The Scene of the Crime

by Steve Braunias

  Case closed, in essence; despite Levick’s furious arguments to the contrary, Hislop felt there was no longer any evidential basis to challenge Miller in court. Their own expert agreed with Miller. Dr Colin Smith, a small, chubby neuropathologist from the University of Edinburgh, was called to the stand. Och, the poor wee man had a terrible cold. He snuffled and wheezed, and his nose glowed red. Did he agree that the tests on Lundy’s shirt revealed the presence of central nervous system tissue? He held a paper tissue to his dripping snoot, and dredged up his devastating answer through piles of phlegm: ‘There’s no question that’s what it is.’

  I’d caught up with Levick the previous week at a foodhall in west Auckland. He was receiving regular updates from Lundy, and felt confident of Lundy’s chances of acquittal. He said: ‘They haven’t landed a punch yet.’ I texted him when prosecution witness Daniel du Plessis gave evidence: ‘They’ve landed a punch.’

  Du Plessis, a forensic neuropathologist at the University of Edinburgh, regretted to say he’d had plenty of opportunity to study the brains of homicide victims in his native South Africa: ‘We are awash in crime.’ Gillian Leak had made mention of her work on the Yorkshire Ripper investigation. Du Plessis made mention of his work on the tragedy of the 96 people killed at the Hillsborough football stadium.

  The New Zealand police had contacted him in 2013 to look into the Lundy case. They asked him whether he could establish the nature of the stains on Lundy’s polo shirt: ‘If it was tissue, which part of the body this tissue came from.’ He set about replicating Miller’s immunostains.

  Morgan: ‘And what was the outcome?’

  ‘His observations were correct.’

  Du Plessis was a very direct witness. He explained complex methodology in a simple and authoritative manner. He said, ‘I was impressed by the quality of [Miller’s] tests. I made the same observations as he did. All the boxes you expect to be positive for central nervous system tissue were ticked. None of the results were dubious or ambivalent.’

  There you had it. It was all over bar the pretty pictures. Beautiful images of the staining techniques filled the big screens in the courtroom. They were psychedelic abstracts, in deep purples and feminine pinks, magnified 200,000 times — one was shaped like a map of the North Cape, another was like a pencil drawing. Du Plessis took the role of art historian, helpfully pointing out salient features: ‘Here, we see the fine meshwork of nerve fibres . . . Here, we can see layered stacks of myelin. It looks like a stack of pancakes.’ He explained that myelin was a fatty sheath, or membrane, which insulates nerve fibres in the brain.

  The whole question of the degraded quality of the stain, said du Plessis, was a nonsense. He compared dried brain tissue to the wonderful preservation of Egyptian mummies, and the tasty preservation of biltong, those dried strips of leather which in South Africa are considered to be food.

  When his exhibition of slides came to an end, Morgan asked him, ‘In your opinion, what was found on the shirt?’

  The next PowerPoint slide came up on the screen. It had words on it. It was headlined, CONCLUSION. Du Plessis read it out: ‘Incontrovertible evidence of tissue of central nervous system origin (brain or spinal cord).’

  The punchline was much the same as his opening statement, but it felt even more damning to see it written on a screen. And then du Plessis, unequivocal to the end, told the jury: ‘The evidence is overwhelming and incontestable.’

  What are you left with after ‘overwhelming and incontestable’? It was all down to the shirt, and the shirt was like a noose around Lundy’s neck. But I had forgotten a small detail. It was something Levick had come up with way back in 2003, not long after he’d taken an interest in the whole saga. He’d read up on Miller’s immunostains, and wrote in an email to Lundy’s closest friend, ‘The chemical markers used to test positive for brain signals only recognise mammalian tissue . . . There is no differentiation between human, dog, horse, sheep etc.’

  Hislop slowly got to his feet to begin cross-examination. He looked away — he rarely made eye contact with witnesses — and appeared lost in thought. ‘Dr du Plessis,’ he said after a while, ‘you can’t say, can you, if the central nervous system tissue that you say you found is human, or non-human?’

  Du Plessis: ‘No.’

