I shot the prick!

June 11th, 2009 at 1:24 pm by David Farrar

I am somewhat staggered that the Supreme Court supressed claims that in his 111 call said “I shot the prick”.

Sure there is dispute over whether that is what he said, but I would have thought a jury would be allowed to hear the tape and work out for themselves if they agree with the claim or not. The High Court and Court of Appeal said they should be able to.

The suppression order has also been released this time on other evidence which the Herald printed a week or so ago. I blogged on it at the time and removed the blog item after it became clear it was still supressed. Not it is not, I have restored my original blog item.

When I read the allegations about what he said at school about his paper run, I joked to someone at the time that this now explains why he was still doing a paper run in his 20s!

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134 Responses to “I shot the prick!”

  1. AG (1,759 comments) says:

    To repeat a point on another thread …

    Here’s the important part about the views of the Crown’s own expert witnesses on the “I shot the prick” statement:

    “Professor French and Mr Harrison are both independent forensic consultants attached to the Department of Language and Linguistic Science at the University of York. They are specialists in the analysis of digital and magnetic recordings and speech and language samples. Both are highly qualified and experienced in giving evidence about the analysis of speech and audio recordings. … [N]either Mr Harrison nor Professor French was able to say that the sounds Detective Ward thought he had heard when playing the recording in July 2007 in Dunedin were words and, if so, what they were. That was so even though they had been advised of the Crown contention and so were looking for the words.”

    Their report on the 111 tape then concluded: “In summary, and having given this issue extended consideration, it is our view that it would be dangerous to put before a jury an interpretation of the questioned material as ‘I shot the/that prick’ … . While it was not possible to discount the questioned sounds being ‘I shot the/that prick’, they could equally be simply an out-of-breath exhalation that happens to resemble those words, but which, in fact, is empty of linguistic content or meaning. We would consider it unsafe to place the interpretation ‘I shot the/that prick’ before a jury.”

    Now – you may argue that EVERYTHING should be in front of the jury. In which case, my very, very vivid dream that the Bains were killed by mole-men from the earth’s core needs to be admitted before the courts as soon as possible. After all – it might be true! And the jury should get to see/hear everything, right?

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  2. Pat (76 comments) says:

    The jury will allowed to hear conflicting expert opinions on whether Robin could commit suicide. The jury should have been given the same opportunity to hear expert opinion on the alleged confession.

    I can’t understand why the testimony of the two school friends was suppressed, when the defense was allowed to produce all sorts of testimony to discredit Robin.

    The next Hikoi banner should read NO COMPENSATION.

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  3. Buggerlugs (1,609 comments) says:

    The old Supreme Court is going to come under fire yet again for their “we know what’s best, bugger the exact letter of the law” approach.

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  4. Chris2 (754 comments) says:

    Once again the judiciary decides what a jury can and cannot hear. This “we know best” attitude is so institutionalised amongst Judges, and their opinion is worth no more than that of the British language experts.

    If we are going to use the jury system then let the 12 people, who live real lives in the everday world, use their own common sense to form an opinion.

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  5. Murray (8,838 comments) says:

    I for one feel that natural justice DEMANDS we hear more of this mole-men scenario.

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  6. lilman (882 comments) says:

    Well well well……….

    Evidence is evidence, all should be heard.

    Karam had the right to enter the incest evidence which was correct as it was evidence,why then was suppressed evidence from the prosocution not allowed.

    The saying “You cant father the baby and breastfeed it “has never sounded truer.

    And ALLAN all I can say to you is “DOH”.

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  7. Inventory2 (10,085 comments) says:

    AG – to repeat something I have written in another thread – both Justice Panckhurst and the Court of Appeal believed that this evidence should have been put before the jury, with the judge to direct them on what inferences to take. That is clear in the Supreme Court’s decision. It was the Supreme Court which decided otherwise.

    Meanwhile Karam has a media conference planned for 2pm – I somehow doubt that he will be announcing an application for compensation this afternoon!

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  8. Comrade MOT (59 comments) says:

    AG, You are wrong. It not about addmitting everything, it is about not supressing anything. Your “very, very vivid dream that the Bains were killed by mole-men from the earth’s core” need not be suppressed, because the jury would think that both you and the lawyers who called you were on P and take no notice of that evidence. Though those involved in getting you into the stands should probably be sacked and/or given psychological assesments.

