R v Bain HC CHCH CIV 2007-412-000014

[2008] NZHC 2334

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT FOR THE RESULTS AS SET OUT IN THE ACCOMPANYING PRESS RELEASE ) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-412-000014

REGINA

v

DAVID CULLEN BAIN

Hearing:         12 and 13 May 2008

Counsel:         K Raftery, C Mander and R P Bates for Crown

M Reed QC, H A Cull QC and P A Morten for Defence

Judgment:      19 May 2008

JUDGMENT OF PANCKHURST J

Introduction

[1]      The week commencing 12 May was scheduled for the hearing of pre-trial applications, including a stay application and a s344A application as to the admissibility of certain evidence.  In the event, and for reasons to which I will refer shortly, neither of the two main applications were ready for hearing.

[2]      Nonetheless I heard argument referable to several issues.   This judgment contains  rulings  upon  an  application  to  further  adjourn  the  trial,  an  argument

R V DAVID CULLEN BAIN HC CHCH CRI 2007-412-000014  19 May 2008

concerning  whether  the  Evidence  Act  2006  applies  to  the  retrial  or  not  and concerning a dispute as to the further testing of a skin sample, to which both the Crown and the defence wish to have access.   I shall also refer to questions raised with reference to disclosure, the preliminary examination of new Crown witnesses, particulars of the Crown case, an indicated stay application and a contention of possible conflict of interest affecting myself.

Adjournment of the trial

[3]      The Privy Council decision by which the convictions were quashed and a retrial ordered, was delivered on 10 May 2007.   On 21 June the Solicitor-General announced his decision that a retrial would proceed.

[4]      On 26 July I held the first telephone conference with counsel.  A subsequent minute arising from that conference fixed a trial date of 5 May 2008.  A timetable was also prescribed which required that Crown witness statements were to be provided  by early  November,  venue  and  stay  applications  were  to  be  filed  for hearing in December and that if the defence adhered to its intention to seek to examine new witnesses pursuant to s178 of the Summary Proceedings Act 1957, it was “imperative” that any such application be filed in a timely manner.

[5]      Following   a   further   telephone   conference   I   issued   a   minute   dated

2 November which recorded that the Crown had provided witness statements for the persons it intended to call at the retrial, although 13 of the statements remained to be signed.  A reservation was also expressed that testing, or retesting, of exhibits (which had earlier been foreshadowed) could result in some further or amended witness statements.   Despite a defence protest that it was not possible to file pre-trial applications in this situation, I directed their filing by the end of November.  Such did not occur.

[6]      On 6 December, following a further telephone conference, I again directed that the indicated stay and venue applications were to be filed before the Christmas vacation.  In the event they were, on 21 December, but in draft form and with the indication that affidavits would be filed in due course.

[7]      On  5  February  2008  there  was  a  further  telephone  conference.    It  was preceded by a defence memorandum which contended that the draft stay application could not be advanced until “the Crown has supplied its full evidence”.  Further, the memorandum asserted that the stay application should be resolved before the application for a change of venue was argued.   And, the stay application was indicated to require a 3-4 day hearing which could not occur “before the end of May

2008”.  In light of submissions made at the telephone conference, I made directions in a minute dated 5 February that the stay and any s344A application would be heard in the week of 12 May, with a timetable prescribed for the provision of objections to evidence, the filing of the evidence application and the filing of affidavits by both sides.

[8]      I interpolate that by 5 February it was obvious that the original trial date (5 May 2008) was unattainable.  The timetable recognised as much.  In addition, the making of the timetable represented a rejection by me of the defence contention that it could not advance pre-trial applications until the Crown case was complete.   I explained in the course of the telephone conference that I did not accept that contention, although the minute which followed the conference did not expressly say as much.

