Lundy's wife Christine and 7 year old daughter Amber were attacked to the head with what may have been an axe or tomahawk. The weapon whatever it was never found. In the part of Palmerston North in which the family lived there had been a number of recent crimes including burglaries of which one at trial evidence was given of tools being stolen that included a tomahawk. Neighbours that night noticed unusual activity, one man's dog barked in the late evening in an unusual display that normally indicated someone possibly on the property, a local family that had been playing in the earlier evening the next morning noticed a fence paling broken - the most important witness was a man who had called his father overseas at around 11am and at that time noticed a ranch slider open at the Lundy home and a light on. The ranch slider being open was unusual because it was late winter and very cold. This man also heard what he thought was a woman scream.
When police were called to the house the next day Christine body was found naked on the bed with severe injuries to the left side of her head that had resulted in blood on the wall to the right of the bed. Noticeable was a blood shadow in the blood spray against the wall where it was clear the attacker had been standing, that would have resulted in the attacker being covered in blood. There is no record that police attempted to calculate the size of the offender by the size of the shadow where blood was absent. Mark Lundy is a very big man, well over 6ft and probably around 250 pounds or more at the time. Not much is known about his fitness but he and Christine were well known dancers and Amber was attending dance classes. That night, the 31st of August 2000 dance lessons were cancelled. So mother and daughter were home early in the evening, after obtaining Mark Lundy's permission by phone (he was on a business trip in Wellington). they brought McDonalds as a treat at the local drive through at 6.15pm. It would be fair to assume the meal was eaten on their arrival home.
Amber's body was found in the hall, she had also been attacked to the head with a similar (if not the same) weapon used against Christine. I do not know if evidence established whether Amber was running toward her parent's room in response to her mother's screams or away as she saw the attacker(s). Police took fingernail clippings from both victims. This was done by clipping the nails for later testing for DNA under the nails. Years later it would be revealed that both had a mixture of DNA from 2 unknown males under their nails. Fingernail DNA has a limited life of being able to remain under the nails estimated at 6 hours as people both use and wash their hands in general life. The last known contact either victim had with any person was at the McDonald's drive through where it is unlikely DNA would have been exchanged with Christine when handed her order, and certainly no chance for Amber. The donors of that DNA have never been identified, this evidence was not heard by the 1st Jury.
21 hairs were gathered at autopsy from Christine's hands. So were numerous clothing fibres under her nails. On her right buttock was found a 'brown' to 'brown red' hair which had its root intact indicating that it had not been a shed hair but rather pulled. Although Lundy was arrested within months of his family's death, various hairs of interest were not tested for 14 months. The hairs of interest did not include the 21 hand hairs, by that time they had been released into the care of the officer in charge, Ross Grantham. So they were never tested and not been seen again, despite that the Court of Appeal inquired after them last year in 2018. When the fibres were tested they were found not to have come from any clothing connected to Mark Lundy. The hair with the root was said to have not had a root of sufficient quality to give a nuclear (personal) DNA result. There is said to be a record that the 21 hairs had no roots, however there is no doubt that they should have been examined by New Zealand's only 'hair expert' at the time Sue Vintiner of the Environmental Science Research (ESR.)
Sue Vintiner was involved in a 2nd controversial case, that of Scott Watson 2 years before the deaths of Amber and Christine. In Watson she used hairs without roots to find mitochondrial DNA from the maternal ancestry line of Olivia Hope. There is no reason to expect that she would not have been able to test the mitochondrial DNA of the 21 hairs to exclude Mark, Christine or Amber as the donor of the hairs. In fact they are excluded anyway because sample hairs were taken from Amber, Christine and Mark voluntarily provided samples of his own hair. However, the Juries were entitled to know that information, to hear confirmed by Vintiner they were not Mark's hairs. This is not the only dodgy piece of evidence handling in this case, I will write about others later.
Also found at the crime scene was evidence of a breakin of the house at a window near the sliding door the neighbour saw open. The window had been forced and there were fingerprints and footprints in the area which have never been traced. Evidence was given of a thoroughly cleaning of the area just days before the attacks. This was done the by housekeeper who cleaned the area which had been just used as a work area by Mark to contain dust as he worked on making a new wardrobe for Amber's room, the family's only child.
