Inside Mark Lundy's last-chance Supreme Court appeal

A Supreme Court hearing is the last legal chance for convicted double-murderer Mark Lundy. Photo / Mark Mitchell

The key to Mark Lundy's final bid for freedom over his conviction for the murders of his wife and daughter 19 years ago relies on a rarely used legal 'trick of the light'. Steve Braunias gives his view on Lundy's last-chance appeal at the Supreme Court.

The scene of the crime was evident this week at Mark Lundy's two-day hearing at the Supreme Court in Wellington. It surrounded everyone, entombed all who entered its monstrous portal – charges should be brought against whoever is responsible for designing the Supreme Court's very large and supremely odious courtroom.

The final court of appeal, the highest court in the land, is also the ugliest goddamned piece of state-approved junk architecture in all of New Zealand. It doesn't look so bad from the outside on Lambton Quay. It's got a shallow pool of water and a bronze lattice. Nothing outlandish, kind of neutral. But the courtroom itself is shaped like an egg, or a cocoon, a grandiose ovoid dome, done out in diamond-patterned blonde wood leading to a high, distant skylight covered in what might be wire from a chicken coop – hence the egg? The whole tasteless thing is at best viewed as a sci-fi set from a bad movie, at worst as something pompous and pretentious and really rather mocking of the poor suckers who have to sit in it, and reach sober judgment.

The poor suckers at Lundy's hearing on Tuesday and Wednesday were five in number. Three of the learned Justices didn't have a whole lot to say. Most of the talking – the interjecting, the sighing, the scorning – was done by one judge, Justice Willy Young, who took the middle seat at the USS Enterprise-style bench. He wore his white hair quite long at the back. He took his glasses off to read documents, all the better to study legal arguments, as well as view photographs taken at the bloody aftermath of the killing of Christine Lundy and her daughter Amber Lundy in their Palmerton North home sometime in the evening of August 29, 2000.

Mark Lundy was convicted of the killings at his trial in 2002. The Privy Council quashed the convictions, but he was found guilty a second time, at his retrial in 2015. His lawyer, Jonathan Eaton QC, argued his case at the Court of Appeal in 2017. It was thrown out in a judgment delivered last year. But the Appeal Court's damnation of the former sink salesman included a fascinating caveat: a proviso, one of the rarest of all notions in criminal law, and it allowed for Eaton to take up Lundy's case once more and argue it in the final court of appeal, the highest court of appeal, that great big stupid hollow egg which houses the Supreme Court.

A proviso is an intricate thing of some beauty. It's a trick of the light, something conjured – now you see it, now you don't. It admits one thing and declares another. You can see I'm having trouble here defining quite what it is, but the five judges had an even more torrid time making a precise and meaningful definition at Lundy's appeal this week. It was the proviso from hell.

Very well, it goes something like this. A proviso is that which admits to a failing in an argument brought against the accused by the Crown, a really quite serious failing, but is at once rendered an insignificant and irrelevant failing, a failing of no concern, a failing so small and of such little magnitude that it can barely be thought of as a failing at all, and must be overlooked, swept aside, shrugged off as just one of those crazy things that happen every once in a blue moon.

Lundy's conviction for the awful murders of his wife and daughter was that blue moon. One of the pieces of circumstantial evidence against him in his retrial was that a stain found on his shirt at the time of the killings contained central nervous system tissue – in essence, the brain - that could only have derived from a human. It shut down any defence claim that it was from meat (chops, a pie, whatever) that Lundy had eaten, and spilled on his shirt.

But the Court of Appeal ruled that the evidence ought to have been inadmissible. The jury ought not to have heard it. It was a scientific analysis so lacking in substance that it might fairly be referred to as junk science, as total crap. Yes, perhaps, that may be so, allowed the Crown. But so what? Who cares? Because the Crown was able to flourish that thing of beauty, that rare and delicately formed idea: the proviso.

The proviso declared that an admission of failure had no reckoning on Lundy's guilt. The proviso smiled, held up its hands, and said "que sera, sera": it said it was a mere bagatelle: it said it made no difference, that the weight and range of the Crown case proved that Lundy slaughtered his wife and daughter.

