Mark Lundy’s appeal against his conviction for murdering his wife Christine and seven-year-old daughter, Amber, has been dismissed.
The Court of Appeal heard Lundy’s appeal in October 2017, two-and-a-half years after he was reconvicted for murdering his wife and daughter.
In a three-day hearing, Lundy’s lawyers argued, among other things, that novel scientific testing should not have been admitted as evidence at his retrial. Lundy’s lawyer, Jonathan Eaton QC, highlighted mRNA testing carried out by a Dutch laboratory, which purported to show two tiny specks on Mark Lundy’s shirt were more likely to be of human origin than another animal. The Crown argued the specks were brain or central nervous system (CNS) tissue from Lundy’s wife, Christine, which had got onto Lundy’s shirt while he attacked her, or afterwards.
The highly complex and contentious evidence was allowed to be heard by the jury at Lundy’s retrial, but even the judge struggled to understand it at times. Eaton told the Court of Appeal much of the evidence was “unintelligible”, the jury was “unquestionably drowning in a sea of science”, and the mRNA science was “untested and novel”.
“This is an issue that should have been thrashed out between the experts in peer reviews and in conferences, not in front of a jury.”
However the Court of Appeal has concluded that the admission of the mRNA evidence did not lead to an unfair trial.
At the Court of Appeal hearing, Crown lawyer Philip Morgan QC tried to minimise the importance of the mRNA test, stressing the core issue was that all the experts had already agreed Mark Lundy had central nervous system tissue on his shirt, in an area that had Christine Lundy’s DNA.
But the original testing which supported this, conducted by Texan pathologist Rodney Miller, was ridiculed by a leading international expert, earlier this year. The procedure, called immunohistochemistry (IHC), is commonly used as an adjunct test in cancer diagnosis, and in research laboratories, to help establish what cells are present. In this instance, Miller used IHC on a fabric sample and on tissue that hadn’t been specifically prepared for IHC.
IHC has never been used forensically in a court case before or since Lundy’s 2002 trial, and was carried out by Miller who is not a forensic pathologist and admitted he knew “squat” about ISO standards for forensic laboratories.
Dr Bennet Omalu, a forensic pathologist, neuropathologist and professor of medical pathology at the University of California, labelled Miller’s testing “crazy” in a June 2018 article in America’s D Magazine.
“This is simply ridiculous…If this was the only evidence that linked him to the crime, then this is a travesty of justice. Simply unbelievable…IT IS BULLSHIT.”
Omalu is best known for his work on the effects of head injuries on sportspeople, and his story was made into the 2015 movie Concussion.
Miller has steadfastly maintained the accuracy of his testing, and prior to Lundy’s retrial, conducted new tests by smearing human brain on shirt fabric. However, these tests have also become mired in controversy, with the brain he used shown to have been obtained illegally by another doctor, Ruth Word, and given to Miller without permission. The brain came from an 85-year-old woman who donated her body to the University of Texas Southwestern Medical Center, where bodies are used for “the training of medical personnel and the advancement of medical science through education and research”.
Word obtained the brain via a colleague and delivered it to Miller in a plastic bucket, but there was no documentation, nothing to certify whose brain it was or when it had been removed, and nothing that officially verified its movements.
An internal investigation found Word’s actions violated both the medical centre’s protocols and State regulations. The university’s medical centre said actions have been taken “to ensure similar transfers will not occur in the future”.
Mark Lundy’s case goes back to 30 August 2000, when Christine and Amber’s bodies were found in their Palmerston North home. They’d been bludgeoned with something like a tomahawk, Christine’s face unrecognisable, Amber hacked down from behind as she tried to escape.
Mark Lundy had gone to Wellington the previous day on business, selling kitchen sinks and taps, and stayed overnight. After hearing news police were swarming over his Karamea Crescent house, he raced home, only to be stopped by police on Palmerston North’s outskirts and taken in for questioning.
