The Privy Council has quashed Mark Lundy’s murder convictions for killing his wife and daughter, and say he should now face a re-trial as soon as possible.
The decision announced in London tonight comes after Lundy has served 12 and a half years in prison for crimes he says he didn’t do.
The council's judicial committee was unanimous in deciding that Lundy's appeal against his convictions for the murders of his wife Christine and daughter Amber should be allowed and that the convictions should be quashed.
It said Lundy should stand trial again on the charges of murder as soon as possible; and until then, and subject to any decision of the High Court of New Zealand on the question of bail, he should remain in custody.
He was arrested for the murder of Christine and Amber, 7, in 2001 and a year later found guilty of murdering the pair in a frenzied attack at their Palmerston North home on August 29, 2000.
Lundy was sentenced to a minimum term of 17 years’ jail, which was subsequently increased to 20 by the Court of Appeal.
Lundy has always maintained his innocence and the Privy Council heard Lundy’s appeal against his convictions in June this year. The Crown argued the convictions were correct.
The committee said that given the new evidence that it had allowed, Lundy's convictions could not be considered safe.
"Since the trial, a ‘welter of evidence’ from reputable consultants has cast doubt on the methods the Crown had relied on to establish the time of death based on the contents of the victims’ stomachs,'' the judicial committee said.
It said having concluded the convictions should be quashed, the committee decided the case should go back to the High Court, saying the divisions between experts in the case were profound and ranged over many areas.
Police said they would consider the detail of the judgment and discuss it with Crown Law and the crown solicitor to decide on their next steps.
"This is likely to include evaluation of what evidence needs to be prepared and the availability of witnesses,'' Assistant Commissioner Grant Nicholls said.
He would not comment further as the matter was still subject to judicial process.
After the hearing, Lundy's defence solicitor, Malcolm Birdling, said Lundy was "very happy" about the decision.
"He’s been waiting a long time now. He’s very glad that this is now going to give us the opportunity to have the evidence tested properly by a jury, something which has never happened before.
"He’s also very thankful for all the assistance of what has been a fantastic team that has been assisting, a group of experts who donated their time generously to assist in a way that allowed us to achieve this result today. He’s just very, very grateful."
While the judicial council had said there should be a retrial, Birdling said the next step was for the solicitor general to make a decision on whether should be one.
Lundy's supporting team, called Factual, said in a statement tonight it was thankful the committee had "recognised the severe miscarriage of justice in this wrongful conviction of Mark Lundy''.
"Now that the verdict has been found to be unsafe Factual sincerely hope that the Crown will re-investigate this crime in the search for truth. There are many unanswered questions that need to be re-evaluated.''
"Mark Lundy has always maintained his innocence and his love for his wife and daughter who someone has callously taken from him.
"As the police had initially maintained, Mark is an innocent victim in this horrific crime,'' the group said.
"It is our sincere hope that the JCPC decision will be a starting point for an awareness that Mark Lundy was in no way involved in this heinous crime as we enter the next phases in the search for the truth for Amber and Christine."
Led by expat Kiwi lawyer David Hislop, QC, the appeal was based on doubts about material said to be brain tissue found on Lundy’s shirt that linked him to the crime scene.
Hislop produced expert evidence saying the specks of human tissue were in too poor a condition to be properly analysed.
Crown expert Rodney Miller, from Texas, used a technique called immunohistochemistry, or IHC, which he had previously tested on a chicken, to identify the tissue.
One significant revelation at the appeal was a report obtained by police before the 2002 trial, from Dr Heng Teoh, in which he said the material had degenerated so much that Lundy should not be convicted on the strength of tissue evidence alone. The report was never given to Lundy’s trial lawyers and was only handed to Hislop shortly before the Privy Council hearing.
Hislop also raised doubts about the time of death, with Lundy’ trial hearing the killings happened about 7pm.
Crown expert pathologist James Pang said at the outside the deaths could have happened at 7.15pm, based on his examination of Christine and Amber Lundy’s stomach contents.
Hislop consulted British forensic pathologist Professor Bernard Knight who said deciding time of death on stomach contents was unreliable.
Cellphone records place Lundy in or around Petone at 5.38 and 8.28, giving him a tight time frame to commit the murders, stage a burglary, clean up, run to his car and drive the 300 kmh round trip at breakneck sped.
Palmerston North woman Margaret Dance reported seeing a man dressed in a wig and tracksuit running in the area about 7.15. At Lundy’s trial and at the Privy Council, Lundy’s lawyers have said her evidence was unreliable.
The Privy Council also heard doubts about trial evidence that suggested Lundy had tampered with his home computer to make it appear to shut down at 10.52pm.
Hislop also spoke of lights seen on at the Lundy home about 11.pm They were turned off when Christine and Amber’s bodies were found the next morning..
Lundy was definitely in Petone at 11.30pm, when he called a prostitute. He was with her between 11.36pm and 12.37am, in what the Crown told his trial was a cynical attempt at creating an alibi.
Prime Minister John Key, asked about the case during an official visit to Bali, Indonesia, said he was "not entirely surprised" by the Privy Council's decision.
He said the decision would now go back to the High Court for a retrial.
"There's really little I can say about that because the matter will be before the courts," he said, adding that he had not read the decision.
Asked if there would be a good case for compensation for Lundy, he said: "I think you'd be jumping to conclusions. The first instance is the retrial and then the outcome of that retrial.
"We'll take it one step at a time."
He did not believe in light of this and the David Bain case that there was something wrong with the NZ system. The Supreme Court may have made the same decision as the Privy Council.
"it just means these cases were in that system prior to the Supreme Court being in existence."
- Fairfax Media