R v Bain HC CHCH CRI 2007-412-000014
[2008] NZHC 2221
•5 March 2008
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
Hearing: 28 February 2008
Counsel: K Raftery and R P Bates for Crown
H Cull QC and P A Morten for Accused
Judgment: 5 March 2008
JUDGMENT OF PANCKHURST J
(RE RELEASE OF EXHIBITS)
The applications
[1] The Crown has made two applications for the release of exhibits so that they may be further examined by experts. These applications are opposed. The exhibits are in the custody of the Court. Accordingly, the relevant jurisdiction to be exercised is that by which exhibits are released into the custody of one of the parties in the build-up to trial (or retrial).
R V DAVID CULLEN BAIN HC CHCH CRI 2007-412-000014 5 March 2008
[2] The first application concerns items which the Crown wishes to refer to the Institute of Environmental Science and Research Limited (ESR) for further forensic examination. In the main it seeks the release of items so that they may be subjected to further DNA analysis.
[3] The second application concerns a recording on a casette tape. The tape was made on 20 June 1994, the day of the five murders which Mr Bain is alleged to have committed. The tape was played at the first trial in 1995. Recently a copy of the tape was played on modern and more sophisticated audio equipment. Words not previously heard became audible. These are attributed to the accused. The Crown seeks to have the casette tape itself examined in order to demonstrate that it has not been tampered with. The release of the tape, on defined terms, is sought so that the tape can be examined by the Forensic Audio Video Analysis Unit of the Federal Bureau of Investigation (FBI) in Quantico, Virginia, United States of America.
Approach to the applications
[4] When it became apparent that the Crown’s desire to forensically re-examine certain items would be opposed, I required the parties to file applications and notices
of opposition. This process confirmed that the Crown’s initiative was opposed on wide-ranging grounds, a number of which called in question the scope of the jurisdiction to be exercised by the Court at this stage.
[5] In particular, I consider there is a clear divide between the question whether exhibits should be released for forensic examination and the question whether evidence thereby obtained (if any) should be received at trial. Many of the objections raised in the notices of opposition impressed me as potentially relevant to the second question, but not to the first.
[6] Ordinarily, decisions concerning the scientific examination of exhibits are made by the parties without the involvement of the Court. Almost invariably the items for examination are in the custody and control of either the Crown or the defence and it lies with that party to arrange for and secure an appropriate examination of the intended exhibit. In some instances, particularly where
examination is required of something which cannot be a physical exhibit at the trial, the opportunity for a representative from the other side to be present at the examination is afforded. For example, a defence expert may observe the post mortem examination of a victim.
[7] If the relevant exhibit is in the custody of the Court, an additional consideration arises. Release of the exhibit is necessary, whether it is in the Court’s custody following a preliminary hearing or following an order for retrial. In considering a request for release the essential concern of a Judge will be to ensure the safekeeping and integrity of the exhibit. Directions to these ends are customarily made.
[8] In my view this background informs the jurisdiction which I am to exercise in the present case where the matter happens to have been dealt with on a basis involving formal application and notice of opposition. That formality does not alter the substance of the issue. As I see it two concerns are at stake. The first is safeguarding the integrity of the exhibit. The second is whether there is a basis to suppose that examination, or further examination, of an exhibit may produce new or improved evidence. This inquiry is warranted in order to ensure that exhibits are not released from the Court’s custody for no good reason. But, this threshold is not high, particularly if the safekeeping of the exhibit can be assured.
[9] Although the applications were argued on the basis that the release of exhibits in the custody of the Court was necessary to enable further testing, it is by no means clear to me that this is actually the true position. In two instances nothing needs to be released. Testing can proceed without recourse to anything taken from the scene of the crimes. In other instances I understand that the items to be retested are not in the Court’s custody. If this is the case, strictly speaking the position is as I described it in para [6]. That is the Crown is entitled as of right to retest items within its custody and control, subject of course to the normal obligation to establish the integrity of such items. However, given that formal applications are before me and the existence of a concern that the defence should be able to observe, or review, any
retesting, I shall consider the applications upon the basis they were argued.
The ESR application
Robin Bain’s clothing
[10] Some blood spots were found on the clothing worn by Robin Bain. The ESR concluded that these contained DNA consistent with originating from Robin Bain. However, subsequently mixed DNA profiles were obtained in tests conducted in Melbourne. The Crown seeks to retest cloth samples still held by the ESR using newer and more sophisticated methods in order to determine whether a more conclusive DNA result can be obtained. This is an instance where I am doubtful that the release of a Court held exhibit is necessary.