For Mark Lundy to be guilty some of that crime scene evidence needed to attributable to him in my opinion, in fact positive scientific proof traceable to Lundy. But this case has never furnished such proof. When Mark was asked what clothing he was wearing he told police frankly, and handed over the polo shirt he'd worn from a bag in the boot of his car. To recap this man willingly gave forensic samples, his clothing and his whereabouts that night to police. He embarrassingly admitted that he had spent time with a call girl visit to his Wellington motel. That would later be said to have been an false 'alibi', with the break in called 'staged' by police who just made that up without any proof.
Every major investigation has a officer in charge of evidence who appropriately stores and tracks the movement of the evidence as it is tested and so on. In this case Ross Grantham did not surrender the polo shirt to the exhibits officer, because he said he didn't want Mark Lundy to find out about it he would later tell the Court. Police in some of these controversial cases often give what appear to be stupid replies for particularly important questions, but Grantham's takes some beating. Mark Lundy already knew about his shirt, in fact he handed it over.
I think it was 46 days that Grantham held the shirt in his safe, there was no way of recording if he or anyone else moved it during that time. Equally importantly is that all through the crime scene central nervous system (CNS) material (brain) was found to have been deteriorated in a very short time after the killings, in fact within hours. That is entirely consistent with both animal and human brain which deteriorates on contact with air, the smaller the particle the quicker. When Grantham took the shirt to ESR (although one witness would lie about this) none could say it was brain and all agreed it was degenerated. That witness's name was Cynric Temple Camp who would recommend a immunohistochemistry (IHC) practitioner friend in America who was not a forensic scientist. Temple Camp felt the American could identify 2 small stains on the shirt as brain. So 19 years of controversy would start as police stepped into an alternative world to that of 100s of years of developed forensic science.
Temple Camp last year wrote a book lamenting that his own notes of examination of the shirt spots where he said the spots were degraded should not have been written. He was in other words saying that case notes could be damning if one was inclined to be untruthful. He was not called at the retrial because his evidence was clearly a liability for the Crown after the Defence discovered the inconsistent case notes. After contacting Miller and essentially telling him what he wanted (proof that the marks were brain) Grantham took the shirt to America. Still it was kept outside the forensic safety chain in terms of temperature and preservation. Such was Grantham's lack of concern about such things there is no record that he even took advice from ESR as to how the shirt should be handled, but no doubt when ESR said they couldn't help him they told him the reasons why.
Miller ran a business that took known and preserved to fresh samples from live patients to test for disease and abnormalities using IHC, a staining process where antiagents stain to different colours if cancer or disease is present in a sample. Each type of sample, kidney, lung, brain etc has a specific stain produced for testing, but a specific stain may test positively to samples they are not designed for, particularly as different parts of the body contain the same types of cells, also if recommended limits of stain strength are increased. Miller cut the shirt spots from the shirt and then lifted the material before eventually embedded it into paraffin which he then sliced and tested. Before he put the lifted material into paraffin he 'fixed' it in a special appliance to preserve it. By now months had passed from the time of the murders, the shirt had never been kept in controlled conditions for example at a lowered temperature as happens with body parts for transfer. It had been simply left in a safe which can be compared to the Lundy home where known CNS was deteriorated in mere hours in a very cold crime scene. Later it would be argued that the tissue had been air dried in a flight through the air, no proof was ever produced to back that up and if Miller knew it was preserved there is no reason why he fixed it (preserved) it again in formalin.
Later from one of the shirt spots Miller got a positive result for CNS but not from the other, however that was not before he increased the dosage several 100%. You could say nuked it. That material that gave the positive results when put under microscope did not contain any neurons of which there are billions within the brain, Miller claimed it was because the material must have come from a part of the brain with 'less' neurons. This resulted in Mark Lundy's first conviction. That conviction was eventually overturned at the Privy Council after it was proven a 7.15pm time of death (TOD) was highly questionable and until then hidden evidence of a Dr Teoh who had looked at the shirt under the microscope back in NZ and said that no man should be convicted on such marks which he stated where degraded. That evidence was (and still is) consistent with accepted knowledge worldwide of the deterioration of human tissue. Miller's evidence was also found to be short of the mark. He was not accredited to have undertaken the tests, he had used stains that were not accredited for forensic testing, he knew what he had to find, he would have been unable to give the same evidence in an American Court as it was inadmissible as Miller did not have a forensic science validation, neither did his lab, or the process used. He was a mechanic in a back street garage trying to match the work of surgeons in an operating theatre. Like the call girl liaison having been said by the Crown to been a created alibi Lundy, and the breakin (at a time according to the neighbour to have been when it was agreed by the Crown and Defence) also being staged, a police computer expert later discredited in the Bain case retrial, Kleintjes, who said Lundy had manipulated the family computer to a false shutdown time of around 11am was also rejected by the Privy Council.
