R v Bain HC Christchurch CRI-1994-012-217294

[2008] NZHC 2627

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS 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-1994-012-217294

REGINA

v

DAVID CULLEN BAIN

Hearing:         13-14 October 2008

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

M Reed QC and P A Morten for Defence

Judgment:      17 October 2008

JUDGMENT OF PANCKHURST J

(RE TRANSCRIPT OF ACCUSED’S EVIDENCE, S368 APPLICATION AND FURTHER S344A APPLICATION)

Admission of the accused’s evidence from the first trial at the retrial

[1] My previous judgment dated 8 September 2008 included a ruling that in principle evidence given by an accused at a first trial was admissible at a retrial. In so ruling I accepted Mr Raftery’s principal argument that the prior evidence was a statement in terms of s27(1) of the Evidence Act 2008 (the Act) and therefore, admissible against its maker at a subsequent trial. However, I entertained concerns

concerning how the accused’s previous evidence (38 pages) was to be managed in a

R V DAVID CULLEN BAIN HC CHCH CRI-1994-012-217294  17 October 2008

jury trial context, and this prompted the question whether the transcript as a whole was to be relied upon, or only extracts from it.   Accordingly, I reserved my final ruling for further argument upon what I described as “these practical issues”.

[2]      I have now had the benefit of further submissions.   The Crown has also identified 11 excerpts from the transcript upon which it seeks to rely at the retrial. This exercise has proved helpful, in that it provided a concrete basis against which to evaluate the practical concerns, but also teased out a defence objection that the Crown should not be permitted to “cherry pick” parts of the accused’s evidence. That said, Mr Reed QC was not drawn into saying that the defence wished the entire transcript, or additional excerpts, to be admitted before the jury.  Instead, he argued that no part of the transcript should feature.

The Crown excerpts

The accused’s experience with firearms

[3]      The first excerpt is from the second page of evidence-in-chief at 406 of the notes of evidence:

I was 17 when he taught me about how to go shooting.  We used a borrowed rifle down at Taieri Mouth.

The “he” was Robin Bain.   Mr Raftery characterised this as an admission by the accused that his experience with a rifle commenced about four or five years before the relevant date.

[4]      Mr Reed pointed out that the previous two sentences included the observation that “my father and I had a great relationship …” which led into the reference to shooting at the Taieri River mouth.  I note that the immediately following sentence referred to the borrowed rifle being a .22.  These surrounding aspects immediately exposed the issue of exactly where an excerpt should begin and end.  I shall return to this question.

[5]      This excerpt is also from evidence-in-chief at 409:

I purchased the white gloves.  I accept that the gloves I purchased were the gloves found in Stephen’s room.   My dad had a pair of white gloves for choir purposes.  I am not saying those are his gloves because they were an older style and didn’t have the clasp button.   I am wearing glasses today. With glasses I have perfect vision, perfect 20 vision.   A little difficult at night but without glasses I can act and do things normally, it is just that the vision gets blurry after a certain difference [distance].  I do not need glasses to read.

[6]      Again, Mr Reed questioned the cut-off point.  Immediately after the extract quoted the accused detailed activities he could engage in without glasses.   He submitted that this further explanation was part and parcel of David Bain’s account.

The glasses found at the scene

[7]      At 410 and also in evidence-in-chief the accused said:

I don’t have other glasses that I can use when my glasses are broken.  In my room was found a pair of lenses frames, one lens beside them.  They were not my glasses.   They were my mother’s older glasses that she used on occasion.

[8]      Mr Reed observed that immediately before the excerpt the accused explained how his glasses were broken on the  Thursday prior to Monday, 20 June 1994. Counsel inferred that if the excerpt was to be put in evidence, so should the introductory passage.   But more importantly he argued that the short extract was misleading when read in isolation.  The accused went on to say that although he had used his mother’s  glasses on occasions in the past,  this  was  only for  watching television or going to lectures.  He said he couldn’t wear her glasses for extended periods.  His mother had faulty vision resulting from astigmatism, so it was a strain for him to wear her glasses.  He then said he did not know how the glasses (with one lens beside them and the other lens missing) came to be in his room, where the police found them.   The accused added that he had not used his mother’s glasses after the Thursday mishap, or even seen them for at least a year.

