Jared Savage

Jared Savage is the New Zealand Herald's investigations editor.

Law Lords: Why Lundy evidence doesn't add up

Jared Savage, who was at the Privy Council hearing in London in June, takes a detailed look at why Mark Lundy's murder convictions were quashed.

Mark Lundy is supported by friends at the funeral of his wife and daughter. He was arrested months later.
Mark Lundy is supported by friends at the funeral of his wife and daughter. He was arrested months later.

The "brain tissue" issue

The most damning evidence against Lundy at his 2002 trial was that two specks of tissue found on his polo shirt were brain tissue.

The samples were found by the Institute of Environmental Science and Research (ESR) 59 days after the bodies of Christine and Amber were found and pathologists suggested the material might contain cells found only in brain or spinal cord tissue. But the samples were so poorly preserved that they were unable to state this categorically.

The police took the stains to Texas pathologist Dr Rodney Miller. He was also unable to positively identify the tissue under a microscope but conducted an immunohistochemical (IHC) procedure, from which he categorically stated the tissue was from the brain or spinal cord. The IHC procedure had never been used before in this manner, and was powerful evidence that went unchallenged.

At the original trial, the defence conceded the matter was brain tissue and the only issue was how it ended up on the shirt, possibly by accidental contamination during the police investigation.

One of the grounds of the Privy Council appeal was that the expert evidence given by Dr Miller, and others who relied on his opinion, was "fundamentally flawed".

Affidavits sworn by Professors Phillip Sheard, Helen Whitwell and Kevin Gatter - all experts in immunohistochemistry - concluded the tissue was poorly preserved and it was impossible to reach any conclusion as to the nature of the material. They concluded the IHC procedure was an "uncontrolled experiment" which could not produce a reliable outcome.

What the Privy Council said:

The fresh evidence "at a minimum" raised questions about the use of IHC in the forensic setting of a criminal trial. "[IHC's] widespread and successful use as a diagnostic tool is undisputed but its acceptance as a means of establishing a scientific proposition as an element of proof of guilt remains untested by any experimental or empirical means," said the Law Lords.

"While these might not avail as a basis for excluding the evidence of Dr Miller, they certainly sound on the question of what impact the new evidence might have on the safety of the appellant's conviction."

The "striking revelation"

The discovery of a previously undisclosed police document was described as a "striking revelation" by Lord Hope, one of the Privy Council members.

The report was given to Lundy's legal team in the week before the appeal in London but was never given to defence lawyers at his trial.

The letter was written by the officer in charge of the murder case, Detective Sergeant Ross Grantham, asking a senior officer for funding to visit Dr Miller in the United States to verify the stains on Lundy's polo shirt.

Dr James Pang, a pathologist for the police, thought it was brain tissue but said it was necessary for the evidence to be reviewed by a neuropathologist, Dr Heng Teoh.

Dr Teoh told Mr Grantham the tissue was too degenerated to be identified as brain tissue.

"When he looked at the slide, he commented that he did not think that [Mark Lundy] should be convicted of murder on the strength of the cells in the slide," wrote Mr Grantham.

"He further pointed out that just because Christine Lundy's DNA was on his shirt didn't mean a lot as she was his wife."

Mr Grantham went on to say this was why it was necessary to get Dr Miller's opinion.

But the document was not disclosed to Lundy's lawyers before the 2002 trial, denying a line of inquiry for the defence.

What the Privy Council said:

The Law Lords told Deputy Solicitor-General Cameron Mander it could not accept his submission that the lack of disclosure might not have altered the tactics of Lundy's defence.

"The identification of the specimen from Mr Lundy's shirt as his wife's [central nervous system] tissue was of overwhelming significance. Here was clear evidence of a neuropathologist saying, in effect, that it was impossible to identify the material as CNS tissue; that the cells had degenerated badly; and that Mr Lundy should not be convicted on the strength of this evidence."

The time of death

The time of death was crucial to the Crown case. According to cellphone records, Lundy had only a three-hour window to make the 300km round trip from Petone to Palmerston North to murder his wife and daughter.

Dr James Pang told the trial jury that he estimated the time of death between 7pm and 7.15pm on the evening of August 29, 2000.

This was solely on the basis of examining the stomach contents of the murder victims and he noted the "distinctive" absence of the smell of gastric juices.

Dr Pang did not take the temperatures of the bodies when they were found in the house, or examine them for rigor mortis. He also failed to weigh the stomach contents.

Given the time of the purchase of the meals at McDonald's at 5.38pm and the journey time home, Dr Pang said the digestion process was in the early stages which led to his estimated time of death.

Affidavits were given by several medical professionals, including Professor Bernard Knight who is a leading world expert in forensic pathology, who reviewed the findings of the Crown experts. Ironically, Professor Knight was cited by Dr Pang during the trial.

