Lundy DNA evidence questioned at appeal
Two specks of human tissue found on convicted double murderer Mark Lundy's polo shirt are under intense scrutiny at his Privy Council appeal in London.
Lundy's lawyer David Hislop, QC, overnight raised significant doubts about the reliability of evidence presented at Lundy's 2002 trial and alleged the Crown "shopped" for experts to fit its theories and withheld key information from defence lawyers.
Lundy is serving a 20-year minimum jail sentence for the murders of his wife Christine and daughter Amber, 7, on August 29, 2000, in the family's Palmerston North home.
But Lundy maintains his innocence and a group of supporters has organised his Privy Council bid. Lundy is not at the hearing.
"The prosecution led novel scientific evidence, we say, that was presented in a misleading fashion," Hislop told the five judges hearing the appeal, including New Zealand's Chief Justice Dame Sian Elias.
That "novel" evidence was given by Texan pathologist Dr Rodney Miller, who said the tissue specks were Christine Lundy's brain matter, which placed Lundy in the bedroom where the killings took place.
Miller's testing was "fundamentally flawed" and he did not highlight instances of his "immunohistochemistry" (IHC) technique producing negative results for brain tissue, Hislop said.
"Dr Miller conceded at trial he'd never before applied the science of IHC to trying to ascertain the matter of a stain on fabric," he said.
"He conceded he doesn't think anyone else in the world's done it either."
Hislop also questioned the state of the samples Miller examined, saying they might have "degenerated".
Lundy's trial defence team relied on its own experts in not questioning Miller's conclusions, a "concession" that should not have been made, Hislop said.
"While that was understandable, one would, at the very least, raise an eyebrow, especially if he [Mike Behrens, QC] was armed with Dr Heng Teoh's report."
But, in 2002, the defence did not have a report from Teoh, a neuropathologist who in 2001 said Lundy should not be convicted on DNA evidence alone.
Hislop said notes from the police officer in charge of the murder investigation, Detective Inspector Ross Grantham, disclosed he showed Teoh the tissue sample taken from Lundy's shirt.
"[Teoh] would only commit to saying these cells were tissue cells," Hislop said.
Information given to the defence was at times incomplete and that could have affected the trial strategy.
"If this court thought [Grantham] was covering up, then of course he would be covering up to ensure the safety of a conviction," Hislop said.
If Teoh's remarks were presented at Lundy's trial, it would have "given some support" to the defence's argument that brain tissue was planted.
In itself, the presence of DNA from both Christine and Amber on Lundy's shirt was nothing unusual.
Hislop will tonight (NZT) resume his argument about doubts over the times of death, before he discusses evidence that Lundy tampered with his home computer and problems with the trial judge's direction to the jury.
At the trial, the Crown argued the killings happened about 7pm, based on scientific evidence about the stomach contents of Christine and Amber Lundy.
Cellphone records placed Lundy in Petone, Wellington, about 150 kilometres away, at 5.30pm and also 8.28pm, leaving a three-hour window for him to make the drive, park 500 metres away, kill his family, clean up, and return south.
In Petone he later hired a prostitute.
The Crown said Christine was in bed early because Lundy promised her he would return from his business trip to make love.
Deputy solicitor-general Cameron Mander and Annabel Markham are representing the Crown in London.
The Privy Council hearing is expected to continue for two more days, with a reserved judgment likely.