MARK EDWARD LUNDY v R [2019] NZSC 45

MARK EDWARD LUNDY v R [2019] NZSC 45 [6 May 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 95/2018[2019] NZSC 45BETWEEN MARK EDWARD LUNDYApplicantAND THE QUEENRespondentHearing: 2 May 2019Court: William Young and O'Regan JJCounsel: J H M Eaton QC, J-A Kincade and J Oliver-Hood for ApplicantP J Morgan QC and M L Jepson for RespondentJudgment: 6 May 2019JUDGMENT OF THE COURTA Leave to appeal is granted (Lundy v R [2018] NZCA 410)in relation to the approved question below.B The approved question is whether the Court of Appealerred in applying the proviso to s 385(1) of the Crimes Act1961.____________________________________________________________________REASONS[1] The grant of leave is limited to the proviso issue. Leave is declined in relationto the points raised by the applicant about the absence of a demeanour direction by thetrial Judge and the admission of the IHC evidence.[2] In relation to the demeanour direction, there is no matter of general or publicimportance, this Court having addressed the issue recently.1 We see no appearance ofa miscarriage in the way the Court of Appeal addressed the issue in relation to theapplicant's demeanour at the funeral of the deceased.[3] The applicant did not challenge the Crown's evidence that there was centralnervous system (CNS) tissue on the shirt he wore on the night that the deceased werekilled at the trial. Nor did he do so in the pre-trial hearings.2 This was in contrast tothe position taken in his appeal to the Judicial Committee of the Privy Council.3 Theexperts called by the applicant at the trial accepted the Crown position, based on theIHC evidence. The applicant's challenge to the reliability and admissibility of the IHCevidence was rejected by the Court of Appeal after detailed consideration of thematters raised by the applicant, which necessarily impugned the evidence given by theexperts called by him at the trial. We do not see sufficient prospects of success in theargument that the applicant wishes to ventilate again in this Court to justify a furtherappeal on this issue.Solicitors:Crown Law Office, Wellington for Respondent1 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116.2 R v Lundy [2014] NZHC 2527. The challenge to the admissibility of the IHC evidence was"maintained only formally": at [16(b)]. Kós J observed that the experts on both sides were inagreement that there was no doubt that the tissue analysed was CNS: at [78] and [95]. This aspectof Kós J's decision was not challenged on appeal: see Lundy v R [2014] NZCA 576.3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.