    The evidence presented should be determined by what each side thinks will strengten their case, irralevant dreams or other irrelavencies would not come into that category. In this case the evidence as you say is rather discredited, and this can be displayed to the jury when Prof French and Mr Harrison give evidence.

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  9. AG (1,759 comments) says:

    All due respect, Pat, but you’re putting apples in a basket with oranges. No-one doubts Robin got a bullet in the head. The question was, how did it get there (could he have put it there, or was David the only one who could have done so). That clearly requires expert testimony from each side. With the “I shot the prick” claim, there is considerable doubt there are even words on the tape, let alone what those words are (you apparently have to be told there are words to hear, and what they “say”, to be able to hear them). And the S. Ct believed that encouraging the jury to “hear” David “saying” he “shot the pricks” on such a flimsy pretext was unadmissable evidence under the Evidence Act.

    Fact is, not everything one side or the other thinks might help them win is let into court. Or else trials would be packed with “evidence” from mediums, psychics, people with hunches and the plain crazy.

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  10. Darren (12 comments) says:

    Yeah I heard David say ‘I shot the prick’ just like when I play my records backwards the devil speaks to me…… NOT!

    What a load of shit. Truly grasping at straws.

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  11. Gulag Archipelago (162 comments) says:

    David Bain seems to say a few things which are quite disturbing which are not heard in court. Wonder why?

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  12. Pat (76 comments) says:

    AG – If the words are not there, then they are not there. Let the jury decide. What of the testimony of his school friends?

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  13. lilman (882 comments) says:

    AG, I agree there may be doubt on what was on the tape,but there was also a huge question mark over the incest claims.
    The girl told people lots of things,even david said some of what was said by the sister wasnt ture.
    So to say something was debatable and then reject out of hand other evidence doesnt stack up.
    All the statements neede to be heard not just ones that suit your theory.

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  14. gd (2,286 comments) says:

    One wonders why the judicary bother with jury trials as they are. Why not cut the crapola and just give the foreman the verdict in a brown paper envelope that he or she can read to the Court

    Afterall we know the legal profession and the judicary find the citizen class just a impediment to their real work and an unneccessary obstacle .

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  15. AG (1,759 comments) says:

    Inventory2:
    “both Justice Panckhurst and the Court of Appeal believed that this evidence should have been put before the jury, with the judge to direct them on what inferences to take. That is clear in the Supreme Court’s decision. It was the Supreme Court which decided otherwise.”

    So what? The Supreme Court trumps both the High Court and the Court of Appeal. That’s a basic fact of our legal system. And just ’cause the lower courts reached a different conclusion proves nothing, except that legal minds can differ on difficult points of law. However, the 5 judges on the Supreme Court all agree … this shouldn’t have gone in. And they rule, OK? As did the Privy Council when it ordered a retrial (incidentally – which do you prefer … PC or SCt?)

    Comrade MOT:
    Ummm … no. All rules of evidence work by suppressing some facts and admitting others. Such as, if you are on trial for murdering a prostitute, the fact the police found child pornography on your home computer can’t be admitted as evidence. Unless you truly, truly think it would be a “better” legal system (in that fewer innocent people would be convicted) if such facts were allowed before the jury?

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  16. Rodders (1,790 comments) says:

    Darren said “just like when I play my records backwards the devil speaks to me”

    Jasper Carrott tried playing his Beatles records backwards and heard a message saying “you’ve buggered your stylus !”

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  17. Countess of Cleavage (29 comments) says:

    The butler did it !

    remeber its someones interpretation of what was said ( and had never been heard before by anyone else)

    Could it be the detective was making it up, as the trial showed they did previously. Just ask Arthur Allen Thomas

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  18. lilman (882 comments) says:

    The fact the something doesnt fit a theory shouldnt be a reason for not having disclosure.
    Remember even david said some of the sisters statements werent correct.
    I still believe they were right to look at the statements of the sister therefore the prosocution was unable to be given the chance of informing all the story to the jury by being ruled inaddmisable.

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  19. Rakaia George (313 comments) says:

    Pat – the problem is around the fact that the human brain is very good at seeing and hearing things that aren’t there. It’s the aural equivalent of Jesus on a slice of burnt toast…I still tend to think that the jury should have been allowed to hear the full tape under direction as IV2 says.