[9]      My reasons for rejecting the contention are these.   By November 2007 the Crown case, as then known, was on the table.  Witness statements had been provided for about 130 witnesses.   Nonetheless, it remained the case that there was a possibility, perhaps a probability, of some further Crown evidence.   I had already made directions with reference to the release of certain exhibits in relation to which further forensic testing was to occur.  There was also a hearing scheduled to resolve the terms upon which other items might be retested.

[10]     But the substance of the Crown case was already known.  Witness statements for all witnesses of fact were available, as were statements for all expert witnesses. Whether  new  evidence  would  be  favourable  to  the  Crown,  or  to  the  defence, remained unknown.  It is axiomatic that a pre-trial ruling may be revisited if changed circumstances require as  much.    In  my view  the  emergence  of  further  forensic evidence, if any, fell to be accommodated in this manner.  My approach must have

been clear to all counsel.  The directions made, and the hearings scheduled, did not and could not seek to accommodate the emergence of new forensic evidence (which is still awaited as of now).  It remained a contingency which could only be brought to account subsequently.

[11]     On 28 February I heard argument concerning the terms upon which further forensic testing should be conducted.  A judgment was given on 5 March concerning that aspect.  Also in the course of the 28 February hearing the issue of a new trial date was discussed and I fixed 11 August 2008 as the new commencement date.

[12]     The application for  change  of  venue  was  heard  on  19  March,  as  earlier directed.  The decision was reserved and recently (7 May) I granted the application and directed that the trial venue would be Christchurch.

[13]     By mid to late April it was apparent that the timetable for the stay/s344A hearing in the week of 12 May had not been met by the defence and that as a consequence the Crown was hamstrung.  An inquiry was made of defence counsel. This produced a memorandum dated 24 April which included assertions that objections for the purposes of a s344A ruling could not be framed until the Crown “sanitised” the witness statements and that “the defence cannot be ready for an

11 August trial date in any circumstances …   The earliest possible start date is February 2009”.  Yet, the memorandum was not accompanied by an application for an adjournment of the trial.

[14]     At a further telephone conference on 2 May I advised counsel that, regardless of the failure to comply with the timetable for the pre-trial hearing, I would sit on

12 May to hear argument in relation to any aspects which could be usefully dealt with, including an application for an adjournment (if the defence sought one, as opposed to merely asserting when the case would be ready for trial).

[15]     In  the  meantime  on  8  and  9  May,  applications  for  a  ruling  concerning whether the Evidence Act 2006 applied to the retrial and for an adjournment were filed by the Crown and the defence, respectively.

[16]     The above does not purport to be a complete summary of relevant pre-trial events since July 2007.   Rather  I have  focused upon  events which provide the background to the situation which obtained as at the date of the scheduled pre-trial hearing on 12 May.  I consider that the chronology speaks for itself.  Not only have directions of the Court been ignored, but a refusal to accept the need to deal with pre-trial aspects while further forensic testing is to occur, is evident.  Ordinarily, this history may dictate against a further adjournment of the trial.

[17]     But, there is a further dimension which must be considered.   For various reasons the further forensic testing has not occurred within the timeframe which was originally envisaged.  One important exhibit has been examined in England, but a report in relation to it is still awaited.   DNA testing and footprint testing to be conducted by the ESR, is still to occur.  This work is scheduled to take a period of weeks, rather than days.

[18]     Mr Reed QC submitted that the current situation with reference to further testing of exhibits of itself rendered the August trial date unattainable.  He pointed out that the testing must be completed, reports and witness statements provided and then the defence will require time to obtain expert advice and brief evidence in reply, if needed.  Mr Raftery was not disposed to disagree with this analysis.  While the Crown did not consent to an adjournment, nor did it actively oppose one.

[19]     Obviously, this aspect involves fair trial considerations.  Section 24(d) of the New Zealand Bill of Rights Act 1990 is engaged.  In these circumstances delay and default, for which David Bain is not personally responsible, cannot be allowed to dominate the decision.  I therefore have no option but to further adjourn the trial.  I am greatly concerned that a case which has been on foot for as long as this one, and in relation to which significant parts of the evidence have been exhaustively considered before two superior courts, cannot go to retrial within 15 months of the decision quashing the convictions.  However, I refrain from further comment.

