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

[2008] NZHC 2563

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:         11-14 August 2008

Counsel:         K Raftery and C Mander for Crown

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

Judgment:      8 September 2008

JUDGMENT OF PANCKHURST J

Table of Contents

Para No

Introduction  [1]

Is the accused’s evidence from the first trial admissible

at the retrial?  [3]

Relevant cases  [4]

The arguments  [17]

Evaluation  [23]

R V DAVID CULLEN BAIN HC CHCH CRI-1994-012-217294  8 September 2008

Para No

Evidence pertaining to the 111 tape recording  [44] Marjory McCormick: confidential information?  [46] Dr Ferris:  legal professional privilege  [55] Background  [56]

The arguments  [63] The decision on the second appeal  [65] Waiver of privilege  [67]

The general objections re particular witnesses  [84]

Raymond Anderson, Leslie Andrew, John Dick, Craig

Wombwell:  Accused’s demeanour on 20 June 1994  [88]

Dr Pryde, Police Constable Turnhout,

Thomas Samuel:  the Accused’s injuries  [96]

Police Constables Peeters, Purdon and Gibson; Detective Constable Thomson, Graham Letts and

Kathleen Mitchell:  paper round evidence  [105] John Galliven:  helmet evidence  [117] Ivan Coward:  arm length evidence  [126] Kathrine Bridgman:  optometry evidence  [131] Billee and Wayne Marsh:  Every Street neighbours  [134]

William Christie and Ingrid Dunckley:  Robin Bain’s

mental state  [139]

Graeme Blanch, Kelly Gillan and

Marcelle Nader-Turner:  re Laniet                [145]

Kirsten Koch:  friend of Arawa  [150]

Graeme Blanch, Nadine Porter, Marcelle Nader-Turner and

Kelly Gillan:  Laniet’s state of mind             [152]

John Mouat, Rebecca Hemming, Helen Saunders:  accused’s

conduct and state of mind          [162]

Evidence of Bain/Cullen family members  [176]

Mark Buckley, Gareth Taylor and Greer Taylor:  paper round

alibi evidence       [184]

Application for further particulars

Introduction  [195]

Ruling (No. 1) Williamson J  [198]

Para No The minute(s) and the Privy Council  [201] Correspondence between counsel during the argument  [204] Are further particulars required?  [207]

Application for further disclosure  [217]

Conclusion  [225]

[1]      Following  four  days  of  argument,  rulings  are  required  upon  a  raft  of objections to the admissibility of evidence to be given by approximately 50 of the intended Crown witnesses at the retrial.  In addition, rulings of a more general nature are required in relation to the Crown’s intention to adduce a transcript of the accused’s evidence from the first trial at the retrial.  Also, in the context of the s344A application I heard limited argument concerning issues pertaining to the 111 tape, which has now been examined in England, rather than in the United States as was envisaged at the time of my judgment dated 10 April 2008.

[2]      Defence applications for particulars of the Crown case and with reference to further and better disclosure, also require rulings.

Is the accused’s evidence from the first trial admissible at the retrial?

[3]      The Crown seeks to produce the transcript of the accused’s evidence at the first trial.  This initiative is opposed on a number of grounds to which I will refer shortly.  First, I will refer to some authorities from other countries and the arguments of counsel.

Relevant cases

[4]      Counsel referred to a number of cases decided in England, the United States, Canada, Australia and New Zealand.

[5]      The leading English case is R v McGregor [1968] 1 QB 371. At his first trial on a charge of receiving Mr McGregor gave evidence admitting that he had possession of the stolen goods at the relevant time and that he had placed them in his wife’s shopping bag. His defence was absence of guilty knowledge. The jury at the first trial was unable to agree. At the retrial the Crown called a police officer who gave evidence of the admissions contained in the accused’s evidence at the first trial. Mr McGregor was convicted and appealed on the grounds the police officer’s evidence was wrongly admitted.

… this court can conceive of no ground upon which it could be said that this evidence was inadmissible.   It was in the nature of an admission or a confession made at the earlier trial on oath, and it is clearly evidence of possession, one of the relevant matters which the prosecution have to prove. The most that can be said about it is that it is a novel point;  neither counsel nor any member of the court can remember a case when this has been done, but in principle, as it seems to this court, there is no ground whatever in such a case why the prosecution should not give that evidence.

The Lord Chief Justice then added this:

As the court understands it, Mr Dovener says it was unfair, because it no doubt did cut the ground from under his feet and prevented him from making a submission of no case.   It is also said to be unfair in that really if the defendant were to stand any chance he would have to give evidence.  In fact he gave no evidence at all.  Unfair in that sense it may have been, but unfair in the general circumstances of the administration of justice it was certainly not.

[7]      In England at that time it was not the practice to produce a contemporaneous transcription of the evidence.  This, presumably, explains why a police officer who was present at the first trial gave evidence at the second.  It is also noteworthy that McGregor is the only English case which is directly in point.  Nor does it seem that McGregor has spawned a general practice of adducing evidence from a first trial at a retrial.  The ability to do so is confirmed in the Police and Criminal Evidence Act

1984 (UK) which both renders a confession made by an accused admissible against him (s76(1)) and defines a “confession” to include any statement “whether made to a person in authority or not”: s82(1).

[8]      A number of American states permit the practice: see for example State of

Louisiana v Reed (1976) LA, 342 So.2d 373 and Turner v State of Nevada (1982) 98

NEV. 103, 641 P.2d 1062. In the former the first trial evidence was an admission of intercourse in the context of a rape allegation, and in the second case the trial admission was of flight from the scene of a shooting and of endeavours to dispose of the murder weapon, in the context of a defence of self-defence.

[9]      It  appears  that  Louisiana  and  Nevada  are  not  alone  in  relation  to  the admissibility of evidence given at a first trial.  The Supreme Court considered the issue in Harrison v United States (1968) 392 U.S. 219, 88 S.Ct. 2008. The appellant

was convicted of murder at a retrial, after his conviction at the first trial was quashed because of the admission of illegally obtained confessions.   At the retrial the prosecution adduced the appellant’s evidence at the first trial, namely that he was at the place of the killing, and armed, at the relevant time.  The Supreme Court, by a majority, upheld a decision reversing the conviction, because the accused’s evidence at the first trial was given in response to the illegally obtained confessions.

[10]     The majority said at 2010:

[3]  In this case we need not and do not question the general evidentiary rule that  a  defendant’s testimony at  a  former  trial  is  admissible  in  evidence against him in later proceedings.  A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

[4]   Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby – the fruit of the poisonous tree, to invoke a time-worn metaphor.

Mr Reed QC argued that the rule in Harrison should be applied in this case.

[11]     The High Court of Australia’s decision in Cornwell v R (2007) 234 ALR 51 is on point. The appellant was charged with conspiring to import cocaine into Australia. Conversations between the accused and another obtained pursuant to an interception warrant were part of the prosecution case. These concerned dealing in drugs in Australia, not importing them. An accused in giving evidence in the courts of New South Wales may seek from the trial Judge a certificate relieving him from the obligation to answer questions which may incriminate him (s128(2) of the Evidence Act 1995 (NSW)), save that such a certificate is not available where the defendant’s evidence pertains to a fact in issue: s128(8). Where a certificate is granted, evidence given by the recipient cannot be used against him in a subsequent proceeding (save in a prosecution for perjury): s126(7). At the appellant’s first trial a certificate was granted with reference to his evidence concerning the intercepted conversations. The jury was unable to agree.

[12]     At the retrial the prosecution sought to adduce a transcript of the appellant’s cross-examination at the first trial.  This was allowed, provided the jury also received a transcript of the appellant’s evidence-in-chief.  The appellant was found guilty.

[13]     Subsequent appeals concerned intricate issues pertaining to s128.  A matter which concerned the High Court was whether a certificate providing protection in other proceedings, could avail an accused at a retrial of the same charge.   The majority held that it could not.  At para 88 the majority said of a retrial:

The parties are at liberty to re-tender the evidence already tendered.  They are also at liberty to tender other evidence.   Among that other evidence which traditionally the parties have been at liberty to tender is evidence of admissions made at the first trial.  To construe a statutory provision as negating that traditional possibility would require the identification of clear words to that effect.  There are no clear words to that effect in s 128(7). ….. In short, the function of s 128 is to ensure that evidence given at a trial in relation to one charge is not used later in relation to another.  Section 128 does not ensure that the evidence received at a trial in relation to the first charge cannot be used at a retrial on that charge.  (emphasis added)

This extract confirms the “traditional” situation in Australia, that evidence of admissions at a first trial are admissible at the accused’s retrial.

[14]     The situation in Canada, however, is different.  In R v Henry [2005] 3 SCR

609 the issue was whether an accused at a retrial may be cross-examined on the basis of the evidence he gave at the first trial.   The Canadian Charter of Rights and Freedoms provides:

13.  A witness who testifies in any proceedings has a right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.

A line of cases confirm that this provision of the Charter prevents the prosecution adducing evidence of admissions from the first trial at a retrial:   see for example Dubois v R [1985] 2 SCR 350. However, in Henry the Court held that the purpose of s13 was to protect individuals from being indirectly compelled to incriminate themselves, but that once an accused elected to testify at a second trial protection against self incrimination did not arise.  Cross-examination based upon the evidence at the first trial was permissible.  However, the Court declined to reconsider Dubois,

saying that to allow the Crown to actually introduce the evidence from the first trial would be “to compel testimony” and would infringe an accused’s right to silence.

[15]     Two New Zealand cases are relevant, although not directly in point.  In R v Darwish [2006] 1 NZLR 688 (HC) Winkelmann J found that evidence contained in an accused’s affidavits filed in support of a bail application could not be used against him at trial. The Judge reasoned by analogy with voir dire evidence, saying at [707]:

As in a voir dire, an accused person should not feel inhibited in disclosing anything relevant to their application for bail.   This is important for the proper administration of justice.

However, the Judge accepted that affidavits from the bail application could be used as a basis for cross-examination, should an accused give contradictory evidence at trial.

[16]     The second case also concerned Mr Darwish, being D v Police Auckland CRI 2004-404-44 5 March 2004, a Full Court decision.  The case raised the question whether an accused in seeking bail should be expected to file an affidavit in answer to an allegation of a risk of flight, when the affidavit evidence may incriminate him in respect of pending passport charges.  After referring to the Canadian Charter and cases including Dubois, the Court noticed the absence of a provision comparable to s13 of the Charter in the New Zealand Bill of Rights, and made the obiter comment at para [50] “There is nothing in the Bill of Rights to prevent the use of such evidence [from the first trial] at a retrial in this country.” Mr Raftery sought comfort from this observation.

The arguments

[17] Mr Raftery submitted that s27 of the Evidence Act (the Act) provided the required starting-point. The transcript recorded a statement made by the accused which the Crown may offer in evidence. While he accepted that s25(d) of the New Zealand Bill of Rights Act, 1990, and s73 of the Act confirmed that an accused person could not be compelled to give evidence at his trial, the transcript comprised a prior statement of the defendant, not original evidence as contemplated by the non- compellability principle. Moreover, what the appellant said at his first trial was

voluntary,  under  oath  and  given  with  the  benefit  of  legal  representation.    The evidence was also of direct relevance to, and highly probative of, the facts at issue in the retrial.