Despite all this, the Crown decided to hold a retrial where again it pulled questionable tactics. The Crown said it wanted to present 'new facts' something which the Court too easily accepted. It was only weeks before the trial and the Crown wanted to change the time of death, dispense with the computer expert, not call Temple-Camp, and a witness who had claimed to have seen Lundy running from the area of the house dressed as a woman was also gone. I've wondered why the Court accepted that when the Privy Council had said the following after an effort by the Crown, seeing that it was losing the case at the PC offered that the TOD's might have been later than the claim at trial as 7.15pm:
The PC responded in the following way. Para 108:
"Indeed, quite apart from the inherent unlikelihood of it wanting to do so, it is highly questionable that the prosecution would have been permitted to advance an alternative theory to on which it so firmly espoused, The Crown had committed its case unequivocally to a time of death at about 7 to 7.15pm and that was the case the defendant had to meet. It is at least strongly arguable that the defence could not be required, at a late stage, to answer a case which was quite dramatically different from that which had been presented against him."
I think there are 2 possible reasons why the NZ Courts ignored the PC's advice and allowed the Crown to substantially change its case, and will discuss a possible 3rd later. The 1st would be that Miller, paid by the Crown, had conducted parallel tests of his results using sample brain. Unsurprisingly his results were positive as still the antigens were not specific, were vulnerable to overdosing and the condition of the sample was never established that if it was fixed or not. In Britain similar tests were made by practitioners on sample brain which also positive. However, like Miller, the British practitioners were not forensic scientists as the Crown continued to pursue fitting a square peg in a round hole. The obvious thing was that the technicians started with what they knew was brain only to confirm that it was indeed brain. A thorough look at the file notes, show like Temple Camp years earlier that some of the technicians noted their samples as degraded. This was kept from the 2nd trial.
Blind testing is an international forensic standard to emulate the reality of material being analysed by a forensic scientist who does not know what he or she are testing. They are not told what the tissue is, are asked to test and report their results which are then compared for uniformity with other blind test results performed elsewhere on the same tissue.
In Lundy we got a meaningless parallel tests which our Court appear to have accepted without a protest. Something that would never have happened at the Privy Council. Why? Perhaps the reason is a question in the Lundy case about the shirt spot as to whether the material there, was introduced in the 45 days the shirt was kept in Grantham's safe, also why it was not totally degraded. There was also the question as to whether the tissue was human.
So before the retrial the Crown had the shirt material tested for human DNA, none was found that matched anyone in the Lundy family although human DNA was present in good quantities on a shirt that had been handled by numerous people many times and which after all was the shirt of a human being. However, in a blow to the Crown case a small amount of DNA from cow, sheep and pig was found indicating food from the animal chain. This problem for the Crown prompted a search for an 'expert' to confirm whether in fact the first test was accurate. Like the IHC another 'novel' but not forensic science was introduced mRNA, never used before or since, declared that more probable than not that the material was human rather than animal by a small margin. So the NZ Courts decided to allow another novel science to be admitted and the case was altered in a manner that the Privy Council described as would be 'dramatically' changed. Lundy's potential perils had been doubled with still no answer from the Crown about the Crime Scene evidence pointing to other offenders.
Blind testing is a critical feature of forensic science and used to dissuade confirmation bias, in other words a tester is not told anything about the sample so that the tester does not make assumptions about what they are testing, its condition and so on. That never happened in the Lundy case, police broke the protocol in the beginning and even after the Privy Council decision made no effort to return to the safety of a forensic safety chain, or indeed move on from Miller. Miller was needed to prove (absent of all the crime scene evidence pointing away from Mark Lundy) the Crown case. He was only used after Forensic Services world wide turned down New Zealand police when they knew the history of the specimen. That it had never been fixed in formalin and showed signs of degradation - agreed upon by all the New Zealanders who saw it apart from the helpful Temple Camp who would later regret telling the truth in his notes before changing his story. There was a proposition that Miller's work would be emulated worldwide and become a new forensic tool, he bragged about it on his own web site but was not taken seriously by any forensic organisations, because his methodology was never approved and never could be.
