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Lundy v R [2018] NZCA 410

09 October 2018

Decision

PDF document icon CJML.pdf — PDF document, 793 KB (812408 bytes)

Media release

PDF document icon MRML.pdf — PDF document, 236 KB (242120 bytes)

Summary

Appeal dismissed.

Criminal Law – murder.  Evidence – admissibility, expert evidence.  Criminal Practice and Procedure – lies direction, demeanour direction.

Mr Lundy was convicted of the murders of his wife Christine and daughter Amber following a retrial in 2015.  He appealed his conviction on several grounds.  First, the retrial should have been stayed because changes made to the Crown’s case amounted to an abuse of process.  Second, immunohistochemistry (IHC) evidence establishing the presence of central nervous system tissue (CNS tissue) on two stains on Mr Lundy’s shirt was inadmissible because of concerns relating to its reliability in the context of a criminal trial.  Third, messenger RNA (mRNA) evidence was inadmissible, which was relied on by the Crown to establish that the tissue on Mr Lundy’s shirt was human CNS tissue.  Fourth, in reliance on evidence relating to fuel consumption obtained after the retrial, Mr Lundy could not have committed the murders as there was insufficient petrol for him to have made the journey from Petone to Palmerston North and back.  Finally, there should have been demeanour and lies directions from the trial Judge. 

Whether the retrial should have been stayed as an abuse of process?  Held: no — the authorities relied on by the appellant do not apply once a retrial has been ordered; the essential elements of the Crown case remained the same; the seriousness of the crimes alleged militates against a claim of abuse of process and there was a very strong public interest in the retrial proceeding.

Whether the IHC evidence was admissible?  Held: the IHC evidence was admissible; all of the experts called at the retrial agreed that the IHC methodology and results showed that the tissue was CNS tissue.

Whether the mRNA evidence was admissible?  Held: the mRNA evidence should not have been admitted at the trial.  The evidence could not have been substantially helpful to the jury; the Crown was not able to point to widespread acceptance of the methodology; the evidence could not cross the reliability threshold in the absence of peer review, known or potential rate of error, standards, and general acceptance in the scientific community.

Whether the jury could conclude that that Mr Lundy was able to travel from Petone to Palmerston North to commit the murders?  Held: yes — the evidence in relation to fuel consumption that Mr Lundy relies on is not cogent.

Whether the Judge erred in failing to give a demeanour direction?  Held: the Judge did not err, as Mr Lundy’s conduct at the funeral of his wife and daughter and the jury’s request for a replay of his police interview did not give rise to the need for a demeanour direction.

Whether the Judge erred in not giving a lies direction?  Held: the Judge did not err; and Mr Lundy’s counsel had said to the Judge that a direction was not sought.

Whether the appeal should be dismissed because no substantial miscarriage of justice has actually occurred? Held: the proviso to s 385 of the Crimes Act 1961 should be applied; a guilty verdict was inevitable had the trial proceeded without the mRNA evidence because of the Crown’s IHC evidence and evidence of Christine’s DNA on Mr Lundy’s shirt; and the admission of the mRNA evidence did not have the effect of making the trial unfair.