[18]     If no provision in the Act, or in any other enactment, expressly regulated the present issue, then ss 6, 7 and 8 of the Act, and the common law (unless inconsistent with the Act’s purposes and principles), applied:  see s12 of the Act.   Mr Raftery argued that these sources tended to confirm the admissibility of the transcript, including particularly the approach to this question taken in other comparable jurisdictions.

[19]     The argument in opposition encompassed at least five main points:

(a)that production of a transcript of the accused’s evidence at the first trial would engage ss 37 and 38 of the Evidence Act, in that the transcript was intended to impeach the accused’s veracity.

(b)That  the  present  case  was  factually distinguishable  from  the various authorities cited in argument.  The accused’s evidence in these cases established an element of the offence, or at least established an obvious fact in issue.  Accordingly, the purpose for which the evidence from the first trial was adduced was self- evident.  This cannot be said of the present case.

(c)     That,  even  if  in  principle  an  accused’s  prior  evidence  is admissible, to put in the transcript in this instance would be wrong because  much  of  his  evidence  and  answers  in  cross- examination  were  in  response  to  aspects  of  the  Crown  case which have now been discredited.    This argument was articulated by reference to the “fruit of the poisonous tree” metaphor.

(d)That  building  on  the  previous  argument,  if  the  accused’s election to give evidence at the first trial was influenced by factual assertions forming part of the Crown case which have now been discredited, then exclusion of the transcript was required as a matter of fairness.

(e)     That with reference to certain limited aspects of the accused’s trial evidence the Crown indicated a willingness to edit the transcript.  This was said to be necessarily fatal to reception of the transcript at all.  It demonstrated the dangers of the proposed course, particularly given that in  1995  evidence-in-chief  was recorded in narrative form, not as question and answer, which compromised the accuracy of the transcript.

[20]     Mr Reed mounted the argument directed to proposition (c), that production of the transcript would infringe the so-called rule in Harrison, because parts of the accused’s evidence was in response to elements of the Crown case which the Privy Council accepted had been discredited since the first trial.   Five aspects were highlighted:

(a)     The  luminol  footprint  evidence  in  relation  to  which  it  was accepted at the first trial that the prints had been made by the accused.    Now  it  is  hotly contested  whether  particularly the “complete” print could have been made by Robin Bain’s foot, or by the accused’s foot (see paras [53]-[62] pp 86-88 of Bain v R (2007) 23 CRNZ 71).

(b)The switch on time of the computer was taken to be 6.44 am at the first trial, whereas it is now considered that a time as early as

6.39.49 am is possible (paras [63]-[68] pp 88-89).   A related issue was the time at which a witness saw the accused outside

59 Every Street, which was taken to be 6.45 am at the first trial, but subsequently the accuracy of this timing has been called in question (paras [69]-[76] pp 89-91).

(c)   At trial the accused was challenged in cross-examination concerning his evidence that the glasses found in his room by the police belonged to his mother and not him.   Available evidence which confirmed the accused’s account was not before the jury.   Accordingly, the possibility exists that the accused’s credibility was impugned on an issue about which he was right all along (paras [77]-[84] pp 91-93).

(d)Evidence was given at the first trial that the left hand lens from the glasses was found in Stephen’s room, lying adjacent to personal items, but nonetheless visible.  It now appears that the lens was in the room, but not in the position pointed out to the jury, rather concealed beneath clothing (paras [85]-[90] pp 93-

94).

(e)     The rifle used in the killings was described at the first trial to have the accused’s fingerprints on it.  These prints were said to have been laid as a result of bloodied fingers grasping the rifle, not fingers touching the rifle when it already had blood on it. The  implication  was  that  the  blood  was  of  human  origin, whereas  that  is  now  disputed.    The  accused  was  unable  to explain this aspect of the evidence, save for a suggestion that he must have picked up the gun on returning to the house, without any recollection of doing so.   At the retrial an available contention may be that the source of the blood was from an animal, the prints were old and that they could have been left when the accused was hunting (paras [91]-[96] pp 95-96).

[21]     I have not rehearsed the contentions relevant to these aspects of the case in other than the barest detail.  It is the contrast between the evidence as it existed at the time of the  first  trial  on  the  one  hand,  and  the  further  evidence  which  is  now available on the other, which is important.   Mr Reed highlighted passages in the transcript of the accused’s evidence, which were said to be reflective of the evidence as it then stood.  He submitted it would be an abuse to admit the transcript, since particularly in cross-examination the accused was questioned in a manner which must now be construed as unfair given the subsequent shifts in the evidence.

[22]     The highpoint of the argument was that it could not even be safely assumed that the accused would have elected to give evidence had the full picture concerning at least some of the disputed aspects been known.   For example, the footprint evidence  alone  could  have  influenced  the  accused’s  election  to  give  evidence, whereas at the retrial a changed situation will exist.

Evaluation

[23]     I am satisfied that in principle evidence given by an accused at a previous trial  may be adduced  by the  Crown  at  a  retrial.    This  is  the  position  in  other comparable countries, save for Canada, where s13 of the Charter dictates otherwise. Although I have been unable to find a case in point, it is my personal recollection that on occasion evidence has been admitted in this country of admissions made by an accused at a first trial.  This was achieved by calling a police officer who was present at the first trial – as in McGregor.   I believe these instances  were  not controversial, because the accused did not seek to resile from what he had said on the first occasion and only a particular admission (not the evidence as a whole) was introduced at the retrial.

[24]     I do  not  consider  that  Winkelmann  J’s  judgment  in  Darwish  assists  the accused’s position.  In the first place the case concerned affidavits sworn in relation to an earlier bail application, not evidence given in a trial context after waiver of the right to silence.  What is more, Darwish was decided before the Evidence Act was passed. Although s15 generally supports the previous common law position in relation to a voir dire (that the accused’s evidence is not admissible before the jury, but cross-examination as to inconsistencies may be), it is to my mind significant that s15 is expressly confined to “evidence given to establish admissibility”. Had a prohibition been intended with reference to evidence given at a previous hearing or trial, one might have expected the legislature to have said, as it did in relation to admissibility hearings.

[25] I do not accept that admission of the accused’s evidence from the first trial has the capacity to engage the veracity rules. Veracity means “the disposition of a person to refrain from lying, whether generally or in the proceeding”: s37(5). I do not regard the accused’s evidence at the first trial as bearing on his disposition to lie or refrain from doing so. That said, the purposes to which the Crown proposes to put the transcript were not identified with any precision before me.

[26]     Ms Cull drew attention to R v Tepu [2008] NZCA 279, a decision on a leave application, in which the Court considered the admissibility of a police statement

which contained a false alibi. Since the falsity of the alibi was conceded, the appellant contended that production of the statement at trial would essentially constitute an attack on his veracity, when he had not put veracity in issue: s38(2). The Court gave leave because the intended appeal raised a “novel point”, namely “the interrelationship (if any) between s27(1) of the Evidence Act on the one hand, and s37 (the veracity rules), and s38, on the other”. Ms Cull submitted that it may be necessary for me to await the final decision in Tepu.

[27]     I doubt that this case is at all similar to Tepu.  Certainly, nothing which the accused said at the first trial is now conceded to be false.  So far as I am aware the appellant stands by what he said in 1995, rather than seeking to resile from it. Accordingly, I do not consider it necessary to await a final decision in Tepu.  Should that   decision   prove   to   be   in   some   way  relevant,   there   will   be   time   for reconsideration.

[28]     My consideration of the remaining defence arguments led me to a general and more practical concern.  How would production of the transcript be managed at trial?  This issue could, I think, give rise to a number of serious difficulties.  These were not confronted in argument – this question rather being argued at a level of principle.   Also, the authorities to which I was referred, gave little assistance in relation to how testimony from the previous trial may be reintroduced at a retrial. This probably reflected that they were appellate decisions, not decisions at a trial level where the practical issues arise.

[29]     In  McGregor  there  was  little  problem.    A  police  officer  gave  evidence confined to the relevant admission.  But how introduction of the prior evidence was managed in the various other cases, is unclear.

[30]     I have undertaken the exercise of considering the accused’s evidence at the first trial.  His evidence-in-chief occupied 16 pages and cross-examination a further

22 pages.  Inevitably the transcript reflects the atmosphere and nuances of the trial. The accused’s evidence-in-chief responded to many aspects of the Crown case, but not necessarily all of them.   The cross-examination centred upon aspects of the evidence which the prosecutor regarded as most pertinent.  Individual questions were

sometimes framed with reference to the words actually used by some of the Crown witnesses.  Exhibits were referred to in a manner which would have been intelligible to the jury at the first trial, but not others.  And, evidence-in-chief was recorded in narrative form, not as question and answer.

[31]     These  features,  and  perhaps  others,  raise  a  serious  question  about  the feasibility of introducing a 38 page transcript at the retrial.   There is also a prior question  concerning  whether  the  transcript  should  be  admitted  as  an  exhibit. Counsel seemed to proceed on the assumption that, if admissible, it would be.

[32]     I am satisfied that the transcript is a hearsay statement contained in a business record in terms of s19 of the Act.  The person who supplied the information used for the composition of the record is unavailable as a witness, at least to the Crown (s19(1)(a)).  This is confirmed in the interpretation section, s16(2)(e), in that a person who is not compellable to give evidence is deemed to be unavailable as a witness in a proceeding.

[33]     The same section defines a business to include the activities of a department of State, and a business record to mean a document made in the course of a business and  from  information  supplied  by  someone  having  personal  knowledge  of  the subject-matter: s16(1).   Each of these prerequisites is satisfied.   It follows the transcript is, in principle, an admissible exhibit.

[34]     Eichelbaum CJ considered this same question (production of a transcript as an exhibit) in R v Mills & Anor (No. 1) [1984] 2 NZLR 92 (HC). The Crown sought to produce the transcript of the accused’s evidence at a previous hearing, in the context of a perjury trial. The evidence had been recorded in shorthand and subsequently transcribed. After considering a number of English cases Eichelbaum CJ concluded that the transcript may be produced as an exhibit. This would obviate the need for the prior transcript to be typed into the record at the retrial and, moreover, was a method approved in R v Naidanovici [1962] NZLR 334 (CA). That case is authority for the proposition that:

Where  a  witness  has  no  independent  memory  of  the  transaction,  the document itself, once it is properly proved, provides the best evidence of the matter which it contains.  (p 340)

In Naidanovici the document was an invoice, or rather a number of them.

[35]     In evaluating whether the document maker had any independent recollection Eichelbaum CJ advocated a realistic approach.  It was relevant to have regard to the nature of the evidence, or in other words the facts sought to be proved.  Where these were detailed and comprised a 20 page transcript, then realism prompted a finding that the document maker had no significant independent recollection of its contents. Such finding was readily made in Mills, since the evidence was given and recorded about three years earlier.

[36]   However, reception of the transcript as an exhibit was subject to the qualification that it “does not thereby become independent confirmatory evidence of what the witness has said (Naidanovici at p 340 line 42 and R v Virgo [1978] Crim LR 557) and that the jury will be directed accordingly” (p 98).  I understand this to mean that the status of the transcript was that it was to be regarded as the maker’s best endeavour to record the evidence, not of course the equivalent of a tape or video recording  of  that  evidence.    Therefore,  the  jury  would  need  to  be  directed  to approach the transcript in this light.   Subject to any input from counsel, I would envisage the adoption of a similar prescription.