A third reason why New Zealand Courts turned a blind eye to unaccredited 'science' may have been influenced by the fact that in 2014, 3 major cases, Bain, Lundy and Pora had been overturned after the New Zealand Court of appeal had failed to recognize them as Miscarriages of Justice. There may have been consideration that the reputation of the New Zealand Courts was on the ropes. Rather than head for conservative safety the Court allowed novel 'science' to be used again, not only IHC but also the mRNA. In the Bain case the PC was at pains to point out when squashing the convictions that it was up to NZ authorities as to whether a retrial took place or not, this was after the NZ Courts had resisted as to whether or not the PC had the right to order retrials or indeed order that there should be no retrial.
After a retrial in which there were no claims such as in the 1st by Grantham that Lundy had worn overalls to explain why there was no blood even found on him, his glasses or in his car, Lundy was convicted again, having had a 2nd trial that was not fair and never having had all the crime scene evidence pointed away from him prioritised as the Court was taken over by the hot shot Miller with his bragging and confidence, usually an anathema to New Zealanders. He was a pilot without a licence being allowed to fly a passenger jet a second time without the Court blinking an eyelid. Of course the only person who faced an incalculable risk was Lundy, the Court however did risk its reputation in the eyes of the Legal world. Even paint flakes found in Christine's wounds said to be from Lundy's tools in the first trial, by the 2nd trial were accepted not to be.
Long term Lundy supporter Geoff Levick, a retired businessman, with a science background and once an importer and travelling salesman felt no need to trust Miller and had studied IHC for years, travelled overseas to discuss its merits with forensic scientists, spoken to local IHC specialists and so forth. He understood that IHC staining was non specific that you could get a result for brain from stomach lining - that stomach lining of animals was part of the 'food chain' as described the American technician the Crown had hoped would confirm the spot material was wholly human. He understood that there would be human DNA on the Lundy shirt, even that of Grantham and no doubt Lundy himself, but animal, no way - not between washes of the shirt unless it was preserved and fatty which wouldn't be removed by traditional cold wash powders of 20 years ago which Levick had imported and sold himself. So he set an investigator onto the trail of the Miller 'sample brain.' Levick wanted to know if the brain had been fixed in formalin before being given to Miller, if it had the tests were worthless because the shirt material had not been fixed for months and kept in conditions certain for it to degrade and dry out - unless it was preserved meat.
The American investigator was Mike Weir, an attorney of the American Supreme Court, also the Director of the Texas Innocence Project in Texas, a state taking a leading role investigating malpractice in false convictions and with special laws written to enable false convictions to be more easily overturned. Weir quickly found cooperation from the medical school from where Miller received his sample, he found out that there had been offences committed in the transmission of the brain to Miller, that there was no permission to do so, that it was against the late donor's specific instructions as how it might be used by the medical school and that there was no evidence it had not been fixed in formalin before its removal - in other words preserved as was the norm.
In 2018 our Court of Appeal said that they would not consider the Weir affidavit, that it wasn't material and that there was no doubt that it was not brain, they were silent on the whether it was animal or not - despite that they would thrown out the mRNA testing. There remains considerable doubt as to whether if the sample brain was fixed or not, that is a critical aspect of this case, arguably the most critical after the pseudoscience. Furthermore, the affidavit went to the heart of the credibility of the Crown's most important witness who arguable had used stolen body parts and never revealed that to the Court, or that it was an offence within Texas that could lead to imprisonment. Though the primary problem was that in a system that requires paperwork for everything, warrants, evidence handling, authentications and so on - there was no paperwork and never would be after the Texas Medical school suddenly shut down communication on legal grounds.
