The senior detective who led the investigation into the
murders of Christine and Amber Lundy has been accused of giving
"misleading" evidence - although the top defence lawyer for the
convicted murderer stopped short of claiming a "cover-up".
On the first day of Mark Lundy's appeal at the Privy Council
in London, David Hislop QC revealed the existence of a
previously undisclosed police document which was described as
The reliability of the science used to identify DNA matter
found on Lundy's shirt as brain tissue is a key plank to
overturn his convictions for murdering his wife Christine and
daughter Amber, 7.
In what he called a "significant development", Mr Hislop said
Lundy's legal team had received a document from the Crown Law
Office in New Zealand just last week.
The document was written by the officer in charge of the
murder case, Detective Sergeant Ross Grantham, asking a more
senior officer for funding to visit an expert in the United
States to identify the DNA matter on Lundy's shirt.
Pathologists for the police thought the tissue was from the
brain but suggested the evidence be reviewed by a
neuro-pathologist Dr Heng Teoh, according to the document
read out by Mr Hislop.
But Dr Teoh said the tissue - which was found 58 days after
the murders in August 2000 - was too degenerated to
successfully identify as brain tissue.
According to the document - which was not disclosed to
defence lawyers at the original trial - the neuropathologist
said Lundy should not be convicted on the strength of the
forensic evidence he viewed.
Mr Grantham also told his superior officer that the
scientist's opinion gave the police an early "insight" into
any potential defence for Lundy.
He was later given permission to fly to Texas to show the
samples to Dr Rodney Miller, who gave damning evidence about
two specks of tissue found on one of Lundy's polo shirts.
Mr Hislop told the Privy Council that the science used by Dr
Miller to identify the tissue as brain tissue was
He said the previously undisclosed police document was a
"substantial development" and was at odds with the Crown case
that the DNA was well preserved.
"Detective Sergeant Grantham was very alive to the value of
this information to the defence. He chose to not disclose
it," said Mr Hislop.
He said that Mr Grantham - now a detective inspector - later
signed an affidavit that stated all "relevant documents" had
been disclosed to the defence.
"On the face of it, that appears to be misleading. Or it's an
oversight," Mr Hislop told the five members of the Privy
Council, which include Dame Sian Elias, the Chief Justice of
He said the discovery of the advice from Dr Teoh, combined
with the "misleading" statement from Mr Grantham, added
weight to a suggestion at the original 2002 trial that police
planted the brain tissue evidence.
The Law Lords of the Privy Council and Dame Sian vigorously
questioned Mr Hislop over his assertion, saying it was a "big
step" to jump from non-disclosure of an important document to
"That is a very serious accusation," said Lord Hope.
Mr Hislop said he was not accusing Mr Grantham, but was
saying only that a jury could make an inference of a
Earlier in the hearing, Lord Hope, described the discovery of
the document as a "striking revelation".
"At the very least, this was a basis for cross-examination at
Several experts in the testing method and in forensic
pathology from New Zealand and England have sworn statements
to challenge Dr Miller's evidence.
Mr Hislop said the other planks of the appeal will also
challenge the pathologist's report on the time of death,
computer evidence to support the time of death conclusion,
and the trial judge's failure to properly direct the jury on
Lundy is serving at least 20 years in prison after being
convicted of the axe attack in the family's Palmerston North
home in August, 2000.
The non-parole period was lifted from 17 years by the Court
of Appeal after his appeal failed.
The crown case at Lundy's trial was that Lundy, now 54, went
to Wellington on August 29, 2000, on a fortnightly trip sales
trip to visit kitchen suppliers.
He checked into a Petone motel at 5pm, and 30 minutes later
received a phone call from his wife telling him that Amber's
Girl Guides meeting was cancelled and they were having
McDonald's for dinner.
The Crown said Lundy convinced Christine to get Amber into
bed by 7pm so they could have a romantic evening together.
He then drove 150km back to Palmerston North at high speed,
parked 500m from his home, then ran inside around 7pm and
attacked his wife with a tomahawk.
When Amber got up to see what was happening, he killed her
too, the Crown said.
Lundy then sped back to Wellington, arriving just before
8.30pm when he spoke to a friend on his cellphone.
Lundy's defence was that he stayed in Petone, read a book on
the foreshore, drank alcohol and paid a prostitute to visit
him at 11.30pm.
The bodies were found by Christine's brother around 9 o'clock
Lundy was arrested six months later and was found guilty
after a six-week trial in 2002.
The Crown suggested his motive for the murders was to claim a
life insurance payment so he could pay a debt.
The case was circumstantial, and focused on a three-hour time
frame and whether Lundy could have done what he was accused
of doing and been back in Petone to call a friend at 8.30pm.
Critics have also questioned the pathology report which used
stomach contents to determine the time of death; a process
challenged by some experts.
There were also questions over the timing of how the family
computer was shut down at 11pm - police said Lundy tampered
with it - and the credibility of the sole eye witness who
claimed the obese Lundy ran past her wearing a long, blonde
The hearing is set down for three days, but the Law Lords'
decision on Lundy's convictions will take weeks, possibly
The Lundy appeal is likely to be one of the last New Zealand
cases heard at the Privy Council.
The Supreme Court replaced the Privy Council as New Zealand's
highest court in 2004.
The Privy Council can still determine appeals in certain
existing proceedings, including appeals against Court of
Appeal judgments given before January 1, 2004.
- Jared Savage at the Privy Council in London