[37]     It remains, however, to evaluate the arguments based on more discretionary considerations.  Broadly, the defence contention is that reliance upon the accused’s evidence at the first trial should not be countenanced on account of the extent to which elements of the Crown case have now been doubted in the Court of Appeal and/or the Privy Council.  To my mind this question must be approached with ss 7 and  8  in  mind.    The  former  expresses  the  fundamental  principle  that  relevant evidence  is  admissible,  being  any  evidence  which  has  a  tendency  to  prove  or disprove anything that is of consequence to the determination of the proceeding.

[38]     On the other hand, s8 requires the exclusion of evidence if it’s probative value is outweighed by the risk that it will:

(a)   have an unfairly prejudicial effect on the proceeding;  or

(b)   needlessly prolong the proceeding.

In making that judgment, account must be taken of the right of an accused to offer an effective defence.

[39]     To my mind the Crown’s contentions invited a principal focus on s7, while the defence arguments based on a poisoned fruit metaphor invoked s8.   I have considered Mr Reed’s argument concerning particular aspects of the evidence which now  need  to  be  read  in  light  of  the  emergence  of  further  evidence,  or  the qualification of the previous evidence.  But on reading the accused’s evidence as a whole, I was not brought to the view that it represented the “fruit of a poisoned tree” and must, therefore, be excluded.   At most, some answers required an element of qualification.   However, this conclusion does not address the broader practical considerations to which I have referred.

[40]     With reference to these practical issues, I have reached the view that further argument is required.  The Crown must be able to identify the admissions made by the accused at the first trial upon which it seeks to rely.   This exercise may also indicate whether there is any need for the entire transcript, or only part of it, to be produced in evidence.  Further submissions may identify other practical issues which require resolution.  Accordingly, I reserve the final ruling for further argument.

[41]     Objection was taken to my position as trial Judge, given that my associate is an intended Crown witness because she typed part of the accused’s testimony at the first trial.   The real concern was that there was a possibility the accuracy of the transcript  would  be  challenged  so  that  Mrs  Morrison  may  be  required  to  give evidence either pre-trial, at trial or both.  Particularly in the former context, it was suggested I would be conflicted.  I do not accept this.

[42]     I do not consider that any associate, with respect, can vouch for the complete accuracy of a trial transcript, other than in a general sense.  The proposition that an associate, 13 years after the event, can recall exactly what was said in the courtroom and thereby confirm the accuracy of the transcript, does not bear sensible scrutiny. In this regard the observations of Eichelbaum CJ in Mills at 98 are pertinent:

… in the present case the issue is the precise evidence given by the accused at a hearing nearly three years ago.   The detail required is seen from the assignments contained in the indictment.   In that respect, for all practical purposes the witnesses have no independent recollection.

I respectfully agree with, and adopt, these observations.   I also embrace the Chief Justice’s reasoning concerning the need to evaluate the nature of the actual evidence the witness would be called upon to recall in vouching for the accuracy of the transcript (see p 97).

[43]     It follows, in my view, the argument that I may be called on to adjudicate upon evidence recorded by my personal associate, is entirely theoretical, rather than real.  The reality of the situation is as described in Mills.  Aside from the need to give a direction of the kind I have indicated, nothing will be required of me which might require that I recuse myself.   On proper examination the objection is without substance.

Evidence pertaining to the 111 tape recording

[44]     Arising  from  the  expert  evaluation  of  the  tape  in  England,  there  is  a divergence of view concerning what evidence can, and should, be called referable to the retesting.  The evidence of three Crown witnesses is affected.  However, whether their evidence should be adduced in whole or in part is dependent upon an overarching issue about which both sides need to adduce expert evidence.

[45]     This did not occur in the course of the last hearing.  Accordingly, this aspect is reserved for further consideration.  Further directions, and if required a timetable, will be made in consultation with counsel.

Marjory McCormick: confidential information?

[46]     In June 1994 this witness was a victim support person for an agency, Victim Support.  Between 20 and 24 June she provided support to the accused, and to other members   of   the   Bain-Cullen   family,   in   the   aftermath   of   the   homicides. Ms McCormick spent a considerable amount of time at the home of the accused’s aunt and uncle, providing support to David Bain in particular.

[47]     At the first trial objection was taken to this evidence.   Separate counsel appeared for the victim support officer and argued that the evidence should not be admitted because the public interest in the preservation of confidence between a victim support officer and a client outweighed the public interest in disclosure of the relevant evidence.   This issue  fell to be determined under s35 of the Evidence Amendment Act (No. 2) 1980.  Williamson J in Trial Ruling (No. 5), 22 May 1995, found that it was appropriate to excuse the witness from giving evidence.

[48]     The Judge accepted that victim support officers received information in a situation of confidence.  This was confirmed by the terms of a declaration taken by officers on joining Victim Support.   The declaration included the words “I will divulge such information only with the consent of the client …”.   Although the accused was by then alleged to be the perpetrator of the relevant crimes, the Judge accepted that his status at the time of the relationship was that of a victim.

[49]     As to the merits he said this:

In this case I am influenced by the nature of the evidence which it is desired to lead.  It has only limited significance, in my view, to the essential task of resolving the issue to be decided at this trial. …  It substantially deals with a variety of statements allegedly made by the accused while in the home of relations   about   matters   principally   concerning   the   funerals   but   also concerning  some  of  the  events  which  had  taken  place.    There  is  no suggestion in any of the evidence of any form of admission or words amounting  to  admission  or  indicating  admission  of  guilt  of  the  serious crimes that the accused is charged with.  Many of the matters raised are ones which  could be  said to  be  equivocal so far as the issue  in this  trial  is concerned and in respect of which different arguments could no doubt be put for each point of view.  (p 4 of the Ruling).

In directing that the witness was excused from giving evidence, Williamson J noted that a list of clothing to be worn by the deceased at the funeral, which the witness had prepared on the accused’s instructions, was still to be produced as an exhibit. Apparently, there had been reference to this topic in the evidence of two aunts of the accused.

[50]     Section 52 of the Act enables a Judge to order that evidence not be given where it is privileged, confidential or material to matters of State.  Section 69 of the

Act defines the scope of the discretion as to confidential information.  In particular, subs (2) provides:

A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in –

(a)preventing harm to a person by whom, about whom, or on whose behalf  the   confidential  information   was   obtained,   recorded,   or prepared or to whom it was communicated; or

(b)     preventing harm to –

(i)    the particular relationship in the course of which the confidential communication or confidential information was made, obtained,

recorded, or prepared;  or

(ii)  relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or

(c)     maintaining activities that contribute to or rely on the free flow of

information.

[51]     Mr Raftery in arguing against non-disclosure raised three matters:

(a)     that the witness is retired and no longer asserts that the relevant communications were confidential (although the agency by which she was employed at the relevant time may claim confidentiality);

(b)that the relevant communications did not occur in a situation of close confidence between the witness and the accused, in that the witness was providing support to the extended family and members of the family were privy to at least some of the discussions;  and

(c)     other witnesses are to give evidence in a similar vein, so that the so-called  confidential  information  is  not  sensitive  both  on account of the time that has elapsed and the extent to which it has already been disclosed to other persons: s69(3)(f).

[52]     Ms Cull responded by pointing out that s52(2) envisages that non-disclosure may be ordered “on the application of an interested person”.  Here the confidence is that of the accused.  Nor did it matter that the witness, in whom confidence had been reposed,  was  no  longer  concerned  to  preserve  that  confidence.    The  new  Act identifies the fact of confidentiality as the core prerequisite, rather than the existence of a special relationship as was previously the case.  Objection was also taken to the

witness’s evidence on the ground that it contained expressions of opinion concerning the accused’s demeanour, which in general terms was described as detached, inappropriate and unemotional for someone who had just suffered the loss of their immediate family.

[53]     I essentially agree with Williamson J’s assessment of the witness’s evidence. I do not regard it as of significant importance, or probative value, in relation to the main issue in the case.   In addition, it does seem that other means exist by which evidence  of  a  similar  kind  will  be  available  to  the  Crown  from  other  family members.   Ms McCormick, however, was in a different situation in that she was independent and had the benefit of experience as a trained nurse and as a counsellor (including grief counselling).  She had also received some training in how to deal with victims of homicides.   This indicates that, if called, she is qualified to give opinion evidence of the kind contained in her brief.  Another issue is the extent to which the confidential information is already in the public domain as a result of evidence given by others and to be given by them again at the retrial.

[54]     Unfortunately,   I   do   not   think   it   is   appropriate   to   finally   rule   on Ms McCormick’s evidence at this stage.  Two considerations influence me.  First, it is not apparent whether the agency which employed the witness will assert the need for confidentiality in order to prevent harm to victim/support person relationships generally or in order to maintain a free flow of information: s69(2)(b)(i) and (c). Secondly, I anticipate that family witnesses will be called before evidence is to be given by the present witness.  As noted, these family witnesses cover similar ground and   their   evidence   will   also   bear   upon   how   sensitive   (and   confidential) Ms McCormick’s evidence actually is.  I therefore reserve a final ruling until trial.

Dr Ferris: legal professional privilege

[55]     Dr Ferris is a consultant forensic pathologist.  He is a Crown witness and his brief of evidence includes this:

It is my opinion that the statement by David BAIN that he could hear her gurgling and the written comments attributed to David BAIN which stated “When I went into the room I heard groaning type sounds muffled by what

sounded like water.  Turned on light they came from her.  Went over to her, but could see there was nothing I could do.  I didn’t touch her.”

This  narrative  so  accurately  reflects  the  expected  observations  of  an

individual inhaling blood, they give great credibility to these observations and their accuracy.

Background

[56]     It is common ground that the written comments attributed to the accused are derived from a document which was supplied to the Ministry of Justice at the time of the petition for the exercise of the Royal prerogative of mercy.  The document, page number 101, contained a typed summary of the contents of documents disclosed to the defence in anticipation of the first trial.  One such summary was of a notebook entry made on 20 June 1994 by a constable concerning the three wounds to the skull of Laniet.  The note recorded “She has not died instantly” and contained reference to mucus and blood in the lungs.  I infer that the constable may well have recorded the notebook entry after accompanying the pathologist in conducting a preliminary view of the bodies.

[57]     In any event the handwritten comments attributed to the accused are those in the margin beside the notebook summary and now reproduced in that portion of Dr Ferris’ evidence quoted above.  Although there is some dispute as to the reason for which page 101 was provided to the Ministry, there is no doubt that it was tendered subject to a limited waiver of privilege.   David Bain signed a waiver to his trial counsel, but only in relation to the inquiry by the Ministry of Justice into defined issues raised by his petition.  Those issues were errors by counsel in the conduct of the defence, non-disclosure by the police, unfounded prejudicial allegations which were not seriously challenged by defence counsel and “trial by ambush”.  The waiver of privilege also recorded:

This waiver of privilege is only to the extent that you may discuss these matters with officials from the Ministry of Justice, and further that  any discussions with officials concerning privileged  information  shall  not  be disclosed, in whole or in part, to any other person or the media without my authorisation.