[9]      Mr Reed also voiced the criticism that to admit this excerpt alone would be to tell only part of the story.  At the first trial the Crown did not accept the truth of the accused’s evidence that the glasses belonged to his mother.  In cross-examination, he was directly challenged as to the truth of this evidence.  Reliance was placed upon the evidence of a Mr Sanderson, a Dunedin ophthalmologist, who gave evidence concerning the prescription of the lenses from the subject glasses as compared to the accused’s prescription as at October 1992.  The history concerning this aspect of the case is summarised in the Privy Council’s judgment (2007) 23 CRNZ 71 (PC) at paras [77] – [84].  I need not repeat that discussion.

[10]     Mr Reed seemed to infer that if the above excerpt from evidence-in-chief was to be admitted, so too should the further matters discussed by the Privy Council.  I am not clear as to the logic of this.  The jury at the retrial will be told at the outset that they must approach the task with an open mind, that the verdicts reached at the first trial are of no relevance and that the accused must be judged on the retrial evidence alone.  In this situation whether any purpose would be served in rehearsing aspects of the history of the first trial, I rather doubt.

[11]     In  any  event,  the  limited  excerpt  upon  which  the  Crown  seeks  to  rely involves an acceptance of the accused’s explanation concerning the glasses given at the first trial.   On the other hand, I accept that there is considerable merit in the submission that, if the jury is to hear the above extract, it should also hear the accused’s evidence that he hadn’t seen the glasses for an appreciable period, let alone used them while his were under repair.

The paper round / a red sweatshirt (anorak) / the trigger lock

[12]     This extract from evidence-in-chief is rather more lengthy, commencing at

412, line 27:

That morning I ran most of the paper run but walked the streets we have heard about in evidence. …

When I bought the fittings for the rifle I took one key off and hid it so that no one else knew there was a 2nd key.

[13]     The passage includes the accused’s estimation of the time he arrived home from the paper round, a description of what he was wearing and an acceptance that the trigger lock key for his .22 rifle was kept on a necklace which he customarily wore, but that this key was in his red anorak which was found by the police in his father’s Commer van on 20 June.  The accused also explained that the second key was kept in a porcelain pottery piece, upon which there sat a hackysack.  Photograph

161 depicts the piece, which is square in shape, has a lid, with the hackysack sitting on top of the lid.

[14]     This  extract  illustrated  one  of  the  concerns  discussed  in  my  previous judgment.   The accused said that he walked the streets “we have heard about in evidence”.  Whilst this statement would have been perfectly intelligible to the jury at the first trial, it may be less so at the retrial, unless the witnesses who observed the accused walking give the same evidence.  Mr Raftery considered this would be the case.

An account of the accused’s movements within the house

[15]     This passage from evidence-in-chief commences at 413, line 17:

I walked in the front door and noticed that at that stage that my mother’s light was on because you could see it shining over the curtain …

and ended on 415 at line 7:

I did not kill any of these people.  I did not kill anybody.

[16]     The passage contains a detailed description of the accused’s movements and actions upon returning to his home.  He went into his bedroom, removed his shoes, went to the downstairs bathroom, washed printer’s ink off his hands and sorted clothing from a washing basket and placed it into the washing machine.  He did not notice any blood on his hands, but did notice that the floor was wet on his stockinged feet.  On returning upstairs the accused said he turned the light on in his bedroom to

find bullets and the trigger lock to his rifle on the floor, which caused him to go to his mother’s room to find out what was going on.   He saw she was dead, went through to Stephen’s room and found him, then to Laniet’s room where he heard her gurgling and then to Arawa’s room.  Finally, in a daze he went into the lounge and saw his father’s body.  He denied killing any of the victims.

[17]     The significance of this evidence is self-evident.   Mr Reed’s submissions were essentially confined to a complaint that the washing machine was no longer available and that testing of it was not possible.  I shall return to the significance of this point shortly.

The washing machine cycle

[18]     At 421 the accused said this in cross-examination:

q. are u able to tell us today what setting the washing machine was placed on.  a. not the exact setting but I can tell you it was placed after the very, very start of the superwash cycle.  q. that is a full cycle for the wash.  a. yes it is.   q. do u confirm that the wash took between  ¾ and  one  hour to complete.   a. that is what I said yes, and that is the time that I normally observed.

Mr Reed’s submission concerning the non-availability of the washing machine was referable to  this  extract.   He indicated  that,  had  it  been  available,  the  washing machine would have been  tested  and  the  length  of  the  cycles  established,  with reference to various water pressures.   This may, or may not, have qualified the accused’s evidence concerning the length of the cycle to some unknown extent.