  Human, or animal? Christine, or food? I looked again at my filched photocopy of Miller’s immunostained image of C3003/3. What was I looking at? What was the true nature of the cells on the sleeve of Lundy’s stupid polo shirt? Police searching Lundy’s car found a wrapper for a beef and chilli pie. Was all of that testing — ‘it’s extremely labour-intensive work’, du Plessis remarked — conducted on the spilled remains of a meat pie? Did Lundy kill his own wife and daughter, or was he just a fat slob with pie down his shirt?

  9

  Police saw the vexed question coming. Just as they had scoured the world back in 2001 to find someone who could test whether the stains on Lundy’s shirt were tissue fragments from Christine’s brain, and their prayers were answered in the shape of Dr Rodney Miller and his amazing dancing immunostains, which were criticised as ‘novel . . . innovative’, so they scoured the world in 2014 to find someone who could test whether the stains were human, and their prayers were answered in the shape of Netherlands Forensic Institute head Dr Laetitia Sijen and her amazing dancing RNA molecular experiments, which were criticised as ‘novel . . . innovative’.

  It was imperative for Lundy’s defence to stop Sijen in her tracks. Hislop had tried, and failed, to convince a pre-trial hearing and the Court of Appeal that Sijen’s evidence should be ruled inadmissable. A third attempt was made during the trial at a closed hearing in front of Justice France. Hislop once again referred to Professor Stephen Bustin’s considered opinion that Sijen’s testing was ‘novel’, invalid, no better than a ‘pseudo-science’. It shouldn’t be put in front of a jury, Hislop argued; it was prejudicial to a fair trial. The appeal failed. In his ruling, France duly noted that one of the three judges at the Court of Appeal hearing had voted to rule out Sijen’s evidence: ‘The novelty of the work was a matter that influenced Ellen France in her dissent.’ He meant his wife. No doubt Mr and Mrs France have many differences of opinion. ‘In my view,’ France ruled, ‘Professor Bustin’s evidence is simply another opinion.’

  The genie was out of the bottle. Sijen had her day — several days — in court. Like Leak with the Yorkshire Ripper, Sijen began by talking of her encounters with human depravity. She had investigated war crimes in the former Yugoslavia. There was something fragile about Sijen. She had slightly pleading eyes, and a nervous disposition. She brought along a colleague from the Netherlands Forensic Institute to support her in court.

  It sounded like a fun place to work. There were 700 people in its offices in The Hague, working across a range of forensic disciplines; Sijen was head of research and development in the department of human biological traces. She explained that RNA was a molecular material found in human and animal tissue cells. That was about as simple as it got, and Justice France intervened to get her to talk in lay terms. He said to her, ‘You and I will have different DNA, but our blood cells will have the same RNA?’

  ‘Exactly.’

  ‘Thank you,’ he said.

  She went on to describe the method of RNA analysis which she’d developed at her laboratory. It was used, she said, to identify the origin of organ tissue — whether it came from the liver, lung, brain, etc. When she was contacted by the New Zealand police to identify whether the tissue on Lundy’s shirt came from the human brain, she developed a new model. Sijen introduced four markers that would signal the presence of RNA molecules found exclusively in the human brain. She tested them on the Lundy shirt sample, as well as brain tissue taken from a cow, a sheep, a chicken, a cat, a dog, a rabbit, a pig and a guinea pig. ‘You can order their brains online,’ she pointed out.

  Her initial tests showed no sign of human brain RNA in the sheep, cat, dog and guinea pig. Interestingly, though, signals were
picked up in samples taken from the cow, the rabbit and the pig. Another test was taken. This time the temperature was raised from 64 to 68 degrees, and the signals disappeared. There you have it: the difference between the human race and the cow, rabbit and pig is four degrees of separation.

  The four markers were used on the C3003/3 tissue on Lundy’s sleeve, and the test was repeated three times. This was the moment of truth. What would the test reveal from a possible 12 positive reactions to human brain? The score: seven reactions out of 12, or 58 per cent. ‘From the results,’ said Sijen, ‘we infer that human central nervous system tissue was present.’ Sijen had arbitrarily decided that 50 per cent was a pass rate. Her tests had only narrowly passed. The evidence, then, was that Lundy wore his wife’s brain on his shirt.

