A challenge to the science used to identify DNA matter on
a shirt as brain tissue was the core issue of Mark Lundy's
appeal to the Privy Council.
Pathologists suggested the material might contain cells found
only in brain or spinal cord tissue but were unable to state
that categorically, as the samples were poorly preserved.
The police then took the samples to Texas pathologist Dr
He was also unable to positively identify the tissue under a
microscope but conducted an immunohistochemical (IHC)
procedure, from which he categorically stated the tissue was
from the brain or spinal cord.
The IHC procedure had never been used before in this manner.
At the original trial, the defence conceded the matter was
brain tissue and the only issue was how it ended up on the
shirt, possibly by accidental contamination during the police
But at the Privy Council hearing, Lundy's lawyer Dave Hislop,
QC, submitted that the expert evidence given by Dr Miller,
and others who relied on his opinion, was "fundamentally
flawed" to the point that the trial was unfair. Three
immunohistochemistry experts concluded the procedure was an
"uncontrolled experiment" which was incapable of producing a
Affidavits sworn by Professors Phillip Sheard, Helen Whitwell
and Kevin Gatter concluded the tissue was poorly preserved
and it was impossible to reach any conclusion as to the
nature of the material.
They concluded the IHC procedure was an "uncontrolled
experiment" which was incapable of producing a reliable
The Privy Council also heard evidence that IHC had been used
sparingly worldwide to forensically identify tissue in
criminal cases, with only one other example found.
On top of criticism of Dr Miller was the discovery of a
previously undisclosed police document.
The report, written by the officer in charge of the murder
case Detective Sergeant Ross Grantham, asked a senior officer
for permission to visit Dr Miller in the United States.
He asked for the trip to be funded after neuropathologist Dr
Heng Teoh said tissue was too degenerated to identify as
brain tissue and Lundy should not be convicted on the
strength of the cells on the slide he saw.
However, the document was not disclosed to Lundy's lawyers
before the trial, denying them a line of inquiry for the
Mr Hislop also attacked the science method which established
the 7pm time of death evidence which was crucial to the
prosecution case, calling a world expert
who said analysing stomach contents was "so unreliable as to
be of little value".
The theory that Lundy tampered with the family computer to
create an alibi was also criticised by Mr Hislop, producing
an affidavit from a forensic examiner saying a virus found on
the computer could have caused the internal clock to be
Lundy is serving at least 20 years of a life sentence for the
murders of his wife, Christine, and daughter, Amber.
The Crown case was that Lundy, then 41, went to Wellington on
August 29, 2000, on a fortnightly sales trip to visit kitchen
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.
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 9am the
Lundy was arrested six months later and was found guilty
after a six-week trial in 2002.
- Jared Savage of the NZ Herald