Previous use of the .22 rifle

[19]     Also at 421 this exchange occurred:

q. do u agree that u had not used the rifle since January or February of 1994. a. yes that is correct.  q. had it remained in your wardrobe since that time. a. as far as I knew, yes.   q. was it secured by the trigger lock.   a. it was. q. u had not recently been shooting possums at the back of Every St.  a. No, that was in Jan, Feb some time.

[20]     The Crown regards this evidence as significant with reference to whether the accused’s bloodied fingerprints found on the murder weapon were placed there on

20 June, or at some earlier time and through contact with animal blood, as opposed to human blood.

Storage of the accused’s dress gloves

[21]     At 434 the accused was asked:

q. whereabouts did u keep your dress gloves that u had purchased for the Larnach Castle ball.  a. I kept them in a set of drawers on the right hand side of my room along with the purple gloves I had and some other woollens. q. (witness shown photos) by reference to photos 149 onwards can u indicate the drawer in which these gloves were kept.  a. in 150 it is the brown set of drawers with the lower drawer open, it wld be the third drawer up.  q. place your finger on and hold it up please.  a. (indicates).  q. were there a no. of other items in that drawer.  a. yes there were.

[22]     The defence submission with reference to this extract was that it did not amount to an admission in the required sense.   This is a matter of some general significance, to which I will return in a moment.

The accused’s vision

[23]     At 435 the accused was cross-examined as follows:

q. u accept that u do not need glasses for reading.  a. yes that is right.  q. and for  items  within  say  a  metre  your  vision  without  glasses  is  perfectly adequate.  a. is adequate for moving arnd and I can judge distance and do everyday things.   The only hardship is that everything is blurry beyond a certain point. There is a blurred outline.

[24]     Immediately following this passage part of the evidence of Mr Sanderson was put to the accused and he was challenged as to his evidence that the lenses from the subject glasses were similar to the prescription prescribed for him in October 1992. The inference was, presumably, that the glasses belonged to the accused and not his mother.  The Crown, of course, does not seek to introduce this aspect to the cross- examination.

[25]     Also at 435 and with reference to his vision the accused was asked:

q. were these glasses of assistance to u. a. yes for watching tv, and for going to lectures, but I couldn’t wear them for extended periods.

To my mind this extract would add nothing to the earlier  one  provided  it  was extended to cover the essentially similar evidence which the accused gave, although in evidence-in-chief (see para [8]).

“The Gondoliers” t-shirt

[26]     This extract is at 439, line 22 – 440, line 7:

The  production  in  1994  of  THE  GONDALIERS  was  in  May?    That’s correct, yes.   Is the T shirt produced to this court, Ex 527, is this your T shirt? With GONDALIERS on it, yes.  Is it associated or did you obtain it as a result of performing in that show?  Yes, I did.  When did you acquire the T shirt?    It  was  during  the  production  dates,  the  performances,  I  can’t remember exactly when.  Would it be approximately mid May?  Yes, yeah. I can’t remember the dates of production, when it started or finished.  You accept that you had not owned the garment for any lengthy period?  That is correct, yes.  You are aware that that garment was located by the police in the washing basket in the laundry?  Yes.  And you put the garment in that washing basket?  I did, yes.  When had you placed it in the basket?  On the Sunday evening.  You recollect what time on Sunday evening?  No, before I went to bed.  Had you worn the garment on the Sunday?  yes, I had.  Had you noticed any blood staining on the garment on the Sunday when you wore it?  No.  Had you noticed any blood staining on the garment when you placed it into the basket on the Sunday night?  No, I hadn’t.  Whereabouts was the garment in the basket in relation to the other clothes?  I couldn’t tell you that.  Could you take the garment out please (witness does so).  Can you explain or offer an explanation why there is diluted blood staining on the right shoulder?  No, I can’t.  Do you have any explanation for blood stains on the cuff?  No.

[27]     The scientific evidence with reference to this staining was to the effect that it appeared to be a sponged blood stain.  Even testing subsequent to the first trial was inconclusive as to the type of blood.  Mr Reed pointed out that the police evidence was that the item was not wet when it was recovered from the washing basket.

