Posted by BE on February 19th, 2013
In 1983, 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?
I grew up in a home where my Mothers favourite motto was, “live and let live”. Whatever people do or don’t do is their business and no one else’s, as long as it doesn’t have negative implications for others. Dad used to say, “It is better that a guilty man to go free, than an innocent man be imprisoned or put to death”. The latter is a given and the basis of the Westminster Justice System. Brian, you make great points re: the veracity of DNA and it’s origins. JFK died from a miraculous shot from an average shooter with a dubious weapon!!!! and Arthur Allan Thomas conviction stood on a miraculous cartridge shell that could stay dry through a Waikato winter. Convictions based on circumstantial evidence need to be beyond ALL reasonable doubt.
I agree with all of that, Brian. There is no doubt that rather weird people are the usual victims of false convictions. They attract the attention of police and raise prejudice in the jury.
And the media practice of raising emotional prejudicial comments from aggrieved relatives during legal processes is deplorable.
DNA evidence is scary in the ‘conclusive finality’ it gives a prosecution. Having been a jury member on two murder trials, the jury system with all it’s emotive narrative and bias is also scary. Whether you are fat, thin, thick or smart should also make no difference, but it does. Media plays a big part in sensationalising crime as does the endless diet of Tokoroa CSI. Amateur juries sound good in theory, but in practice we would be better served by a panel of three judges. They don’t have to reach a quick decision so they can get dinner on, and they have the expertise to sort the wheat from the chaff in a long complex trial.
Yes – and the judges would provide a little more consistency and be less likely to be swayed by lawyers tales – in my view. Having been on a jury I would dispute a jury of peers – more like the “average joe”. I’m not sure I want to be tried by a jury of average joes with TV drama court cases and internal prejudice ringing in their ears.
You’re right about the rest in peace bit – yes, it is the families left behind who need closure, not the actual victims of the crime. I am related to a family that has suffered a murder and every time the crime hits the headlines – as it does every now and then – the kids get a hard time at school, “Your Dad’s a murderer!” The kids are innocent; the media milk the story for every angle they can; the public display a prurient interest. There are more victims here than the person who died. I am torn between an intellectual understanding of open justice, and knowing how damaging publicity (and a lot of the process) is for the other victims here. And of course, publicity is not always about justice but public hankering for sleaze and scandal and drama.
As for Lundy’s guilt, I am sure family members are basing their assumption on knowing the people first-hand and having sat through the entire trial, plus other details that we, the general public, are ignorant of.
I wouldnt hold prostitute use against him; i saw that doco on Lundy by Nigel Latta.
Thats one guy you wouldnt want in your jury, his rationalisation for saying Lundy was guilty was more unfounded than that guy BE mentions from Palmy north
I think Nigel Latta needed a subject that wasnt:
From a broken home
Kicked out of school at an early age
Known to the police or the courts
In a life of unemployment
In other words he had a ‘normal’ kiwi background.
Juries are a mixed bag by definition, and their decisions can be mystifying, in both directions. The Bain retrial is a case in point – for many, myself included, a review of the evidence seemed to reinforce the original verdict, and the demeanour of some of that jury post-trial was concerning. David Bain would probably not score highly on an attractiveness scale, but it seems the jury was in a mood to acquit. Lynley Hood’s excellent “A City Possessed” details further poor juristic behaviour in the Ellis trial.
When the door closes in a jury room (I have been on two juries) the qualities of the the foreperson have a major impact on proceedings. There have been suggestions in the past about professional jurors, which have never sat we’ll with me, it seems that we already have judges for such a role. I wonder if professional forepersons would be better?
Nigel Latta’s Beyond the Darklands TV episode on the Lundy murders certainly paints a very unfavourable picture of Mark Lundy’s character. So many similarities to the Bain case with machine time stamping and tight time limits and the accused exhibiting strange behaviour with both being accused of bad acting.
Thomas, Watson, Bain, McDonald and now probably Lundy…..it seems to me that there are a good number of murderers out there wandering around on the loose.
With the police record of cocking up trial after trial, and with easily-confused jurors targetted by smooth-talking defence lawyers who only have to muddy the waters a little to get their man off, and with the amount of evidence disallowed from use in trials (such as the Bain “rape plan” story), I bet Pistorius wishes he was being tried here.
