New trial ordered

Privy Council quashes double murder convictions and orders retrial after new science challenges brain tissue evidence

The Board admitted scientific evidence that could have been obtained before trial, found the verdicts unsafe, refused to apply the proviso, and ordered a retrial rather than deciding the expert disputes itself.

Lundy v The Queen, [2013] UKPC 28

5 min read

Court: Judicial Committee of the Privy Council, on appeal from the Court of Appeal of New Zealand
Decided: Oct 7, 2013
Conviction to this result: 11 years
Sentence: Life imprisonment with a minimum term of 17 years, increased to 20 years by the Court of Appeal on a Solicitor General appeal

Appeal allowed, convictions quashed, retrial ordered The conviction was set aside, but the charge can be tried again. The presumption of innocence applies.

What happened

In August 2000 Mark Lundy's wife and their young daughter were found dead in the family home in Palmerston North. Both had been killed with a weapon such as an axe or hatchet. No weapon was found. Mr Lundy had been on a sales trip and stayed at a motel in Petone, near Wellington, about 145 km away. Phone records placed him in the Petone area at 5.30pm and again at 8.28pm on the evening of 29 August. The Crown said he killed his wife and daughter at about 7pm to 7.15pm, which meant driving there and back and committing the murders within two hours and 58 minutes. The trial judge told the jury that if they were not satisfied of that time of death, the Crown case failed. Three pieces of scientific evidence carried the case. First, two small stains on a polo shirt taken from his car, examined 59 days after the deaths, were said to contain his wife's central nervous system (CNS) tissue. A Texas pathologist, Dr Rodney Miller, used immunohistochemistry (IHC), a staining technique used to identify tissue types, and called the result conclusive. Defence counsel conceded the point at trial. Second, a pathologist and a gastroenterologist estimated time of death from stomach contents and the absence of any smell of gastric juices. Third, the home computer appeared to have been shut down at 10.52pm, which did not fit the Crown timeline. A police expert said the clock could have been altered without trace and that disordered registry files showed someone had experimented with the date and time.

Procedural history

Aug 30, 2000
The bodies of Mr Lundy's wife and daughter were found in the family home in Palmerston North
Undated
Mr Lundy charged with both murders
2002
Trial; convicted of both murders; sentenced to life imprisonment with a 17 year minimum termHigh Court, Palmerston North (Ellis J and jury)
Aug 13, 2002
Conviction appeal dismissed; Solicitor General's sentence appeal allowed and minimum term increased to 20 yearsCourt of Appeal of New Zealand
Nov 2012
Application for permission to appeal filed on seven grounds, after years of difficulty funding the appealPrivy Council
Undated
Permission to appeal granted after preliminary issues on jurisdiction were resolvedPrivy Council
Jun 13, 2013
Crown disclosed a 2001 police report form recording a neuropathologist's doubts about the shirt slide
Jun 17, 2013
Appeal heard over three days, 17 to 19 June 2013Privy Council
Oct 7, 2013
Judgment: appeal allowed, convictions quashed, retrial ordered, appellant to remain in custody pending retrial subject to any bail applicationPrivy Council

The offence and its elements

Murder (two counts)

Crimes Act 1961 (NZ); the judgment does not cite the specific section creating the offence or the statutory route to murder relied on at trial

What the prosecution had to prove:

The accused was the person who killed the victimdisputedFrom the reasons
The killing was unlawful and caused the death of a human beingnot addressedGeneral law: check the current text
The accused had a mental state that the Crimes Act 1961 treats as sufficient for murder (the Act provides more than one route, such as an intention to kill; the judgment does not identify which route the Crown relied on, so this entry is stated only in general terms)not addressedGeneral law: check the current text

The questions on appeal

Could the Privy Council still hear an appeal from a 2002 New Zealand decision, and should it?: Yes. The Supreme Court Act 2003 (NZ) preserved the Board's jurisdiction over Court of Appeal decisions made before 1 January 2004. The Crown argued the case should go through the Royal Prerogative of Mercy instead. The Board granted permission because the new evidence needed careful evaluation and the mercy route would add significant delay. It stressed this reflected the particular circumstances and was not a statement of principle.
Should new expert evidence be admitted when all of it could have been obtained before trial?: Yes, on all three topics. The Board applied a sequential test: credibility first, then freshness, then impact on safety. Evidence that is credible but not fresh should still be admitted if excluding it risks a miscarriage of justice. Where the prosecution case rests principally on science and the new material presents a significant challenge, a court should not be astute to exclude it just because it could have been obtained earlier.
Was there a disclosure failure?: In part. A police report form recorded that a neuropathologist who viewed the slide in January 2001 would say only that the cells were tissue cells, that they had degenerated badly, and that Mr Lundy should not be convicted on the strength of them. The Crown accepted this should have been disclosed before trial. It was not disclosed until June 2013. Two other letters from overseas pathologists did not meet the disclosure test.
Were the convictions unsafe, and could the proviso save them?: The convictions were unsafe because the new evidence might reasonably have led a jury to decline to convict. The proviso, which lets a court dismiss an appeal if no substantial miscarriage has actually occurred, could not be applied. The remaining evidence (a possibly staged break-in, paint flakes, a petrol discrepancy, a bracelet, a neighbour's sighting) raised suspicion but did not leave the Board sure of guilt.