[58]     This background is derived from an affidavit sworn by Mr C S Withnall QC

and filed in opposition to the present s344A application.  Mr Withnall deposed that

while acting for David Bain in relation to the petition he provided page 101 to Ministry officials “in accordance with the strictly limited waiver of privilege document signed by David Bain”.

[59]     Investigation of the application for the exercise of the Royal prerogative of mercy took place between June 1998 and December 2000.  The waiver of privilege was signed in January 1999 and Mr Withnall provided page 101 to the Ministry in February 1999 (presumably with other relevant documents).  The Governor General, by Order in Council dated 18 December 2000, referred six questions to the Court of Appeal for its opinion in terms of s406(b) of the Crimes Act 1961.

[60]     Question 4 was phrased in this manner:

Was the submission made by the Crown Solicitor in the Crown’s closing address to the jury at the applicant’s trial that “only one person could have heard Laniet gurgling.  That person is the murderer”, wrong or misleading?

The Order in Council then listed documents which may be relevant to the question, including as document (a):

Page 101 of the summary of the briefs of evidence for the applicant’s trial prepared by defence counsel, Michael Guest, containing the applicant’s handwritten notations …

The reference hearing was in October and December 2002.

[61]     In  the  context  of  the  applicant’s  second  appeal,  which  was  argued  in September 2003, Ms V C Sim, then Chief Legal Counsel at the Ministry of Justice, swore an affidavit pertaining to the status of page 101.  Her affidavit, dated 31 July

2003, annexed a copy of the waiver document and of page 101, and recorded that page 101 was listed in the Order in Council in relation to question 4.  Her affidavit continued:

8.    During  the  hearings  before  the  Court  of  Appeal  on  the  s406(b) reference, Mr Bain’s counsel advised me that Mr Bain maintained legal professional privilege in some of the material provided to the Ministry during the investigation of the Petition, and that this material should not be further disclosed to the Court of Appeal without Mr Bain’s consent. I do not understand that this claim for privilege extends to page 101 of the  Summary  which  was  referred  to  in  the  Order  in  Council  and provided to the Court of Appeal.

[62]     Mr Withnall’s affidavit does not respond to these paragraphs (although it annexes a copy of Ms Sim’s affidavit).  Rather, directly after reference to the Order in Council, Mr Withnall observed that he considered the use of page 101 a clear breach of the terms of the waiver.  He also noted that the document was not within the category of issues which the Ministry wished to discuss with previous trial counsel, as identified in the waiver of privilege.  The affidavit concluded on the note that:

I took this issue up with Ms Sim as soon as I became aware of it, and I made it clear that David Bain maintained his privilege in respect of all documents disclosed under the waiver.

The affidavit, read as a whole, indicates that the privilege issue was taken up with Ms Sim in the context of the reference in 2002, not the context of the second appeal in 2003.

The arguments

[63]     The  essence  of  Mr  Morten’s  argument  concerning  Dr  Ferris’s  proposed evidence  is  that  the  accused’s  notation  to  page 101  remains  privileged  and  the witness cannot rely on the notation as containing a credible and accurate description of a person “inhaling blood”.   Counsel, by close reference to relevant authorities, argued that there had been no waiver of legal professional privilege.   Mr Raftery contended otherwise.  The fact that page 101 was referred to in the Order in Council and subsequently relied upon in three public proceedings meant that privilege in the document was now “lost”.

[64]     David Bain’s evidence-in-chief at trial contained this at p 414:

The next thing I remember is being in Laniet’s room and I could hear her gurgling.  I could see blood all over her face and on the pillow.  I can’t recall if I touched her.  I went right up beside the bed.  I must have left the room at that stage, I don’t recall it.

This  is  in  contrast  to  the  additional  information  contained  in  the  handwritten notation.

The decision on the second appeal

[65]     The Court’s decision in relation to the second appeal ((2003) 20 CRNZ 637) discusses the principles applicable to the reception of new evidence (paras [18] – [27]) and at para [28] contained this:

We propose at this point to deal with the admission of new evidence in this case  on  a  global  basis.     We  will  make  discrete  reference  to  the admissibility of particular pieces of new evidence subsequently, to the extent it is either necessary or desirable to do so.  In short we consider it is in the overall interests of justice to admit all the new evidence tendered by David Bain and all the new evidence tendered by the Crown.  Clearly, if all David’s new evidence is admitted, as in our view it should be, the Crown should, in this case, be entitled to similar treatment.   Mr Withnall appropriately did not argue to the contrary …  (emphasis added)

Dr Ferris provided new expert evidence to the Court.

[66]     Under the sub-heading “Laniet’s gurgling” the Court at paras [114] – [129] summarised the new evidence it had considered.   This discussion contains no reference to a contention that legal professional privilege was asserted in relation to any aspect of the new evidence.  Moreover, the judgment contains this:

[127]    We also regard as significant the following passage in Dr Ferris’ evidence referring to statements made by David about hearing Laniet gurgling:

It  is  my  opinion that  the  statement of  David  Bain  that  he  ‘could  hear  her gurgling’ and the written comments attributed to David Bain ‘when I went into her room,  I  heard  groaning type  sounds  muffled  by  what  sounded  like  water’,  so accurately reflect the expected observations of an individual inhaling blood, they give great credibility to these observations and their accuracy.

As can be seen, the quoted passage from Dr Ferris’ evidence is almost identical to the evidence proposed to be adduced at the retrial.

Waiver of privilege

[67] Section 54 of the Evidence Act affirms the existence of privilege for communications between legal advisors and their clients, provided the communications were intended to be confidential and were made in the course of, and for the purpose of, obtaining professional legal services or the giving of such

services.  In this instance there is no question that the communication from David

Bain to trial counsel on page 101 was privileged.

[68]     Waiver of legal privilege is governed by s65.   For present purposes that section relevantly provides:

(2)   A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part   of   the   privileged   communication,   information,   opinion,   or document in circumstances that are inconsistent with a claim of confidentiality.

(3)   A person who has a privilege waives the privilege if the person –

(a)acts  so  as  to  put  the  privileged  communication,  information, opinion, or document in issue in a proceeding;

……..

(4)   A  person  who  has  a  privilege  in  respect  of  a  communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.

[69]     Both counsel referred to B v Auckland District Law Society [2004] 1 NZLR

326 (PC).   By reference to the judgment of Lord Millett, I was reminded of the rationale for legal professional privilege, namely that it is a fundamental condition on  which  the administration  of  justice  as  a  whole  rests,  that  once  privileged  a communication is always privileged (unless waived), that a refusal to waive privilege cannot be questioned or investigated by a court, and that privilege is absolute (save where the privileged communication is the means to effecting a fraud).   With reference to waiver, the privilege belongs to the client and it is only by the client’s consent that it may be waived.   The case is also authority for the proposition that waiver may be for a limited defined purpose.   An argument for the respondent concerning limited waiver characterised in the judgment as “once the cat is out of the bag privilege cannot help to put it back”, was rejected on the basis that “The cat is still a cat.  It can be put back in the bag” (para [69] p 352).

[70]     Factually the case is similar to the present one in that it concerned documents which were provided to a solicitor for a limited and defined purpose.  But, the cases are also different to the extent that in B an attempt to use the document for a wider

purpose was met with an emphatic response.   The privilege holder immediately called for the return of the documents and, when this was refused, promptly brought proceedings for their return (paras [18] – [19] p 340).  By contrast, I find the factual situation in this case is much less obvious.

[71]     In the first place, the provision of page 101 and its linkage to the waiver document is somewhat obscure.   The accused signed the waiver in January 1999 (according to facsimile transmission details) and Mr Withnall sent page 100 to the Ministry in February of that year.  On its face the waiver authorised trial counsel to discuss defined matters with officials from the Ministry of Justice, but nothing more. Yet, it is the physical provision by Mr Withnall of page 101 which is said to have occurred pursuant to the limited waiver.  Neither counsel broached this point.  I can only infer that the document was provided by Mr Withnall with reference to impending  discussions  between  Ministry  officials  and  trial  counsel.    Hence,  I proceed on the basis that the waiver extended to the document.

[72]     A further difficulty concerns what occurred in the aftermath of the filing of Ms Sim’s affidavit.  I have already referred to my appreciation that Mr Withnall’s affidavit speaks of raising the issue of privilege with Ms Sim when page 101 first surfaced as a document referred to in the Order in Council.  His affidavit is silent in relation to the filing of Ms Sim’s affidavit in July 2003 and, moreover, concerning what occurred at the reference hearing in October and December 2002.  Importantly, the opinion of the Court furnished on 17 December 2002 contains no suggestion of legal professional privilege being raised.

[73]     Equally, there is nothing to suggest that privilege was raised before the Court of Appeal at the September 2003 hearing of the second appeal, or for that matter before the Privy Council in 2007.  In the result the applicant’s handwritten notation on page 101 is now a matter of public record at para [127] of the Court of Appeal decision.

[74]     Mr  Morten’s  submissions  were  to  the  effect  that  the  appellant  could  do nothing when page 101 was referred to in the Order in Council.  The defence was confronted with “a fait accompli”.   It followed that in briefing Dr Ferris to give

evidence based on David Bain’s handwritten notation the Crown was seeking to rely on its own “deliberate and wrongful conduct”.  To allow it to do so would create a very dangerous precedent.

[75]     What these submissions fail to grapple with is why objection was not taken to page 101, firstly at the reference hearing and more particularly at the second appeal hearing when Ms Sim’s affidavit invited a response.  It is evident from the opinion of the Court following the reference hearing that question 4 referred to five documents of suggested relevance to the question.  Surely objection could have been taken to one of those documents, in which case the answer to question 4 would no doubt have recorded that page 101 had been excluded from consideration.

[76]     Turning to s65, I am of the view that waiver only occurred in this instance if counsel, with the authority of David Bain, voluntarily consented to the production or disclosure of page 101 in circumstances that are inconsistent with a claim of confidentiality: subs(2).  Subsection (3) is not in point, since the accused did not act so as to put page 101 in issue during the s406 proceedings, or subsequently.  And, subs(4)  deals  with  involuntary,  mistaken  or  non-consensual  disclosure  of  a privileged document, in which case there is no waiver.

[77]     Was there consent to the production and disclosure of page 101 especially at the  second  appeal  hearing,  given  that  Dr  Ferris’  evidence  contained  express reference to David Bain’s notation?  A second question arises with reference to the circumstance that the privileged communication is now a matter of public record. Can the cat be put back in the bag at this stage?

[78] Before turning to the question whether there was consent giving rise to a waiver, I should acknowledge that counsel referred to numerous authorities decided in this country and in England and Australia. I have considered them, but without gaining much assistance. This, I think, reflects two factors. The New Zealand decisions do not post-date the passing of the Evidence Act. But, more importantly, the factual situation in this case is so far removed from those in the cases cited as, in my view, to render them of limited assistance.

[79]     Waiver ordinarily requires conduct by, or on behalf of, the privilege holder which is inconsistent with a claim to privilege.  A good example is partial disclosure of a privileged communication in an endeavour to secure a forensic advantage.  This case, however, concerns conduct comprising inaction, in circumstances which required that privilege be asserted.