[20]     Essentially, it was common ground that if the trial was adjourned, it would have to be to a date in early 2009.  This reflects the required lead-in time in relation to forensic testing and the exigencies involved in managing a trial in the latter part of

the year.  Counsel estimate that the retrial may occupy up to 12 weeks, which would necessitate a commencement date before the beginning of October, in order to avoid the Christmas vacation.  Although I am doubtful as to the accuracy of the estimate (and the trial will be conducted on the basis of the time which it properly requires, not the time estimated), I must proceed with caution and the only course is to contemplate a commencement date in February 2009.

[21]     Mr Reed submitted that Monday, 23 February was appropriate.  I disagree.  I direct that the trial will commence on 16 February 2009.   This will provide eight clear weeks before the Easter break.

Does the Evidence Act 2006 apply to the retrial?

The Crown argument

[22]     The Crown applied for a ruling on this aspect.  Mr Raftery submitted that the new Act clearly applied because:

(a)matters of practice and procedure (including provisions dealing with the admissibility of evidence) have always received retrospective effect at common law, and

(b)s5(3) of the Evidence Act prescribes that “all proceedings commenced  before,  on,  or  after  the  commencement  of  the section …” shall be governed by the new provisions save in two limited exceptions, neither of which applied in this instance.

[23]     Attention was drawn to one Court of Appeal decision (R v E, CA308/06, [2007] NZCA 404 paras [45] and [84]) and two Supreme Court decisions (Rajamani v Crown [2007] NZSC 68, para [21]; and Nan v Crown [2007] NZSC 105 para [67]) which contain observations to the effect that the forthcoming trials would be conducted under the new Act, whereas the relevant events had occurred before it came into force. This included instances where the trial was a retrial. However, as Mr Raftery acknowledged, these observations were only of persuasive value.

[24]     With reference to the position at common law, it is sufficient to refer to two cases.  In R v Cann [1989] 1 NZLR 210 (CA) the Court considered a submission that an amendment to the Inland Revenue Department Act 1974 (to permit officers to give evidence at a criminal trial, despite the Department’s secrecy obligation), should not be given retrospective effect. The amendment was passed subsequent to the occurrence of the relevant events. In rejecting that submission the Court said at

214 in relation to the amending Act:

It does not make an act illegal which was legal at the time it was committed. At the time the offence alleged was committed on 25 May 1987 the Crown alleges that what the appellant did was already an offence.  It does not need retrospective legislation to make that claim.  The amendment is not a matter which goes to the substance of the offence but rather to the admissibility of the evidence tendered in proof of its commission.  Therefore in no sense can the amendment be said to be retrospective.

Reference was then made to a number of amending acts by which reforms to the law of evidence were introduced, all of which became operative in relation to trials conducted after the passing of the amendments, (even although the offences pre- dated them).

[25]     To similar effect is the decision of the High Court of Australia in Rodway v R (1990) 92 ALR 385 where the law of evidence was changed with reference to the need for a corroboration warning. At 389 the Court unanimously said this:

But  ordinarily  an  amendment  to  the  practice  or  procedure  of  a  court, including  the  admissibility  of  evidence  and  the  effect  to  be  given  to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity.   A person  who  commits  a  crime  does  not  have  a  right  to  be  tried  in  any particular way; merely a right to be tried according to the  practice  and procedure prevailing at the time of trial.   The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no-one has a vested right in any form of procedure.  It is a principle which has been well established for many years: see also Wright v Hale (1860) 6 H & N 227; 158

ER 94, per Wilde B (H & N at 233; ER at 96); Attorney-General v Sillem

(1864) 10 HLC 704; 11 ER 1200, per Lord Wensleydale (HLC at 763; ER at

1224); Warner v Murdoch (1877) 4 Ch D 750, per James LJ at 752.

