Tuesday, October 8, 2013

The bigger Bain

Mark Lundy's lawyers have confirmed he's very pleased with the Privy Council's decision, and hopes that he will be acquitted in a retrial so that he can start the search for the real killer.

This is interesting.  The Privy Council had some criticisms of Lundy's trial lawyers:

At his 2002 trial in the High Court at Palmerston North, Lundy was represented by recently retired district court judge Mike Behrens, QC, and Steve Winter.

Behrens, the senior trial lawyer, decided not to question the 7pm time of death advanced by the Crown.

In a letter to the Privy Council, he says that might have caused the Crown to change its case, ''which might create new vulnerabilities for the defence''.

''I believed the Crown theory of the case, ie the around 7pm murders, was nonsense. I believed that a far more realistic theory was that the deaths had occurred after 11pm, perhaps in the early hours of the next day,'' Behrens wrote.

''I was aware that the Crown could be pushed into changing its theory''.

But the law lords said it should have been clear that changing the time of death was ''unfeasible''. 
Mike Behrens is a very clever and experienced defence lawyer.  In this instance, he had it absolutely right and the Privy Council's criticism doesn't stand up.  There are a couple of things that are relevant here that the Privy Council may not have taken into account:

1.  A jury in Palmerston North definitely does not need a lawyer to explain to them just how enormously unlikely it is that Lundy drove to PN, committed a murder, cleaned up and drove back again in less than three hours.

2.  As Behrens says, the Crown's scenario of a 7pm death was nonsense.*  Much more likely is that they were killed sometime during the night, when his client had no alibi.  His best chance of getting an acquittal was for the jury to dwell on the Crown scenario and how ridiculously unlikely it was.  What he would definitely not want to do is go down a line of questioning that would start the jury thinking "Hey, maybe they were actually killed later, during the night. Where was Lundy at the time?"  As he said, anything suggesting to the jury that the deaths occurred later would "create new vulnerabilities for the defence."

If there's a retrial, expect the Crown to find Pang's evidence re time of death wasn't all it could have been, and a completely new scenario offered.  The defence will be that it's all circumstantial evidence.

* For example, the idea that Christine Lundy might have been undressed in bed at 7pm because maybe Lundy told her he was driving back from Petone to fuck her.  Seriously?  Who's going to find that persuasive?


Noel said...

If my understanding is correct the Privy Council's decision is based on the jury been "unsafe" in its conclusion.
Ok give him a retrial but I am sorry for the family of the deceased who have to got through all this again.
I wonder if our new higher court would have made the same determination.
I guess after the retrial he will have the opportunity to test that.

The Veteran said...

Noel ... no, if you read the 50 page judgement (and I'll admit i'ts heavy going in some places) the decision turns on the question that it is desirable that 'new' evidence relating to matter found on Lundy's shirt deserves to be tested at trial.

I agree it is unfortunate the family should have to go all through this again but I guess that has to be accepted as part and parcel of the appeal process.

For myself and putting aside the question of the new evidence where it appears two sets of experts arrived at two differing conclusions, I think that, on the balance of probabilities, Lundy is guilty. That however is not the standard against which he will be assessed. That standard is 'Beyond all reasonable doubt'.