[80]     One case closer in point is R v Tuiloma CA222/99 8 December 1999.  The appellant was convicted of indecent assault.  The conviction arose from a retrial after an initial jury disagreement.   At the first trial the appellant was cross-examined, without objection, concerning a discussion with his lawyer as to the seriousness of digital penetration as compared to non-penetrative touching.   This line of cross- examination was pursued at the retrial.   An objection was taken, but overruled. Initially the appellant denied that a discussion had occurred with his lawyer, but then conceded the point when taxed concerning his evidence at the first trial.

[81]     The point was dealt with at para [62], where the Court said:

The issue arose out of the evidence led at the first trial where privilege was not claimed.  Whether the privilege could be claimed after it had previously been waived is in issue.  It may have been better if the questioning had been disallowed, given that the second trial was a new and distinct trial  and privilege was claimed.

Because  the  same  result  could  have  been  achieved  by  a  different  form  of questioning, the ground of appeal was ultimately rejected.   That said, the case provides some support for the proposition that a failure to raise privilege at trial may not necessarily be decisive against a claim to privilege at a retrial.

[82]     Mr Raftery relied upon the Australian case of Spedley Securities Limited (In Liq) v Bank of New Zealand (1991) 26 NSWLR 711. A bank officer was examined on his draft witness statement prepared by the bank’s solicitors, and no objection taken to this course. Cole J said at 730:

There seems to me to be no reason in principle why a party may not, by conduct,  waive  legal  professional  privilege  by  omitting  to  claim  that privilege when it is available.  There is no distinction in principle between failure to claim legal professional privilege for a  document by including it in a list of documents discovered and available for inspection, without claiming legal professional privilege, and on the other hand sitting by and allowing

use of the document already in the hands of the other party without claiming legal professional privilege, or omitting to take steps to claim legal professional privilege in respect of the document known to be in the hands of the court, or as here, the liquidator, which it was obviously intended to use. Each constitutes an implicit waiver because it constitutes an abandonment of the claim for protection …

[83]     The striking feature of the present case is that Ms Sim’s affidavit squarely raised the issue of privilege before the second appeal hearing.  Mr Raftery termed it “a model of caution”.  I do not accept the contention that the defence was confronted with a fait accompli at the earlier reference hearing, given the terms of the Order in Council.  I have already addressed that point.  But, there is nothing to indicate that Dr Ferris adopted and used the privileged material at that stage.  But he undoubtedly did so in the context of the second appeal when objection was not raised and para [127] of the judgment resulted.  To my mind, the cat is out of the bag and it cannot now be returned.  The conduct of counsel at the appeal hearing can only be construed as a consent to the production and disclosure of page 101.  In all the circumstances that conduct was inconsistent with a claim of confidentiality.

The general objections re particular witnesses

[84]     Before I turn to the objections concerning the various witnesses, some of whom may be grouped for present purposes, I think it is desirable to record some general matters.  Some of these I mentioned in the course of argument.  They arise from the manner in which the Crown briefs of evidence have been prepared and what I see as the distinction between admissibility rulings and control of the trial process itself.

[85]     Upon reading the witness statements it was apparent that aspects of the case have been over-briefed.   By that I mean that a number of witnesses cover similar ground and the statements of individual witnesses often contain details which may prove to be unnecessary at trial.  Mr Raftery acknowledged this to be the case.  In many instances he struck out passages of evidence, both on grounds of admissibility and probative value.   In other instances he acknowledged that tracts of evidence would probably prove to be unnecessary, at least from later witnesses if the facts in issue had not been challenged with earlier witnesses.

[86]     In these circumstances I indicated to counsel that I would only rule on true admissibility objections.  This is not to abdicate responsibility in relation to evidence which  may  prove  to  be  inessential  whether  because  it  may  cause  unjustifiable expense and delay (s6(e)) or insufficiently probative by needlessly prolonging the trial (s8(1)(b)).  Rulings, if required, in these terms, are best left to be determined in the atmosphere of the trial itself.

[87]     Ms Cull in advancing the defence objections to the evidence of multiple witnesses did so by reference to common themes, for example propensity evidence, opinion  evidence,  reconstruction  evidence  and  others.    I  shall  not  follow  this example.  I consider it is preferable to divide and consider the witnesses sequentially, albeit that more than one ground of objection may be relevant to an individual witness or the members of a group of witnesses.

Raymond Anderson, Leslie Andrew, John Dick, Craig Wombwell:   Accused’s demeanour on 20 June 1994

[88]     This group comprises Raymond Anderson, Leslie Andrew, John Dick and Craig Wombwell.   However, the objection relevant to Mr Wombwell was not pursued.

[89]     All of the witnesses went to 65 Every Street soon after 7.00 am on 20 June

1994.   They each had some contact with the accused and it is evidence of observations concerning his behaviour and demeanour which is the subject of objection.

[90]     Raymond Anderson had 14 years experience as a full-time ambulance officer as at 1994.  He had been a qualified paramedic for about seven years.  He described the accused as exhibiting convulsion or fit-like symptoms which did not impress him as genuine.   Constable Leslie Andrew was in the house when the accused began shaking as though he was having a fit.  He described the accused’s eyes as staying the same, normal and that they did not change or roll back as he has seen in other persons having fits.  He also described the accused as not appearing to be distressed after the shaking episode.

[91]     John Dick had been an ambulance officer for 15 years as at 1994.  He saw the accused both at 65 Every Street and in a CIB office after his removal from the house. The accused spoke of black hands coming after him and the witness also described the accused as cool and calm, given his circumstances.   It is apparent from the witness statement that Mr Dick’s evidence will vary a little by comparison to that which he gave at the first trial.  He no longer recalls asking the accused what he was saying (in relation to the black hands) or his being asleep while at the house.

[92]     Ms Cull submitted that the evidence I have identified is inadmissible opinion evidence, unreliable and not probative of an issue in the proceeding, in that it does not pass the substantially helpful test.

[93]     As to the submission that the witness statements contain inadmissible opinion evidence, I disagree.  Section 24 of the Act provides:

General admissibility of opinions

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

This helpful provision represents legislative recognition of the everyday difficulty in distinguishing between evidence of fact on the one hand, and evidence of opinion or inference on the other.  In relation to everyday matters it is virtually impossible for witnesses to restrict their evidence to observed fact.   The natural use of language produces a description which comprises a combination of observed fact, and conclusion based on those observations.  This, the present witnesses have done.  To the extent their evidence contains an element of interpretation, or opinion, I consider the ambulance officers are experienced enough to express such views.   Constable Andrew  will  need  to  qualify himself  in  terms  of  experience,  before  it  may  be appropriate for him to compare his observations of the accused by reference to other persons he has seen fitting.

[94]     I do not accept he argument that because John Dick has amended aspects of his evidence concerning whether he asked questions of the accused, and whether the accused was asleep, his evidence is unreliable and therefore inadmissible.   Any change in his evidence may well be relevant to weight, but not to admissibility.

[95]     With reference to the probative value of the evidence, the circumstances in which the observations were made are obviously all important.  The essential issue in this  case  is  whether  David  Bain  killed  five  members  of  his  family.    All  three witnesses  had  contact  with  the  accused  soon  after  the  relevant  events.     His behaviour, and demeanour, at that time will be relevant to the jury’s assessment of the accused and whether it is proved he was responsible for the deaths.  Although this evidence may be described as contextual, it is still of sufficient importance to be placed before the jury.  In my view its exclusion would be artificial and wrong in principle, albeit such evidence relates to a single circumstantial aspect of the case.

Dr Pryde, Police Constable Turnhout, Thomas Samuel:  the Accused’s injuries

[96]     There are three witnesses in this category.  Dr Thomas Pryde examined the accused at the Dunedin Police Station shortly after 11.00 am on 20 June 1994.  He found “recent bruising” to his right temple and above his right eye.  When asked, the accused did not explain the cause of the injuries.  Dr Pryde gave evidence at the first trial.  He died earlier this year.  Objection is taken to his evidence on the grounds that “defining the age of bruising is a specialist area, for which this witness is not qualified”.

[97]     Constable T E van Turnhout was with the accused at the police station both before and after the examination conducted by Dr Pryde.   Objection is taken to evidence that the accused was “quite open  and not distressed”,  and also to the witness’s observation of a graze on the inside of the accused’s right knee, which the witness said “appeared  recent”, unlike other  cuts and  grazes on his  legs.    This observation  was  made  during  Dr  Pryde’s  examination  of  the  accused.     The contention is that the constable is not competent to give evidence concerning the recency of a graze injury.

[98]     Thomas Samuel is a prison officer.  He dealt with the accused upon his first reception into Dunedin Prison.   The witness does not know the date, but other evidence establishes that the accused was arrested, appeared in court and was remanded  in  custody on  24  June.    Mr  Samuel  conducted  a  strip  search  of  the

accused.  He noticed scratch marks to the front shoulder area on the right hand side. His witness statement continues:

They weren’t deep scratches and were starting to heal a little.  It looked as though someone had raked his body with their fingers.   The gouges  or scratches ran downwards and were spaced apart consistent with a space between somebody’s fingers.  There were two distinct different patterns of scratches.   It looked like he was scratched once and then scratched again. These marks did not stick out as I could not see any other scratches about his body and I did a full strip search.   There was also pre-bruises around the scratched area.  It was like a yellowing of the skin and slight darkness in the middle of these yellow areas.  I have seen similar injuries of bruising effects on many prisoners and I have also received injuries myself.  These bruises, I would have thought, were about 2 to 3 days old.

When asked about the injuries, the accused did not respond.

[99]     Mr  Samuel  was  not  a  witness  at  the  first  trial.    He  did  not  record  his observations at the time.  Objection is taken to the evidence on the basis the witness cannot give an opinion as to the cause of the injuries, nor the age of the bruising. Because the accused did not respond to the question concerning how he sustained the injuries, this evidence is said to breach the rule in R v Halligan [1973] 2 NZLR 158 (CA). Further, the inability to cross-examine Dr Pryde is said to give rise to concern about the reliability of Mr Samuel’s evidence.

[100]   I am satisfied that Dr Pryde’s evidence is admissible.  He was apparently a police  doctor  of  long  experience  (a  matter  which  can  be  brought  out  at  trial). Although the ageing of bruises is acknowledged to be an inexact science, I am in no doubt that an experienced general practitioner is competent to describe bruises as “recent”.  With regard to the witness’s death, I indicated to counsel that Dr Pryde’s evidence  at  the first  trial  could  be  read  to  the jury,  if  this  was  considered  the preferable course.

[101]   In relation to the question asked of the accused concerning his facial injuries, I am satisfied this was a natural question in the circumstances and that there was nothing improper about it.  David Bain was more a victim than a suspect at that point in time.   To the extent that the accused’s non response is described in a manner which has a perjorative ring about it, the statement may be edited (to read “he did not respond”, for example).

[102]   I consider that the evidence of Constable van Turnhout is also admissible. The reasons given at para [53] apply.  Evidence of the constable’s experience as at

1994 will be needed.

[103]   The observation evidence of Mr Samuel is likewise admissible in my view. Again, the reasoning in para [53] concerning the difficulty involved in detailing observations in purely factual terms, is relevant here.  However, I do not accept that the witness is competent to give evidence as to the age of bruising (i.e. in terms of “2 to 3 days old”).   This is to go further than to describe a bruise (or injury) as recent, or old, which descriptions are part of everyday experience.