[26]     Hence the common law, while jealously guarding the right of an accused to be tried for a substantive offence only as it was defined and to be subject to only the

penalty applicable, when the events occurred, does not regard an accused as having a “right” to be tried in a particular manner.  If there is a procedural change between the date  of  the  alleged  crime  and  trial,  then  the  trial  is  ordinarily  conducted  in accordance with the new statutory provision.

[27]     In Rodway an example of what was arguably an exception was identified. Newell v R [1936] 55 CLR 707 (HC) concerned the introduction, post-offence but pre-trial, of a majority verdict (of 10 jurors), as opposed to a unanimity requirement. This was treated as a substantive right, not as a matter of practice or procedure of the Court.

[28]     Section 5(3) Evidence Act 2006 provides:

This Act applies to  all proceedings  commenced  before,  on, or  after the commencement of this section except –

(a)the   continuation   of   a    hearing   that   commenced   before   the commencement of this section; and

(b)any appeal from, or review of, a determination made at a hearing of that kind.

A proceeding is defined in s4(1) as “a proceeding conducted by a court” and “any interlocutory or other application to a court connected with that proceeding”.   It follows that in a criminal context both trials, and pre-trial applications, are governed by the new Act.

[29]     But this general rule is subject to two exceptions.  Here the relevant one is (a), namely that the Act will not apply to a proceeding that represents “the continuation of a hearing that commenced before the commencement [dates]”.  Mr Raftery submitted that the word “hearing” in subs (3)(a) did not contemplate an entirely separate substantive hearing which had occurred in 1995.   The retrial represented a new proceeding, the hearing of which will not commence until well after the new Act came into force.

The defence argument

[30]     Ms  Cull  QC  made  submissions  concerning  this  aspect.     In  effect  her argument entailed three propositions which were in direct response to the Crown

contentions.  These were that provisions in the new Act were indeed prejudicial to the accused, that to apply such provisions at the retrial would run counter to the presumption against retrospectivity and that the “hearing” of the present murder charges commenced many years ago, when David Bain first appeared in answer to the charges, and that accordingly the s5(3)(a) exception applied.

[31]     For reasons which will become apparent I do not think it is helpful to seek to analyse whether the new Act will be detrimental to the accused’s cause.   My impression is, however, that generally speaking the new provisions will have relatively little impact in the context of this trial.

[32]     With reference to retrospectivity Ms Cull referred to s10A of the Crimes Act

1961, s7 of the Interpretation Act 1999 and s.s.25(g) and 26(1) of the New Zealand Bill of Rights Act.  Again, I need not refer to the terms of these various provisions. They each reaffirm the cardinal principle that the definitions of crimes, and the resulting penalties to which an accused may be liable, are those applicable at the date of the alleged crime.  In other words, newly defined offences or redefined offences, and increased penalties, are not to be given retrospective effect.

[33]     The submission did not squarely confront the issue whether amendments to evidentiary provisions fall within the presumption against retrospectivity.  As to that, counsel only referred to the decision of the United States Supreme Court in Carmell v Texas 529 US 513 [2000]. By a five to four majority the Court ruled that to apply a new evidential rule, which was enacted subsequent to the date of the alleged offence, would be unconstitutional.

[34]     I have already referred to the gist of the argument with reference to s5(3)(a) of the Evidence Act.   It was developed by reference to the Summary Proceedings Act and the Crimes Act, in order to demonstrate that in terms of those statutes a criminal hearing commences at the point an accused is first charged.

Evaluation

[35]     I can state my reasons and conclusions quite briefly.

[36]     I accept Mr Raftery’s argument concerning retrospectivity.   The English, Australian and New Zealand cases upon which he relied speak with a single voice. There is a settled divide between substantive and procedural provisions.  The former are not accorded retrospective effect, including in particular definitional and penalty amendments.  But procedural amendments are ordinarily applied at a trial, provided they have come into effect at that date.  This, then, is the common law background.