Evaluation of the practical issues

[28]     The main submission made by Mr Morten, and developed by Mr Reed, was that reference to the extracts sought to be adduced by the Crown served to demonstrate that they were inadmissible.  Counsel argued that the extracts did not contain admissions, or at least admissions of a kind which were susceptible of being recycled at a retrial.  By reference to R v McGregor [1968] 1 QB 371, the submission was made that only an admission concerning an essential matter which the Crown

must prove (typically an element of the offence) may be the subject of evidence at a retrial.  I put to one side whether this argument is available in the present context, given my previous ruling that, in principle, evidence from a first trial is admissible at a retrial.  I find the argument unpersuasive, in any event.

[29]     McGregor did concern an admission as to an element of the relevant offence. So for that matter did State of Louisiana v Reed (1976) LA, 342 So.2d 373, but some of the other cases discussed in my previous judgment were not of that character.  In Turner v State of Nevada (1982) 98 NEV.103, 641 P.2d 1062 the admission at trial was of flight from the scene of a shooting and of endeavours to dispose of the murder weapon (when the defence was self-defence). Cornwell v R (2007) 234 ALR

51 concerned an accused’s evidence given in relation to a charge of conspiring to import cocaine, where in the end result both his evidence-in-chief and cross- examination was admitted at a retrial.  These are not situations where the relevant admission was tailored to some element of the charge.

[30]     Nor do I accept that a statement of a witness concerning an aspect of the circumstantial case advanced against him is insufficient to engage the admissibility principle   discussed   in   my   previous   ruling.      The   present   is   necessarily   a circumstantial case.   Absent an admission to pulling the trigger, the Crown must establish to the required standard from a combination of circumstances the identity of the murderer.  In this context admissions which establish factual matters of direct relevance to the circumstantial case are of significant importance.  So is an accused’s inability to account for physical evidence found in relation to items which were recently within the his possession and control.  Admissions made in a circumstantial context will usually not be as far-reaching, nor as clear-cut, as admissions of the other kind.  For all that, they are admissions nonetheless, and it is their significance, in a cumulative sense, which may provide proof of the case.

[31] I am also fortified in this conclusion by the terms of s27(1) of the Act. It permits the prosecution to offer an accused’s “statement” in evidence. A statement is relevantly defined in s4(1) as “a spoken or written assertion by a person of any matter”. There is no requirement that the statement be against self-interest or inculpatory. This represents a departure from the traditional common law rationale

for the admission of police statements as an exception to the hearsay rule:  Evidence: Code & Commentary (NZLC R55 1999) C121.

[32]     Returning to the more practical issues which caused me to reserve a final ruling, the exercise of examining the extracts sought to be adduced by the Crown has allayed my concerns, if anything.  There are a number of points to be made.  The first concerns the accuracy of the transcript.  Regardless that the accused’s evidence- in-chief was recorded in narrative  form,  I doubt  that  the  sense  of  his  evidence suffered in the process.   Mr Reed suggested that the statement from the second extract  at  409,  “I accept  that  the  gloves  I purchased  were  the  gloves  found  in Stephen’s room”, was in all likelihood a “yes” answer to a leading question asked by defence counsel.   That may well be so, but in my view it makes little difference. Whether he said it, or adopted it, the factual proposition is clear.   Nothing in the proposed extracts excited a challenge to the accuracy of the record.  One word was obviously incorrect, namely a reference to “difference”, instead of “distance” (para [5]).  That is a manageable issue.

[33]     With the advantage of having considered the extracts sought to be introduced I am also confirmed in my view that the associates responsible for typing the transcript  will  be  in  no  position  to  respond  to  challenges  concerning  its  total accuracy.   I consider that the jury will understand the record for what it is; an experienced associate’s best effort to record the evidence as it was given, but not necessarily to a totally word perfect standard.

[34]     As at the previous hearing Mr Reed relied upon s8 of the Act in submitting that introduction of the accused’s evidence from the last trial would have an unduly prejudicial effect at the retrial and the capacity to needlessly prolong the hearing.  I do not accept this.  The Crown seeks to adduce a limited number of extracts, only two of which are of significant length.  It follows, I think, that the introduction of this  additional  evidence  to  the  jury  will  be  manageable.    More  generally,  the evidence is obviously relevant, has significant probative value and does not in my view have the potential to have an unduly prejudicial effect on the trial.