[104]   The evidence concerning the question asked  of  the  accused  and  his  non response,  is  also  admissible.     The  rule  in  Halligan  concerns  the  improper introduction  of  evidence through  the  medium  of  a  question,  where  the  accused neither agrees with or declines to answer the inquiry.  The question in this instance introduced no new evidence.   Rather, it was  a natural question, to which there happened to be no response.   It occurred post arrest and  after the accused had received legal advice.  But in my view the situation was not one in which the witness was legally constrained in relation to a simple single question of this kind.

Police Constables Peeters, Purdon and Gibson; Detective Constable Thomson, Graham Letts and Kathleen Mitchell:  paper round evidence

[105]   The police officers on 22 June re-enacted the paper round of the accused, either at walking speed, a fast jog or running.  The time taken by each was recorded.

[106]   In April 1994 Constable Peeters repeated the exercise.  In addition, Detective Thomson observed the reruns in April and noted the time at which Constable Peeters arrived at various points, being the addresses at which the accused was observed by witnesses or at which he spoke to a witness in one instance.   Unsurprisingly, this exercise produced a spread of results depending upon how the constables approached the task.

[107]   The Crown seeks to adduce the evidence in order to provide the jury with parameters for the time taken to complete the paper round.  The evidence is said to be relevant both in relation to the accused’s account concerning his movements on the morning of 20 June and in relation to the evaluation of the independent evidence of observations made of the accused in the course of the paper round.

[108]   Objection is taken to the evidence on the basis it is inadmissible opinion evidence of non experts, irrelevant, unreliable and that its probative value is slight, by comparison to its unfairly prejudicial effect and tendency to needlessly prolong the hearing.  In developing these contentions Ms Cull pointed out that two witnesses give evidence concerning the accused’s presence in Every Street at or towards the end of his paper round and, absent a witness who saw him start the paper round, “evidence about the time it takes to complete the paper round is not relevant”.

[109]   I disagree.   The time taken by the accused to perform his paper round on

20 June 1994 is an important issue in this case.  While the time that he arrived back at Every Street is of particular importance, the period over which he was absent from the house is equally important.   It would be remiss of the Crown to not provide evidence of timings, against which to assess the accused’s evidence at interview concerning this aspect.

[110]   The evidence was also criticised as being in the nature of an impermissible reconstruction.  I do not accept this contention, nor that the timings are in the nature of opinion evidence.  In my experience it is commonplace for evidence of this kind to be given.  In R v Collins (2001) 160 CCC (3d) 85 (ON CA) at para 20 Charron JA said this:

A pre-trial experiment can be as simple as driving from one location to another to determine the time it takes to cover the distance in order to substantiate or disprove an alibi, or driving along a particular stretch of road to determine at what point a stop sign becomes visible. The evidence in such cases, provided that it is relevant to an issue in the case, will usually be admitted without argument.  It is entirely factual, and its admissibility is only subject to the general principles of relevance, materiality and discretion … In other cases, the pre-trial experiment may be more complex, requiring particular technical or scientific knowledge to perform, and it may also form the basis of expert opinion evidence in the interpretation of the results.  In such cases, the experiment evidence, in so far as the observed facts are concerned, will be subject to the usual principles of relevance, materiality

and discretion but, in addition, to the extent that it includes inferences from observed facts, the opinion rule will come into play.

[111]   This extract has been cited with approval in this country (R v Jefferies [1994]

1 NZLR 290 at 304). I also adopt it. To my mind it captures the essence of the issue and the present evidence, in my view, is essentially in the first category. I have already dealt with the relevance and worth of the evidence.

[112]   It is convenient to also deal with the evidence of Graham Letts and Kathleen Mitchell under this heading.  Mr Letts lived near to the Bain home and it was his practice to drive to work along Every Street after leaving home at about 7.00 am.  On

20 June he left home at 7.03 am and did not encounter the accused as he usually did in the first few minutes of his journey.   His evidence is to this effect and also contains a brief assessment of Robin Bain’s character.  He knew Robin as a fellow member of a board of trustees in the years 1989 – 1992.

[113]   The evidence as a whole was objected to as non-probative and containing inadmissible opinion evidence as to propensity.   I do not consider Mr Letts’ assessment of Robin Bain to be anything more than relevant background evidence. It is not evidence of propensity.  While the paper round evidence may prove to be of limited assistance, it is not inadmissible.   If nothing else, it tends to confirm the accused’s  account  as  to  his  movements  on  20  June,  and  also  the  evidence  of witnesses who said that they saw him near to his home about quarter of an hour before 7.00 am.

[114]   The deposition statement from Kathleen Mitchell was read by consent at the first trial.  She said that between 6.10 am and 6.15 am on 20 June her dog (Boris) barked when the accused delivered a paper to her front door.  She called out “hullo”, but did not hear a response.   Her witness statement for the retrial is similar, but contains important additional evidence.   Mrs Mitchell is now briefed to say that about a year before June 1994 she spoke to the accused and asked him not to deliver the paper by coming onto her balcony because it caused Boris to bark, which she did not want.   The accused complied and the established practice became for him to deliver the paper to her bedroom window or to the gate immediately adjacent to the balcony.  However, on 20 June the accused opened the gate and entered the balcony

area.  Boris barked and Mrs Mitchell spoke to the accused.  This, she now says, was out of the ordinary.   Her witness statement contains the observations that “I now wish to clarify some matters” and that she recalled them “at the time, [but] I didn’t really want to be involved”.

[115]   Mr Raftery contends that the revised evidence supports an inference that the accused wanted to be noticed on 20 June and, to that end, departed from his normal practice.  Ms Cull contends that I should rule at least the new evidence inadmissible pursuant to s8(1)(a) of the Act on the basis that it is so unreliable as to be unfairly prejudicial rather than probative.  In addition she argued that a warning pursuant to s122 would be required namely of the need for caution in deciding whether to accept the evidence, given its unreliability.

[116]   I consider that the new or revised evidence is admissible.   It is obviously relevant  and  has  probative  value.    To  the  extent  that  the  witness  qualifies  her previous evidence, she will be open to cross-examination.  The weight her evidence should  receive  is  a  jury question.    I  do  not  regard  this  as  a  situation  of  such unreliability as to engage s8(1)(a) of the Act.   Whether an unreliability warning will be required, remains to be seen.  That question must be reserved for trial.

John Galliven: helmet evidence

[117]   I am assured that at the first trial, and at subsequent hearings, attempts were made to hold the rifle used in the killings in the position required to inflict a wound of the trajectory which killed Robin Bain.  In general terms, he was shot to the left side of the head, between the left eye and ear, and above eye level.  The trajectory was at an angle of approximately 45º downwards.  The bullet did not exit the skull. It was recovered inside the skull on the right hand side of the head.

[162]   John Mouat gives evidence concerning a choral workshop at the university a few weeks before 20 June.  The accused sat in front of Mr Mouat at the workshop. He observed the accused to become agitated, then turn and step over his chair in order to go to the back of the room.  In doing so he knocked Mr Mouat, but simply continued on and sat by himself at the rear of the room as “he rocked back and forth and appeared almost in a trance”.

[163]   Subsequent to the killings the accused told the police that in the months prior to 20 June he had experienced occasions when he was in a trance like state.  This explanation was relevant to the time lapse between the accused’s return to Every Street on 20 June and his making the 111 call some minutes later.

[164]   Ms   Cull   challenged   the   evidence   as   irrelevant,   unfairly   prejudicial, inadmissible opinion evidence and because it purported to demonstrate a violent propensity.  She observed that the relevant event was capable of explanation on the simple basis that the accused was “unwell or was feeling faint”.

[165]   That  may  be  so,  but  the  fact  remains  that  the  accused  suggested  an explanation to the police with regard to an important fact in issue – whether there was an unexplained delay in making the 111 call.   In my view there can be no objection to the Crown adducing evidence of an example of a condition upon which the accused relied in support of his explanation.  I regard the evidence as relevant, probative, factual (not opinion) and not amounting to evidence of propensity.  Once the basis upon which the evidence is being called is understood, the contention it is propensity evidence is rendered untenable.

[166]   Rebecca Hemming and Helen Saunders were university friends, who met the accused in 1994 through their mutual interest in theatre and music.   In the period prior to 20 June they had regular social contacts with the accused.

[167]   Ms Hemming’s evidence includes an account of an intense conversation with the accused on 14 June.  He spoke about his family, his perception of himself, the plan for the family to build a new house, black auras which Laniet had experienced, a trance which he had experienced at a concert, feelings of deja vu and a premonition that something horrible was going to happen.   Ms Hemming suggested a need for counselling.

[168]   There were further contacts on 16 June and also on 19 June, which was the day the accused participated in a polar plunge.  On 22 June the witness and Helen Saunders accompanied the accused on a walk along the beach.   The accused, in speaking to Ms Hemming alone, said that the premonition he spoke of the previous week was in relation to the killings.  Soon after saying this the appellant fell to his knees and demonstrated considerable anguish.  At another point he left the company of the others and could be heard crying out in an anguished manner while on his own.  He also said that he was not responsible for the deaths.

[169]   On 23 June there was further contact and conversation, including a reference to why Laniet stayed at Every Street on the Sunday night, that there was a 20 minute period the next morning which the accused could not account for and Ms Hemming was asked by the accused whether she would tell the police about the conversation concerning a premonition.

[170]   The evidence of Helen Saunders covers similar ground.   She  recounts  a number of conversations with the accused in which he outlined matters concerning the family relationships and issues.  In late May, Ms Saunders and the accused saw the movie, “Schindler’s List”, together and in early June they attended a ball at Larnach Castle.   The accused wore white dress gloves to the ball.   About a week before the killings the accused and Ms Saunders attended a concert, during which the accused experienced a trance.  She also gives evidence of discussions and contacts

with the accused in the period 21-23 June, including an account of the walk on the beach (although this witness was not party to the premonition discussion).

[171]   The whole of the evidence of both witnesses is objected to.   Mr Raftery submitted that the witnesses supplied background evidence concerning the accused and his family relationships.  He contended that evidence of the accused’s behaviour and demeanour in the period immediately prior to 20 June was highly relevant, as was his demeanour and comments in the immediate aftermath of the killings.  I note that both witnesses gave evidence at the first trial and in substantially the same terms as is proposed at the retrial.

[172]   Ms Cull challenged the evidence on the basis that it related to propensity and because the Crown was leading “rebuttal evidence in advance of any defence evidence”.   The relevance of the evidence was also questioned, as were some expressions of opinion.  Counsel also contended that the evidence was inadmissible on account of unreliability.   In this regard instances where both witnesses supply more detail than they did at the first trial were highlighted.

[173]   I am satisfied that the evidence is relevant, probative and admissible.  It does not, in my view, comprise propensity evidence as defined in s40(1)(a) of the Act. Rather, the evidence pertaining to the period before 20 June is relevant contextual evidence, concerning the accused’s behaviour and demeanour in particular.   The evidence  pertaining  to  post  20 June  is  equally  relevant,  since  it  concerns  the accused’s behaviour and conversation very soon after the killings.