[11] The accused opposes further testing. The mixed DNA profiles were obtained
by a scientist at the Victoria Forensic Science Centre, who was retained by Mr Joseph Karam to undertake that work. The opposition is partly based on the proposition that “he [Mr Karam] has given no-one permission to disclose that information to the New Zealand Police”. In addition the Crown’s affidavit evidence simply asserts that further testing might clarify the mixed profile result. On the basis of these two factors further testing of the retained items is opposed.
[12] I am satisfied that retesting is appropriate, subject to suitable directions being made (to which I will return shortly). Such directions will include provision for a defence representative to observe or check the testing process. With reference to the value of a further test result, I am in no doubt that retesting is warranted. Whether blood spots found on Robin Bain’s clothing emanated from him is an important issue in the trial, given that it is the Crown’s case that the accused murdered all the victims, but a defence contention that Robin Bain may have been the murderer of other family members.
[13] Whether the argument based on Mr Karam’s affidavit is of any substance impresses me as relevant to the admissibility of any new evidence, should a more conclusive result be obtained. But I see no reason to prevent resort to improved scientific methods, which may produce better evidence, on the basis of an
admissibility argument which will only arise if some further evidence is obtained.
At this point I express no view on the merits of that argument.
Green curtains
[14] Bloodstains were found on green curtains hanging close to Robin Bain’s body. The stains were profiled and the conclusion reached that the blood could have emanated from Robin Bain and possibly from Stephen Bain. The Crown wishes to retest and ascertain whether a more conclusive result is obtainable.
[15] Again, I am satisfied that retesting is warranted. My reasons are similar to those in relation to the first item.
Blood from washing machine lid
[16] Blood recovered from the washing machine lid has not so far been analysed for DNA. The Crown seeks to do so using modern techniques.
[17] The opposition in relation to this item is that the Crown has had “ample opportunity over the last 14 years to undertake tests” and that blood samples obtained from other parts of the washing machine are no longer available for DNA profiling. It is said that to permit testing in these circumstances would be “unwarranted and unfair”.
[18] I consider that testing is warranted for the reasons previously expressed. The issues raised in opposition may perhaps be of moment with reference to the admissibility of evidence obtained (if any), and to the stay application filed on behalf of the accused, which includes a ground based on the unavailability of exhibits for testing by the defence.
DNA extracted from skin
[19] Two items of skin were discovered in Stephen Bain’s bedroom. DNA was subsequently extracted from these items in Melbourne in 1995. I assume that the
profiling result obtained was inconclusive. The Crown seeks to retest the DNA
extracts in an endeavour to obtain a more conclusive result.
[20] This is opposed on similar grounds and on the additional ground that a reagent blank is not available to be used as a control when the DNA is retyped. The submission is that even if a conclusive result was obtained, it would be of no evidential value because, absent a reagent blank, non-contamination of the retained DNA extracts cannot be established.
[21] Two affidavits have been filed with reference to this issue. Dr Arie Geursen,
a molecular biologist at the Auckland School of Medicine, considers that further testing of the DNA extracts would be contrary to good practice and any new results obtained from the samples would be “a priori unsafe”. Ms Sally Ann Harbison, a forensic scientist with ESR considers that although reagent blanks are no longer available, there is still value in carrying out the additional testing, so long as any report of the retesting includes an appropriate caveat.
[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.
Luminol/Willpower/foot-print tests
[23] Strictly speaking I do not think that the further two tests which the Crown wishes to conduct are affected by the present application. The release of a court exhibit is not involved. Accordingly it seems the Crown has referred to these aspects for completeness, that is so that the defence was forewarned of its intention to retest in these areas.
[24] Through the use of luminol bloodied foot prints were found at various positions on the floor in the Bain household. Some of the foot prints were incomplete. The print which was considered the most complete was measured and found to be 280 mm from heel to toe. Other evidence given at the first trial indicated that David Bain’s feet were 300 mm in length and Robin Bain’s feet 270 mm when measured at the mortuary. The Crown contended at trial that the luminol prints excluded Robin Bain, but not the accused. The Privy Council concluded that fresh evidence since the trial cast “real doubt on the correctness of [the] assumption”, namely that a 280 mm luminol print was too big to be Robin Bain’s.
[25] It is apparent that whose foot could have made the luminol print is an important trial issue. The Crown proposes to conduct tests to determine whether Willpower washing powder reacts with luminol and could, therefore, have influenced the footprints obtained in the Bain household. Willpower was found in the wash house and was used by David Bain on the morning of the shootings. This impresses me as a routine test designed to ascertain whether the measured footprint could have been affected by interference.
[26] The other intended test is to obtain a person with feet the same length as Robin Bain’s and have this person wear inked socks to produce foot prints on similar surfaces. These prints will then be measured to ascertain the maximum length.
