The Supreme Court is due to hear the appeal by Mark Lundy on Tuesday, 27 August.
In May this year the Supreme Court granted leave to Mr Lundy to appeal. There will be widespread interest in the hearing, which stems from the murders of Christine Marie Lundy, 38, and the couple's daughter Amber Grace Lundy, 7, on 29 August 2000 in Palmerston North. Mark Lundy was subsequently convicted of the murders in 2002, beginning a long train of legal proceedings.
In what could be a first, the Supreme Court has released a synopsis of the issues surrounding the appeal and the history of the case.
The approved ground of appeal is whether the Court of Appeal erred in applying the proviso to the now-repealed section 385(1) of the Crimes Act 1961.
The two elements of the proviso to be determined are: (a) whether the Court of Appeal was correct to determine that Mr Lundy received a fair trial which will require the Court to consider the significance of the wrongly admitted mRNA evidence in the context of the 2015 retrial; and (b) whether the Court of Appeal was correct to determine that the convictions were inevitable despite the wrongful admission of the mRNA evidence.
This will require the Court to review the admissible evidence to determine whether the Court of Appeal erred in determining that it could be sure of Mr Lundy’s guilt.
As enacted, section 385(1) read as follows:
385. Determination of appeals in ordinary cases - (1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion -
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity-
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.