He said that the use of stomach contents as an estimate of the time of death was "so unreliable as to be of little value" as there are a number of variables which make gastric contents almost useless to determine the timing.

Professor Knight particularly questioned Dr Pang's evidence that "absence of gastric smell" was an important factor. He considered this to be "utterly without foundation and little short of ludicrous" and he had never heard of this suggestion.

What the Privy Council said:

The board noted that while Dr Pang was cross-examined during the trial, the evidence was not "subjected to the critical onslaught that is represented by the collective force" of the expert opinions obtained by Lundy's legal team.

"If their forcefully expressed opinions were accepted, the time of death evidence based on stomach contents would be wholly discredited."

The Lundy computer alibi

The Lundy family computer was switched off at 10.52pm on August 29. If Mrs Lundy had turned it off at that time, the Privy Council said this would "plainly be at odds" with the Crown case.

If that was the case, then the killer could not have been Mark Lundy, as he was with a prostitute at his Petone motel at 11.36pm.

But a police computer expert told the jury there was evidence that the computer's registry file was disordered, which suggested the time on the machine was tampered with.

Maarten Kleintjes demonstrated how it was possible to tamper with the computer and manipulate the "shut-down" time on the clock in a way that was undetectable - implying that the computer was shut down earlier than 10.52pm, which gave Lundy an alibi.

He also discounted the possibility that a computer virus could disorder the registry file saying it was "far fetched".

But a computer expert hired for the Privy Council appeal said there were several ways files could become disordered, including a virus.

Forensic examiner Michael Chappell discovered that the virus-checking program on the Lundy computer was out of date and it was infected with a virus known as a KAK worm. He traced it back to an infected email six weeks before the killings in August 2000 and when he deleted the virus, the registry files returned to their correct order.

His conclusion was there was no evidence of manipulation of the time or date.

Witnesses also said the house lights were on at 11pm, but turned off in the morning.

What the Privy Council said:

If the computer was switched off at 10.51pm, this was potentially an "important pointer" towards Lundy's innocence.

The new evidence that the KAK virus was to blame for the disordering of the registry files directly challenged the plausibility that Lundy tampered with the computer time, using a "highly sophisticated technique which many computer experts are unaware of".

Date of trial unknown

No time has been set down for when a retrial may begin in Mark Lundy's case, Crown Law says.

The Privy Council on Monday night quashed Lundy's convictions for the murder of his wife Christine and daughter Amber, 7, in their Palmerston North home in August 2000.

The Solicitor-General and head of Crown Law, Mike Heron, QC, will follow the recommendation of the Privy Council that Lundy's case go before a jury, said Jan Fulstow, a spokeswoman for the Solicitor-General.

It is likely the next legal proceedings will be a bail application from Lundy.

A variety of issues will be examined before the new trial, including a review of the evidence and the availability of witnesses. The Crown will analyse the Privy Council decision and discuss it with police and the prosecution.

Lundy's lawyer, Malcolm Birdling, has questioned whether the Crown will push for a retrial, saying it was not a given, TVNZ reported yesterday.

Ms Fulstow said "there's a lot that can happen in any trial in terms of pre-trial matters", but as it stands, there would be a second trial.

The Crown case was that Lundy, then 41, went to Wellington on August 29, 2000. He checked into a Petone motel at 5pm and 30 minutes later received a phone call from his wife.

The Crown said Lundy convinced Christine to get daughter Amber into bed by 7pm so they could have a romantic evening together. He then drove 150km back to Palmerston North at high speed, parked 500m from his home, then ran inside around 7pm and attacked his wife with a tomahawk. He then killed Amber. Lundy then sped back to Wellington, arriving just before 8.30pm when he spoke to a friend on his cellphone.

Lundy's defence was that he stayed in Petone, read a book on the foreshore, drank alcohol and paid a prostitute to visit him at 11.30pm.

The bodies were found by Christine's brother at around 9am the next day. Lundy was arrested six months later and found guilty after a six-week trial in 2002.

- APNZ, Jared Savage

Murder case unfolds

August 29, 2000
Christine Lundy, 38, and daughter Amber, 7, are murdered in their Palmerston North home.

February 23, 2001
Mark Lundy is charged with two counts of murder.

March 20, 2002
Lundy is found guilty after a six-week trial.

April 12, 2002
Lundy is sentenced to life imprisonment with 17 years in jail before he can apply for parole.

August 12, 2002
Court of Appeal rejects Lundy's bid to have his convictions quashed and instead lifts his minimum non-parole period to 20 years.

November 29, 2012
Lundy files a petition asking the Privy Council for leave to appeal.

June 17, 2013
A three-day hearing in front of the Privy Council begins.

October 7, 2013
The Law Lords quash Lundy's murder convictions.

What next?
A court date will be set to determine whether Lundy will be released on bail pending a new trial.

- NZ Herald

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