[27] The opposition is based on s25(1) of the Evidence Act which provides that expert evidence is admissible if “the fact finder is likely to obtain substantial help
…” from the evidence. Because Robin Bain’s feet were measured in the mortuary, counsel contends that a comparable person will not be obtainable, since “the foot extends when weight is put on it.” Hence, the submission continues, “no retesting will be identical.”
[28] In my view the Crown is at liberty to conduct both tests. Neither is dependent upon the release of a court exhibit. I refrain from comment upon the admissibility argument, which in any event is for another day if new evidence results.
Some general arguments
[29] For completeness I note that counsel also opposed the ESR retesting on more general grounds. These were that retesting was unfair because if the Crown obtained more favourable results, only the result that best suits its case will be placed before the jury; that it was an abuse of process and unfair to permit the Crown to endeavour to obtain further evidence from retesting, when the defence could not do likewise because a number of exhibits were destroyed or released after the first trial; and that retesting would occasion delay and prejudice the accused, given the trial date of 11 August 2008 and the inability of the defence to access forensic facilities of its own in the time available.
[30] I regard these arguments as potentially relevant with reference to admissibility of any new evidence and with reference to the stay application, which is in part grounded upon the non-availability of certain items for forensic testing. With regard to delay, I am satisfied that the five further months to trial provides ample preparation time, even allowing for some retesting of exhibits.
[31] The argument in opposition to this application seemed to proceed on the footing that further testing could only result in new evidence favourable to the Crown. This may not be so. Forensic testing may cut both ways. And, for a Judge to prevent testing by declining to authorise the release of exhibits carries the potential of denying a jury the benefit of improved scientific method. That is anything but an attractive proposition.
The FBI application
[32] The release of the cassette tape (which is an exhibit in the custody of the Court) so that it may be taken to the United States and examined as to its authenticity, is opposed on four grounds, namely that:
(a) the examination will affect the integrity of the exhibit;
(b)the tape has already been analysed in New Zealand and on the basis of the FBI’s own protocols further analysis of the tape is precluded;
(c) because the FBI operates a closed facility (to which neither side will be permitted access), examination of the tape by the Bureau
is inappropriate; and
(d)because there is no power to compel the attendance of an FBI witness at a trial in New Zealand, engagement of the FBI to analyse the tape is inappropriate.
[33] The main evidence provided by the Crown in support of this application is an article from the journal of the Audio Engineering Society, volume 38, number 1/2, January-February 1990, by Bruce E Koenig. He is a scientist of long experience in examining audio tapes in his position with the FBI. The article, entitled “Authentication of Forensic Audio Recordings”, details a range of tests which are conducted in order to ascertain whether a tape is authentic or has been interfered with in some manner. Up to seven different tests may be conducted. The number of tests actually undertaken depends upon the nature and quality of the tape, and whether there are any indications of interference.
[34] With reference to the first two grounds of opposition, I am satisfied that they are without substance. The first ground is a contention that the cassette tape may be damaged (or destroyed) if released into the hands of the FBI. In support of its application the Crown provided an affidavit from Maarten Kleintjes, the National Manager of the Police Electronic Crimes Laboratory in Wellington. His affidavit includes this:
6 None of the above tests would damage or alter the nature of the recording provided non ferrofluids are used for magnetic development. All are commonly used tests in this sort of analysis.
Mr Kleintjes also describes the FBI facility in Virginia as a world leader in authentication of audio recordings.
[35] Counsel drew attention to Mr Koenig’s article which refers to the use of ferrofluids for magnetic development without describing them as “non ferrofluids”. The relevant sentence states this:
The freon- and water-based ferrofluids applied to the original tape, with ferric particles ranging in size from approximately 0.01 to 3.0 p.m. are thoroughly tested to ensure that they do not damage the magnetic tape or affect the recorded information.
On the basis of this statement, and upon reading the article as a whole, it is abundantly clear to me that the examination of audio tapes is undertaken in a manner which ensures the recording is not adversely affected. Otherwise, authentication of the tape, but at the expense of its destruction or damage, would be pointless.
[36] Two witnesses whom the Crown proposes to call at the retrial describe work they have undertaken with reference to the cassette tape. In August 2003 Amy Small, a technician at the Electronic Crime Laboratory in Wellington, was requested
to enhance any background sounds during the first conversation contained on the tape. In the event she did not consider there was any distinct background noise which warranted enhancement. She was also requested to make copies of the recording onto compact discs. This she did by recording the relevant conversations from the cassette tape to a computer hard-drive, from which the conversations were burnt to audio CDs. Three copies of the CD were made.
[37] In October 2007 another technician at the same laboratory, Nicholas Boyd, conducted a similar process. The cassette tape was connected to a mixing console, which converted the sound to a digital signal and this signal was routed to a hard- drive recording system. By this process further copies of the recording were able to be burnt onto compact discs. This witness’s evidence includes:
At no time during the playing of the audio cassette tape did I enhance or alter any of the recorded conversations.