[35]     A more difficult issue concerns the final scope of the evidence.  Mr Raftery originally advanced the application on the basis that a full transcript of the accused’s evidence should be adduced at the retrial.  At my prompting the Crown focused its initiative upon the 11 extracts set out above.   This prompted Mr Reed’s argument that  the  Crown  had  “cherry  picked”  portions  of  the  accused’s  evidence,  at  the expense of others.   In addition he challenged the commencement and conclusion points in relation to at least some of the extracts.   Mr Raftery responded that the Crown was content to expand the extracts where it was thought they were unduly truncated or lacked a full context.

[36]     Mr  Reed  also  observed  that  the  defence  may  wish  to  adduce  additional extracts before the jury, if the Crown application ultimately succeeded.   However, counsel was not prepared to engage in relation to this aspect.  Seemingly the concern was that to do so would detract from the essential thrust of the defence argument that introduction of this further evidence would be unfairly prejudicial and would needlessly prolong the trial.  Accordingly, I am effectively hamstrung and I cannot attempt to evaluate this issue.  I merely observe that the statutory vehicle by which the Crown has secured access to the accused’s previous evidence is s27 of the Act. That section is only available to the prosecution.  Whether there is some other way by which the defence can proceed down this path, I am unsure.  But I do not resile from the observations made in the course of argument that defence counsel should feel free to identify other aspects of the transcript which they maintain are required to place the Crown’s extracts in proper context and to ensure fairness.

[37]     For completeness, I shall refer to Mr Reed’s further arguments that admission of the extracts would necessarily be “devoid of demeanour” and therefore unfair in terms of s6(c) of the Act.   Of course the jury will not enjoy the advantage of observing demeanour as the extracts are introduced in evidence, but this is commonplace  where  an  accused’s  statement  is  adduced  at  trial,  unless  such statement has been videotaped.  I find the argument unpersuasive.

[38]     My attention was also drawn to aspects of the case which were not put to the accused in cross-examination and to aspects which have emerged since the first trial, and which could not therefore have been put to the accused on the previous occasion.

I consider this submission is off point.  There is no principle to the effect that before an accused’s statement can be adduced at trial it must be shown that he or she was questioned on a comprehensive basis, such that all aspects of the Crown case were put and responded  to.    Interviews  may often  be  conducted  partway through  an investigation, before all aspects of the Crown case have been uncovered.   Or for other  reasons  (the  competency of  the  interviewer  perhaps),  the  interview  of  an accused may be abbreviated.  This does not disqualify the interview from admission. And in any event the extracts which the Crown proposes to adduce are not intended to be comprehensive.  They focus upon statements made by the accused at the first trial which contained admissions relevant to elements of the circumstantial case.  No doubt the selection of these extracts brought to account the contents of the accused’s police interviews.  These contain a comprehensive account of the accused’s actions immediately before and after the killings.   The present extracts are to be seen, therefore, as supplementary in nature.

[39]     I fear this is not the last word concerning this aspect.   If the defence is prepared to engage in relation to the issues which I have discussed, then the extent, and possibly the number of extracts, will require revision.   That I regard this as a management issue which could even be left until trial, if need be.

[40]     For these reasons, and subject to the reservations I have expressed, I rule that the extracts from the accused’s evidence are admissible.

Section 368 application:  Dean Cottle and Kyle Cunningham

[41]     By an application dated 4 September an order is sought pursuant to s368(2) of the Crimes Act 1961 requiring the Crown to call Dean Cottle and Kyle Cunningham as Crown witnesses.  The grounds advanced are that their evidence is relevant, will assist in establishing a full picture of events, unfairness to the accused will result if the witnesses are not called by the Crown and that it is in the interests of justice that the order be made.  The application is supported by an affidavit sworn by Mr Joseph Karam.  It serves as a vehicle to produce an affidavit sworn by Mr Cottle on 26 June 1995, the exhibits to which are a statement made by Mr Cottle to the police on 23 June 1994 and a statement made by the interviewer, Detective Malcolm

Inglis, subsequent to the Cottle interview, but on a date which is not identified.  A further exhibit to Mr Karam’s affidavit is the evidence given by Kyle Cunningham at the first trial, he being the final defence witness in the case.

[42]     The opposition to the s368 application is that the two men “are defence witnesses”, one of whom was called at the first trial and the other of whom did not give evidence for reasons which are well-known.