  Hislop roared at Sijen that her tests were unreliable, prone to error, ‘greatly flawed’, B-grade forensic science, and a work in progress that had never actually been performed before. Why hadn’t the Crown found anyone to support her work, like du Plessis had with Miller? Could it be that no one was prepared to be seen with her in public? How dared she pass off her tests as valid? There was a sense that she copped the kind of attack meant for Miller until it seemed apparent that his immunostaining tests were vindicated and Hislop felt he had to back off. He said to me in the wait for the verdict, ‘Taking on Miller would have done us all sorts of credibility damage, especially when we had to fight Sijen’s testing as well. We needed credibility for that fight.’

  After her long mauling on the witness stand, Sijen could be seen weeping as she was led away by her colleague. No doubt it was brutal. But a greater damage had been inflicted on Lundy’s defence. The science did for him. The shirt did for him. It had Christine’s DNA on it, although that was to be expected, and no one knew whether it originated from the tissue or had arrived independently — a cough, a sneeze. It had central nervous system origin (brain or spinal cord) on it, according to Miller, backed up by du Plessis as well as the defence’s own expert witness, the coughing Scotsman Dr Colin Smith. And now, according to the nervous, weepy Sijen — although the defence later called two scientists of obvious genius who tore her work to sheds, and although the Crown had no one to back her up, no one to agree with her, no one who sided with her in the slightest — it had human brain on it. One, two, three. Gotcha.

  10

  The myth of scientific fact got a terrible battering at the trial. It was a parade of brilliant minds, and there were times when the mere appearance of an expert lifted the ambient IQ in the courtroom. But everywhere you looked there was dispute, rancour, denial, bitter attack, weary acceptance, name-calling, tears — everywhere you looked was mere opinion. Or not even that. The forensic nadir of the trial looked as though it had been reached early on when police computer ‘expert’ Maarten Kleintjes tried to distance himself from the crackpot theory that Lundy had fiendishly manipulated the clock on his home computer. But in the second week of March, one of the strangest characters in the Lundy saga arrived on the witness stand.

  Dr James Pang conducted the autopsies on the bodies of Christine and Amber. It was his crackpot theory that their stomach contents, and the absence of the tell-tale smell of gastric juices, meant that they had died pretty much exactly one hour after their last meal. The whole charade of trying to prove they were killed at around 7pm began with Pang’s nose. When Lundy’s conviction was quashed by the Privy Council, one of the main reasons was its rejection of the time of death: ‘New evidence eradicates scientific support for the claim.’

  Its origins were recorded by a witness who preceded Pang on the stand. In 2000, Inspector Brett Calkin was put in charge of Amber’s body. He talked about going to the house and putting on paper overalls. Amber’s body lay in the hallway. Calkin and two other officers approached her. The winter’s day, the police caravan parked outside; the silent house, the murdered seven-year-old girl, the big footsteps of strangers in the Lundy hallway; there was such kindness in the way Calkin said her name.

  ‘We placed Amber in the back of a hearse . . . Her body was stored in a refrigerator, and I locked the door and used a padlock which only has one key that I held on to . . . I removed Amber from the fridge and took her to the main room.’

  She was weighed at 9.25pm. Her body was washed at 10.52pm prior to the autopsy. At 12.45am, Dr Pang opened her stomach, and Calkin wrote down what Pang said: ‘The contents are possibly potato, maybe fish, maybe meat, no apparent vegetables.’ Maybe food: her last meal was from McDonald’s. And then Calkin read out Pang’s assessment: ‘Most likely death has occurred within one hour of the meal.’

  Pang was next on the stand. He was small, even rather petite, with very black hair for a man in his sixties, and a puffy face. Most witnesses leaned forward. Pang leaned back in his chair. The microphone had to be bent towards him. He was like a little sultan.

  Vanderkolk, making a rare speaking appearance in court, questioned him for an hour. Most of the time Pang talked about the appalling injuries that Amber and Christine suffered. Vanderkolk led Pang into intimate detail. ‘Seven large gaping cut wounds . . . 80 millimetres in length and 5 centimetres in depth . . . The wounds had sharp, clean-cut edges . . . They shattered the bones of the face . . . The major portion of the front half of the brain was missing,’ etc.