Crown counsel therefore submitted that the cassette tape has not so far been analysed and accordingly an analysis by the FBI is not precluded.
[38] On the basis of the available evidence I accept this submission. Ultimately,
of course, it lies with the FBI to ensure that the tape is suitable for authentication analysis. But I do not understand that prior playing of the tape (even to enable CD copies to be obtained from it), constitutes an analysis. Plainly, routine playing of a tape cannot prevent an authentication analysis, as without knowledge of the content
of a tape there will ordinarily be no reason to ascertain whether interference had occurred or not.
[39] The final two grounds contest whether it is appropriate for the FBI to analyse the cassette tape, given that the work will be undertaken in a closed facility and by a person, or persons, beyond the jurisdiction of this Court. In support of these grounds
an affidavit was filed from Mr John Billington QC. His affidavit details difficulties which arose at the third trial of John Robert Barlow in October 1995 with reference
to FBI witnesses. One, whose attendance was sought by the defence, did not come
to New Zealand and the trial Judge concluded that he had no jurisdiction to compel attendance. This witness had conducted tests using bullets recovered at the scene and the alleged murder weapon at a laboratory in Sydney (after the trial Judge ordered that the exhibits would not be released for closed examination in the United States). The second witness gave evidence at the retrial, but various concerns and criticisms are voiced in the affidavit concerning non-disclosure of working information by the witness and concerning the validity of the conclusions which he reached.
[40] The affidavit was filed on the basis that it provided an example of the problems which may arise from recourse to extra-territorial expert witnesses. As I remarked to counsel at the hearing, it would not be appropriate to become involved
in an examination of what occurred in the context of another murder trial. That said,
I accept the self-evident propositions that use of the FBI facility in the United States does involve complications. No doubt for very good reasons the Analysis Unit in Virginia operates on a closed basis. I note that Mr Koenig’s article confirms that work notes are kept throughout the testing and a formal report is provided at the completion of the process. His article also includes a section dealing with “testimony”, which details the availability of FBI examiners to participate in the trial process and any required pre-trial briefings and the like.
[41] But the fact remains that the Court does not have the ability to compel the attendance of a witness from the United States, should a difficulty arise. At most a request under the Mutual Assistance in Criminal Matters Act 1992 may be made by the Attorney-General forthe assistance of a foreign country in securing the
attendance of a person to give evidence in New Zealand. Even if this difficulty is seen as more theoretical than real, there nonetheless remains a chance that a jurisdictional problem could arise.
[42] I think of more moment is the defence concern that the analysis unit operates
as a closed laboratory. The Crown holds no concerns on this score. I am in no doubt that the integrity of the tape is a crucial issue. The additional words heard on the CD recordings may be of major significance at trial. Understandably, the defence is insistent that it should have the opportunity to at least observe the authenticity testing. Given that the FBI requires that the tape not be subjected to an analysis before it does so, the defence will presumably be unable to replicate the necessary testing process, or will at least be at a disadvantage. This indicates the desirability of authentication testing occurring in an open facility.
[43] With this concern in mind I raised with Mr Bates at the hearing whether there was not a facility in New Zealand or Australia where the tape could be tested. I understood that counsel was disposed to make appropriate inquiries. But if the Crown view remains that the testing should take place in the United States, I am disposed to authorise the release of the cassette tape to that end.
[44] My reasoning is as follows. I am satisfied that the exhibit will be safeguarded while in the hands of the FBI. It is unthinkable that the testing of a cassette tape as to its integrity will not be undertaken in such a manner as to preserve
its contents for subsequent admission in evidence. I have already referred to the need for the tape to be analysed to exclude any suggestion of interference. The onus
is on the Crown to negative that possibility. It should have every opportunity to do
so, given my findings that the safety of the exhibit is assured and the need for examination of the exhibit is demonstrated. The concerns arising from the use of a closed laboratory raise fair trial considerations which in my view are relevant in relation to the admissibility of the test results.
Result
[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 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.
[47] For completeness I note that the defence require the opportunity to record a copy of the cassette tape before it is subjected to analysis. I also authorise the release of the tape for this purpose, upon condition that the tape is delivered to the place where the recording is to be made by an authorised police officer, who is to witness the making of the recording and forthwith arrange the return of the exhibit to the custody of the Court. Again, leave is reserved to revert to me, if necessary.
[48] Regardless of my conclusion that there is ample time for the retesting to be conducted before trial, it is imperative that any further testing is conducted forthwith. Any new evidence which results should be tabled as soon as possible, both so that it
is known and so that the defence have a proper opportunity to respond to it.
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