Steve Braunias reports from this week's Court of Appeal hearing on whether there has been a miscarriage of justice in the conviction of Mark Lundy for the murders of his wife and daughter.

One of the most striking things about the case of Mark Edward Lundy - the Palmerston North sink salesman accused and convicted, twice, of the murder of his wife and child 17 years ago, and now serving time in Rangipo prison, where he sat and watched the New Zealand Herald livestream of his hearing at the Court of Appeal in Wellington this week - is that it's seldom ever regarded as any kind of mystery.

The case of David Bain is a mystery, a riddle beautifully expressed by the very first trial judge: "Who did it? David Bain? Robin Bain?"

The case of David Tamihere is a mystery. He was convicted for the killing of two Swedish tourists, but we now know that a paid informant - in itself, always a dodgy tactic - provided false evidence.

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Lundy, too, knows about jailhouse snitches.

Even the case of Scott Watson is a mystery. Gerald Hope, the father of Olivia Hope, who Watson was convicted of killing in the waters of Marlborough Sounds along with Ben Smart, met Watson in prison last year and said to him: "We never got the truth. We haven't got the truth yet."

Lundy, though - Lundy doesn't get that same benefit of the doubt. It's as though we've judged him unfit to join the thrilling whodunit file of modern, heavily reported New Zealand homicides. "Guilty," said the jury at his first, ridiculous trial in 2002; "Guilty", said the jury at his 2015 retrial. New Zealand has gone along with the verdicts, consigned him to hell. Long may he rot, that sort of thing.

Why? What's the problem? How come the Lundy killings don't appear to qualify as something unknown, strange, mysterious? Very few people make it public that they actively take his side. There's a guy in Kumeu and a guy in Matamata, who have worked together to prove his innocence, and he's always been able to count on the support of his sister and her husband in Taupo; but Lundy has a brother who apparently detests him so much that he's changed his surname.

The murders were atrocious. They were committed in the family home in Palmerston North on August 30, 2000. Lundy was away on business. He checked into the Foreshore Motel in Petone and hired an escort for an hour's entertainment. Police said he drove home sometime after midnight and picked up a sharp weapon from the garage. Christine, his wife, was hit so many times and with such force that her face was no longer a face; Amber, his daughter, killed in her nightie and socks in her parents' doorway, was 7 years old.

The killings were actually only fleetingly mentioned at Lundy's three-day Court of Appeal hearing.

Mark Lundy with wife Christine and daughter Amber, circa 2000. Photo / Supplied
Mark Lundy with wife Christine and daughter Amber, circa 2000. Photo / Supplied

It has followed two High Court trials and the sensational overturning of his first conviction at the Privy Council in London. "Here we are again," said Lundy's latest lawyer, Jonathan Eaton QC, when the hearing began on Tuesday. Eaton made it sound like an exciting challenge.

"Here we go again," said Crown lawyer Philip Morgan QC, when he opened for the prosecution on Wednesday. He said it with a heavy sigh, and a grimace. It would not be the last time he tried to play the role of a man who viewed the whole thing as a giant waste of time, a man who thought that the defence was preposterous.

Eaton introduced new evidence that he said proved Lundy didn't have enough fuel to make the return trip to Palmerston North on the night of the murders. He disputed the "novel and extraordinary" scientific testing that claimed the stains found on Lundy's shirt were from Christine's brain.

He also argued the judge ought to have directed the jury at the 2015 retrial to not place any importance on Lundy's body language, or demeanour - the very thing, he said, which has made him one of the most hated figures in New Zealand.

"Everyone remembers his behaviour at the funeral," he said. "The public perception that he feigned distress has entered New Zealand folklore... He has engendered no public sympathy."

And there it was, seemingly, the answer to why the Lundy case has never been taken especially seriously as a murder mystery. "People have thought of him," said Eaton, "as a big fat so-and-so." Leaving aside the fact that no one in New Zealand public life has said "so-and-so" for approximately 50 years, Eaton's remarks struck at something important.

Lundy has never inspired public sympathy. But neither do most people accused of vicious killings or violent crimes. David Tamihere and Scott Watson both manifestly failed to arouse any kind of sympathetic response on account of their manifestly unlovely characters.

The same went for Teina Pora, wrongfully convicted for the rape of Susan Burdett; he was bad news, a Mongrel Mob gang prospect.

It's not the lack of sympathy and widespread perception of Lundy as a so-and-so that has denied his case the status of mystery. It's the perceived lack of evidence pointing away from him and to someone else. If not David Bain, then Robin Bain; if not Pora, then Malcolm Rewa. If not Lundy, then who?

The police investigation into the killings drew up a list of 82 people of interest. None of them emerged as credible suspects. But small and possibly crucial pieces of hard forensic evidence were introduced at both trials which pointed away from Lundy. They were presented this week at the Court of Appeal hearing, too. Some of it was astonishing and raised serious questions. And yet it was as though the element of mystery was introduced in stealth.

The court of Appeal is on Molesworth St, opposite Parliament, and just up the road from the High Court where Lundy was found guilty in March 2015. They do a better class of seating in the appeal court. It's the business class of the criminal justice system. There is gorgeous wood panelling, and plenty of room at the long bench at the front of the court for the three judges - Justices Helen Winkelmann, Mark Cooper and Raynor Asher - to sit and to stare down upon the masses with all due pomp and authority.

