In possibly the last case of its kind, the UK’s Privy Council has overturned on forensic grounds a 12-year-old conviction of a NZ man for the double murder of his wife and child.
‘Double murderer’ case overturned
A businessman sentenced to life imprisonment for the murders of his wife and daughter in New Zealand has had his conviction quashed by a British court following the emergence of new evidence.
In what was probably the last case of an appeal from NZ to the Privy Council in the UK, the man may now be allowed out on bail to prepare for his new trial, Cahal Milmo reported in The (UK) Independent.
Mark Lundy, 54, has served 12 years of his 20-year minimum term for the killings of his wife Christine and their seven-year-old daughter Amber, who were bludgeoned to death with a small axe or tomahawk-like weapon at the family home on NZ’s North Island in August 2000.
The Judicial Committee of the Privy Council ruled in October 2013 that Mr Lundy’s convictions were unsafe after experts challenged evidence given at his original trial about the timings of the deaths.
(At Lundy’s trial, Crown witness Dr Rodney Miller, an American pathologist, said he used a cancer diagnostic procedure to identify animal cells on shirt material a test never before used to collect forensic evidence for a court case. When repeated on Lundy’s shirt, Dr Miller concluded there was brain or spinal-cord tissue present, the Manawatu Standard reported. Report
Mr Lundy, who owned a vineyard that was said to be in financial difficulties, was alleged to have made a round trip of 180 miles in three hours to murder his wife and child in Palmerston North before returning to a hotel near Wellington where he was staying for a business trip. Defence lawyers argued that Mr Lundy would have had to drive at an average speed of 73mph in rush hour traffic to complete the journey.
(The distance is about 290 km. His lawyers argued that, with the time taken to do the acts he was charged with, he would have had to have driven at an average speed of about 117 kph, including through peak hour traffic).
Mr Lundy was nevertheless convicted on an unanimous verdict at a trial in 2002 after jurors heard a fragment of tissue from his wife’s body had been found on his clothing. The Judicial Committee – four judges from the UK Supreme Court and one senior NZ judge – ruled that new evidence was “clearly credible”.
In their written ruling, the judges said: “Since the trial, a ‘welter of evidence’ from reputable consultants has cast doubt on the methods the Crown had relied on to establish the time of death based the contents of the victims’ stomachs. [The judges] hold that, in light of the new evidence, Mr Lundy’s conviction could not be considered safe.”
The hearing by the Privy Council is a hangover from the colonial era when the body served as the highest court of appeal for Britain’s imperial possessions. NZ now has its own Supreme Court, but since Mr Lundy’s case came before it was inaugurated, his appeal was heard in London over three days in June 2013.
The judges ruled that the businessman, who has always protested his innocence, should face a retrial and he will remain in prison until the NZ High Court has considered whether he should be freed on bail pending a new trial.
In announcing its decision, the Privy Council said it had to consider whether Lundy’s convictions were “safe” given the nature of evidence emerging after trial, according to a TVNZ report.
The test as to whether the conviction was “safe” was whether the new evidence would have led to an acquittal. The Privy Council board said in light of the new evidence Lundy’s conviction could not be considered safe.
“Since the trial a substantial body of evidence from reputable consultants has cast doubt on the methods the Crown had relied on to establish the time of death based of the post mortem examination of the victims,” the Privy Council said.
“Furthermore the use of the particular method used to identify the tissue as central nervous system tissue is controversial, both in criminal trials generally, because it is relatively untested in that context and in the particular circumstances of this case, where there is at least reason to doubt the accuracy of the testing given the state of the samples.
“Finally, evidence produced by the appellant suggested the tampering to the computer had an innocent explanation in that it had been caused by a virus that had not been detected by the Crown’s witness.”
Retried, rather than heard on appeal
The Privy Council said it was right for the case to be retried, rather than sent to the Court of Appeal, “because the divisions between the experts are so profound”.
“They range over so many areas and they relate to matters which are so central to the guilt or innocence of the appellant that they may only be properly be resolved by the trials of fact in a trail.
“The board will therefore humbly advise her majesty that the appeal should be allowed, that the convictions should be quashed and the appellant should stand trial again on the charges of murder as soon as that can be conveniently arranged.”
Mr Lundy’s supporters claim that the human tissue evidence used to tie him to the crime scene, provided by a Texan pathologist, is unreliable, and have also sought expert opinion from a British specialist to cast doubt on the reliability of stomach content tests to determine a time of death.
Mobile phone evidence shows that Mr Lundy was in or near his hotel in the suburb of Petone at 5.38pm and 8.28pm on the day of the killings, which were previously estimated to have taken place at about 7.15pm. Prosecutors said that his use of a prostitute later on the night was a crude attempt to gain an alibi.
Mr Lundy’s solicitor, Malcolm Birdling, said his client was “very happy” about the decision.
The lawyer said: “He’s very glad that this is now going to give us the opportunity to have the evidence tested properly by a jury, something which has never happened before.”