The proposed evidence

[43]     Mr Cottle’s affidavit of 26 June 1995 was sworn in relation to the accused’s appeal against conviction.  It covers the attempts to serve a subpoena upon him at the time of the first trial, his appearance before Williamson J (which prompted the ruling against reopening the defence case to enable Mr Cottle to testify) and related matters. It is the statement which Mr Cottle made to the police on 23 June 1994 which contains the evidence he may give.   Mr Cottle met Laniet Bain about 10 months before her death.  They became friendly and had regular conversations.  She told Mr Cottle that her father was having sex with her and this had been happening for a year.  This was one of the reasons she left home.  Laniet also referred to something happening to her in Papua, New Guinea, about which she cried, but gave no further explanation.

[44]     Mr Cottle last saw Laniet on Friday, 17 June.  He phoned Every Street, spoke to Mrs Bain and was supplied with the telephone number for the school house at Taieri Beach.  Robin Bain answered a phone call to that number and told Mr Cottle that Laniet was in town, but would be back at about 7.00 pm.  Perchance Mr Cottle met Laniet in town and had a conversation with her on the footpath.  She said that she was going to make a fresh start, tell her parents everything, since they had been questioning her about what she was doing.   Mr Cottle assumed that “everything” included her involvement in prostitution (which she had also disclosed to him) and the incest.

[45]     Kyle Cunningham lived with Robin and Laniet Bain at the Taieri Beach school house for about three or four months before their deaths.  His trial evidence

mainly covered a conversation with Robin in the period 15 – 17 June concerning possum shooting.   There was a possum problem at the school house.   The conversation was as to whether Mr Cunningham had a firearms licence, whether a shotgun or a .22 rifle should be used and which type of firearm would cause the least disturbance to neighbours.  His cross-examination contained a short assessment of Robin Bain (a kindly man), some details concerning the clothing he customarily wore about the house and to school, and that the last thing Robin said on the Friday was that he would see Mr Cunningham the next Monday.

[46]     Although not the subject of evidence at the first trial, I was also provided with a statement made by Mr Cunningham to the police on 21 June 1994, in which he related a conversation with Laniet.  This occurred on Tuesday, 15 June and as a result of Mr Cunningham overhearing a telephone conversation in which Laniet asked her mother if she could stay at Every Street on Sunday night.   Immediately after  the  phone  call  Laniet  told  Mr  Cunningham  she  would  not  be  back  until Monday, when she would get a ride out with her father and that there was to be “a family get together, a family dinner” on the Saturday or Sunday.

The relevant principles

[47]     Section 368 is headed “Adjourning trial for witnesses”.  Subsection (1) deals with that topic.  Subsection (2) provides:

(2)  If the Court is of opinion that any witness who is not called for the prosecution ought to be so called, it may require the prosecutor to call him, and, if the witness is not in attendance, make an order that his attendance shall be procured; and the Court may, if it thinks proper, adjourn the further hearing of the case to some other time during the sittings until that witness attends.

Subsection (3) empowers the Court to discharge the jury and postpone the trial following a direction pursuant to the previous subsection, if it would be conducive to the ends of justice to do so.

[48]     The terms of the section both attest to its antiquity (probably 1893) and indicate that the drafter envisaged that resort to the power contained in the section would occur in a trial situation – not pretrial.  I shall return to this point in a moment.

Mr Morten made detailed submissions concerning the required approach to s368(2). I shall not seek to emulate his reference to authorities, most of which are discussed in the leading New Zealand authority, R v Wilson [1997] 2 NZLR 500 (HC), a decision of Eichelbaum CJ. The judgment is closely reasoned, and contains reference to English, Canadian and Australian authorities, and to such New Zealand cases as had broached the interpretation of the section.

[49]     I consider that the following propositions can be taken from Wilson:

(a)that  although  s368  was  drafted  with  reference  to  the  trial situation, in the modern environment where matters are dealt with pretrial as much as possible: “It would be pedantic to insist that no application under the subsection could be  dealt  with earlier than the close of the prosecution case …” (p 504),

(b)that nonetheless it is unlikely that courts will be prepared to act under s368(2) except in rare cases, whether before or during trial, and in the former situation the Judge will be conscious that he or she “lacks the feel of the case …”, including an appreciation of “how the Crown proposes to present its case” (p

505),

(c)     that s368(2) is peculiar to New Zealand in that no other similar jurisdictions  have  a  comparable  statutory  provision  which enables the Court to overreach a prosecutor’s decision as to the witnesses to be called in support of the Crown Case (p 505),

(d)that in making such decision (which is not to be likened to the exercise of a discretionary power susceptible of review in the normal way – p 510) a prosecutor is duty-bound to act with due regard to traditional considerations of fairness (p 506),

