Easy to forget the Lundy case which until Mark Lundy was convicted a 2nd time looked a fair chance of being found not guilty. The case against him was in shreds and as readers know the Crown essentially offered a 'fresh' theory at the retrial as to how Lundy killed his wife Christine and daughter Amber. I was surprised by that for a number of reasons. Primarily because the Crown held onto the old theory for over a decade denying in ever way that any of it was wrong. This despite misgiving about a 'hair raising' drive that Lundy was said to have made in a rush to kill his family before returning to a rented motel room in Wellington. At the hearing of Lundy's appeal to the Privy Council we learnt of a Crown scientist reporting that dna found on Lundy's shirt, and said at the trial to be that of his wife, was too down graded in the expert's opinion to provide reliable testing. That information was never released, despite the rules of disclosure, to Lundy's lawyers at his first trial. There was also some remarkable evidence by a pathologists who claimed to be able to narrowly define the time of death of the victims by a 'smell test' of the contents of their stomach along with a visual inspection of the same. That may have been a world first, and last, though remains an indicator as to why there has been public disquiet about the Lundy convictions.
Somewhat miraculously for The Crown they also found a woman who gave evidence of a fat women running away from the vicinity of the Lundy household around the time of death. Another miracle of sorts was performed by a police computer expert who said that the time clocks of the family computer had been altered forward in order to show Christine was up after the time designated as the time of death. In other words Lundy had done this to throw investigators of the trail. In all, every aspect of the theory was covered and it would only be at the Privy Council hearing where the public would hear how fragile and incorrect the case against Lundy had always been. In fact that it has been put together on hope and opinion which did not bare examination. That the bizarre aspects of the case were accepted by the NZ Court of Appeal who even wrote about the drive at 'breakneck' speed, and also who went from declaring the murders well planned to only later say that Lundy had snapped shows reason for concern about Judgements from that Court in the 1990s and early 2000s when the same Judges were being elevated some much competence to be seen to no longer require overall assistance from the centuries old Privy Council. They got it wrong in spades, as they did in Bain and in Pora in a most damning fashion.
Move to the new trial and things twist. The Crown had a new time of death, a new time that Lundy allegedly made his trip, the computer clock time was revisited. In short the only striking similarity was that despite the first theory being wrong the second was right and Lundy was guilty.
Because this puzzled me I recently wrote to a few friends with various expertise in the criminal Justice system for their thoughts, proposing that to be a possible issue on appeal .Although they each had different views, the views rather than colliding complimented each in a interesting way. One view was that the problem had been in the defence not being up to the fight against a 'mendacious' opponent, and for that reason Lundy's hopes were over. A second was because there was no secret that Lundy was in a bind over a financial commitment that could have provided merit for looking deeper into whether the crime might have been an off target hit of some sort, alternatively the writer said that Lundy fitted the familicide characteristic so that respondent looked for motive. Of course each response relied on specific information in response to my basic question of was Lundy treated fairly by having a different case thrown at him. The last response went further along than the first 2 in answer to the question about fairness. I should point out here that I had been clear that I didn't know what pre-trial procedures had taken place about the new case, or if there had been any applications seeking the Court's opinion on whether it was fair or not. Either did my correspondents, so it would be fair to say the public were also left out on this important aspect. So qualifying such a situation (of not knowing if there was fair notice, or indeed challenges to the change of direction of the Crown case) the third correspondent believed that it may not be fair, had there not been sufficient warning. The first opinion again that the preparation to fight the Crown looked absent so Lundy's chances had been done and dusted. The second that if the crime wasn't familicide a motive for someone else to have killed the mother and daughter needed to be pursued, and that defence suggestion that Lundy's brotherinlaw having been involved was damaging beyond reason. If the accusations against the brotherinlaw, because he if dna of the dead found in his bathroom had been used to simply show that dna contamination wasn't exclusive to Lundy then the jury might not have, if they were, been offended by false accusations against Christine's brother. This view is more methodical in my opinion, a practical approach whereas the first had the impatience of recognizing that the chance to meet fire with fire had been lost at trial and moving on from there was most difficult. The third on the other hand in my opinion was about the concept of fairness. While acknowledging the first 2 fully recognised fairness - it was of contemporaneous timing to events in the Court, not to be looked at later so much.