    I also struggle to draw any distinction between the spurious stuff about Laniet that the defence were allowed to introduce and the schoolfriends testimony about constructing an alibi.

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  20. bananapants (107 comments) says:

    The jury listened to the tape. They just weren’t told to listen for the conflated imaginations of a defensive police force. If the words were there, they would have heard them. I just listened to it myself and there is nothing to be heard – simply a hyperventilating man.

    Which isn’t to say that it’s not a nice theory – but there are no audible words to the effect which the Herald, and the Crown, have claimed.

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  21. Murray (8,838 comments) says:

    Jesus you’re even a particularly good troll countess of lame. Up your game or move on.

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  22. bananapants (107 comments) says:

    The definition of troll is in this website is kind of weird. Maybe some people need to check the wiki entry and remind themselves of what a troll actually is.

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  23. Pat (76 comments) says:

    bananapants – I think the 111 call we have been allowed to hear in the past has had the offending part edited.

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  24. Inventory2 (10,085 comments) says:

    AG said “So what?”

    The “what” is that both a High Court judge and the bench of the Court of Appeal ruled that the Crown’s argument to be able to put this evidence before the jury had, in the respective courts’ opinions, a high degree of merit. Sure, the Supreme Court subsequently overturned this on appeal, but clearly, the Crown had a strong case.

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  25. bananapants (107 comments) says:

    No, it was not the 111 call which was suppressed, or edited. It was the police’s *claim* as to what was in the call which was suppressed. Because it was kind of bullocks, probably.

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  26. Colonel Masters (420 comments) says:

    This would make a great slogan for a T-shirt!

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  27. AG (1,759 comments) says:

    Inventory2
    “Sure, the Supreme Court subsequently overturned this on appeal, but clearly, the Crown had a strong case.”

    No. They had an arguable point. Which the country’s highest court, made up of its most able judges, after extensive argument and consideration, ultimately found to be wrong. In a unanimous verdict.

    Of course, we could sack the Supreme Court and go back to the Privy Council. Which granted the retrial in the first place. Much better. Right? Right?

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  28. Chuck Bird (4,658 comments) says:

    The following is an excerpt from the Herald.

    Dempsey: It’s okay. Every St, and it runs-off Somerville St?

    Bain: Yes

    [POSITION OF QUESTIONED UTTERANCE]

    Dempsey: And what number you’re calling from?

    Bain: 454

    What is not clear is whether the questioned utterance was edited out before the jury heard it.

    It is one thing if the interpretation was not put to the jury and another thing if the tape was edited or doctored.

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  29. F E Smith (3,301 comments) says:

    I am making this post in an internet cafe somewhere in NZ as I am on holiday. If my wife finds out I am making this comment then I may be in a wee bit of trouble, but of course sometimes one just can’t help oneself…

    Just on this part alone and as a matter of law only, and without commenting on the verdicts at all, but this ‘Police claim’ is totally inadmissible and Panckhurst J and the Court of Appeal both should have recognised this. By the way, I have been aware of this for the entirety of the trial. It is one of the advantages of having access to a law library.

    In this instance it is merely a claim that a Detective heard something on an audio tape. Two forensic scientists have been unable to replicate the statement. In other words, only one member of the prosecuting party can hear an extremely incriminating statement and it cannot be independently verified. The Chief Justice is completely correct when she says “it must be clear that the Court had not considered the evidence to be relevant or reliable.”

    The laws of evidence are there to ensure a fair trial. For a trial to be fair, you cannot lob into the mix every claim made by every person in the case, otherwise you would have defence lawyers calling numerous witnesses to give evidence about crown witnesses. In fact, in some cases the defence are statutorily barred from bringing highly relevant evidence about complainants or crown witnesses.

    It is a fact that the Crown is often wanting to suppress evidence that the Defence wants to call, while at other times the Defence are objecting to evidence that the Crown wants to call. This is not a matter of the defence bar simply trying to ‘suppress’ evidence, it is about what complies with the rules of evidence. Panckhurst is a former Crown Solicitor and, although undoubtedly NZ’s best High Court Judge in criminal trials, is still well known to be pro-Crown in many of his rulings. The Court of Appeal, as I have said before, is a joke. Only the Supreme Court seems to be truly concerned with the law as it is written and with upholding the human rights that our laws of evidence are supposed to protect.

