Convicted double killer Mark Lundy is expected to walk free on bail after winning a retrial at the Privy Council in London.
54 year old Lundy is serving life with a 20 year minimum non-parole period, but a technical argument over the forensic tests on alleged brain tissue on a shirt has led the Privy Council to send the murder case back to the New Zealand High Court for a fresh hearing.
Police argued Lundy was motivated by a recent million dollar insurance policy to murder his wife, and that daughter Amber was collateral damage.
The Privy Council said it wasn’t quite that simple in terms of the forensic evidence. The entire police case hung on what could be an erroneous time of death, which makes the superfast car trip irrelevant if the timing is wrong.
The Crown case at the trial, based on a post mortem examination of the bodies of the deceased, was that he had murdered his wife and child some time around 7 p.m. that evening. Since he had been in the Petone area at 5.30 p.m. and was there again at 8.28 p.m., for the Crown’s case to be right, Mr Lundy would have had to complete the round trip from Petone to Palmerston North and back and to have carried out the murders in the space of two hours and fifty-eight minutes. (The mobile telephone evidence was to the effect that the location of the telephone receiving the call was established at the start of the call, not when it ended.)
Since there were no eye-witnesses, the trial depended largely on the evidence of scientific experts. There were three main strands to the Crown’s case that were crucial to the trial.
Each of these was challenged by new evidence which, according to submissions made on Mr Lundy’s behalf to the Board, showed that there had been a miscarriage of justice.
First, the Crown had relied on evidence of the contents of Mrs Lundy and Amber’s stomachs to show that they must have died at around 7 p.m. Secondly, their experts identified biological tissue on Mr Lundy’s shirt as being central nervous system (C.N.S.) tissue from Mrs Lundy, and Mr Lundy’s lawyer had conceded that this was the case. Thirdly, although the Lundys’ computer showed it had been switched off at 10.52 p.m. that night, their experts claimed that the disordered state of some of its registry files suggested that the settings had been tampered with in order to disguise when it had in fact been shut down.
The Board then has to decide whether Mr Lundy’s conviction was safe, given the evidence emerging after trial.
The test in New Zealand, as in the United Kingdom, as to whether a conviction was safe in these circumstances is whether the new evidence might reasonably have led to an acquittal . On that basis, the Board holds that, in light of the new evidence, Mr Lundy’s conviction could not be considered safe .
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 on the contents of the victims’ stomachs .
Furthermore, the use of the particular method used to identify the tissue as C.N.S. 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 .
One of the experts whom the Crown had consulted had expressed the view that the use of this type of testing in criminal trials was novel .
Another had said that it was impossible to identify the tissue as CNS tissue [130 and 131]. The Crown had failed to disclose to the appellant’s legal advisers in advance of trial, the reports in which these opinions had been expressed.
Mr Lundy provided evidence from two experts to the effect that a virus called KAK, found on the computer, could have caused the disarray in the registry files which the prosecution expert had said showed the computer had been tampered with. One of the appellant’s computer experts advised that, in any case, the only way to achieve the same effect manually and without leaving further traces would be so sophisticated that even many computer experts were unaware of it . The possibility that Mrs Lundy was still alive and using the computer at 10.52 p.m. was completely at odds with the Crown’s case .