Grantham replied with force: ‘That’s the most disgusting thing I have heard in 23 years.’
Judge Anthony Ellis told the jury in his summing up: ‘The presence of Christine’s brain matter is not in dispute.’ Well, where do you go after that? What need to say much else? His summing up took exactly 38 minutes. The jury returned its verdict in just under six hours.
Levick put more time into investigating the validity of Miller’s testing than any other issue relating to the case against Lundy. He declared it was unreliable science, that the stains were so degraded they couldn’t possibly reveal evidence of tissue. There’s a thrilling moment in his notes when he first had an inkling that IHC staining might be deeply flawed. Not long after he came onboard the campaign to free Lundy, he wrote an email to another supporter, on 25 August 2003: ‘I reckon I’m on to something. We have a man in prison for a murder we fervently believe he did not commit. He was wrongly convicted on a stain.’
Levick was vindicated in 2013 when the Privy Council accepted that the jury at the first trial should have heard evidence that seriously challenged Miller’s testing. It was one of the major reasons why his conviction was quashed. At a pre-trial hearing in September 2014, though, an expert called by the defence agreed with Miller’s tests — that the shirt did reveal traces of central nervous system tissue. Miller was right. Just as damagingly, police introduced a new scientific testing of molecular material known as mRNA. ‘It’s a brand-new test they’ve come up with just for this case, exactly like they did with Miller’s immunostains,’ said Levick. ‘Same old, same old. More smoke and mirrors . . . So what they’ve got is this: one, the ESR [Institute of Environmental Science and Research] says it’s Christine’s DNA on the shirt stain. Two, Miller’s IHC tests says it’s central nervous system or brain tissue. Three, the mRNA tests says it’s human. One, two, three: gotcha.’
Lundy’s defence said the stain might be from meat — a hamburger pattie, a chop, something like that. They objected to the mRNA testing, and argued at a pre-trial hearing that it shouldn’t be put in front of a jury: ‘It cannot be said to be accepted by the scientific community.’ Justice Stephen Kos dismissed their argument: ‘The novelty of a scientific technique is not a per se basis for exclusion.’ They took their fight to the Court of Appeal in November 2014. Three judges made their ruling. Justice Ellen France wrote, ‘The proposed evidence that the brain tissue on Mr Lundy’s shirt sleeve is probably human is pivotal evidence.’ She noted ‘the absence of international standards’, and ruled it was inadmissible. She was outvoted 2–1 by the other judges. It would stay. Gotcha. There were further crises to come for Lundy’s defence.
6
The last time I saw Lundy before the trial began, he said, ‘I’m like a haymaker inside.’ The trial in Wellington was due to open in a fortnight. We had a beer on the back porch. The weather had been wonderful all January, and grassy Kumeu shone like an emerald. Levick bit down on his Winfield and said he wasn’t going to go to Wellington for the trial. ‘Don’t think I could bear it,’ he said. He said he’d have to be held back when Dr Miller took the stand. Lundy said to him, ‘But you will be there at the end, and we will go out and celebrate. There are no ifs and buts about it.’
Then he said to me, ‘And there might be room for two journalists.’
He also meant Mike White, from North & South, who wrote a remarkable 18-page story about the Lundy case in 2009. Catchy headline, too: ‘Meticulous, or ridiculous?’ White had gone through all the paperwork that Levick had accumulated, researched the science, conducted difficult interviews, and produced a masterpiece of careful thinking and thorough inquiry. It was also crucial in gaining Lundy’s release. The story had come to the attention of David Hislop QC, a New Zealand criminal lawyer based in England. I spoke to Hislop during the trial and asked him what he thought when he read the story. ‘Wow,’ he said. It got him hooked. He agreed to take on the case, following in the footsteps of previous barristers Mike Behrens, who mounted a thin defence at the first trial, and the famed Barry Hart, who was engaged for a few years on Lundy’s behalf, and unearthed some important pieces of discovery from the police, but with whom things eventually soured. Letter from Lundy, 2007: ‘I do not want Barry Hart to represent me any more. If it were not for Geoff and the team, absolutely nothing would have been done for my appeal . . . We just need the right lawyer to seal the verdict and take the glory and appreciation of those who believe in me. I am an innocent man. I need help!’
Hislop took it to the Privy Council, which expressed serious concern over the 7pm theory and also Miller’s tests, and declared, ‘The verdict is unsafe.’ It ordered a retrial.