I’m not entirely sure what you’re saying here. Thomas was in prison for more than a decade for a crime he certainly did not commit. There’s simply no doubt of his innocence. Bain served a lengthy prison sentence. I’d say the country was pretty evenly divided on his actual guilt. McDonald is in prison, but not for murder. And Lundy has already served 11 years and will serve another 9 if the Privy Council finds against him. Who are the ‘good number of murderers out there wandering around on the loose’? Or were you being ironic?
Every quashed conviction equates to an uncharged murder on the loose – if Bain didn’t kill his family, presumably someone else did – who? It’ll be the same if the Lundy conviction is annulled – who was that axeman? And if Scott Watson too were one day to get his conviction ovcerturned – another murderer walks amongst us. In the Scott Guy case McDonald was aquitted by jury confusion, and yet another murderer is free.
No doubt many readers of this fine blog can name a score more historical cases of quashed convictions where there was no other possible murderer than he who was subsequently committed but I, for one, don’t accept that all these people are innocent.
OK. I see what you’re getting at.
Anyone who can look at that picture of Lundy and tell me that depicts genuine grief, is one who’s still pushing the Roswell UFO Incident and a fervent believer that rogue U.S Government agencies masterminded the New York Twin Towers destruction.
This guy was a pantomime performer in his boy scout acting troupe. And a second-rate one at that. Speak to anyone who was close to Lundy and they will remark that his behaviour following the aftermath of his family’s slaughter was totally inconsistent with someone — supposedly — consumed with grief. If anything, it was the opposite. Lundy, at times, was upbeat as if a burden had been lifted from his shoulders. Save, for the benefit of the mourners and cameras at the funeral.
Lawyers love playing mind games; it’s their bread and butter.
Lundy might indeed have not been grief-stricken. He might have been acting. He might be a bad person who didn’t casre for his wife and child. That, in and of itself, tells us absolutely nothing about whether he murdered his wife and child.
And the way you feel and exhibit grief may be completely different to how other people do so, and I wouldn’t want someone’s monday-morning quarter-backing of how I should and shouldn’t behave in certain circumstances determine my guilt or innocence in a court of law …
‘It’s 12 years later, we’re trying to move on with our life….. It keeps getting dragged up every few months.’
No doubt that is tough for the family, but if there is enough preliminary evidence to cause the Privy Council to accept the the re-examination of the Lundy case, surely most reasonable people would wait and see if the guilt is certain – or not.
The other separate issue is the need for a good robust Victim Support system which does not rely on the awful abuse McVicar makes of victims of crimes.
It is indeed ironic that a measure of our civil society lies in the robust and excruciating efforts that may be made to test and try every minutiae before someone’s freedom is taken away and he is damned.
Ironic because in some instances- like this one – there are various tiers of victims including dead ones who are damned in some sense with no recourse , and the right to freedom being tested is that of a reviled entity.
The one positive result will hopefully be that the investigating/ prosecuting agencies will absolutely tighten their game.
It’s just not cricket is it!
I do think though that one should not nit pick on the words and juxtaposition of a grief stricken family member because of course he is projecting- whatever his spiritual beliefs , I don’t think he is visualising the victims tossing and turning in the ether out there,
Yes I hope this spurs action from victim support.
It wasn’t my intention to criticise Mr Weggery. I have a reasonable understanding of how he must feel. My point was that the fact that Lundy’s case going to the Private Council may be upsetting to the victim’s relatives or indeed to the d victims themselves, does not constitute an argument for denying him his right to pursue justice to the fullest extent.
I’m no fan of Garth McVicar but that is because he and his organisation seem devoted to the false idea that we can reduce violent offending by introducing ever more draconian punishments. He’s admired tent prisons and chain gangs in the US – both inhuman punishments. Violent offenders do not dwell on the consequences of their actions. The violent offender doesn’t say to himself, ‘Hold on, the penalty for bashing a pensioner and stealing her purse has just gone up from 4 years to six. I better not do it.”
On the other hand, I think he and his organisation have done a lot to further the interests of the victims of crime and are to be congratulated for that.
I know every time an issue with Bailey Kurariki comes up (parole hearings or violations) I cringe, because poor Michael Choy’s mum. Rita Croskery, is always asked to comment.
I don’t if is because, through the SST, she puts herself forward out of a genuine desire to see something useful come out of the tragic and unnecessary death of her son
…or because the SST are using her as a poster case
…or because the media have her contact details on rolodex ready for the next round of milking the story of the 12-year-old-mastermind-killer-of-the-pizza-delvery-man
…but I wish for her sake she finds peace. She certainly deserves it. I’m not sure continual interviews and sound bites are it. But maybe I am wrong.