    Panckhurst should have known better than to admit this evidence. It is clearly unreliable. Police officers will make all sorts of claims but the fact remains that they are not usually experts and they are most definitely not independent, so fail on that qualification for giving this type of evidence.

    So, simply as a point of law, in my opinion the Supreme Court (which, by the way, outranks both Panckhurst J and the CA for a reason) is correct. The lower courts got this point wrong.

    [DPF: Thanks - great comment]

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  30. AG (1,759 comments) says:

    FE Smith,

    Flying spaghetti monster bless you, good sir. Truly a voice of reason amidst the blathering masses.

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  31. Gooner (995 comments) says:

    I hear David Bain has been hired to make the next Tui billboard.

    “I shot the prick”. Yeah right!

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  32. F E Smith (3,301 comments) says:

    cheers AG, you were completely correct and I just couldn’t let it go. Fortunately the missus is on the other side of the room having a coffee and can’t see me commenting. Something about it supposedly being a holiday…

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  33. Raskolnikov (8 comments) says:

    There is more of the call yet. He was on the phone for 13-odd minutes… the rest is still suppressed.

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  34. AG (1,759 comments) says:

    ” Something about it supposedly being a holiday…”

    And this doesn’t count as “having fun” … which was, I thought, the point of a holiday!?

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  35. bananapants (107 comments) says:

    Yes, but we can hear the bit in question.

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  36. F E Smith (3,301 comments) says:

    “And this doesn’t count as “having fun” … which was, I thought, the point of a holiday!?”

    which was the point I tried to make!

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  37. daveski (86 comments) says:

    Indeed AG thank the FSM for someone like FE Smith.

    I suspect that most here who are jumping on the bandwagon haven’t read the legal ruling but have relied on the headlines.

    Strange that this was first heard by police in 2007. Even stranger that their own experts couldn’t hear it … unless they were told it was said.

    Perhaps the real issue here is the quality of the decision-making below the Supreme Court and this case is not the only one to suffer from this.

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  38. Patrick Starr (3,675 comments) says:

    Just consider the point that if a judge has to decide what is reasonable for a jury to hear then surely that questions the judiciaries own view on the competence of a jury. There were claims on a previous thread that this was a particularly intelligent and appropriately qualified jury – well apparently not enough to consider all the evidence?
    The jury were asked to consider an entire defence based on speculation, rumour and innuendo, i.e. ‘Incest’ FFS – where’s the evidence of that?. Let the jury hear all evidence !

    This is an outrage and another indictment on our pathetic judicial process

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  39. PaulL (5,871 comments) says:

    FE Smith – the point being, it should be fun for her. Don’t go thinking this holiday is for you.

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  40. AG (1,759 comments) says:

    Patrick Starr.

    No. It isn’t.

    First, you need to define what is and what isn’t “evidence”. That’s a legal test, which partly relies on theories of truth, partly on assumptions about human psychology, and partly on outcome based concerns (such as, it is better that a guilty person walk free than that an innocent one be convicted).

    Much of the difference between the “incest claims” and the “Bain schoolmate’s tale” can be explained in this way (as I understand it … I haven’t read the decision on suppressing these statements);
    (1) To fully defend himself, David had to give an account of why Robin might want to top his family. This required evidence of the daughter’s claims about Robin. Obviously, she’s not around to question on this matter, so the only way to get this evidence is by hearing from those who she told it to (complete with cross examination to draw out the inconsistencies in her tale). We then trust the jury to make its own mind up on that story.
    (2) When prosecuting David, the Crown would have liked to have shown evidence that he had planned an alibi for the murders. The schoolmate’s tale might have added to this … but at the price of adding in a claim that David had made plans to rape a woman. The prejudicial effect of this allegation would far outweigh any “probative value” of the schoolmate’s tale (i.e. it adds little to the Crown case (which must prove beyond reasonable doubt he did the crime), but adds so much risk of turning the jury against Bain as a person – he’s not on trial for “being a bad guy”, but for the particular act of murder – that it risks an unfair trial).

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  41. Chris2 (754 comments) says:

    When planes crash, they use all sorts of equipment to clean up the audio on the “Black box flight recorders” so they more accurately can hear what the pilots were saying in the lead up to the crash.

    I imagine a cop who took the recording into a half decent sound studio probably heard a better quality recording of Bain’s telephone call than that which the rest of us have heard replayed on the TV.