(e)     that accordingly a prosecutor should ordinarily call witnesses who can supply direct evidence of the primary facts, or put another way, whose evidence is essential to the unfolding of the narrative; regardless that such witnesses’ evidence may contain

some  matters  which  are  inconsistent  with  the  Crown  case

(p 509),

(f)     that  the  duty is  subject,  however,  to  the  qualification  that  a prosecutor is not obliged to call a witness who it is reasonably thought will not be a witness of truth, or who is unreliable, nor call witnesses irrespective of considerations of number (pp 506 and 508),

(g)    that the occasions when the Court will intervene and require the Crown to call a witness are when the prosecutor’s decision has been influenced by some oblique motive, or out of malice, or for some other reason inconsistent with the prosecutorial role as a minister of justice (pp 508-9),

(h)that accordingly a prosecutor’s decision not to call a witness on account   of   their   unreliability,   should   be   supported   by identifiable circumstances which establish as much (p 511),

(i)that  where  the  name  of  a  witness  has  been  listed  on  the indictment a prosecutor is duty-bound to call the witness, or tender them for cross-examination by defence counsel, unless there is an agreement to the contrary (p 508), and finally

(j)that before exercising the power contained in s368(2) the Court should be astute to the limitation of a Judge’s knowledge of all the material circumstances, and to the division of roles in the adversary system, so that resort to the power should be reserved for clear cases (p 504).

Is an order appropriate in relation to Dean Cottle or Kyle Cunningham?

[50]     I remind myself of Eichelbaum CJ’s adoption in Wilson of the proposition that “the touchstone must be the interests of justice, which of course include but are not limited to considerations of fairness to the defence” (p 508).  That said, I have

formed  a  clear  view  that  the  interests  of  justice  do  not  lie  in  favour  of  this application.

[51]     In the first place the evidence of the two witnesses does not impress me as of a nature to engage s368(2).  As was stated in the notice of opposition, the witnesses are defence witnesses.  Their testimony is not evidence of the primary facts or, put another way, essential to the unfolding of the narrative.   Most often s368(2) will apply in relation to witnesses who were at the scene of a crime and witnessed all or part of the relevant events, as was the case with the two witnesses who were the subject of the unsuccessful application in Wilson.

[52]     Mr Cottle’s evidence is relevant to motive.  The defence case is that Robin Bain had a motive to commit murder because of his incestuous relationship with his younger daughter.   Laniet’s assertion that she was going to tell her family “everything” during the weekend and make a clean start is said to highlight the immediacy of her father’s predicament and to fit with the timing of the killings on the morning of 20 June.

[53]     Despite the foreshadowed availability of a number of witnesses who may confirm Laniet’s allegation against her father, the Crown does not accept the claim of an incestuous relationship.  Its case is directed to behaviour of the accused, before and after the crucial events, which is said to indicate he was the person motivated to commit the murders.

[54]     In these circumstances I consider it would be contrary to the interests of justice  to  require  the  Crown  to  call  a  witness  who  does  not  give  evidence  of relevance to the primary facts (in the sense I have described) and whose evidence forms no part of the Crown case.   This exposes a further problem and one which influenced the decision in Wilson.  If a direction is made under the subsection and Mr Cottle gave evidence for the Crown, he would not be cross-examined.   The defence would have no reason to do so.  This would be antithetical to the adversary process.

[55]     I do not overlook the oral evidence of Mr Karam given before me concerning difficulties in securing Mr Cottle’s participation as a defence witness.  Mr Karam has contacted Mr Cottle and been told by him that he will not give evidence at the retrial. Should he be subpoened to do so, he told Mr Karam “My memory will have failed me, and laughed.”  Whether his attitude may improve, remains to be seen.  In any event the defence is in possession of an affidavit sworn by Mr Cottle, in which he said that the statement he made to Detective Inglis “is true and correct and I do not resile from it on any point whatsoever”.  Accordingly, the defence is placed to have Mr Cottle declared hostile, if the need arises.  For these reasons an order in relation to Mr Cottle is refused.

[56]     I note and record some observations made by Mr Raftery during the course of submissions.  He said that the police will provide the usual assistance in relation to locating and securing the attendance of a witness, if necessary.  Counsel also made reference to the ability of a trial Judge to call a witness in circumstances such as these.   I regard this power as one to be used rarely and only in exceptional circumstances.  I find it hard to envisage that the power might be used in relation to Mr Cottle, particularly when there are other witnesses available to the defence who can give similar evidence.