To witness an appeal hearing in action is to experience a strange and surprising spectacle. The judges are given written submissions, containing robust, careful arguments; the paragraphing is numbered, and no doubt the spelling is immaculate. But the appeal court also operates as a kind of oral exam. Counsel for both sides are required to stand and talk, freely, and at length, and to improvise answers for questions they can't possibly expect. The scene is set for a shambles. A fair bit of the Lundy hearing was duly shambolic.

Part of the police drawing, taken at the autopsy, of Christine's hands.
Part of the police drawing, taken at the autopsy, of Christine's hands.

Eaton ummed and ahhhed and stuttered and shook. "And-and-and-and", he raved, bouncing up and down on his feet, looking wildly from left to right.

As for Morgan, he relied on the old trial tactic of expressing scorn for the opponent's allegations. It generally plays well with a jury but you can't get away with that kind of strategy in front three appeal court justices.

Eaton argued that the stains on Lundy's shirt were from something he ate; Morgan sneered, "The only explanation the defence ever gave was a photo of some pork chops."

He repeated his withering reference to "some pork chops" two more times until Justice Winkelmann said, "I'm just anxious why you're going on about a plate of some pork chops."

"I can show you the exhibit photo of some pork chops," Morgan replied.

"No," said Winkelman, "I don't want to see the photo of some pork chops."

Morgan banged on yet again about the ridiculousness of some pork chops. This time Justice Cooper stopped him in his tracks: "We're not really wanting to concentrate on the business of some pork chops."

Morgan is a powerful jury lawyer. His performance at the retrial was direct and very effective. Appeal court requires a fast and nimble imagination; Morgan swayed from side to side, and merely said, "Well, sir - there it is."

He blundered into the same vexed territory of food with central nervous system tissue in it the following day when he made familiar sarcastic noises to dispute the defence theory that Lundy's short stains came specifically from a chilli beef and cheese pie. A wrapper was found in his car.

Justice Asher: "The pie contained ground beef. Ground beef includes central nervous system tissue, presumably. He picks up a fork and two drops spill on his shirt."

Morgan: "How unlucky can you be to be eating a chilli beef and cheese pie and get a piece of beef on your shirt, and Christine Lundy's DNA has got on the same spot in a large quantity?"

Asher: "I seem to successfully smear food on occasion into my shirt."

Was it bad science that did for Lundy? The stains were critical in establishing his guilt. Much of the hearing centred on Eaton's argument that the various tests - conducted in Texas and Holland - ought to have been regarded as laughable fumblings in the dark, and ruled inadmissible. By the by, he also pointed out that surely no other murder prosecution in New Zealand criminal history has relied on the police moving the goalposts so drastically from one trial to the next. In 2002, it was alleged Lundy made his "killing journey" at incredible speeds in the very early evening; in 2015, police put the time of death at around 2.30am, and now had Lundy driving with caution.

Even more by the by and by, with something almost resembling discretion, Eaton referred to pieces of forensic evidence gathered at the crime scene. Unidentified footprints in the conservatory, where it's argued an intruder broke into the house on Karamea Crescent. Unidentified footprints. Unidentified DNA found beneath the nails of both Christine and Amber, as well as unidentified fibre - which did not match Lundy's famously stained polo shirt. (Even Eaton referred to the possibility of Lundy wearing overalls, but there is no evidence he owned a pair or had bought the item.)

From the 2015 trial, there was this exchange between defence and a forensic expert witness.

"Is this right, there were similarities between the results from the fingernail samples from Christine Lundy and those found on the fingernail scrapings of Amber Lundy?"

"Yes."

"So does that mean at least one male was common to both sets of fingernails, Amber Lundy on the one side and her mother on the other?"

"Yes. I would suggest that's likely."

"And the source of course could be skin?"

"Yes."

The hearing attracted a light sprinkling of media. They included North & South writer Mike White, whose very detailed investigations into the case led directly to the Privy Council ordering a retrial, and Manawatu Standard reporter Jono Galuszka, who covered the 2015 trial more thoroughly than anyone. But neither had heard of an almost incidental piece of evidence that Eaton mentioned at Tuesday's hearing: unidentified hairs, found in both clenched hands of Christine Lundy.

They were evident in a police drawing taken at the autopsy. Christine's hands were wrapped with plastic bags at the crime scene; they were unwrapped at the morgue, and hairs were evident between her fingers. The drawing also indicated defensive wounds to her forearms.

There she was, in the last dreadful seconds of her life, holding up her hands to protect her face from the blows; had she also reached up, her fingernails scraping at the skin on her attacker's face, and grabbing at his hair? He had missed with some of his blows, and splintered the headboard. Christine had moved across the bed to get away. Was it in these seconds that she was able to collect fragments from the body of the killer who was someone else other than her husband?

The Court of Appeal has the authority to declare a miscarriage of justice, quash the convictions, and order a retrial if it believes the evidence warrants it. Lundy sits, and waits. A ruling is unlikely before the end of the year on this long, enduring mystery.