mr Lundy leave to call, in support of his appeal, the evidence of Mr David Stanley who did not give evidence at the trial. Mr Stanley saw a man who he thought was Mr Lundy sitting in a car on the Petone foreshore reading a book about 6.30 to 7pm one evening. He could not be specific as to day, date or time and understandably that is why he did not come forward earlier. If this evidence had been called at the trial and had stood alongside the evidence suggesting that Mr Lundy was the murderer, we do not consider it could reasonably have made any difference to the verdict. Mr Stanley could well have been speaking about a different occasion or a different person. As evidence of alibi, Mr Stanley’s evidence actually amounted to comparatively little. Mr Behrens argued that a new trial should be ordered because of the consistency of Mr Stanley’s evidence with what Mr Lundy had told the police about his movements on the crucial evening. Had Mr Stanley’s evidence been before the jury it could well have considered that, in the light of all Mr Lundy’s careful planning, he was capable of trying to use a scenario which had actually occurred on another occasion as cover for the relevant occasion in the hope that someone might have seen him but been unsure of the date. In short Mr Stanley’s evidence, when set against the weight of the evidence suggesting that Mr Lundy was the murderer, does not have sufficient cogency to justify a new trial.

Conviction - conclusion

We have carefully examined all the evidence to which we were referred and the points which counsel made in their submissions. As noted earlier, the case was a circumstantial one requiring assessment by the jury, on all the evidence, whether the Crown had proved that Mr Lundy was the murderer. As Mr Behrens properly acknowledged there was evidence upon which the jury were entitled to find the charges proved, provided they were satisfied that Mr Lundy could physically have made the return journey and committed the murders in the period of 2 hours 58 minutes during which there was no independent evidence that he was in Petone. We are satisfied that the jury’s implicit finding that it was physically possible for him to have committed the murders was a finding to which the jury was reasonably entitled to come on the evidence. The time period was not so short that the murders were a physical impossibility.
The jury could reasonably have found that Mr Lundy made the journey from Petone to Palmerston North in about one and a half hours. That, on the distance of about 150km mentioned below would have involved an average speed of about 100kph. Mr Lundy could then have committed the murders and altered the computer and been returning to his car at about 7.12pm. His return journey could have been accomplished in the remaining one hour and 15 minutes. In the circumstances the jury could reasonably have concluded that he drove back to Petone at breakneck speed so as to make his absence as short as possible. The distance between the Lundy home in Palmerston North and the motel in Petone was measured at between 147 and 150km depending on the exact route. To drive that distance in 75 minutes involves an average speed of about 120kpm. The jury were, in our view, entitled to conclude that this was by no means an impossibility, particularly bearing in mind the circumstances in which the journey took place. The jury had evidence, as noted earlier, that Mr Lundy was known to drive at very high speeds on occasions and was on this occasion driving a powerful car.

In summary, the Crown case was a strong one. When viewed in combination, the presence of Mrs Lundy’s brain tissue on Mr Lundy’s shirt, the paint fragments found on her skull, and the forensically established time of death at about the mid point of Mr Lundy’s suggested absence from Petone, constituted powerful evidence of his guilt. The jury were also entitled to take the view the Crown had established that it was physically possible for Mr Lundy to have committed the crimes. For these reasons we are not persuaded that the jury’s verdicts were unreasonable or unable to be supported having regard to the evidence. The conviction appeal is therefore dismissed.