    Maybe they should have sent the recording to the boffins at the US National Transportation Safety Board to analyse – they would be better at interpreting the speech of people in a panic (rather than some dry academics in England).

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  42. Patrick Starr (3,675 comments) says:

    for some context
    “David Bain filed six applications for leave to appeal against a number of pre-trial rulings by Panckhurst J. The Crown filed one application for leave to appeal against a pre-trial ruling of Panckhurst J.”

    “Defence counsel opposed the admission of a recording of the 111 emergency call made by David Bain which was remastered after the Privy Council decision. The recording included a series of disputed sounds, which can be construed as an inculpatory sentence. A number of experts listened to the tape to determine the whether the disputed sounds are speech or simply an audible out-breath that appears to sound like speech. The objection to this evidence is based on the recording being inauthentic and potentially prejudicial. The Court did not accept the alleged inauthenticity of the recording, and concluded it was relevant. However to minimise the risk of undue prejudice the Court accepted that the recording should be played to the jury before they had been primed as to the existence of the disputed sounds.
    On appeal, the Supreme Court overturned this aspect of the Court of Appeal decision: R v Bain [2009] NZSC 49.

    The Crown sought to lead evidence that David Bain told two high school friends, Mark Buckley and Gareth Taylor, of his sexual interest in a young female jogger and how he could commit a sexual offence against her and use the timing of the paper round to exculpate himself. Mr Taylor later told his wife, Greer Taylor, of this conversation. Panckhurst J had ruled that the evidence of Mr Buckley was admissible, but the evidence of Mr Taylor was not. The Crown sought leave to appeal against the inadmissibility of Mr Taylor’s evidence and the defence sought leave in relation to the admissibility of Mr Buckley’s. The Court accepted the defence contention that there was limited probative value in Messrs Buckley and Taylor’s
    evidence and this was outweighed by the risk of illegitimately prejudicing David Bain. As a result the Court ruled that the evidence was inadmissible.

    Panckhurst J held that the Crown could lead the evidence of Marjory McCormick, a Victim Support officer as to David Bain’s demeanour in the period after the killings. The Court overturned this ruling on the basis that the Judge should have given a direction, under s 69 of the Evidence Act 2006, that the communication between David Bain and Ms McCormick was
    confidential and should not be disclosed.”

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  43. Inventory2 (10,085 comments) says:

    daveski – I have read the Supreme Court’s decision – if what FES says is correct, and there is no reason to suspect otherwise, it casts a very long shadow over the competence of the Court of Appeal. Perhaps we should not have been so hasty to dispense with the Privy Council.

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  44. Patrick Starr (3,675 comments) says:

    “”but adds so much risk of turning the jury against Bain as a person”

    Oh – I see, it’s OK to turn the jury against Robin Bain as a person, with tales of incest (you cant deny that) but not turn the jury against David Bain as a person with evidence that shows he was not the poor innocent little paper boy the defence portrayed him to be ?

    The legal rationale is completely illogical. remember, if David was innocent then Robin was guilty and vice versa.

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  45. Rakaia George (313 comments) says:

    Just as an aside, is Reed QC the most pompous man in New Zealand?

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  46. AG (1,759 comments) says:

    Yes. That’s right. ‘Cause if Robin Bain is wrongly defamed (ie he didn’t touch Laniet and thus had no reason to kill his family), he’s still dead. And while no-one particularly likes the thought of having your name tarnished after your death, dead is dead is dead. On the other hand, David Bain was facing conviction for murder, (perhaps) more jail time, and the prospect of living the rest of his life labeled “murderer” in the eyes of the law. So if the rules seem different for him, it’s cause the potential outcome was so very different.

    Furthermore, the verdict doesn’t mean that Robin murdered anyone (or the jury found Robin “guilty”). The verdict simply means that there was insufficient proof to find beyond a reasonable doubt that David killed his family. You may very well believe that on a lower standard of proof, the outcome would be different. I may very well do likewise. But claiming “if David was innocent then Robin was guilty and vice versa” horribly misrepresents things …

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  47. big bruv (13,199 comments) says:

    Can we now expect an apology from all those who have so passionately defended OJ Bain?

    Karam has always said that when the Jury got to hear ALL of he evidence they would acquit OJ Bain, what he really meant was that he wanted the jury to hear all of the evidence that suited OJ Bain.

