The Scene of the Crime

by Steve Braunias

  Miller remarked near the end of his breezy crime yarn that Lundy was sentenced to 20 years without parole. ‘I think we all know that if he committed this crime in Texas, his punishment would be a bit different.’ Miller’s evidence would have sent Lundy to his death. There is a note of regret, a kind of sigh, in his ‘I think we all know . . .’

  The police had found their smoking gun. The supposition was that Lundy wore overalls or something similar at the murders, but small traces (described at trial as ‘bigger than a speck of sand, smaller than a grain of rice’) of Christine’s brain somehow found their way onto the shirt he was wearing underneath. Strange, perhaps, that other tell-tale traces weren’t found on his shoes, jewellery, glasses, or anywhere in the car. Crown prosecutor Ben Vanderkolk told the jury at the 2002 trial: ‘It clothed the body of the killer. It is the silent witness to the killing. Do not let this shirt leave your side.’ Lundy’s defence team blandly agreed that it was evidence of Christine’s brain, thus consigning their own client to Hell. They put up a little bit of a fight, but they picked it badly when defence lawyer Mike Behrens accused Grantham of planting brain tissue on the shirt. It was a disastrous tactic. Behrens yapped in court about ‘a most corrupt plan of the most rotten kind’. To Grantham, he asked, ‘Did you put the brain tissue on the shirt?’

  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. Lundy was released on bail. Hislop headed a team including former Crown prosecutors Ross Burns and Julie-Anne Kincade, and private investigator Tim McKinnel, who successfully fought for Teina Pora’s release. The team did not include Levick. There was a twist in the tale of Lundy’s defence: the man who had done more than anyone to secure a retrial had been given his marching orders after Levick clashed with Hislop once too often about the direction they should take at the trial.

  Letter from Levick: ‘I had in mind a full-out, all-guns-blazing attack on Miller . . . I have seen nothing to indicate that such a tactic would not have worked.’

  Letter from Hislop: ‘You continue to impugn the manner in which we have sought to conduct the case on this issue . . . I think the time has come when Mark must make a decision. Either he trusts the legal team or he does not — if he does not, then we go, simple as that. I do not intend conducting this trial with you condemning our every decision.’

  Reply from Levick: ‘I will not take any further part in this case except to debate matters with ML [Lundy], if he asks . . . This is a no-reply email. I will not take bullshit like that.’

  It was a sad and even tragic ending to Levick’s involvement, but also kind of inevitable. I could easily imagine him losing his rag, voicing his opinion in a stroppy, scornful manner, driving Hislop up the wall. He didn’t think like lawyers; he went his own way, he was a maverick. But the defence had lost the man who knew more than anyone about the many and various intricacies of Lundy’s case. Hislop was taking a very big risk in getting rid of him.

  I went out to Kumeu one last time in February. It was a week before the trial. Lundy was at his sister’s house in Taupo. I phoned him the next day and wished him luck; I wouldn’t see him again until he appeared in the Wellington High Court. I sat in the small room and read through some documents, but it felt desultory. All of Levick’s homework wasn’t going to help Lundy or play a part in the trial. I took a few notes and left to talk with Levick on the porch. The silvereyes had scoffed the last of the plums. The gro
und was as hard as a rock. His passionfruit vine had been diagnosed with black leg, a killer fungus, and was due for the chop. There were the hawks, and a kingfisher perched above the dark pond.

  I said, ‘Well — what d’you think’s going to happen next week?’

  Levick said, ‘Whatever is going to be said and done next week is set in concrete. The strategies are done. That’s it. Now the battle starts, and I can’t do anything about it. I basically got fired at the end of October, which I find very strange. I could do a hundred times more than what I’m doing. But my commitment to Mark Lundy and his family was to get it to the Privy Council, and I did. I’ve done all I can do. I have no responsibility now. If anything, I’m relieved. I’m not worried about it. Other people can worry about it. He’s stressed to the eyeballs, but there’s nothing, nothing I can do.’

