R v Bain HC Chch CRI 2007-412-000014

[2008] NZHC 2262

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-412-000014

REGINA

v

DAVID CULLEN BAIN

Appearances: K Raftery and R P Bates for Crown

H Cull QC and P A Morten for Accused

Judgment:      10 April 2008

JUDGMENT OF PANCKHURST J (RE RELEASE OF 111 TAPE)

[1]      In my judgment of 5 March 2008 concerning the release of exhibits I said this:

[45]     With reference to the proposed ESR testing I authorise the release of any relevant exhibits presently in the custody of the Court upon terms that:

(a)such  exhibits  are  to  be  released  into  the  custody  of  an authorised police officer for safe delivery to the ESR;

(b)following testing the officer shall forthwith arrange for the return of the exhibits to the custody of the Court; and

(c)Defence  counsel  are  to  be  advised  of  the  release  of  the exhibits and of the proposed time and place of retesting, so

R V BAIN HC CHCH CRI-2007-412-000014  10 April 2008

that,   if   sought,   a   defence   representative   may   be   in attendance.

Because these terms were not the subject of submissions at the hearing, I also reserve leave for counsel to revert to me with reference to further, or amended, directions.

[46]      With reference to the cassette tape I similarly authorise its release on terms (a) and (b) as described above.  Alternatively, if the Crown elects to seek an authenticity analysis other than with the FBI, further directions to that end may be sought.  Leave is reserved.

[2]      The Crown does seek further directions with reference to the 111 tape, it having elected to seek an authenticity analysis other than with the FBI.  The current proposal is that the tape will be analysed by J P French & Associates, independent forensic consultants, of York, England.   The examination will proceed in an open environment.   Persons involved in the analysis have undertaken to be available to give evidence in New Zealand.  The application has been served upon the defence and arrangements are in place for a defence representative to be present during testing, which is scheduled to commence on 28 April 2008.

[3]      In these circumstances I vary the terms of the order contained in [45] of my previous  judgment,  so  that  the  111  tape  is  to  be  released  for  examination  by J P French & Associates in York, England.   With all necessary modifications the conditions contained in (a) to (c) of [45] shall apply.   The reservation of leave to revert to me, if required, continues.