R v Bain

Case [2009] NZSC 16 6 March 2009

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IN THE SUPREME COURT OF NEW ZEALAND
SC 13/2009
[2009] NZSC 16
DAVID CULLEN BAIN
v
THE QUEEN
Hearing:2 March 2009

Court:Elias CJ, Blanchard, McGrath, Wilson and Gault JJ
Counsel:H A Cull QC and P A Morten for Appellant

K Raftery and C L Mander for Crown

Judgment:6 March 2009
Reasons:18 March 2009

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe disputed evidence is excluded and the material in issue is to be excised.

REASONS

Para No

Elias CJ and Blanchard J  [1]
McGrath J  [69]
Wilson J  [90]
Gault J  [97]

ELIAS CJ AND BLANCHARD J
(Given by Elias CJ)
[1]     On 6 March 2009 the Court allowed the appeal and indicated it would give reasons at a later date. The members of the Court now give their reasons.
[2]     The appellant, David Cullen Bain, was convicted in 1995 of the murders in 1994 of five members of his family. His convictions were eventually quashed in 2007 by the Privy Council, which ordered a new trial.[1] In preparation for the trial, which has now started before Panckhurst J and a jury, the Judge has been obliged to determine a number of applications. Some have been appealed to the Court of Appeal. One concerned the High Court ruling that a digital recording said by the Crown to be a true copy of a taped 111 call is provisionally admissible at the trial, subject to proof of the chain of custody of the recording. [2]The 111 call was made by the appellant when he reported the deaths of his family members. On 30 January, the Court of Appeal dismissed the appellant’s appeal against the ruling as to admissibility. [3] Mr Bain has been granted leave to appeal further to this Court on the admissibility of part of the recording. The part of the recording to which objection is taken contains what the Crown says is an admission: “I shot the prick” or “I shot that prick”.
[1]Bain v R [2007] 23 CRNZ 71 (PC).
[2]R v Bain (High Court, Christchurch, CRI-1994-012-217294, 13 November 2008, Panckhurst J).
[3][2009] NZCA 1 (William Young P, Chambers and O’Regan JJ).
[3]     Although the 111 call formed part of the evidence at the appellant’s earlier trial in 1995, the words were not recognised and did not form part of the transcript of the

call. The presence of the disputed admission was first found by Detective Ward, when he reviewed the recording, in preparation for the retrial, in July 2007. At that time he listened to the recording at a commercial sound studio in Dunedin. Mr Dempsey, the ambulance officer who took the call, had not heard the disputed words and did not suggest their inclusion in the transcript originally prepared in 1994. In October 2007 he was asked to recheck the recording after being told of the words which had been discovered. In listening to the recording with that knowledge, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bain

Details

AGLC: R v Bain [2009] NZSC 16
Case: [2009] NZSC 16
Decision Date: 6 March 2009

CaseChat Overview and Summary

The Supreme Court of New Zealand has allowed the appeal of David Cullen Bain, who was convicted of murdering five members of his family in 1994. The Court has ruled that a digital recording of a 111 call made by the appellant, which the Crown claimed contained an admission of guilt, should be excluded from evidence. The Court considered the recording to be irrelevant because experts were unable to confirm whether the recording contained any words, let alone the specific words claimed by the Crown. The Court also found that even if the recording was relevant, it should be excluded because the prejudicial effect of admitting it outweighed its probative value. The Court held that the risk of the jury misinterpreting the recording as an admission of guilt, despite expert evidence to the contrary, was too great to allow the recording to be admitted. The Court also noted that the prejudicial effect of admitting the recording would be substantial, as the jury could potentially convict the appellant based solely on the recording.

Orders