[174] That the witness statements of Ms Hemming and Ms Saunders contain additional details which they did not refer to at the first trial, does not establish unreliability justifying exclusion of their evidence.  To the extent that their testimony contains added detail, no doubt this will assume relevance to the jury’s assessment of the weight to be given to their accounts.

[175]   In two respects I accept that the witness’ evidence may be objectionable. Both witness statements contain odd expressions of opinion or “impression”.  These should  be  avoided.    And,  in  some  respects  the  descriptions  of  social  contacts

between the witnesses and the accused contain a level of detail which is of questionable utility.  But, I regard these concerns as the responsibility of counsel in leading the evidence in the first instance, and as an aspect of my trial responsibility in the final analysis.

Evidence of Bain/Cullen family members

[176]   There are five witnesses in this category, being Robin Bain’s brother Michael Bain, Margaret Bain’s sisters Janice Clarke and Valerie Boyd, and their husbands, Robert Clarke and John Boyd.  The Crown had also planned to call two of the Clarke children, daughters, who were living at home when the accused stayed with the family over the days before his arrest.  However, a decision has been taken not to call them.

[177]   Ms Cull challenged the whole evidence of all five witnesses upon a number of grounds being that the evidence was variously irrelevant, non-probative, inadmissible opinion, unreliable and in the nature of inadmissible propensity evidence.  There was also challenge to questions which some of the witnesses put to David Bain, including when he was awaiting trial or post conviction, and to the answers given, if any.   This evidence is challenged as being in the nature of inadmissible accusatory statements, to which there was no incriminating response or no response at all.  The rule in R v Halligan is relied upon.

[178]   Mr Raftery contends that, aside from tracts which the Crown has agreed not to lead, the balance of the evidence is admissible essentially for the same reasons as he advanced in relation to Rebecca Hemming and Helen Saunders.  That is that it comprises relevant contextual background evidence concerning members of the family  and  the  inter  family  relationships;     and  evidence  of  the  defendant’s demeanour, behaviour and comments in the immediate aftermath of the killings. Hence, the Crown does not accept the propensity characterisation.  The evidence is said to be relevant and probative, with reliability being a matter for the jury and of significance to weight rather than admissibility.

[179]   The Clarkes and the Boyds gave evidence at the first trial.  Michael Bain did not.   It is apparent from a comparison of the retrial witness statements and the evidence at the first trial that, while the witnesses cover similar ground, there is considerable added detail in the new witness statements.   Some of this has been removed by agreement, but much of the new material remains.   I consider that a good deal of the new evidence is trivial and of questionable probative value.  I shall return to these four witnesses in a moment.

[180]   Michael Bain is a younger brother of Robin Bain.   His evidence contains background material concerning his brother, an assessment of Robin Bain’s demeanour  and  disposition  when  the  witness  last  saw  him  (February 1994),  an account of steps taken by the witness in his capacity as an executor of Robin and Margaret Bain’s wills and a description of the witness’ contacts with the accused both before (particularly in 1992), and after, the killings.

[181]   In the main I am satisfied that this evidence is admissible.  The description of Robin Bain’s character is unnecessarily fulsome.  The account of actions taken by the witness in his capacity as executor is relevant, most with regard to the reasons which prompted and the process which preceded the decision to burn down 65 Every Street.   Likewise, his evidence as executor concerning items of personal property (dinner  jacket,  computer,  glasses  and  bank  statements),  is  admissible.     With reference to  Mr  Boyd’s  contacts  with  the accused  after  the killings  occurred,  I consider the evidence admissible, save for the conversations at Paparua Prison in January 1995 (pp 14-15) and in March 1997 (p 15).

[182]   With regard to the evidence of Mr and Mrs Clarke and Mr and Mrs Boyd I have reached the view that it is necessary for the Crown to provide revised witness statements.   As  I have  already mentioned, Mr Raftery agreed that tracts of the evidence of these witnesses should not be adduced in chief and that other portions would require to be “truncated” as he described it.   These concessions were well made.    It  is  my  impression  on  reading  the  new  witness  statements  that  these witnesses were re-interviewed and fresh witness statements were prepared without judgment being exercised concerning the value of and need for some of the evidence. This consideration, and the concessions made by counsel, indicate to me that revised

witness statements are required.   Otherwise the scope of the concessions and the ambit of the evidence is not sufficiently defined.

[183]   The Crown, in undertaking that exercise, should pay regard to the rulings contained in this judgment.    The witnesses make observations which are conclusionary and therefore in the nature of opinion evidence in some instances.  As in the case of Mr Boyd, there is some question and answer evidence (with the accused) which infringes the Halligan principle.  Subject to these aspects, however, the evidence is generally admissible.  I note that at the first trial the four witnesses gave evidence without the need for a ruling from Williamson J.

Mark Buckley, Gareth Taylor and Greer Taylor: paper round alibi evidence

[184]   These three witnesses were students at Bayfield High School at the same time as the accused.  Subsequently Gareth and Greer Taylor married.

[185]   Mark Buckley’s evidence relates to a conversation he had with the accused while staying at the Bain house overnight.   I infer that the conversation occurred while the two were still at school and therefore some  years before the relevant events.   The accused spoke of his sexual interest in a girl who lived in the neighbourhood.  He referred to raping her while she was out running in the morning, and avoiding apprehension by using his paper round as an alibi.  An explanation was given as to how the paper round would serve that purpose.   In the course of the explanation the accused referred to a notebook in which he had written times and other details relevant to the proposed alibi.

[186]   Gareth Taylor had a similar conversation with the accused in 1989 while the two were walking home from school one day.   However, the conversation was limited and, aside from a reference to having watched the jogger from behind some bushes while delivering newspapers, there was no other reference to the paper round or to using it as an alibi.

[187]   Greer Taylor in early 1994 was in contact with the accused as they were both studying at the University Music Department.  Shortly prior to 20 June her husband

told her of the female jogger conversation which had occurred in 1989.   Gareth Taylor said that he mentioned the conversation to his wife because he was aware of her contact with the accused at university.  Greer Taylor’s evidence also refers to her friendship with Arawa and Laniet, as a result of which she was an occasional visitor to the Bain home.   However, I did not understand this evidence to comprise the reason for her being called as a Crown witness.  It was rather the conversation with her husband in early 1994.

[188]   Ms Cull objected to the evidence of all three witnesses, essentially on the basis it was in anticipated rebuttal of a defence of alibi and was, in any event, inadmissible propensity evidence.  Mr Raftery maintained that the witnesses did not give evidence of propensity, rather of the relevant circumstance that the accused spoke of using his paper round as an alibi.  Counsel disavowed any reliance upon the reference to rape and said that any need for the male witness to refer to the sexual dimension would be strictly controlled, and may require a direction to the jury.

[189]   I shall deal with the witnesses in reverse order.   As I understand it, the purpose of Greer Taylor’s evidence is to confirm the warning which she received from her husband.   Viewed in this way, the evidence is of a previous consistent statement of Gareth Taylor (i.e. it confirms that he retailed the female jogger conversation to his wife before 20 June 1994, and that his evidence is not therefore a recent invention).  It follows, in my view, that Greer Taylor’s evidence would only be admissible in support of her husband’s account and, then, only if the requirements of s35 were satisfied.

[190]   I do  not  consider  that  the  evidence  of Gareth  Taylor  is  admissible.    Its probative value is slight.  It does not directly support the thesis that the accused had in mind using his paper round as an alibi, if ever required.  On the other hand, the evidence could have an unfairly prejudicial effect at trial.

[191]   I do not consider the evidence of Mark Buckley is propensity evidence.  A person’s  sexual  thoughts  concerning  a  female  jogger  cannot  demonstrate   a propensity to commit murder, at least not in the circumstances of the present case. That said, the evidence carries the risk that it may be unfairly prejudicial at trial.

This indicates that s8 is most relevant to assessing whether the evidence should be admitted.

[192]   Subject to what I am about to say, the evidence has considerable probative value.  The accused’s version of the events of 20 June does raise the paper round as an alibi of sorts.  In effect he told the police “while I was absent from the house five members of my family were killed”.  In addition, the evidence of Kathleen Mitchell (paras [113]-[115]) is relevant to this issue.   If her account is accepted that the accused  on  20 June  acted  so  as  to  ensure  that  he  was  noticed,  it  would  invite attention to Mark Buckley’s evidence of the school boy conversation.

[193]   The evidence from the two sources, in combination, is of high probative value.  Particularly if the sexual dimension of the conversation was downplayed, I am satisfied that the probative value of the evidence would outweigh any unfairly prejudicial effect.

[194]   However, that conclusion is subject to the reservation expressed earlier.   I regard Mr Buckley’s evidence as of such significance that a final decision about its admissibility should  be  deferred  pending  an  admissibility hearing.    His  witness statement is imprecise as to when the conversation occurred.   And, the nature and tone of the conversation is not readily apparent from the witness statement.  A voir dire, including cross-examination, would provide a much better opportunity to gauge the true probative value of the evidence.  A final ruling is reserved.

Application for further particulars

Introduction

[195]   In my judgment of 19 May 2008 I referred to this aspect (paras [55]-[59]).  In light of those observations an application for particulars (and further disclosure) dated 5 August 2008 was filed.

[196]   The former sought that the Crown provide written notice concerning changes to the Crown case.  Nine grounds were enumerated, to the effect that:

(a)  the proper definition of the intended Crown case, including any changes to it, was foreshadowed in discussions and, particularly, my minute of 2 July 2007,

(b)  despite requests made by letter the Crown had failed to provide particulars of changes to the Crown case,  and

(c)  the Crown case as rebriefed indicated numerous changes to the evidence, such that the defence was hampered in its ability to prepare its case because the Crown case remained undefined, especially where it differed from the case advanced at the first trial.

[197]   In the course of argument reference was also made to Williamson J’s Ruling (No. 1) dated 8 May 1995 and exchanges which occurred in the Privy Council concerning whether there was adequate particularisation of the Crown case at the first trial.   I granted leave for counsel to file memoranda concerning the second aspect.  Such has been done.  I shall refer to the memoranda shortly.

Ruling (No. 1) of Williamson J

[198]   This ruling was given following the Crown’s opening of the case.   Two issues were apparently raised by then defence counsel, the first of which concerned particulars.  Williamson J said this:

The first matter concerns the lack of specific allegations as to the timings of the shootings.  In this respect counsel for the accused sought confirmation as to the exact nature of the allegations being made for the Crown and, in particular, as to whether or not it was alleged that four of the deceased had been shot prior to the accused leaving on his paper round and the fifth when he returned, or whether it was alleged that all five had been shot following the accused's return from the paper round.

[199]   The Crown’s response was recorded in these terms:

Mr Wright, for the Crown, has said that the Crown does not wish and is unable to specify the exact times at which it is alleged that the shootings took place, but rather to rely upon the evidence which will be given during the course of the hearing.

In the event the Judge said:

There is no need for any further ruling by me.

He then added that he would advise the jury that the opening was an outline of the Crown’s case or allegations, and that jurors must keep an open mind until the end of the evidence.

[200]   Given the terms of the  ruling,  I infer that  after  counsel  had  stated  their respective positions there was further argument, which culminated in an indication that the Crown could not be obliged to commit to a specific scenario in relation to the killings.