"No," said Lundy's lawyer, Jonathan Eaton QC, at the Supreme Court. "No, you can't just turn around and say, 'Don't worry about it'. They relied on it. They wouldn't have fought so hard to get it in if they didn't rely on it. It's all a bit rich. And it begs the question, was this a good case to apply the proviso?"

I have assembled these comments from three hours of Eaton's testimony. He seldom got to say a speech as long as that without some kind of interruption or interjection from the bench.

Eaton lost his bearings now and then, ummed and ahhed like a schoolboy. "Well, that's – um – I accept that's right, but – uh – well, sir – uh", etc. But he stuck it to the proviso as best he could. His essential thrust was that a miscarriage of justice had occurred. His wider, awesomely nuanced thrust led to a profound conversation with the bench on the very nature of reality. Here, then, was Lundy's last chance. Forensic science has done for him. The law has done for him, over and over and over. Psychology has done for him: the public has always hated Lundy. Eaton, a tall, slim character who favours a clownish pair of wide-striped pants, took a deep breath, and introduced a new weapon, the final remaining act of reasoning which may work to Lundy's advantage and require a third trial: philosophy.

"We are dancing," Eaton said to the five judges, "around the pin of a head." He corrected himself but he got it right the first time. O proviso! O mysterious and gnomic melody under the Crimes Act. Eaton and His Honours taxed their very fine legal minds in an attempt to solve the riddle of the proviso, to capture its trick of the light in a jar, to get to the bottom of it.

"It's really a philosophical argument, isn't it," said Eaton, and for once, Justice Young, who had spent all of that first morning shaking his head to and fro at everything that came out of Eaton's mouth, actually nodded in agreement. "Yes," he intoned, then took his glasses off the top of his white hair – he'd been reading something – and placed them between his lips, and nibbled contemplatively at the frame.

Lundy was convicted for a second time in 2015. Photo / Mark Mitchell

To proviso, or not to proviso? The leading test case in New Zealand law is the unpleasant case of Shane Huia Matenga. He was convicted of raping an intellectually disabled woman in 2007 after she invited him in for a cup of tea. His defence appealed, arguing that circumstantial evidence put before the jury was seriously flawed. The Court of Appeal upheld the conviction by applying the proviso: yes, the evidence was poor, but Matenga would have been found guilty in any case. It then went to the Supreme Court, which ruled against the proviso, quashed the conviction, and ordered a new trial. It was to no avail – a second jury found Matenga guilty of rape – but the legacy of the case is that it remains the classic precedent for proviso law.

The proviso, it ruled, can only be applied where guilt is considered absolute. A guilty verdict must be "inevitable", and "the only reasonably possible verdict based on the evidence". The proviso "should only be applied if there is no room for doubt about the guilt". The proviso can override any admission of a failure of evidence to meet the standard "if the Court is sure of guilt".

"But what," Eaton wondered, "does 'inevitable' mean?"

The five judges stared at him.

"A philosophical approach to the proviso is required," he continued.

The five judges stared at him a bit longer.

"What," Eaton further wondered, "does 'sure' mean?"

Justice Young thought he could answer that. He said, "You've got to be not just sure of guilt, but really, really sure of guilt."

"That's a very high standard," said Eaton.

Young made another attempt. "Sure," he said, "comes down to very, very sure."

But, Eaton argued, was the Appeal Court correct to determine that Lundy received a fair trial, and that the convictions were inevitable, despite the wrongful admission of evidence? Didn't the court, in essence, reach its own verdict? He suggested the proviso was saying the Appeal Court "wears the same hat as the jury."

"No, it doesn't," said Young.

Really? In an otherwise quite boring New Zealand law article headlined "The Role of the Court in Correcting Miscarriages of Justice", the author writes clearly and cleanly, "Once the proviso is in play, the task of the Appeal Court is broadly similar to that of a jury." The author was Justice Willy Young.

