Mark Lundy judged on grief, not evidence, defence team claims

The jury from Mark Lundy's 2015 High Court trial are accused of trying to judge whether his funeral grief was real, rather than focusing on the evidence in front of them.

Lundy's case is in its second day in the Court of Appeal today, as he fights to overturn his convictions for murdering his wife Christine and daughter Amber in their Palmerston North home in August, 2000.

The hearing is being streamed live on the Herald and Newstalk ZB sites, in a first for New Zealand media. There may be occasional delays as the court considers suppression matters.

In his final arguments to the Court of Appeal judges today, defence lawyer Jonathon Eaton QC said the jury wasn't properly warned about the dangers of trying to assess Lundy's demeanour, both in court and in media coverage before the trial.

"Studies have been replicated throughout the world, and there is a consensus of opinion, that in fact when it comes to what we think is our ability to make judgments based on demeanour it is no better than tossing a coin," he told the court.

"Everybody knew about Mark Lundy, pre-trial. Everybody had a view.

"I suggest that the overall consensus of opinion was negative towards him.

"Everybody in New Zealand had been exposed to the funeral scene. It was played again last night, it has been played in the build-up to this trial.

"Every time that Mr Lundy's case is mentioned, they play the funeral scene.

"We have television programmes and commentators and books, which write about it and refer to the funeral scene because it's what everyone knows about Lundy. And they talk about this 'performance', this 'feigning of grief'.

"The question is, was there any risk in this case that while deliberating the jury might have taken into account, in assessing the credibility of the denials in his police interview, that because they believe he was feigning grief he doesn't have any credibility and he was guilty?"

As well as whether the jury were properly instructed on what to focus on, Lundy's team is appealing on the basis that they have fresh evidence that could exonerate him.

They said testing done by Bruce Robertson at the University of Canterbury's College of Engineering, showed Lundy didn't have enough fuel to make the journey to Palmerston North and back.

Eaton said new evidence could see a jury come to a different verdict.

He argued some of the evidence included in the 2015 High Court trial should never have been shown to the jury, namely the mRNA analysis used to show two spots on Lundy's polo shirt was brain tissue from his wife Christine.

He said there was too much doubt about the reliability of the analysis, which led to the jury "drowning in a sea of science" while trying to assess critical evidence.

"This is science operating at a very high level.

"Undoubtedly this jury drowned in a sea of science. It should not come down to the jury to come to a reasonable, rational conclusion on the reliability of the mRNA analysis.

"Novel science doesn't have a place in the courtroom." The Crown lawyers are due to present their evidence to the Court of Appeal panel this afternoon.

The appeal is the latest in a long-running legal saga, since Christine and Amber Lundy were found brutally killed in their Palmerston North home.

Mark Lundy was first convicted of their murders in 2002, and his first appeal attempt resulted in the court increasing his prison sentence to 20 years.

His conviction was quashed by the Privy Council in 2013, which ruled there were problems with the analysis of the brain tissue, as well as time of death.

Lundy and his lawyers tried to have the mRNA evidence of brain tissue on his shirt thrown out before his retrial, but his team failed to successfully challenge the evidence in both the Court of Appeal and Supreme Court.

In a 2015 retrial at the High Court in Wellington, Lundy was again convicted of the murders.