  But he wasn’t relieved, and he was extremely worried. He said, ‘I think it will swing on the same thing as it did in the first trial: the shirt. If I was on the first jury, I’d have argued the drive, and said it was impossible, but I’d have caved in on the shirt, and found him guilty. Well, the drive’s gone, but we’ve still got the shirt. And we’re not going to attack that, which I think we should. But how much of the science will the jury understand, anyway? And will they even think about it that much? It’s unbelievable how fast people make up their mind. They’ll be told he killed his wife and daughter. I have no doubt some members of the jury will make up their mind within three minutes of the trial that they won’t like him. And I don’t know what the hell I can do about that. Nothing. There’s nothing I can do . . .’

  He had a file of police suspects on the table beside him. It was compiled before Lundy was arrested. I asked him about it, and it lifted his spirits. He was back on familiar ground — the puzzle, the mystery of the killings, the interesting possibilities. We went through the list of persons of interest. There was a P addict who rented near the Lundy house: ‘He’s from a family regarded as the worst in Palmerston North.’ There was a man who knew Christine, described as ‘unstable’, and who had stabbed his mother. There was a schizophrenic who saw his father kill his mother with an axe. There was a Maori guy whose stepfather was in jail for rape, and whom police visited and found asleep on a mattress in the lounge at 11am. An officer recorded their brief dialogue.

  Police: ‘How about you sit up and talk to us?’

  Man: ‘Nah. Get fucked.’

  He stormed out of the room, holding his blanket around his waist.

  Were any of these characters the killer? Or just blameless low-lifes? Levick talked about suspicious sightings of a white van seen on the night of the murders. Then he talked about the kind of weapon used to kill Christine and Amber. He said, ‘As an aside, a couple of years ago I saw an interesting jemmy bar for sale at The Warehouse, and bought one. It was quite short, able to be hidden in a pair of trousers. I used it to attack a watermelon, a pumpkin and some old dog bones. Sorry for the imagery. A full-on blow cleaved the pumpkin in half. The watermelon was disintegrated. Quite a deadly weapon. Flailed, it will break bones, I have no doubt. A jemmy bar was used to gain entry into the Lundy home that night . . .’

  He wasn’t treating it as any kind of forensic detail. There was probably nothing in it. Like he said, it was just ‘an aside’. But perhaps everything was. Maybe the truth was in black and white.

  One day inside that little shop of horrors in Levick’s garage, I reached for a folder marked SUTHERLAND. This was the name of the ESR scientist, Bjorn Sutherland, who had examined the crime scene. Sutherland was an important figure in the case. He’d discovered the two microscopic stains on Lundy’s shirt. I opened the folder. It contained photocopies of various ESR forms that Sutherland had completed. Further on, it contained photocopies of photographs taken of Christine and Amber, dead.

  They showed what happened to Christine that night when her murderer struck her head and face many, many times. The photocopies were black and white; most of the images were black, with blood. Christine was killed in bed. Her face was black. Amber lay on the carpet in the doorway. The back of her head was black. She had got out of bed to see what was going on, and was killed as she turned to escape. She wore a nightie and little white socks. She was seven years old, for pity’s sake, and her left hand was curled beside her head.

  I remember I was standing up when I looked at the pages. I remember a terrible silence in the room, and feeling very tired, and thinking: did he do that?

  Chapter 2

  That summer: Victor Wasmuth

  Summer in New Zealand is the story we tell to ourselves to make us feel good, the annual regatta, the wide blue yonder of sea and sky and sunlight — it’s got Christmas in it. It’s the holidays. It’s the whanau on a porch. There’s sand on the pavements and the worship of food. There’s maize waist-high in the fields and a van broadcasting the strangely melancholic chimes of ‘Greensleeves’. It’s got outdoor flow. It’s island time. It’s all on for young and old. It’s the national ideal, a wonderful time to be alive, a favoured time to kill.

  Intolerable summer, with its high sun sizzling, the light too bright, the nights too hot to sleep, too dry, too sticky — something’s got to give. Better to stay inside and fester. But summer brings it all out in the open. The empty country roads going nowhere, the fizz of waves on coarse black sand. The moths. The cicadas. The dogs barking in boarding kennels. The dogs barking in boarding kennels. The dogs barking in boarding kennels.

  ‘For some years I have been certain that I have been persecuted,’ wrote Victor Wasmuth. ‘Details of this business are best known to myself, but unfortunately I cannot prove any particular incident. In any case, I decided there would have to be a showdown to have the whole matter thrashed out.’