[37]     But, of course, s5 of the Evidence Act is an express transitional provision. Subsection (3) begins with emphatic confirmation that once the new Act was in force it applied to all proceedings regardless whether they were commenced before, on, or after the commencement date.  Accordingly, unless one of the two exceptions comes into play, the new Act must apply to the retrial.

[38]     Is the retrial “the continuation of a hearing that commenced before …” the new Act came into force?  Tucked away in the Act is s4(2) which contains a highly relevant definition.  It provides:

A hearing commences for the purposes of this Act when at the substantive hearing of the issues that are the subject of proceedings the party having the right to begin commences to state that party’s case or, having waived the right to make an opening address, calls that party’s first witness.

[39]     Clearly  this  definition  of  when  a  hearing  commences  is  designed  to distinguish between pre-trial (or interlocutory) hearings on the one hand, and the substantive hearing of a case on the other.  In terms of s5(3)(a), it is only where the substantive hearing has actually commenced, marked by the opening of the case or the calling of evidence, that the new Act is excluded from operation in relation to a proceeding.  This provides a clear demarcation.  Pre-trial hearings which occurred before the relevant commencement date do not influence the application of the Act at the substantive hearing.  It is when the trial proper commences through an opening address, or the calling of a witness, which is determinative.

[40]     Here, the retrial is yet to commence.  Therefore, the new Act applies, unless it can be said that the first trial of David Bain was a hearing as defined in s4(2)?

[41]     I am in no doubt that the fact of a previous trial does not mean that the forthcoming retrial is a continuation of a hearing commenced long before the emergence of the new Act.   The retrial  is  a new  entity.    Following the retrial decision, a new substantive hearing of the charges which are the subject of the proceeding, was required.  It is the commencement of that hearing, evidenced by the Crown’s opening address, which marks the commencement of a hearing in terms of s5(3)(a).  Given the clear purpose and intent of s5, namely that it is only substantive proceedings  actually part-heard  at  the  Act’s  commencement  date which  are  not caught, I consider it would be artificial to view the Crown opening at the first trial in

1995 as the determinative event.

DNA testing by the ESR

[42]     My judgment dated 5 March 2008 relating to the release of exhibits set out my views concerning this Court’s role with reference to testing, or retesting, of items seized by the police from the scene of a crime.  In broad terms I found that if exhibits were in the custody of the Court there was a threshold question concerning their release for further examination, but if an exhibit was not placed in the custody of the Court at the first trial, its control lay with the police, who could test (or retest) it as of right.    Because,  however,  I heard  argument  directed  to  achieving  arrangements which would ensure that the defence could observe any further forensic testing, I made some observations, and in some instances directions, to that end.

[43]     Paragraphs [19]-[22] of the decision concerned skin samples recovered in Stephen Bain’s bedroom.   A further issue has arisen  concerning their  retesting. Previously, the defence opposed any initiative to retest the samples because of the absence of a reagent blank.  My conclusion was expressed as follows:

[22]   Again, I consider that the defence contention concerning the absence of a reagent blank may be relevant to admissibility but not to the present application for release of the exhibits.  Experts differ as to the value of any result obtained from retesting, should there be one.  But I am still satisfied that  retesting  is  warranted,  leaving  for  another  day  whether  any  new evidence is admissible.   Should that argument eventuate it will no doubt extend to the fairness of receiving the new evidence and whether the probative value of the evidence is outweighed by its prejudicial effect.

[44]     Subsequently, the Crown took steps to retest the samples.  The defence were advised of this initiative.   A halving of the samples was sought so that an expert retained by the defence may conduct an independent DNA analysis.   The defence consider that an “agreement” to that effect was concluded.   The Crown does not accept this.  In the result, the testing has not yet proceeded.

[45]     By memorandum Crown counsel seek an order:

That the ESR can test all samples (not just the skin samples) in whatever manner it deems best in order to achieve (if possible) DNA evidence for presentation in court.  This may mean that any given sample should not be divided and/or otherwise made available to the defence until after this (testing) has been done.

