Mark Lundy should not have been convicted of the murder of his wife and daughter based on the tissue found on his shirt after the murders, the Privy Council in London has heard.
Lundy is appealing his life sentence with a non-parole period of 20 years for the killing of his wife Christine and daughter Amber, 7, in their Palmerston North home in August 2000.
An interview police conducted with a forensic expert, who said he could not confirm that the substance found on Mark Lundy's shirt was brain tissue, should've been made known to the defence at his trial 13 years ago, New Zealand lawyer David Hislop QC, who is representing Lundy, said as he opened the appeal last night.
Hislop questioned the science used to identify specks of brain tissue found on Lundy's shirt, and argued that the sample taken was not reliable as it was taken 58 days after the murders.
Hislop said the officer in charge of the murder investigation,
Detective Inspector Ross Grantham, had not disclosed to Lundy's
defence team at his 2002 trial, the notes from when he interviewed
neuropathologist, Dr Heng Teoh, in January 2001.
Hislop said Teoh had told the detective inspector that he could not be sure the DNA found on Lundy's polo shirt was brain tissue, and that Lundy should not be convicted on the basis of it.
"He would only commit to saying the cells are tissue cells, he opinioned that the time lapse between the murders and the preparation of the slides, some 58 days, was too long, the cells had degenerated badly," Hislop said.
The neuropathologist's findings contradicted the findings of Crown pathologist Dr Rodney Miller, who gave evidence at the 2002 trial saying that the specks were brain matter.
Lundy's legal team also said that the defence and jury should've been told that Grantham had kept the brain tissue sample in his drawer for several months.
ONE News reporter Kim Vinnell said Lundy's lawyer claims that keeping the sample slide in his desk was not a major reason for why the conviction should be appealed, but said all of these facts should have been disclosed to the defence at the time so they could've had their best chance at building a case.
Vinnell said part of the defence case at the time was that police may have tampered with the evidence.
Lundy's lawyer said if the jury had been made aware of this it could've raised in their minds the question of potential tampering.
Vinnell said the Lords on the Privy Council panel were very
clear that any suggestion of tampering would be a very extreme
thing for Lundy's appeal lawyer to do.
Hislop was quick to point out that he was not making that accusation.
The basis of the appeal
Hislop said in his opening last night that there were two fundamental planks to the prosecution's case in the 2002 trial.
He said the first a major plank was that "the staining found on the appellant's shirt was Christine Lundy's brain tissue deposited wet".
Hislop said the second key aspect of the prosecution's case was that the time of death was between 7pm-7.15pm.
"In essence, as the learned trial judge said in summing the case up to the jury if either of those fell then of course in reality so did the case against the appellant."
Hislop said there were four broad grounds which were central to the appeal:
-The reliability of the material found on Lundy's shirt, and the technique used to identify it.
-The pathological evidence regarding the time of deaths.
-The computer evidence used at trial to support the time of deaths. The Crown had argued that Lundy tampered with his home computer so it appeared to have shut down later.
-The trial judge's failure to adequately direct the jury over the identification issue.
Lundy previously claimed he could not have been responsible for the deaths because he was in Wellington on business and met with a prostitute.
But the Crown argued during his trial that he had time to make the round trip of around 300 kilometres in less than three hours - driving at high speed to Palmerston North, committing the murders and returning.
After exhausting all judicial avenues in New Zealand, Lundy's lawyers filed papers with the Privy Council in November.
The Privy Council in London agreed to hear the appeal of his murder convictions in February, and Christine and Amber's family said at the time that it was gut-wrenching to learn that the double murder case would be going back to court.
It is an anxious time for Christine Lundy's friend Christine Lockett.
"Mark has a very good lawyer in England and they're trying to discredit all the evidence. So it is very, very nerve-racking. And we're really feeling it again. Because it's all blown up in our face again," said Lockett.
"They think they've got a pretty strong case. So it is hard to think about what could happen, what the consequences are if everything is overturned."
New Zealand's Chief Justice Dame Sian Elias is one of five judges on the Privy Council panel, along with Lord Hope, the deputy president of the Britain's Supreme Court, Lord Kerr, Lord Reed, and Lord Hughes.
The appeal is set down for three days. The Privy Council will then go away to consider the findings before delivering a written decision.
The Privy Council previously overturned David Bain's convictions for murdering his family.