  Summer surrounded him like a narrow ledge. He stepped over it on 7 January 1963. The dogs barking in boarding kennels at the back of a neighbour’s property, howling through the long, slow days and moonless nights in a dusty corner of Auckland. West, at Bethells Beach, a long and winding metal road cut through the hills towards the coast. The painter Don Binney lived out that way. There was a hermit in the valley, an old forestry worker who lived in a tip. Bethells was peaceful, obscure. It sagged in the heat. The summer of 1963 burned like a fire across New Zealand: passengers fainted on Wellington commuter trains when delays were caused by tracks buckling in the sun, temperatures were the highest in Christchurch for 101 years, concerns of a drought led to hose bans in Gisborne.

  Wasmuth lived in the shade of a macrocarpa in a small fibrolite bach at the top of a rise. ‘We were two doors down,’ said John Porteous, ‘and I was 13.’ He boarded at St Paul’s in Ponsonby, and was home for the holidays. There were 10 children in his family. His parents had separated. ‘Father Cronin helped us deal with the situation,’ he said. ‘He was a great guy, the most amazing man I’ve ever met. He gave everything away. He always said life wasn’t about money, or fame, or any of those things. It was all about your immortal soul. He was all priest.’

  Father Cronin was inside the house, playing cards with John’s sisters. Their mother had gone to visit their father. It was a Sunday. ‘I used to make bows and arrows out of branches and dry ferns,’ John said. ‘I was in the block of land between our place and the kennels, drying out these bits of fern in the sun. And all of a sudden there were police cars everywhere. Father Cronin said, “Get inside. There’s a bit of a problem up the road.”’

  John’s brother Paul Church said, ‘I was seven. It was quite exciting. I was outside by the garage. It was just a lazy Sunday. Nothing ever happened at Bethells.’ Trucks from the Duck Brothers’ quarry bounced up and down the road every day. You could hear the train coming into nearby Waitakere station. Sometimes you could hear the surf. And then there was the matter of the dogs at the unromantically named Gorseland Kennels, owned by Jim Berry, between Wasmuth’s bach and the house where John, Paul and the other eight children lived with their mum.

  The kennels accommodated 12 dogs. One belonge
d to the governor-general. Paul and his sister Frances would walk over to the Berrys’ to buy fresh eggs, and visit the kennels. He said, ‘She was terrified of dogs. “Oh, just pat them, they’re all right,” I’d say to her. I remember Mr Berry showed me the pups one day. A couple of weeks before it happened, he asked Mum if they bothered her and she said no. He said, “The guy up the road is always complaining. But we were here first.”’

  We were here first. So much of the New Zealand way of life bristles in that remark. Wasmuth had emigrated from England. He had worked as a builder. His name was listed in census records in Christchurch in 1928, Onehunga in 1946, Waitakere in 1949, and Rodney in 1956. He was married and had two daughters, but the couple divorced. He remarried, to a woman with two children of her own. They separated, and Wasmuth was living alone by the summer of 1963. Newspaper photos taken of him in police handcuffs show a tall man with a superb physique, like a sprinter — his singlet and shorts reveal shapely legs and ankles, a narrow waist, lightly muscled arms. He looks tanned. He had lost the hair on top of his head, and his eyes are wild and staring.

  Stories continue to be told about him by people at Bethells Beach. They said he was a recluse. They said he was a crack shot. They said he walked the road at night with a rifle under his oilskin coat. A man who bought the property two doors down said: ‘I heard he had a kid who was a mongol.’

  *

  Wasmuth was mad. ‘Grossly insane’, a psychiatrist told the court, in the unrestrained language of the time. His craziness rose with the temperatures that intolerable summer. There was an incident with tomatoes at Christmas. He complained that someone was stealing the fruit right off his plants, and accused Jim Berry’s wife, Kathleen, of knowing who was behind it. Seething, paranoid, alone, he sat at his kitchen table in his singlet and shorts and worked on a book — he was a murderer with a fancy prose style. When he appeared in court, he listed his occupation as ‘Novelist’. He was a published author, with several short stories appearing in magazines in Australia. His latest project was an epic poem.