Lundy v The Queen (New Zealand)

On an appeal against conviction, new evidence should be considered through a sequential inquiry into credibility, freshness and its potential effect on the safety of the conviction. Credible evidence may be admitted despite being available at trial where its strength and potential impact create a risk of miscarriage of justice. This is particularly so where it challenges central scientific evidence. An appellate court must decide for itself whether the evidence might reasonably have led to an acquittal, while recognising the jury’s primary role. Under the proviso to section 385(1)(c) of the Crimes Act 1961, an appeal may be dismissed only where guilt is certain and a guilty verdict was inevitable. Novel forensic science is not automatically inadmissible, but requires appropriate caution and validation.

The appellant was convicted in 2002 by the High Court of New Zealand of murdering his wife and daughter. The Court of Appeal of New Zealand dismissed his conviction appeal on 13 August 2002, but increased the minimum term of imprisonment from 17 to 20 years on the Solicitor-General’s appeal against sentence. Permission was later sought to appeal to the Privy Council on seven grounds, including fresh expert evidence challenging the identification of central nervous system tissue on the appellant’s shirt, the estimated time of death and computer evidence. The Board had to determine its jurisdiction, whether the evidence should be admitted despite having been available at trial, whether the convictions were unsafe, and whether the statutory proviso could preserve them.

The Board, in a judgment delivered by Lord Kerr, allowed the appeal.

1. Jurisdiction and permission. The transitional provisions of the Supreme Court Act 2003 preserved the Privy Council’s jurisdiction over appeals from relevant New Zealand Court of Appeal decisions made before 1 January 2004. The existence of the Royal Prerogative of Mercy or the Governor-General’s power to refer a conviction under section 406 of the Crimes Act 1961 did not remove that jurisdiction, although those alternatives were relevant to its exercise. Permission was granted because the proposed appeal required careful assessment of significant new evidence and delay could otherwise prejudice the interests of justice. The decision was confined to the particular circumstances of the case.
2. Admission of new evidence. The correct approach was sequential. Evidence that was not credible should be excluded. If credible, the court should consider whether it was fresh, meaning evidence that could not have been obtained with reasonable diligence for trial. Credible and fresh evidence should generally be admitted unless it could not affect the safety of the conviction. Credible but non-fresh evidence should be assessed for strength and potential impact; it should be admitted where exclusion created a risk of miscarriage of justice. Counsel’s failure to obtain available evidence did not automatically make it fresh or admissible.
3. Scientific evidence. The freshness requirement could have reduced importance where new scientific evidence directly challenged a central prosecution case. Established diagnostic techniques could not necessarily be transferred to a forensic setting without further verification. Novelty did not automatically make evidence inadmissible, but justified caution. The Board regarded the factors identified in R v J-L J and Daubert v Merrell Dow Pharmaceuticals Inc as a useful template, without finally resolving the admissibility question. The new evidence was credible and materially challenged the tissue identification, time-of-death and computer evidence. It was therefore admitted.
4. Safety of the convictions. The appellate court had primary responsibility for deciding whether the conviction was safe. The question was whether the new evidence might reasonably have led to an acquittal, not whether the appellate court could predict what the jury would have done. The Board concluded that the convictions were unsafe.
5. Proviso and disposal. Under section 385(1)(c) of the Crimes Act 1961, the proviso could apply only if, after reviewing the admissible evidence, the Board was sure of guilt and a guilty verdict was inevitable. Suspicion arising from other evidence did not meet that test. The convictions were quashed and the appellant was ordered to stand trial again. He was to remain in custody pending retrial, subject to any decision on bail by the High Court of New Zealand.

1. Privy Council — In [2013] UKPC 28, the appeal was allowed, the convictions were quashed and a retrial was ordered.
2. Court of Appeal of New Zealand — On 13 August 2002, the conviction appeal was dismissed. The Solicitor-General’s appeal against sentence was allowed and the minimum term was increased from 17 to 20 years.
3. High Court of New Zealand — In 2002, following trial before Ellis J and a jury, the appellant was convicted of both murders, sentenced to life imprisonment and ordered to serve a minimum term of 17 years.