But I hope somehow she does find peace.
As far as I know, Kurariki didnt even kill Choi. He was a look out or something. The guy who actually killed him is still in jail (supposedly).
Cant say I blame Croskery for feeling how she feels though.
BE: ” his histrionic display of grief at his wife’s and daughter’s funeral was both pathetic and bizarre”
To me, that is compelling; as was Lundy’s lighthearted and indifferent behaviour in the immediate aftermath of the killings. Also, the court is concerned with matters that are of a physical evidentiary nature that are deductive rather than those of an empirical nature, when it comes to behavioural responses.
There are other pointers that give clues as to someone’s guilt or innocence, but can’t be put before the court. I would say, that the interviewing officer who sat before Lundy, was able to make an accurate appraisal as to the truthfulness of Lundy’s verbal responses to the questions put to him, by his demeanour and body language (eyes, facial expressions, nervous tics etc) and whether they were congruent to what Mark was saying. Often, matters of an esoteric and metaphysical nature can be more revealing than tangible and quantifiable physical evidence.
Mark Lundy’s brother is one person who knows him, well; and his views have been made known as to what he believes with regard to Mark’s guilt.
With regard to body language.
“Detective Sergeant Stephen Kelly, officer in charge of suspects, said that two days after the murders he dropped Lundy at his father’s house.
Lundy was visibly upset, and walked away from the police car with his head down and shoulders hunched. But as soon as he thought he was out of sight, “there was a complete change in his posture.”
“Mr Lundy put his head up, his shoulders back – it was instantaneous. It was an incident that sat in my mind, that made me comment to the person beside me,” Detective Sergeant Kelly told the court.”
From memory a similar observation was made of David Bain allegedly snapping out of his trance like state in an apparent effort to hear what the cops were talking about.
David Bain should’ve done 10 years for his 111 call alone.
David Bain should’ve done 10 years for his fashion-sense alone.
No, David should receive a knighthood for being such a controversial figure in the media and our faces for so many years.
So we’re all agreed – Sir David gets 20 years in the Sing-Sing. I can live with that.
Just wait for it. David Bain singing his opera cover favourites on CD. A must for collectors of bad taste.
This sounds like a man pulling himself together so as not to cause his father any more distress.
Exactly you are 100% correct
Two things came to me as I read this.
(1) 8 years ago I was on a jury in a serious assault case.When we first retired to consider the case I polled the others as to their view so as to have a base line to start from.One older lady stated that “he” was guilty as he had evil eyes!I asked her what if any conclusions she had made from the evidence ect and she said none as she didnt listen to any of it over the 5 days as she already knew he was guilty !Thankfully the jury was hung and he got a retrail.
And yes he was not the most pleasant looking man.
(2) Aurther Allen Thomas ,enough said there.
If I had the choice I would never let my fate be placed in the hands of a jury , my facial scare would see me as good as gone.
Hmmm…. Trial by jury of peers …better a guilty man walks etc ….right to remain ….silent.
We have a judicial system where the delay waiting for trial makes denial of bail a serious civil rights issue.
So much of this stuff developed in times when the sovereign habitually destroyed his opponents by using comnfession, torture and public show trials.
Today police interviews are on tape, free legal representation is guaranteed, and criminal lifetime gang members have top QCs delaying their trials for years.
The right to remain silent and the suppression of previous criminal records, the infatuation of our culture with forensic evidence and an even longer cultural infatuation with ingenious detective plots.
Consequentially the prosecution have developed a full battery of equally fictional and theatrical devices to secure convictions.
We have created a constipated judicial system that fails in almost all ways.
The previous writer’s suggestion of professional jury foremen is not a bad idea.
I agree with BE about people with unfortunate looks and/or personalities and/or behaving poorly in front of the media being discriminated against in our justice system in general.Not fair, not justice.
Mark Lundy’s travel time as presented by the defense was based on his poor wife’s stomach contents -indicating her time of death. More recent research has suggested the defense was incorrect in their established time of death because they were incorrect on digestion time – meaning his wife died earlier and therefore the travel time could have been longer than that put forward by the defense. Lundy therefore would have been able to travel in the possible time frame.
Evidence was presented that his wife’s brain matter was found on his clothing and that threads from his jacket were found on the tool used to kill the wife and child.
Offhand I cannot state the TV programme this showed on – but it was a couple of years ago.
Evidence has to be the decider, not prejudice/ discrimination.