The law the court applied

Admission of new evidence on appeal

A sequential approach. If the evidence is not credible, it is excluded. If credible, ask whether it is fresh, meaning it could not have been obtained for trial with reasonable diligence. Credible and fresh evidence is generally admitted unless it would have no effect on safety. Credible but not fresh evidence is admitted if excluding it risks a miscarriage of justice. The overriding criterion is the interests of justice.

R v Bain [2004] 1 NZLR 638 (CA), as applied by the Board at para 120

Scientific evidence and freshness

Where a case rests exclusively or principally on scientific evidence, and new scientific material presents a significant challenge to it, the court should not be astute to exclude it solely because it might have been obtained before trial.

Wallace v R [2010] NZCA 46, as explained by the Board

Evidence not called because of counsel's error

In Fairburn the majority of the New Zealand Supreme Court said the evidence must be regarded as fresh because of counsel's error, while also saying it would be contrary to the interests of justice to rule it out for lack of freshness. The Board in Lundy (paras 125 and 126) read Fairburn differently: the principal reason for admission was the interests of justice, counsel's error cannot transform evidence into fresh evidence, and such evidence must pass the same sequential test as all other new evidence. It does not follow that evidence omitted by counsel's error should generally be admitted.

Fairburn v R [2010] NZSC 159, as qualified by the Board at paras 125 and 126

Safety of the conviction where new evidence is admitted

The appellate court decides for itself whether the new evidence might reasonably have led to an acquittal. The question is whether there is evidence on which a jury might reasonably decline to convict, not whether there was evidence on which it could convict.

R v Pendleton [2002] 1 WLR 72; R v Matenga [2009] 3 NZLR 145; Bain v R [2007] UKPC 33

The proviso

The court may dismiss an appeal despite a miscarriage only if the guilty verdict was inevitable, meaning the court itself feels sure of guilt on all the admissible evidence. It is not enough that a reasonable jury could have convicted.

Section 385(1)(c) Crimes Act 1961 (NZ); R v Matenga [2009] 3 NZLR 145; Stafford v The State [1999] 1 WLR 2026

Prosecution disclosure

Relevant material in the prosecution's hands that might undermine the Crown case or assist the defence must be disclosed. Material that might merely prompt further inquiries falls short.

R v Ward (1993) 96 Cr App Rep 1; R v Alibhai and others [2004] EWCA Crim 681

Evaluating novel scientific technique

Factors for assessing novel science: whether it can be and has been tested, peer review and publication, known or potential error rate and standards, and general acceptance. The Board called this a useful template but did not decide admissibility of the IHC evidence.

Daubert v Merrell Dow Pharmaceuticals Inc 509 U. S. 579 (1993), as endorsed in R v J-L J [2000] 2 SCR 600

What the court decided

The Board (Lord Kerr delivering the judgment of a panel including Lord Hope, Dame Sian Elias, Lord Reed and Lord Hughes) held that the new expert evidence on tissue identification, time of death and the computer was credible and should be admitted in the interests of justice even though none of it was fresh. Taken with the trial evidence, it might reasonably have led a jury to decline to convict, so the verdicts were unsafe. The proviso could not be applied because the Board could not feel sure of guilt on the remaining evidence. The divisions between experts were too deep and too central to be resolved on appeal. The Board advised that the appeal be allowed, the convictions quashed, and that Mr Lundy stand trial again on both murder charges, remaining in custody pending retrial subject to any bail decision by the High Court of New Zealand. The decision did not find Mr Lundy innocent; it sent the disputes back to a jury.

What happens next: A retrial on both murder charges was ordered, to be arranged as soon as convenient. Mr Lundy was to remain in custody pending retrial unless the High Court of New Zealand granted bail. At any retrial he is presumed innocent.

Analysis

This is our commentary, separate from the court’s reasons.

Freshness gave way to the interests of justice

The appellant conceded that none of his evidence was fresh. Much of it had been in trial counsel's hands in some form. Ordinarily that is a serious obstacle, because the one trial principle says an accused must put up the best case first time. The Board kept that principle but reshaped it. It turned the Bain criteria into a clear sequence, put credibility first, and said that where new science directly and plausibly challenges a central plank of a scientific case, the fact that it could have been obtained earlier loses much of its force. It also refused to label the Crown science as bad science, which avoided prejudging the retrial. The practical result is that science-based convictions in New Zealand are open to challenge by better science without the appellant having to show the material was unobtainable at trial.