The minute(s) and the Privy Council

[201]   In both the application for particulars and in the course of argument reliance was placed upon minutes which I issued in July 2007.  These referred to “the need for definition of the intended Crown case, at least where it will vary from the original case”, and like observations.  It was argued that comments of this nature lent support to the need for better particularisation of the Crown case.

[202]   The minutes were not directed to particulars at all, rather to evidence.  Crown counsel advised at the outset that the case was to be rebriefed.   New witness statements were to be provided.   I was concerned to ensure that this was done promptly and a timetable to that end was made.  I do not regard the minutes as of any present relevance.

[203]   Both sides have filed memoranda concerning the recollections of counsel about exchanges which occurred in the Privy Council.   I have considered the memoranda.  Their Lordships’ advice contains nothing directly referable to the issue of particulars.  Nor have I found the memoranda of assistance to my determination of the present application.

Correspondence between counsel during the argument

[204]   I was provided with copies of letters written by Mr Reed and Mr Raftery with reference to this aspect.  On 20 June 2008 Mr Reed wrote in these terms:

The Crown case at the first trial, which has not altered during the ensuing appeals, was that the accused rose early, at about 4am on the morning of

20 June 1994, at which time he murdered his mother and three siblings.  He

then removed blood stained clothing and put them in the washing machine with other clothes and set the machine going.  He then set off and delivered the papers on his paper round.  Upon returning home he made a beeline for the computer, turned it on, and remained laying in wait in the computer alcove  behind  the  curtains  for  his  father  to  come  and  pray.    He  then murdered his father, and then called 111, feigning hysteria and trauma.

Please confirm that you will certify the particulars set out above, as the

Crown’s particulars, pursuant to section 334.

[205]   On 18 July 2008 Mr Raftery replied in these terms:

When we spoke recently about the particulars, I gave you some indication of the Crown’s position, but this letter now seeks to address your request more formally:

“It is the Crown’s case that the accused murdered all five members of his immediate family in the early hours of the morning of the 20th  of June 1994 at 65 Every Street, Dunedin, by shooting them with the .22 rifle which he owned”.

We know from the evidence that someone, possibly Margaret Bain, carried out some banking at an automatic teller machine at the National Bank in South Dunedin at about 11.30pm on the evening of Sunday the 19th of June. We also know that at about 10 past 7 the following morning David Bain made a 111 call advising that his family were “all dead”.  It is the Crown’s case that the murders occurred between those times.  But, for example, as to whether David Bain rose at 4am, or whether his mother was murdered at

4am, or whether his mother was the first of the family to be murdered, the

Crown is not willing and/or able to provide that degree of specificity.

It  certainly  will  be  the  Crown  case  that  David  Bain  put  blood  stained clothing into the washing machine and set the machine going.  It will also be the Crown case that he did a paper run that morning, leaving his house shortly before 6am.   And further the Crown will say that the computer at

65 Every Street was switched on sometime around about quarter to 7 that morning (20th of June).

When the Crown closes to the jury it will do so on all the evidence that emerges at trial.  How the Crown closes on any particular issue will depend on how the evidence “pans out” on that issue.  Thus for example, should you call a witness to say that they saw David Bain walking up Albion Street toward Aytoun Street at 5.40am and the Crown does not dispute that, or is unable to “shake it” in cross-examination and there is no other evidence to contradict it, the Crown may well close on the fact that he left the house shortly before 5.40am even though it might have opened on the basis that he left the house shortly before 6am.

[206]   This  exchange  highlights  a  marked  difference  of  view  concerning  the required extent of particulars.   Mr Raftery essentially maintains that the indented passage  in  his  letter  sufficiently  particularises  the  Crown’s  case.    The  defence

contention is that particulars must extend to the actual scenario, or sequence of events, which surrounded the killings.

Are further particulars required?

[207]   Section 331 of the Crimes Act contains the power to order particulars where the Court is satisfied that course “is necessary for a fair trial”.  Upon their provision, s334 applies, in that “the trial shall proceed in all respects as if the indictment had originally contained the further particulars”: subs(2).

[208]   As s331 identifies, particulars are about fair process.   Their purpose is to fairly inform the accused of the case he has to meet.  Particulars are about evidence. They fix the metes and bounds of the evidence upon which the Crown will rely: R v Mead & Anor [2002] 1 NZLR 594 (CA) at para [77] p 609.

[209]   Particulars are often required in cases involving a course of conduct.   For example, in Mead the charges alleged wilful ill-treatment of children in the care of the accused.   Particulars were provided which identified several forms of abusive behaviour upon which the Crown relied in order to establish the element of ill- treatment.  Similarly, in complex fraud cases and serious driving cases the Crown may provide particulars of the matters to be relied upon to establish the fraud or a particular level of driving fault.  Thereby the limits of the evidence in relation to the relevant element of the charge is defined, as if the particularised facts were set out in the indictment.

[210]   Is the present request one for particulars?  This, I think, is the real question. The only issue in this case is who killed the five victims.  Whether the accused did so, depends in part on opportunity.  The “particulars” requested in Mr Reed’s letter concern a sequence of events involving the accused and, ultimately, whether he had the opportunity to kill the five victims.

[211]   What is sought does not concern evidence.   The accused is not asking the Crown to particularise what evidence it relies upon to establish his responsibility for the  killings.     Rather,  the  Crown  is  being  asked  to  commit  to  a  particular

interpretation of the presently known evidence.  I am unaware of particulars of this nature ever being ordered.

[212]   R v Chignell [1991] 2 NZLR 257 (CA) is a murder case where the sequence of events assumed importance. The Crown charged that the accused had murdered the victim at Taupö by throwing his bound body into a river. At trial, pathologists disagreed as to the cause of death. It was either death by drowning, or by asphyxiation. If the latter, the death could have occurred at Auckland and in the course of a bondage session. The appeal concerned the adequacy of the summing-up and, in particular, whether the jury should have been directed that they must be unanimous as to the place (and thereby the cause) of death.

[213]   The place of the death was crucial because there were two accused, one of whom was principally involved in the bondage session, and the other in throwing the victim into the river.  The existence of a murderous intent fell to be assessed at one place, or the other.   It was held that the directions to the jury did not sufficiently cover the alternative scenarios.

[214]   The present case, however, is dissimilar.  How the Crown ultimately puts its case in relation to the sequence of events will no doubt be important in determining whether the accused had the opportunity to kill the victims.  But it will not affect an element of the offence, nor the legal directions which may be required.   In these circumstances,   I  am   in   broad   agreement   with   the   contention   contained   in Mr Raftery’s letter, that the Crown is not required to finally commit itself to a particular factual scenario, at least not until it closes its case to the jury.

[215]   This cannot give rise to trial prejudice.  Particulars specify facts and forewarn an accused what facts he or she may need to challenge or meet head-on by defence evidence.   But an  accused cannot expect to be forewarned concerning how the Crown will open, and especially close, its case.  The defence has the last say and this is the final safeguard.   Even if particulars were provided in the terms sought by Mr Reed, the Crown could not be held to them.  Counsel must remain free to adapt and argue their respective cases in light of all the evidence which unfolds at trial. Hence the particulars sought would serve no useful purpose.

[216]   For these reasons the application is declined.

Application for further disclosure

[217]   The notice of application identified four areas in relation to which further disclosure was sought.  However, by the time this aspect was argued, the field had been narrowed to one.

[218]   The submissions concerned a 12 page document entitled “Analysis of Ampex Audio Tape by FBI”.  Pages 1-3 and page 8 had been disclosed, albeit the Crown considered that disclosure was not required.   Accordingly, I need only consider pages 4-7 and 9-12.

[219]   The subject-matter of the document is the audio tape of the accused’s 111 call to the St John Ambulance control room shortly after 7.00 am on 20 June 1994.  The tape was played at the first trial.  In anticipation of the retrial it has been subjected to further testing.  In light of that, I am to hear evidence and argument concerning the admissibility of a segment of the tape and how the tape should be played at the retrial (paras [44]-[45]).

[220]   The Crown declined to disclose the remaining pages upon the basis that their contents comprise “work product”.   This phrase is used to denote internal police memoranda, compiled as part of the investigation process and containing evaluative opinion or information, as opposed to primary information.

[221]   I was referred to R v AJD HC AK CRI 2007-004-9065 24 July 2008, a judgment of Potter J.  She summarised the relevant principles at para [11].  I need not repeat them.   Her judgment also included reference to R v Taylor CA130/02

17 December 2003, which case cited observations of Rodney Hansen J in Tonkin v

Manakau District Court & Anor HC AK M437/SW01 26 July 2001 at [10]:

In my view, it is necessary and desirable that police officers should be able to communicate internally in writing without fear that matters of opinion and comment will later be disclosed.   I see it as necessary to the efficient workings of the police and in no way contrary to the right to a fair trial for internal  memoranda  to  be  protected  from  disclosure  in  proper  cases. Informal  communications  in  which  tentative,  provisional  and  subjective

views are expressed, must be a necessary part of the investigation and detection of offences.  As long as they do not contain evidence which is not available from other sources, I see no threat to the administration of justice in their being protected by s 6(c) of the [Official Information] Act.

The Court of Appeal in Taylor then continued:

[27]   The  purpose  of  disclosure  is  to  ensure  the  defence  has  access  to primary material held by the police (to the extent required by the relevant statutes and the common law).  Requiring disclosure of additional material of the type sought here could unduly inhibit the police in their investigations and would have the attendant practical problems alluded to by the Crown. The system remains an adversarial one and it is not for the Crown to perform analytical and evaluative work for the defence.

[222]   These  general  principles are  subject  to  the  exception,  also  recognised  in Taylor,  that  if  an  internal  police  memorandum  contains  primary  information, relevant facts or items which have not otherwise been disclosed, then disclosure will be necessary, regardless that the document comprises “work product”.

[223]   I have been provided with the 12 page document.   It is apparent it was prepared  in  January  2008  by  a  detective  and  is  an  internal  memorandum summarising matters relevant to the audio tape.   Pages 4-7 pertain to the chain of custody of the tape after 20 June 1994.   It is evident from these pages that the summary is derivative.   The relevant dates and entries are referenced to original documents from which the summary has obviously been prepared.  In a letter written by the Deputy Solicitor-General to Mr Reed, dated 23 June 2008, it is recorded that this  primary material  has  already been  disclosed.    In  these  circumstances  I am satisfied that pages 4-7 comprise work product and are protected from disclosure.

[224] Pages 9-12 headed “Verification Options” comprise an internal police memorandum setting out matters of opinion and comment in relation to a proposed avenue of investigation.  This also is work product and is, therefore, protected from disclosure.

Conclusion

[225]   I have a concern that there may be a witness or more in relation to whom I have not dealt with an evidentiary objection.  The hearing represented something of a moving feast, in that some objections were abandoned and others conceded.   If I have overlooked any matter, leave is reserved so that it may be raised at the next hearing.

[226]   I note also that in several instances aspects have been reserved for further consideration.  These are:  the admissibility of the accused’s evidence from the first trial, an aspect of the 111 tape, Marjory McCormick’s evidence and Mark Buckley’s evidence.  In addition I made a direction in relation to the witness statements of the Bain/Cullen family members.   I mention these aspects, as they will need to be rescheduled, save for Mrs McCormick’s evidence which is to be left as a trial issue.