This raises questions as to whether fairness in a prosecution is first and foremost. Leading me to wonder if fairness is too easily pushed to the back of the stove in the cut and thrust of the courtroom rather than being seen as the necessary ingredient of Justice. The first reply has an essence that unfairness should be slain in it's tracks, the second that unfairness will not survive logic or motive in which ever order. The 3rd response is that fairness must be nurtured even if were absent at some point it should be brought back to its just and rightful place at the fore.
I like all of that stuff, a signature of thinking and experience. Where do I get left by all of that? I'm still thinking about it, as I hope others will. Something else to think about and which I learnt only in recent days reading from old reports from before and after the first trial, material, which I had not known before. The alleged dna taken from Lundy's shirt was not handled as a normal exhibit. It was keep in the control of the officer in charge of the case as I recall his position. There are reports of that from the trial with the officer involved explaining why he broke procedure and another officer in charge of exhibits giving evidence that such a situation was a first in his experience. I should now mention that I don't know if the officer keeping the evidence out of the controlled environment was the same officer advised that the dna was too down graded to be relied upon for testing, and therefore the same officer who kept that information secret from the defence, the Court and the Appeal Court. I also don't know if that was therefore same officer who took the samples off to America to find another opinion - obviously 1 that suited a case against Lundy, the drive at break neck speed, the planning (and snapping) the eye witness, the 'fiddling' with the computer clock and the miracle 'smell test.' If it was the same officer, and taking into account the failure on all the other assertions from the 1st trial, some readers might think 'well, hold on,' over 90% of the first Crown case was made up, yet surely the 2nd could be the same.
Well, yes it could. One witness whose work has been referenced over 3500 times gave evidence at the retrial saying that the dna 'off' Lundy's shirt was not proven to be his. Lundy was not seen driving his vehicle during either of times police alleged, on the 2nd scenario Lundy needed to have been entertained by a prostitute, drunk a bottle of rum and driven back unseen to his home. This, all during which, he needed to lift himself to a beserk anger, keep safely on the roads, go in and out of his home without being observed before being suitably composed the next day to meet customers who noted nothing unusual in his manner.
Because we don't know the details at this stage about any applications made by Lundy's defence about the 'fairness' of the new Crown case we can know the arguments for or against any applications made. It seems to be important information overall. What we do know of is an interview pre-trial with Lundy's lead counsel in which, to my opinion, showed a confidence where one might have anticipated not hearing from him at all - until after the trial.
What for some reason hasn't arisen again is an explanation about a group who claimed there was a motive for another person to have 'leant' on Lundy but who may not have known he wasn't home when his 'agents' when to the Lundy house that night. A group that have been concerned about being identified for fear of retaliation. Details about this groups comments can be found on line and go right back to 2002. There are a few explanations that should be made about the Lundy case, that is surely another. NZ isn't a place that readily permits witnesses to cowered into silence for fear of violence and it is everyone's interest that nagging doubts about this are cleared up as best can be. Personally, I think that is the job of the police and is in the public interest.
Before finishing here I should note that Arthur Allan Thomas was found guilty twice before being pardoned. Bain found not guilty on retrial, Pora discharged without a retrial. Certainly all these cases with perhaps the exception of Thomas went to the Privy Council. In none of these (with the exception of Pora) were there significant changes to the retrials, the allegations remained if not identical, then vary similar to that of the first trials.
Another thought to ponder, if for example Lundy's counsel did not raise the roof at the Crown's essentially new in great detail retrial - is that Lundy's fault. Under current thinking it is, or largely I believe. This is the situation where an appellant gets to hear that all such matters should have been canvassed at the retrial. Another way of saying the horse has already bolted tough luck if those applications weren't made or weren't made forcefully enough Fair? You decide.