Tv documentary as I recall was by Bryan Bruce – The Investigator.
you are totally incorrect with everything you have said. no weapon has ever been found, what for the Privy Council and listen to the evidence correctly.
One time on jury service a co juror, from Holland, pronounced the accused guilty because his actions, as described by the prosecution, reminded her of the behavior of the Nazis during WWII!
My opinion is that unprofessional ‘peer’ scrutiny does not do justice to justice. I would like to see jury service performed by qualified practitioners of law, especially in high profile murder cases.
I realise this is off the topic,but the case of Peter Ellis destroyed my faith in the jury system.
If ever there was a travesty of justice,this was it.
And the man remains tarred and feathered to this day. Who cares,or even remembers about him?
Given the state of Gender Politics in this country,I’m not holding my breath for him to ever to be exonerated.
Yes, though not so much the jury as first the police and supposedly expert witnesses and then the justice and political bureaucracy. The jury were just pawns in the game.
This was very close to me since Peter Ellis took my wife’s position at the Chch Civic Creche when we moved to Auckland. We knew all the players, including all the falsely accused women staff and the highly unreliable accusers.
It was and remains a disgusting disgrace to the reputation of our judicial system. First and foremost the courts should insist on expert witnesses giving assessments based on factual reproducible science and totally discount opinions based on claimed “experience”.
The Peter Ellis case displays all that is bad in the NZ “Justice” system – a total travesty of what it’s all meant to be about.
Watching the antics of the police and jurors at the first & second Arthur Thomas trials planted the seeds of dissatisfaction in my mind,about the whole NZ Criminal trial system and the Peter Ellis and Scott Watson cases finished it off!
Yeah, Mike Bungay was a real character. He led a very flamboyant and energetic Defence in a 1989 murder trial in Wellington that ended in one almighty riot outside the High Court. They attacked both Mike and the Lead Prosecutor. Made the front pages of The Evening Post and The Dominion the following day (with Mike suggesting he’d never experienced anything like it before in his entire career). Unfortunately, I was one of the jury members.
That’s the thing about guys like Bungee and Williams and Leary etc; it’s less about the pursuit of Justice and Truth as it is about getting their client of the hook and enhancing their cachet as hot-shot lawyers.
By dressing up the truth in its finest clothes and creating a proper sense of confusion about everything else not useful in their defence.
If Mark Lundy tells us that he is innocent or has no involvement in his family murders then why does he not take an independent polygraph to show that there is merit in his plea for innocence.
Do we have those in NZ?
Because there is no reliable evidence or scientific consensus that polygraphs are useful as a tool for discerning lies. There’s a good reason you won’t see them used in a criminal trial or even referred to in a New Zealand police investigation.
he offered to but the Nz Police do not use them
Really enjoyed Bungay on Murder.A point he made which is pertinant although not damning, is the relationship to the Killer the victim quite often has.
Judging a defendant by his or her appearance may be of some concern.I served on a Jury, The defendant charged with a particularly nasty assault, had facial tatoos and gang tatoos clearly visable to all.The first Jury Break we all agreed he looked a likely candidate.Despite his appearance we found him not guilty as the evidence lead us to believe his innocence.
I’m pleased to read that but I thought you were not allowed to discuss anything to do with cases when you are a juror.
The discussion was about the appearance of the defendant rather than directly about the case. As a Jury it would be fairly difficult to deliver a verdict,when speaking to each other wasnt permitted
Bryan Bruce brought up an issue relevant to the defence case, regarding the time needed for a round trip to Petone.
I don’t know however whether this matter will be considered as relevant during the Privy Council hearing.
What happened to Christine in particular and her daughter Amber was obviously a crime of passion by someone close to them. Strangers do not tend to obliterate the faces of their victims. Also it seems reasonable to accept that Mark Lundy was their killer as there has not been a spate of violent axe murders since their deaths and one would have to assume that someone so sick as to need to behave like that towards complete strangers once would do so again.
There is a theory that the murders could have been committed by someone high on P. As we all know, this substance can cause people to do very terrible things.
The prospect that Amber and Christine could have been murdered by some homey in a P-induced frenzy is quite plausible.
Interesting theory, millsy. But you do know that there is a rumour doing the rounds, where a 10-year-old girl was going door-to-door, selling Girls Guides’ biscuits on that fateful night, and became enraged when Mrs. Lundy refused to buy a packet. The kid just lost the plot and went berserk.
Man, I’ve heard of someone “packing a sad”, but fat boy takes the cake with that pic.