  The issue of stomach contents was raised twice, briefly; and both times Pang’s voice came out in a terrible croak, and he guzzled down water to soothe his troubled throat.

  He drank quite a lot during the afternoon when he was cross-examined. It began so tenderly. ‘Sir,’ said Hislop, ‘if I can take you through your postmortem of Amber Grace Lundy? Thank you.’

  Pang was quick to state that his theory of a 7pm time of death was, in fact, only a ‘rough estimate’. He said: ‘At present, the only thing I can say with any certainty is that Christine and Amber died sometime in the 14 hours between when they were last known to be alive, and when their bodies were discovered.’

  Hislop: ‘Your position now is markedly different.’

  ‘Not entirely.’

  ‘Are you saying that your 14-hour window, which you tell us today, is consistent with your position in 2000, that they died one hour after the meal?’

  ‘That’s right. Yes.’

  ‘When was it you changed your mind? When did you change your mind? Do you accept you changed your mind?’

  ‘No. The one-hour estimate is within the 14-hour certainty.’

  He smiled, and appeared to wag his head from side to side.

  Hislop said, ‘Are you familiar with the code of expert witnesses? It says you’re not here to bat for one side. You have a duty to be impartial.’

  ‘That’s correct, yes,’ Pang croaked.

  Justice France stepped in, and asked Pang if he still accepted that Christine and Amber were killed an hour after their meal. Pang answered, ‘Now I would not give that as an estimate.’

  Hislop thanked the judge, and said to Pang, ‘You have accepted to His Honour that you changed your position. When was it you changed your mind? Do you understand the question?’

  Pang licked his lips, and croaked, ‘I think so.’

  ‘Well, could you answer it?’

  ‘I gave an estimate, but the only certainty is in the 14-hour bracket.’

  ‘Let’s just try again. When was it you changed your mind?’

  And then Pang said, ‘I would think it was after reading the Privy Council judgment.’

  It was 4pm. He had taken two hours to answer the question. But Hislop hadn’t quite finished. He said, ‘Who made you change your mind? Was it put to you that you should say what you’re telling us, that the only certainty of time of death is in the 14-hour bracket?’

  ‘I have not been talked into changing my mind by anyone.’

  ‘Tell me this,’ said Hislop. ‘You say it was after the Privy Council judgment in 2013. Did you ring the police, and say, “Hey, I got it wrong”? Did you say, “I’m dreadfully sorry, but having reflected on the Privy Counc
il judgment, I got it wrong”?’

  ‘No.’

  ‘On January 26 this year, the prosecution advised us they had changed the time of death. Is that when you changed your mind, too? And would that be a coincidence?’

  He croaked, almost noiselessly. It sounded like a ‘no’. Hislop had conducted the cross-examination through rather clenched teeth. It might have had something to do with the fact that the first he’d been informed that Pang had a Damascene experience and changed his view on the time of death was the previous night. Things finally came to an end, and Pang was excused. When he left, the ambient IQ of the courtroom seemed to lift.

  11

  His name had become like a rumour. He was talked about, a lot, but never seen. Witness after witness mentioned him, sometimes in passing, sometimes under questioning. It was always in the past tense. Perhaps he was dead. They were talking about something that happened a long time ago. Perhaps he was only a ghost, his name haunting the courtroom.

  But then he was summoned, and there stood Police Inspector Ross Grantham, a tall man with silver hair and a superb posture in his blue police uniform with three pips on each shoulder and a merit award pinned to his chest. It’s likely the award was presented to him in recognition of his massive role as officer in charge of the investigation into the murders of Christine and Amber Lundy.

  Grantham, who busted Lundy; Grantham, who led the inquiry into one of the worst prosecutions in modern New Zealand criminal history, when stomach contents, computer manipulations, and hallucinating psychics were used to bolster his fanatical belief that Christine and Amber were killed at about 7pm. How could he have got it so wrong? What was he thinking? What did it say about the rest of the investigation? There was a very keen sense of anticipation among the media when Grantham approached the stand. The expectation was that the defence would attempt to tear him a new one.