The defence oppose a direction in these terms.

[46]     It provided an affidavit from Dr Arie Geursen dated 7 May 2008 in support of its opposition.  It included this:

As a scientist, I am unable to comment on whether there is a legal obligation to provide Mr Bain with a portion of the samples.  However, if it were held that there is such an obligation, then it stands to reason that a sufficient sample must be made available to enable a meaningful test to be done by an independent laboratory, or at the very least to be able to repeat the Crown’s work.   Therefore, I see no alternative course of action other than for the sample to be split before the Crown performs any tests.

Dr Geursen then repeated his opinion that it was “stretching the bounds of scientific credibility” to suggest that any results obtained from retesting the skin samples would have evidential value (for the reasons discussed in my previous decision).

[47]     The Crown did not accept this viewpoint.  It provided a statement from Susan Vintiner, a forensic scientist with ESR.  She considers that the samples should not be split until “a DNA quantification step” is first undertaken.  Her statement continues:

[This] would alleviate the problem of insufficient sample being available for testing by the defence analysis, and also for the ESR scientist.  That is, if the quantification step was undertaken, and if it was established that there was likely insufficient DNA in one of the samples for a DNA profile to be obtained after it was split, then an alternative analytical approach could be considered by the Crown and defence.  For example, the scientist from ESR and the defence could both be present at an independent laboratory during the analysis of that sample.

[48]     Dr Geursen was asked to comment on this opinion.  He has provided a further written opinion in response.  He observes that he was comfortable with the original proposal to split the samples, subject only to an  overarching concern  as  to  the evidential value of any results which might be obtained.  Dr Geursen continued:

In her brief, Ms Vintiner now wishes to guard against the possibility that so little DNA is present in these tubes that by splitting them we might reduce the possibility of getting a result.  With respect, if it becomes necessary to stretch the boundaries of the testing system to that extent, the risk that we are going to end up with a marginal result is greatly increased.  In which case it becomes even more desirable and important that in the interests of fairness to Mr Bain, he is afforded the opportunity to have those results tested by a laboratory and scientists he has confidence in.

I am unsure whether Dr Geursen subscribes to the view that splitting the samples may compromise the opportunity to obtain a DNA result, or not.  He implies that the ability to obtain a meaningful result may be compromised, but he suggests that this risk should be run in the interests of fairness.

[49]     My views remain as expressed in my previous decision.  As I understand it, the skin samples are in the custody and control of the Crown.   Therefore, further testing may be conducted as of right.  How the testing is conducted, and whether the samples are split, is a matter for the Crown experts.   It follows that the direction sought by the Crown is appropriate.

[50]     My function is in relation to the evidence obtained, if any.   As previously foreshadowed, issues of reliability, fairness and the probative value of the evidence will fall for consideration.  No doubt, the Crown experts will bear these factors in mind when decisions are taken concerning the retesting procedures, but it remains appropriate and I make a direction in the terms sought in para [45] hereof.

Disclosure

[51]     Although I heard submissions from both sides concerning Crown disclosure, in particular concerning the electronic provision of documents and the adequacy of the indexing system, in the final analysis rulings were not sought.  It is intended that the police officer in charge of this aspect, and a defence representative, will liase in an endeavour to resolve any difficulties.

Section 178 application

[52]     This section of the Summary Proceedings Act provides that after a defendant has been committed for trial a District Court Judge may, if satisfied that it is in the interests of justice to do so, order that the evidence of new witnesses may be taken at a further specially convened preliminary hearing.  Soon after the Solicitor-General decided that there would be a retrial, the defence indicated a desire to examine at least some (about 30) of the new Crown witnesses.  Nothing has been done in that regard, despite the fact that witness statements for the new witnesses were provided in about November 2007.

