Thursday, March 12, 2015

The Lundy case, the Crown inventing a way to lose?

I think most people appreciate that a convincing argument is one that not only endures time but which has an obvious connection to logic. On both of those the Crown look to be throwing the Lundy trial to the wind. They always had a difficult task proving not only a road trip by Lundy to commit the murders and return to Wellington in what has been argued as impossible timing, but also that dna found on Mark Lundy's shirt was brain material from his wife Christine.

As we know now for the first of those tasks, the Crown simply abandoned it to offer that the road trip must have happened later. It appears that the only reason for this was that the time of death they argued in the first trial was much earlier, 'supported' by evidence of the digestion of the stomach contents of Christine and Amber Lundy. The evidence was destroyed so much so that the Crown searched for another time scenario. The dna evidence presented a much different problem for the Crown, if they didn't have hard evidence of the timing of the murders they needed the dna link more than ever. It was on this point that it looks like the Crown invented there way to lose.

One thing for sure is that the Crown are maintaining that Christine's brain matter was found on Mark Lundy's shirt. This, despite evidence, hidden from the first trial, indicated that the quality of the dna was too unreliable to base any conclusions from - a major part of the decision by the Privy Council to quash the original conviction of Lundy. So how have the Crown maintained the located on dna shirt was of both sufficient technical reliability to test but that also was capable of being reliably shown as being that of Christine? Well they have presented witnesses to prove the point including the American expert whose evidence was called bad science by the defence at the Privy Council. All good I suppose, except for the fact the defence have produced witnesses giving evidence to the contrary to such an extent, that the words contained in the previously hidden evidence that the dna was too down graded to rely upon, ring loudly. This is reminiscent of the Bain retrial where the Crown called witnesses in an attempt to undermine the evidence of their own pathologist who had resisted changing his evidence at the behest of 2 experts who had not had the opportunity to examine the body of Robin Bain, in particular and the wound to his temple. In fact there are a lot of similarities between the defence and prosecution run in both the Bain and Lundy retrials. To me David Bain was clearly not guilty and since the trial more evidence has emerged supporting that, with Lundy however I don't know enough to offer a firm opinion on his guilt or evidence but I can say that there is little convincing evidence at this stage.

Always in the background with the Lundy retrial is that the Crown so adamant that Lundy's conviction was safe, suddenly diverted into a new scenario at the retrial after holding firm on their original scenario put to the first Jury for over a decade. That adds to  the uncertainty of their case, as does Christine and Amber's dna being found in both the boot of Christine's brother and also his bathroom - not to forget the earlier evidence of dna being found under the nails of both of the deceased coming from two sources likely to be males. Looking for certainty with the dna found on Lundy's shirt, the search of his car, the transfer of other dna in the case, the first pathologist saying the shirt dna was too downgraded to produce a reliable finding and all the conflicting evidence surrounding the dna shows that in my opinion that there is no certainty surrounding the dna - only considerable doubt.

Pausing for a moment to consider a question often raised by those stumped by this case - 'If it wasn't Lundy then who was it,' or the variant 'I don't know of anyone who could have committed the crime.' As odd as these questions might be they deserve an answer, it's not for Lundy to prove somebody else committed the crime, the onus on him is to show that there is reasonable doubt that he did not kill his wife and daughter - it simply ends there. If Lundy is innocent, and judging 'long distance' on the evidence heard so far - the public have little emerging from the Courts proving guilt one way or the other, confusion for sure, conflicting evidence as well - then what of the man? It's hard to think of a man or woman that you don't know who is under trial for a crime which in this case it is alleged a man in a happy marriage who doted on his daughter was capable of killing them both. I imagine that is difficult for many people, what I can't imagine is if Lundy is indeed innocent - then what he has been through. This is another case underlying an argument that 'Justice' must be better than this, that if the Crown fail to uphold a conviction of this type that they should be restricted in 'claiming' the right for a new trial where evidence so uncertain, it's not good for public confidence and it shows what some will think is a bitterness to hold onto being right. That's a noble sentiment if it were not that Justice is not about people or the Crown personally arguing that they are right, it's about conclusive evidence pointing at guilt being assessed by a Jury. In this case 'conclusive' evidence from the first trial has proven to be anything but, evidence in tending toward showing innocence had in fact being hidden, elaborate (and more so now argued as unbelievable) scenarios have been abandoned and replaced by vague possibilities.

I think we have seen by the Privy Council for the first time in dealing with an overturned conviction for Murder in the Pora case, asking for submissions both from the Crown and defence as to whether a retrial should be held for Pora, that the PC have recognised that the Crown are exercising a right to retrial in a less than dispassionate way, in fact perhaps in a partisan way. That happened in
Bain, it looks to be happening in Lundy - so the PC have sought to offer advice on what is thrown up by both the defence and Crown as to retrials by asking for submissions on it. That is another significant advance arising from the PC, another argument why that Court should be retained as a highest appellant Court by way of Petition. The PC have again relied upon distance from the heat of battle to recognise that the conflict over Miscarriages of Justice in NZ have for a lengthy time reflected bitterness and determination rather than accord to the principles of Justice.

It is not a sound proposition in Law to hold one position for over a decade only to abandon a significant reason for that position while relying on another position which is by no means


  1. I've seen only a couple of minutes of TV coverage, specifically last night.
    The witness looked distressed.

  2. I'm missing a lot of the coverage. I guess people don't mind doing something that is questionable and which might get lost in the detail, but trying to explain why later can't be any fun.