The six-week retrial at the High Court of Wellington in the summer of 2015, the week-long Court of Appeal hearing in Wellington in October 2017, the two-day Supreme Court philosophical disquisition in Wellington this week – all throughout my five years of Lundy-watching in court, I've stuck to the same regime of breakfast on Mason's Lane, an alleyway which turns off Lambton Quay close to the Beehive, at John's Kitchen.

It's a plain little room with a public service ambience. I love it there, and I loved being back this week, reading the Wellington paper (a recipe for swede and beetroot casserole), and readying some change for Wellington beggars (unambiguous sign: PLEASE GIVE MONEY FOR FOOD OR FOOD) lying the length of Lambton Quay. I always order the same familiar breakfast of filter coffee and two pieces of toast. Then I trot to court and join the same familiar faces. There are the gentlemen of the press, Mike White from North & South and Jono Galuszka from the Manawatu Standard. There are the lawyers, Eaton and Julie-Ann Kincaid, who speaks more Irish than English, acting for Lundy, and the saturnine Phillip Morgan QC, acting for the Crown. And the same familiar question, the only question: Did he do it? Did Mark Edward Lundy swing some kind of tomahawk with such force so many times at his wife's face as she lay in bed that it was no longer a face? Did he turn when his daughter came into the bedroom, and crack open her skull as she ran away from a monster?

There is a public impatience with this whole enduring business with Mark Lundy and his maintenance of innocence. They were absolutely foul murders. Amber was 7 years old.

But there is another set of familiar questions which are really the only questions we can ask and expect to trust: Was it a fair conviction? Was the guilty verdict beyond reasonable doubt, did the Crown present a good and steadfast case, was the evidence accurate and correct?

We know that the first trial was absurd, a black comedy, based on evidence later found to be totally bogus – that Lundy drove at incredible speeds from Petone to Palmerston North to commit the killings in the early evening, that an eyewitness saw him run from the scene in a wig, that he tampered with the clock on the home computer to hide his tracks. All of it nonsense, all of it thrown out and replaced with new theories in his retrial.

And then the revelation, via the Court of Appeal, that the theory of human brain tissue on Lundy's shirt was also a nonsense. Was it a fair conviction, was the guilty verdict beyond reasonable doubt...Eaton's appeal at the Supreme Court this week focused on the possible impact and significance on that one strand of inadmissible evidence, but now and then he found wiggle room to discuss other aspects of the case.

Of course the stain on Lundy's shirt could have come from food, he said; there was a pie wrapper in his car, there was receipt for a $74.22 meat purchase eight days before the killings, he shopped at Pak N Save in Petone on the night of the killings and bought a cooked chicken.

Lundy being supported after the funeral of his wife Christine and daughter Amber in 2000. Photo / Mark Mitchell

He repeated the defence argument of three impossibilities made at Lundy's trial. One, Lundy didn't have enough petrol in the car to drive to Palmerston North and back on the so-called "killing journey". Two, the fact that Christine and Amber's stomachs were full at the time of death suggested the killings were committed while Lundy had an alibi. Three, a neighbour noticed the Lundy's sliding door was open at a time of night when Lundy had an alibi.

Right near the end of his closing address on the second day of this week's hearing, Eaton threw all sorts of things at the bench in a mad rush, as though he knew this was his last chance to appeal Lundy's case and he had to get it all out while he had the opportunity in the blonde cocoon of the Supreme Court. Most spectacularly, he accused a man with "mental health problems" as being the real killer. "He was one of the reasonable suspects," Eaton said, "and believe me, he could be the offender!"

But he had only been given leave to argue the proviso. The proviso, that shimmering thread; the proviso, that strange and fragile application of the law. Eaton twitched at the thread, tested it in his fingers. For the Crown, Philip Morgan told the bench that of course the Court of Appeal was right to have applied the proviso. "It's reasoning was impeccable." The case against Lundy didn't rely on that one minor piece of inadmissible evidence. "Put it aside." Nothing to see here. "It's wrong to argue the Crown hinged its case on this evidence... It wasn't all that important." In his hands, the thread of the proviso was strong as rope.

Last appeal. Last outing in the halls of justice for Mark Lundy. All he has to go on as the five judges deliberate is that damned proviso; it's something, maybe not much.