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  48. voice of reason (491 comments) says:

    Why did this not get raised 13 years ago ?
    I am pretty sure that this tape was allowed in the original trial. If it was so compelling we wouldnt be having a discussion now?

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  49. Inventory2 (10,085 comments) says:

    AG – did not Panckhurst J present the jury with two choices – Robin or David?

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  50. Chris2 (754 comments) says:

    Rakaia George – no, Reed QC is the second most pompous man in New Zealand, behind Goff.

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  51. Inventory2 (10,085 comments) says:

    @ Rakaia George – you wouldn’t be wrong :-)

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  52. big bruv (13,199 comments) says:

    More Pompous than David Cunliffe?

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  53. AG (1,759 comments) says:

    Inventory2;
    “AG – did not Panckhurst J present the jury with two choices – Robin or David?”

    True. Those are the only 2 options. But the question to be asked about each is different. Is there a reasonable doubt that Robin did it, or is it beyond reasonable doubt that David did it. Concluding the former rules out the latter, thus requires an acquittal. But the fact of an acquittal is NOT the same as saying (i) Robin definitely did it (ie it was shown beyond reasonable doubt he was the murderer), or (ii) David may not have done it (ie it is more likely than not he was the murderer). But we don’t convict and punish on that lower standard.

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  54. lilman (882 comments) says:

    Ag can not agree at all, the evidence is just that, evidence.

    A trial is not to find out if a person is good or bad, its about being guilty of a crime or not guilty.
    If evidence shows intent,(note the friends evidence of davids intent to commit crime using a paper run to be his defense,is verified,it is not a tale) then it should be allowed as its not about making him good or bad in the eyes of the jury.
    Its about informing jurors of intent so they can make a judgment, that being guilty or not guilty.
    A girl who clearly wasnt truthful in some instances raises doubt of her validity, it doesnt mean she wasnt the victim of incest and the allowing of that evidence was fair and reasonable, but to deny other evidence on the basis of showing a defendant in a good,or bad light is indefensable.

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  55. Inventory2 (10,085 comments) says:

    big bruv – they are much of a muchness – but Reed was a smug WINNER, whereas Cunners is a smug LOSER :-)

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  56. Glutaemus Maximus (2,207 comments) says:

    There is something very wrong with the media here to have brought this up!

    The trial is over, verdict given.

    All the debates about legal process are interesting but now irrelevant in this case.

    Good food for contemplation in other cases going forward however.

    This is just like the Goff bullshit machine and the two possible complainants.

    Bit like when the lady at the UN who bought her job gave her verdict on the Chris Kahui case.

    Not her job, and shows how nanny statist the Labour Lapdogs in the media and Caucus are!

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  57. Patrick Starr (3,675 comments) says:

    AG Make up your mind. If your telling me I “horribly misrepresents things ” with the proposition Pankhurst put to the jury then why do you later admit it is true?

    “But claiming “if David was innocent then Robin was guilty and vice versa” horribly misrepresents things”

    “True. Those are the only 2 options”

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  58. voice of reason (491 comments) says:

    I have just heard the tape twice – How on earth that breathing & gasping can be construed as “I shot the prick” is beyond belief.
    What UTTER CRAP that this is being presented as potentially damning evidence of any kind. FFS!!

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  59. Glutaemus Maximus (2,207 comments) says:

    That Labour severed the free connection to Privy Council, instead replacing it with a Supreme Court hierarchy costing how much again?

    Really shows that this was neither rational, or in the best interests of New Zealanders or indeed the British Judiciary etc.

    Methinks much more mischief was in their hidden agenda.

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  60. AG (1,759 comments) says:

    Patrick.

    I tried explaining. You didn’t understand. Other readers can decide if that’s ’cause I was unclear, or ’cause you have a basic difficulty comprehending how criminal law works.

    lilman,

    You seriously think an allegation that David Bain planned how to rape a jogger wouldn’t have prejudiced the jury against him when deciding the completely different question, is he a murderer? Remember, you as an individual are free to think Bain is a creepy sicko as a person … the jury, though, had to decide for all of society if he killed 5 people and so should face life imprisonment. Quite different things.

    Glutaemus Maximus,

    Stop trying to threadjack.

