In, with criminal defence lawyer Mike Bungay, I co-authored Bungay on Murder, a book about murder and murderers in New Zealand. I learnt a great deal about the topic from working with Mike, much of it surprising (he preferred women jurors to men in rape trials) and I’ve maintained my interest in murder cases ever since.It was Mike’s view that in cases where an accused’s guilt could neither be proved not disproved, his (the vast majority of homicides are committed by men) attractiveness or lack of attractiveness in personality or appearance or both, could have a significant bearing on a jury’s decision. I was reminded of this by the news that Mark Lundy has won the right to appeal to London’s Privy Council against his conviction for the murder of his wife and daughter. Lundy is an obese, highly unattractive man; his histrionic display of grief at his wife’s and daughter’s funeral was both pathetic and bizarre; he was a user of prostitutes. None of this would endear him to a jury.
On hearing the news that Lundy had won the right to appeal his conviction to the Privy Council, one Palmerston North citizen told the Manawatu Guardian, ‘I believe he did it. I drive down there (to Wellington) three times a month and if he did it at that speed, he must be a Formula One driver. But I still think he’s just a pig and needs to accept what he’s done.’ Imagine this guy on the Lundy jury. He says, ‘I believe he did it.’ That’s a guilty vote. Then he says his personal driving experience tells him that Lundy couldn’t possibly have made the critical Petone – Palmerston North – Petone trip in the time the Prosecution claimed. That’s a not guilty vote. Finally he opts for guilty because, ‘I still think he’s just a pig.’ Being a fat pig is a distinct disadvantage for an accused person in a murder trial. It’s been my view for some years that neither Lundy nor Scott Watson should have been convicted of murder. Both verdicts hung on DNA evidence. The probative value of DNA evidence is fairly obvious.
If your semen is found on the victim’s underwear in a rape case, and you say you never saw the woman before in your life, your chances of acquittal are slim. Prosecution experts will tell the jury that you’re X million times more likely to be the rapist than anyone else. X million! ‘Take him down!’ There are two problems here. First, Prosecution and Defence will almost certainly offer conflicting expert testimony on the reliability of the DNA evidence. An ordinary juror, however intelligent, is unlikely to be able to assess the scientific validity of either argument. Their Lordships may have a better chance. Lundy’s British lawyer, David Hislop QC, has said the appeal will pivot on the science used to identify human tissue found on Lundy’s shirt. He told Radio Live: ‘We say it was flawed science, bad science, and we obviously want to argue that. It was never good science. In essence what was deployed from the scientist from Texas was a scientific experiment. He’d never done it before; the science world had never done it before and we say he’s got it wrong.’ The second problem with DNA evidence arises from the very fact of its perceived infallibility as an indicator of guilt. This makes it hugely attractive to the dishonest law enforcement officer, convinced of an accused’s guilt but unable to find other conclusive evidence to convict.
His problem can be resolved by the deliberate transfer of a tiny amount of DNA – perhaps a hair, a nail clipping or a piece of body tissue – from the victim to the accused or vice versa. Or the transfer may be accidental, the result of sloppy procedures during the investigation. Malice or mistake in the area of DNA science can result in the most serious examples of injustice in the judicial system. But none of this was what really caught my eye in the coverage of the Lundy appeal to the Privy Council The relatives of the murdered woman and child were understandably upset to have learned of the success of the Lundy appeal from the newspapers rather than from the authorities. Christine Lundy’s brother, Glenn Weggery, who discovered the bodies, said news of the appeal was ‘very tough’ for the family: ‘I’m rather pissed off that victims in this country are so badly thought of that no one has the balls to inform us before the media gets hold of these things. Even Lundy’s supporters could have had the balls to call us. They know where we are. They don’t think about the victims.’ Again understandable and probably justified. But Mr Weggery also said this:
‘It’s 12 years later, we’re trying to move on with our life and let Christine and Amber rest in peace and it’s just not being allowed to be done. It keeps getting dragged up every few months.’ I’ve never really understood the concept of the dead being allowed to ‘rest in peace’. It implies a capacity for suffering which the dead are surely fortunate in not possessing. Dead people feel nothing. The idea that murder victims might be upset that their killer is to be given another chance to clear his name is a projection of the quite understandable feelings of their relatives who are themselves victims of the crime. But those feelings are predicated on their certainty of the accused’s guilt and cannot justify the suggestion that he ought to abandon any and every available legal avenue to clear his name. Lundy has already spent 11 years in jail for a crime he continues to maintain he did not commit. He can barely be expected to spend another nine years in prison to allow the living to ‘rest in peace’, let alone the dead. And there’s another consideration – he may well be innocent. Where would that leave those who believe that the dead can feel the pain of injustice?