It was six months, however, before he was charged with the murders, police accusing him of making a breakneck trip through rush hour traffic between his Petone motel and Palmerston North, early on the evening of August 29, in order to kill his wife and daughter. They argued he was in financial trouble, and killed his family for the insurance payout on Christine. Two specks of what was supposedly Christine’s brain tissue, found on a shirt in Lundy’s car, gave him away, the court was told at his 2002 trial, along with flecks of paint on Christine’s body that matched tools in Lundy’s garage.
In March that year, the jury found him guilty and Lundy was sentenced to a minimum of 17 years in jail, increased to 20 years on appeal. While dozens supported and visited him before the verdict, virtually nobody did afterwards, not his best mates, not his best man, not even his brother Craig.
But a few stuck by him, couldn’t conceive he’d have killed Christine and his cherished daughter, and didn’t think the evidence stacked up.
Led by Auckland businessman Geoff Levick, they spent 10 years amassing documents, obtaining the assistance of world experts, and eventually persuading expat Kiwi and top London QC David Hislop to take the case to the Privy Council.
The five judges unanimously agreed there was considerable doubt about the evidence that had convicted Lundy, and in October 2013 ordered a new trial. Lundy was released in the interim.
In February 2015, Lundy’s retrial began at Wellington’s High Court. However the Crown case about how Mark Lundy committed the murders had fundamentally changed since his first trial, with prosecutors abandoning the scenario they had insisted on for nearly 15 years.
At his original trial, the Crown insisted Lundy made a 300km round trip between his Petone motel and Palmerston North home, and killed his family, in three hours, despite much of it being in rush-hour traffic.
The pathologist who examined Christine and Amber Lundy’s bodies, James Pang, said death occurred about 7pm – maybe 7.15pm at the latest, despite Christine being naked in bed and Amber appearing to have been in bed before being struck. To bolster this scenario, police produced a witness, self-proclaimed psychic Margaret Dance, who claimed to have seen Lundy running down the road near his home at this time, wearing a blonde woman’s wig to try and disguise himself.
They also claimed Lundy had expertly manipulated the family’s computer to make it appear it was shut down at 10.52pm – a time when Lundy couldn’t have committed the murders.
For a decade, experts from around the world pilloried the findings of Pang, police computer expert Maarten Kleintjes, and Dance’s remarkable claims, but the police and Crown fiercely defended their improbable scenario.
However, just two weeks before Lundy’s retrial, the Crown announced it had changed its theory and now said Lundy didn’t make a madcap drive, nor did he alter the home computer, nor was it calling Margaret Dance to testify again. Instead, prosecutors now claimed Lundy had waited till around 1am on August 30 before setting off from Petone, driving sedately so as not to be noticed, and killed Christine and Amber sometime after 2.30am, before slipping back to Petone undetected. To accommodate this theory, the police and Crown dispensed with another core argument, that Lundy had somehow bought more petrol for his secret trip back to Palmerston North. Now they said he had just the right amount of fuel.
In essence, the Crown was admitting what its critics had said for so many years – that Mark Lundy had effectively been originally convicted on a lie.
Ironically, Ben Vanderkolk, the same Crown lawyer who’d insisted in 2002 that the murders had occurred at 7pm based on stomach contents, Dance’s evidence and the supposed computer tampering, now argued all this was utterly unreliable or irrelevant and there was no way Christine and Amber died until at least seven hours later.
However, the Crown had bolstered its evidence regarding the two specks of supposed brain or central nervous system tissue found on Lundy’s shirt, arguing it was beyond doubt this was Christine’s brain that had got there during or after Lundy attacked her. “No husband should have his wife’s brain on his shirt,” Crown prosecutor Philip Morgan QC thundered to the jury. And they believed him, finding Lundy guilty again after a seven-week trial.
However, some of the evidence produced by the Crown at Lundy’s retrial was at the heart of his 2017 Court of Appeal hearing. The decision, released today after an extraordinary period of consideration by the Court of nearly a year, may not be the last legal chapter in the case, with Lundy’s legal team likely to appeal for leave to have the case heard in the Supreme Court.