Reflections on Lundy

Good to see the Court of Appeal’s judgment in Lundy v R [2018] NZCA  410 (9 October 2018) delivered at last.

It’s one of those “world-famous-in-New Zealand” things: a double homicide that was always a whodunit. I don’t comment on the decision, because the case may not be over.

Some points do occur to me, however.

The appeal was determined under the old criteria for deciding conviction appeals (the new ones are here). Would the decision have been the same under the new law? Are the approaches in Bain and Matenga the same? See my notes of 11 May 2007  here and here, 9 July 2009 here, 20 July 2009 here.

To what extent would this illustration of the way conviction appeals are decided influence the future Criminal Cases Review Commission (CCRC) in its decision whether to refer cases to an appeal court? The current Bill proposing the establishment of the CCRC is here, and the referral criteria are in clause 17.

How appellate courts should approach conviction appeals is surprisingly unclear. Today the High Court of Australia corrected the Supreme Court of Western Australia on this: Rodi v Western Australia [2018] HCA 44 at [37], and, also today, the New Zealand Supreme Court granted leave to appeal on whether a conviction appeal after a judge-alone trial requires the appellate court to adopt a review approach or to substitute its view of the evidence for that of the trial judge: Sena v Police [2018] NZSC 92 (leave granted).

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