A New Zealand Professor from Otago University, Phil Sheard, who had featured in the Privy Council hearing had on the face of it accepted the Miller 'parallel' tests with some reservations but not to do with Miller's credibility was sent the affidavit. His response was rapid, he essentially withdrew his non objections to the process Miller had employed in his parallel tests. It should be noted that Sheard is an IHC specialist and tutor without a forensic background and therefore not someone who would comment on the lack of forensic safety or blind testing. The very reason displaying the lack of concern by the Court of Appeal to junk science. No forensic organisation in the world would use samples without a recorded providence and no forensic scientist would be permitted to do non blind testing whilst talking and in contact with others doing the same testing. No forensic scientist would withhold such pivotal information, and arguably no Court in the world (apart from NZ) would accept the kind of evidence without paperwork that was permitted against Lundy. Reminding here that IHC has never been accepted anywhere worldwide in a criminal court setting. there was once an application for it to be admitted in a civil case in America that was rejected with the rejection upheld on appeal.
In 2019 when deciding the 2018 Lundy COA hearing, the Court threw out the very dodgy mRNA - effectively meaning that the prosecutor in the Lundy retrial could not have told the Jury that no man had the right to have his wife's brain on his shirt because there was no longer evidence to suggest that the spot may not have been preserved animal material from the food chain as the Crown was told before the retrial. The same Court had shown proper interest in the 21 hairs but because it could not find what happened to them it said they were of no help - when in fact as written here earlier they are of tremendous help, even in their deliberate disappearance. When throwing out the mRNA as a novel science the Court quite bizarrely returned to its faith in the other novel science IHC and said that was enough to not order a retrial. Lundy's counsel Jonathan Eaton QC set out in Lundy's current written plea for leave to appeal to the NZ Supreme Court that the IHC should have been thrown out for the same reasons in 'novel science' counterpart mRNA was discarded. The Court had read the Weir affidavit and apparently were blind to the impact it would have had on a Jury. The Court already knew that Miller had stated he would not return to NZ to give evidence in a further trial, he may well have known of the Weir investigation and that his credibility was shot, if not that the Texas authorities would have an interest in him and his non accredited 'science.'
Before finishing I need not to remind the reader that this case has been dominated by IHC, deliberately in my opinion because there is no crime scene evidence against Mark Lundy. The decision of the Crown not to test the hair evidence for 14 months is ominous, and when tests eventually took place the 21 hairs were not included - the hairs from the hands of Christine Lundy. What the COA also did not turn its mind to was a more comprehensive inquiry into those hairs, one which Vintiner should have told the Court about in Lundy's 1st trial and also the 2nd. That the hairs excluded Mark Lundy even though she had never seen them - she knew about them as they were in the case file of the forensic crime scene evidence to which it was her job to familiarise herself with. One can argue that she did not want to as it would have compromised her credibility for a reason which follows.
I wrote earlier of Vintiner's evidence in Watson but did not mention there that she had never made mention of the '2 hairs' critical to that case having been treated with peroxide, despite in the case file that information exists. In a broader way internationally exists an appreciation that hairs treated with peroxide are notifiable as to being not suitable for testing because of the effects of peroxide on the cell plates of the hair. Basically no one would drink peroxide is sufficient to say. In Lundy however Ms Vintiner suddenly had the ability to recognize that Christine's hair had been dyed. So why was her evidence different in 2 major trials? You decide. Then also think about the following.
Mark Lundy was accused of staging a breakin of his home. I think we all realise what follows from that as being that he also put the fingerprints on the windows there and around the joinery, that he left brown to red brown hair on Christine's buttock to find, just like the fingerprints in the conservatory, like the 21 hairs in Christine's hands along with the fibres from someone else's clothes. He also removed a spray of blood from himself that left a shadow on the wall, as noted no blood was found on his watch, his glasses, in his car or in his motel after a scientific miracle happened, a single spot of CNS flew threw the air preserving itself on the way (overlooking here the NZ scientists who said it was rotten) and when tested something like 14 years later to bolster the Crown case was found to contain preserved food chain material.
Finally, and who were those people who cooperated with Lundy, giving him their fingerprints to place in the conservatory and how did he do that, who were the 2 men who gave willingly gave their DNA to Lundy to put under the nails of his wife and daughter as they lay dead with all his dreams, who gave him the 21 hairs, the fibres the brown to red brown hair pulled out with the root? That's a series of question for the New Zealand Supreme Court.