A concession made on incomplete information

The defence concession that the stains were CNS tissue was described as pivotal, and the judgment shows how fragile its foundations were. Dr Synek was a neuropathologist but not an expert in IHC. She saw only a selection of high powered photographs, not the slides, and did not know the sample had been taken 59 days after the deaths. Professor Vanezis was a pathologist but not a neuropathologist, and the neuropathologist he had said was needed never saw the slides. Meanwhile the police held a note from a neuropathologist who thought the cells had degenerated badly and that no one should be convicted on them. The Board would not accept that counsel would have conceded anyway. The lesson is that a concession cannot be judged in isolation from what the prosecution knew and did not share, and that a review of old cases should check whether key concessions rested on the right specialist.

Diagnostic tools and the criminal standard

The most durable part of the judgment is its caution about moving a technique from the clinic to the courtroom. IHC is routine in diagnosis, but the Board observed that evidence good enough for a confident medical judgment may not measure up to proof beyond reasonable doubt, and that IHC as a means of proving guilt remained untested by experimental or empirical means. It drew on an Oregon case, Blake, where IHC testing for a toxin in liver tissue was excluded partly because there was no known error rate. The Board said similar arguments could be made about Dr Miller's evidence, but it made no finding to that effect. The complaint that the control tissues had not been smeared, air-dried and left exposed like the shirt sample came from Professor Sheard, and it was contested: Dr Miller and Professor Gown said the controls were sound. The Board listed these as unresolved disputes, did not rule the evidence inadmissible, and, consistent with Pendleton, left the contest to a jury. Its treatment of the other circumstantial material, which it found raised suspicion but not proof, shows how a proviso argument fails when the court cannot itself be sure of guilt.

If this feels close to home

Evidence that could have been found before trial is not automatically shut out on appeal. Where it is credible and strikes at a central part of a scientific case, a court may admit it in the interests of justice. The stronger the evidence, the more likely this is.
A concession made at trial can be revisited if it rested on incomplete information, particularly where the prosecution held material that might have undermined its own expert and did not disclose it.
When a conviction turns on a novel forensic technique, useful questions are whether it has been tested for that use, peer reviewed, has a known error rate, and whether the controls fairly reflected the condition of the sample. Experts may disagree on these points, as they did here.
A quashed conviction with a retrial is not an acquittal. The presumption of innocence applies at the new trial, and the disputed questions go to a fresh jury.
Funding and delay can hold a case up for years. This appeal waited a decade for lack of legal aid and pro bono counsel. The Board treated the time already lost as a reason to act rather than defer.

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What went wrong

Flawed forensic science Evidence not disclosed Fresh evidence Ineffective lawyer

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Nov 3, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

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Citations

[2013] UKPC 28 The present decision
R v Bain [2004] 1 NZLR 638 (CA)Criteria for admitting new evidence on appeal and the test for miscarriage of justice
Bain v R [2007] UKPC 33Whether there was evidence on which a jury might reasonably decline to convict
R v Matenga [2009] 3 NZLR 145New Zealand approach to miscarriage of justice and the proviso
R v Pendleton [2002] 1 WLR 72Appellate court tests its view by asking whether new evidence might reasonably have affected the jury
Stafford v DPP [1974] AC 878Ultimate responsibility for deciding safety rests with the appellate court
Wallace v R [2010] NZCA 46Freshness is less critical where the challenge is to scientific evidence
Fairburn v R [2010] NZSC 159Majority treated evidence omitted by counsel's error as fresh; the Board read the real basis as the interests of justice and required the ordinary sequential test
R v Sungsuwan [2006] 1 NZLR 730Real risk of an unsafe verdict suffices
Daubert v Merrell Dow Pharmaceuticals Inc 509 U. S. 579 (1993)Factors for evaluating novel science
R v J-L J [2000] 2 SCR 600Canadian endorsement of the Daubert factors
Blake v Cell Tech International Inc (2009) 228 Ore App 388Oregon decision excluding IHC evidence for microcystin testing, where there was no known error rate; the Board said similar arguments could be made here
R v Ward (1993) 96 Cr App Rep 1Duty to disclose material that might undermine the Crown case or assist the defence
R v Alibhai and others [2004] EWCA Crim 681Disclosure duty
Barlow v R [2009] UKPC 30Mercy route relevant to exercise of Privy Council jurisdiction, not to its existence
R v Crime Appeal (CA 60/88) (1988) 3 CRNZ 512Source of the fresh evidence jurisdiction under s 385(1)(c)
Stafford v The State [1999] 1 WLR 2026Principles governing the proviso
Crimes Act 1961 (NZ), s 385(1)(c)Miscarriage of justice ground and the proviso
Crimes Act 1961 (NZ), s 406Governor-General's power to refer convictions to the Court of Appeal
Supreme Court Act 2003 (NZ), ss 42, 49, 50 and 52Preservation of Privy Council jurisdiction over pre-2004 decisions

Sources

Lundy v The Queen, [2013] UKPC 28

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.