[53]     I heard submissions directed to the contention that a Judge of this Court may, by resort to the inherent jurisdiction, be able to make an order for the examination of new witnesses.  I express no view on that proposition.

[54]     In  the  course  of  argument  Mr  Reed  indicated  that  a  formal  application pursuant to s178 would be framed and filed in the District Court.   Accordingly, nothing more is required of me at this point.

Particulars of the Crown case

[55]     In the course of the hearing of the application for a change of venue on

19 March 2008 Mr Reed made reference to the Crown “disclosing its theory of the case and [providing] a summary of facts”.   I made some observations about this suggestion.  Mr Raftery likewise made brief comments, essentially to the effect that, absent a formal application or request, he had not given the issue any attention.

[56]     In the defence memorandum dated 24 April the following appeared:

45.  Without such information we are prejudiced in resolving matters with experts, and further delay will eventuate.

46.  Your Honour declined to make such an order.

47.  There is no minute recording that direction.  I note that a similar ruling was sought at the original trial, and declined.

48.  We would be grateful if the Court would record the ruling by minute.

[57]     I regard this request as totally inappropriate.   No “ruling” was given on

19 March.   The issue of the Crown indicating its “theory of the case” was raised informally, so far as I am aware without prior notice and there was no measured response from the Crown, let alone from me.

[58]     The proper course is a request for further particulars and, if necessary, a formal application pursuant to s334 of the Crimes Act.  These steps will provide for a   proper   appreciation   of   what   is   sought.      At   present,   the   scope   of   any particularisation is ill-defined.

[59]     This issue is reserved for further consideration, if required.

Stay of proceedings

[60]     I have already recorded the directions made, and hearing accommodation arranged, for the argument in relation to this aspect.   All that eventuated was a “draft” application.

[61]     At present there is no proper application before me for determination.  The most recent defence memorandum refers to other possible initiatives in this area. These do not concern this Court.

[62]     If there is to be a properly framed application to this Court it should be filed as soon as is reasonably possible.   As soon as it is, it will be necessary to make timetabling and related directions for its hearing.

Conflict of interest

[63]     The recent defence memorandum also raised a “potential conflict issue”.  My attention was drawn to a police job sheet pertaining to the obtaining of a statement from a new Crown witness in October 2007.  The witness is David Bain’s cousin. He spent some days with the witness’s family in 1994 immediately after the deaths and before his arrest.  The witness’s evidence essentially relates to that period.  At that time she was a schoolgirl.

[64]     The job sheet records that the witness’s husband is a close friend of one of my sons.  This is correct.  Although the witness and her husband reside in Wanaka, I have met them on two recent occasions, essentially on account of my son’s marriage.

[65]     Until I read the job sheet I did not know that this young woman was an intended Crown witness.

[66]     In the context of a jury trial I do not consider that my acquaintanceship with the witness gives rise to a conflict of interest.  However in one respect there is scope for difficulty to arise.  Some parts of the witness’ evidence are challenged.   If the admissibility of the challenged portions cannot be resolved between counsel, a ruling may be required.  I anticipate that I would disqualify myself from making that ruling, since the appearance of my doing so would not be right.

Telephone Conference:

This judgment recognises that a number of pre-trial issues remain unresolved.  To enable the management of these, and any other issues, I direct the convening of a telephone conference on 10 July 2008 at 9.00 am.

MEDIA STATEMENT

HIGH COURT

R v DAVID CULLEN BAIN

19 MAY 2008

MEDIA RELEASE BY PANCKHURST J

In a judgment released today by Justice Panckhurst the commencement date of the trial of David Bain has been further adjourned from 11 August 2008 to 16 February

2009. This deferment has been granted for fair trial reasons, in particular to enable scientific evidence to be finalised and made available for evaluation by defence counsel in advance of the trial commencement date.

The judgment also makes a number of other rulings on evidential and trial issues. The judgment has been suppressed until trial, or further order of the Court, as much of the evidence is yet to be heard and because High Court rulings may be the subject of appeal.