Wednesday, April 15, 2015

Mark Lundy: New Zealand: Jury unaware that "reworked science" adverse to the defence had been ruled admissible before they entered the jury box at the outset of the trial - and that judge applied rarely used principles, "to allow evidence of "truly novel scientific techniques." The Dominion Post story quotes trial judge Stephen Kos as saying: "the jury would not be "drowning in a sea of science," - and defence lawyer David Hislop arguing that Lundy was not a "laboratory rat" on which to try out a "developing science."

STORY:  "Mark Lundy: What the murder trial did not know," published by on April 15, 2015.

GIST: "Mark Lundy tried to get some of the complex scientific evidence thrown out of the trial during which he was found guilty of murdering his wife and daughter. Suppression was lifted on Wednesday for a decision made last year in preparation for Lundy's retrial in the High Court at Wellington, in which a judge ruled the jury would not be "drowning in a sea of science".........The defence objected to the reworked science, and the Crown had to ask the court to sanction it calling the evidence. The first stage of that happened in September and October last year. Justice Stephen Kos, who was not the trial judge, sat into the evenings in the High Court at Wellington, hearing evidence by video link from scientists in various time zones around the world.........In his final address to the jury, defence lawyer David Hislop, QC, said RNA was a developing science, not yet ready to be used in criminal cases. Lundy, he said, was not a laboratory rat to try it out on. It was an argument already used, albeit in different terms, and rejected before the case got to the jury. In deciding to allow the jury to hear the evidence, Kos applied principles he said appeared to have been used only once before, to allow evidence of "truly novel scientific techniques". That was in the 1995 "poisoned professor" case in Christchurch, in which a hospital chemist was accused of poisoning her partner with acrylamide. Mass spectrometry was used to test the man's hair for a distinctive by-product made when acrylamide is ingested. Since then, the law has been tweaked and the test for deciding whether expert opinion evidence can be used is based on whether it is likely to be "substantially helpful" in understanding other evidence, or finding out any fact that is of consequence to deciding a case. Kos said the evidence had to have "sufficient claim to reliability" to go before the jury. He decided that it did. The defence had its own expert to give evidence challenging the RNA conclusions.........Kos said the jury would not have to decide the scientific debate. It had to decide whether the Crown had proved beyond reasonable doubt that Lundy attacked and killed his wife and daughter. "The jury will not be drowning in a sea of science," he said. The Crown had intended to call evidence of another test done to establish that the tissue was human, but decided not to. The defence had said the intended witness had no training, study or expertise in that type of analysis. And someone who was appropriately qualified had used the technique on the same material and received only negative results. Although Justice Kos' decision can now be published, suppression continues in the meantime for other material relating to the Lundy trial. Lundy's lawyers are making no comment on the possibility of an appeal against the jury's guilty verdicts."

The entire story can be found at:


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