Sentence appeal

Mr Lundy was sentenced to the then mandatory term of life imprisonment. A minimum non parole period of 17 years was imposed by the Judge under s80 of the Criminal Justice Act 1985. This section, indeed the whole of the Criminal Justice Act, has now been repealed from 1 July 2002 by the Sentencing and Parole Acts 2002. But the previous law applies to this case as the crimes were committed before the new law came into force. The Crown seeks leave to appeal against the period of 17 years on the basis that it was inadequate to denounce the gravity of the offending. A period of not less than 20 years is sought. Mr Winter, who argued this aspect of the case for Mr Lundy, submitted that the trial Judge’s assessment of the appropriate length of the non parole period should not be disturbed.
We start our discussion with the premise that the assessment of a trial Judge, who has heard all the evidence, is generally entitled to considerable weight on a point such as this. Ordinarily the Crown must show that the assessment was clearly wrong, either in itself or on account of insufficient weight having been given to an important feature of the case. In this instance, however, the Judge’s approach to the length of the non parole period has an initial difficulty. In his sentencing remarks the Judge made the following statements in close proximity to each other. They are not immediately easy to reconcile. First he said:
As to motive, all the Court can do is accept that when you learned of the collapse of your vineyard project, you snapped and in desperation saw the death of your wife as the only way of obtaining funds. To this extent, therefore, this was not so much a cold blooded and premeditated matter, but rather the actions of an unbalanced and desperate man who became mentally unhinged.
Shortly after that he said:
This was a premeditated killing of your wife, carefully planned and executed. The killing of your daughter was not planned, but occurred because she witnessed the killing of her mother.
The Judge’s reference to Mr Lundy “in desperation seeing the death of his wife as the only way to obtain funds” was a reference to an insurance policy for $200,000 which covered Mrs Lundy’s life and would ostensibly have given Mr Lundy some financial assistance on her death. He was, however, in debt to a much greater extent than that. There was reference in the evidence to the cover on Mrs Lundy’s life being increased to $500,000. That increase had not, however, come into effect and Mr Lundy would no doubt have attracted very considerable suspicion if his wife had been killed soon after the increase had become effective. The Judge’s reference to Mr Lundy having “snapped” and being an “unbalanced and desperate man who became mentally unhinged” was not based on any psychiatric or psychological evidence. There was none. We are therefore constrained to the view that the Judge must have based his remarks on the premise that the conduct of someone who kills his wife (that being the focus of the remarks, rather than the killing of Amber), is so irrational that his mind must have been unhinged. Whatever may be the force of or justification for that conclusion there can be no suggestion on the evidence that Mr Lundy’s culpability could thereby properly be regarded as diminished in any material way.
If one first focuses solely on Mr Lundy’s conduct in killing his wife, that conduct must be regarded as abhorrent and reprehensible in the extreme. Standing alone it would require strong denunciation, that being the primary purpose of an order under s80. That is the position before any attention is given to the fact that at the same time Mr Lundy killed his seven year old daughter. Leaving that dimension aside for the moment, we are of the view that a minimum non parole period of 15 years would have been appropriate for the killing of Mrs Lundy had it stood alone. This appraisal is consistent with the 15 year period recently imposed by this Court, when allowing a Crown appeal in the case of Colin David Bouwer CA418/01 and CA431/01, judgment 24 June 2002. That case involved a doctor who had killed his wife by poison. If anything it was worse, but the Crown did not seek a longer period than 15 years.
The question becomes whether an additional two years was a sufficient recognition of the need for very strong denunciation of the killing of Amber as well as that of Mrs Lundy. The evidence suggests that Mr Lundy planned the killing of Mrs Lundy very carefully. He must have appreciated that Amber, who was in her own bedroom, would hear what was happening to her mother and was likely to come into the room where her mother was being hacked to death by her father. Mr Lundy must have appreciated that Amber would recognise him and he must therefore have known that he was running a substantial risk of having to kill her in order to conceal his identity and make it look as though both of them had been killed by an intruder. This of course is exactly what happened. In terms of culpability, Mr Lundy must therefore be regarded as having willingly run the risk of having to kill his own daughter, of whom he was said to be very fond, in order to save his own neck. It is impossible to think that these thoughts would not have been running through his mind as he was driving from Petone to Palmerston North, by which time any thought of Amber not being at home must have evaporated. As was to be expected Amber must have come into the room, seen what was happening to her mother and turned to flee. She was caught by her father who administered several severe blows with the weapon to her head from behind. She must have died with the awful injuries to her mother as her last living memory. We have to say that Mr Lundy’s murder of his daughter in these circumstances, coming on top of the murder of his wife, requires denunciation and demonstration of society’s abhorrence at a very high level. The trial Judge did not, in our view, give this aspect of the case enough weight. He really only mentioned the involvement of Amber in passing.
Mr Winter appropriately referred to the case of David Bain (T1/95 Dunedin 21 June 1995) who killed five family members and received a minimum non parole period of 16 years. Counsel suggested that anything over 17 years for Mr Lundy could not be justified in the light of the Bain sentence. That sentence was, however, imposed some seven years ago. Society’s attitude to very serious violent crime has hardened since then. Furthermore, the Bain sentence was imposed before the criterion for minimum non parole orders was changed from exceptional circumstances to sufficiently serious circumstances. That occurred in 1999.
The letting in of relatively less serious cases at the bottom of the scale by this change was a signal from Parliament that the minimum non parole jurisdiction was to be widened. The necessary consequence, in our view, is that in order to maintain relativity, sentences throughout the range needed adjustment. Although there have been suggestions that this was not so, we regard them as inconsistent with the statutory purpose behind the change to the criterion.
We return to Mr Winter’s submissions. He suggested that no rational man would have seen $200,000, against Mr Lundy’s level of debt, as being worth the risk he was taking. That may be so but if Mr Lundy was to this extent acting irrationally, that does not, in the absence of any medical grounds, justify a lesser level of denunciation than the facts objectively require. Mr Winter argued that the Judge’s “unhinged” observation must have related essentially to the killing of Amber. We have already noted that the context related to Mrs Lundy. But even so, as we have already said, Mr Lundy must have appreciated that the fulfilment of his plan as regards his wife would be likely to confront him with what to do about Amber. We take him as having deliberately run the risk that her killing might be necessary, albeit he may have entertained some hope that he would not have to take that step.
Having considered these and all the other points which Mr Winter made, we are nevertheless of the view that the Crown was right in its submission that a non parole period of 17 years is not adequate to reflect the level of abhorrence and denunciation which was required for these carefully planned (or, in Amber’s case, deliberately risked) and brutally executed double murders. That the two killings were a gross breach of trust hardly needs to be stated. What is more the victims were in the sanctity of their own home. The killing of Amber was about the grossest imaginable form of violence involving a young child. That appears, with respect, not to have been sufficiently reflected in the length of the term selected by the Judge.
For these reasons we give leave to the Crown to appeal; we quash the minimum non parole order made by the Judge, and make an order requiring Mr Lundy to serve 20 years imprisonment before he is eligible to be considered for parole. In terms of s80(3) that is the minimum period we consider to be justified having regard to all the circumstances of the case, including those of Mr Lundy.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 197

13 August 2002