[57]     For essentially similar reasons I am not prepared to make an order in relation to Mr Cunningham.  I do not consider his evidence is of a nature to engage s368(2) either.  Perhaps it cannot be said that he is so obviously a defence witness, as in the case of Mr Cottle.  Either side may benefit from aspects of his testimony, but he is simply not the type of witness in relation to whom it is appropriate to invoke this rare power.

[58]     Mr Karam has endeavoured to locate Mr Cunningham in order to test his willingness to give evidence.   He has not been found.   Again, this is a situation where the police will provide assistance, if required.

[59]     For completeness I record that this ruling is made in light of the present circumstances.  It is perhaps conceivable that matters could change in the course of the trial.  If so, this ruling might be revisited.

Section 344 application Tulloch and Williamson

Georgina Tulloch

[60]     Mrs Tulloch typed the greater part of the accused’s evidence at the first trial. I have already dealt with the admissibility of the transcript in  my judgment  of

8 September 2008 at paras [32] – [36].  I returned briefly to this topic at para [33] of this judgment.

[61]     There  is  nothing  to  add.    For  the  reasons  already  given  I  am  satisfied

Mrs Tulloch’s evidence is admissible, subject to the constraints previously noted.

Clifford Williamson

[62]     Objection was taken to the evidence of this witness on the grounds that it is not probative, irrelevant, contains inadmissible opinion evidence and conjecture, and is unfairly prejudicial.

[63]     Mr Williamson knew Robin Bain for a year or two before his death.   His children attended the Taieri Beach School.  The witness provided Robin Bain with a house at Taieri Beach for the latter’s week-day use, during a period when the school house was unavailable.  He also went on a school camp with both Robin and Laniet, approximately one month before their deaths.

[64]     Mr Williamson’s evidence covers four matters.  During the school camp he observed interaction between father and daughter over a number of days.   He considered them to have “a normal relationship”.   During the camp some of the adults went rabbit shooting.   Laniet was in the party but Robin Bain did not participate because, according to Mr Williamson, “He was not interested in firearms or hunting”.  During 1993 Robin Bain and Mr Williamson cut down a large tree for firewood.   The latter’s evidence includes assessments that Robin struggled when endeavouring to lift items of moderate weight and that he was physically awkward and weak.  Finally, this witness offers some mild opinion evidence to the effect that he always found Robin Bain polite, pleasant and uncritical of others.

[65]     The brief of evidence also includes a statement “My opinion is that I don’t believe Robin could overpower anyone”.    Mr Raftery accepted that this conclusionary statement was inadmissible.  I agree.

[66]     With reference to the remaining aspects, I am satisfied that the evidence is relevant, probative and admissible, including any remaining expressions of opinion. The reasons for these conclusions will be sufficiently evident from the rulings contained in my judgment of 8 September 2008 concerning evidence of a similar kind from other witnesses.

Directions re further pretrial hearings

[67]     Further pretrial hearings are scheduled to commence on 3 November and

1 December.  Rulings are still required concerning the 111 tape, the accused’s police interviews, the Crown application pursuant to s22 of the Act, the evidence of Mark Buckley, the stay/347 application and, possibly, with reference to a further disclosure issue and in relation to a defence s22 application.

[68]     The first four matters concern aspects of the Crown case and these will be heard in the week of 3  November.   Counsel are to liaise with Mrs Vermeulen concerning arrangements for a video conference link with the three expert witnesses in England.  If the attendance of any police officers is required with reference to the interview evidence, notice shall be given to Crown counsel.  The attendance of Mr Buckley will need to be arranged.  Leave is reserved to revert to me, if necessary.

[69]     By  agreement   the   stay/347   application   shall   be   heard   in   the   week commencing  1  December.    Defence  affidavits  are  to  be  filed  and  served  by

31 October and Crown affidavits in reply by 21 November.  Mr Raftery questioned whether oral evidence may also be required in relation to the stay and whether there may also be a need for witnesses from Melbourne.   These questions cannot be addressed until the evidence in support of the applications is disclosed.   Leave is again reserved.

[70]     The defence request that the stay/s347 be heard by a Full Court is presently under consideration.  I have discussed the matter with the Chief High Court Judge. The final outcome will depend on both the content of the application (when that is known) and the availability of a second Judge for the hearing.