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  61. Portia (204 comments) says:

    Rosemary McLeod’s worth reading today:

    No Tomorrows for the Victims

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  62. Patrick Starr (3,675 comments) says:

    AG

    I tried explaining and you didn’t understand “The legal rationale is completely illogical” so I dont really care if you are attempting to explain legal justification,
    Im saying the law is stupid, stupid

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  63. Madeleine (230 comments) says:

    I have quotes from the Supreme Court’s judgement allowing the appeal and a direct link to the actual judgement of the court available here.

    From the reported decision:

    … Because of the discovery, the recording was sent for analysis to the United Kingdom to forensic consultants, expert in analysing recordings of speech. It was also analysed by experts for the defence. There is very little difference between the experts as to their findings. …

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  64. bananapants (107 comments) says:

    Patrick, the jury heard the tape. What’s the problem?

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  65. trout (898 comments) says:

    Because BP the contentious part of the tape was ‘excised’ before the jury heard it.

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  66. voice of reason (491 comments) says:

    Yes and then the tape was “digitised” and then “optimised” …..

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  67. Patrick Starr (3,675 comments) says:

    bananapants – they heard only parts of the tape

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  68. david@tokyo (262 comments) says:

    The “jogger rape” evidence is not something that actually happened. It’s just an alledged fantasy that DB apparently had. (Well I hope for the sake of the “young jogger” who caught DB’s fancy it never went further than fantasy.)

    The relevant thing is that it would have illustrated to the jury that the idea of using the paper run as proof that “it wasn’t him”. This was not not just something that the police and crown prosecutors out to get him had dreamed up to make their case.

    It got ruled out because it also just happened to be “predjudicial” due to the rape element, as I understand it… but hey is anyone who ever imagines commiting a crime a bad person?

    But, “probably guilty” is not the question asked of the jury and I suspect this evidence wouldn’t have changed anything.

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  69. Lance (2,437 comments) says:

    The problem is once you suggest something people will hear what they want to, not necessarily what is there.
    If experts with advanced analysis equipment say there is nothing there then you move into the realm of mental masturbation.
    I draw the instance of this idiotic film claiming 911 was a big US govt conspiracy because in a light can be seen coming from a plane just before it hits one of the WTC towers and that this was indeed a missile. Any photography expert will know about lens artefacts which is what this was. As indeed the endless drivel on faked moon landings have their roots in this sort of layman ignorance.
    Having that exhilarating sense of special knowledge causes the endorphins to flow, the pulse to quicken and a feeling of one’s life having some worth after all. It’s akin to Gnosticism and is why people like Lindy Chamberlin and others were so shamefully treated.

    So if I understand this correctly this is a case of a detective from Dunedin vs 2x world audio experts.. hmmmmm

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  70. bananapants (107 comments) says:

    to call it ‘evidence’ is spurious, when it wasn’t good enough to be admitted as ‘evidence’. That’s why it wasn’t ‘evidence’.

    How does this stuff even become news?

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  71. Whafe (652 comments) says:

    Is it just me or was Joe Carrum (Sp?) sounding like a smarmy prick on Close Up? We all know Mark S is that too though….

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  72. Falafulu Fisi (2,176 comments) says:

    They should have brought in specialists in DSP (digital signal processing). The experts consulted by both opposing legal teams I believe, their background were mainly in languages. The problems with using human experts is that they’re susceptible to being biased or misidentification of the sounds. Their judgments is subjective based on simple true or false. They can’t give a numerical number of the likelihood of the probability that the spoken words belong to or not belong to a class/word. If one says that it is 95% confident that David said : I shot the prick, then it is a lie, because he just made that up, since there was no formula or a quantitative method that determined his 95% claim of likelihood. There are many speech classification algorithms being used today and they’re damn good, so it is better to get a system that have many algorithms available rather than one with a single algorithm. The speech segment I shot the prick should be run on these different algorithms and then polled them at the end. The majority votes (ie, a probability numeric value of likelihood, since no speech classification algorithm is 100%) should be picked as the final decision.

    The expert interviewed by John Cambell on TV3 tonight used a tool which seemed like a single algorithm to me. That’s simply unreliable apart from that , the guy is not a DSP specialist. The signal was not signally separated as a priori to be analyzed in its different frequencies. It would have been clear, if signal separation was done on the original signal, but that wasn’t the case used I believe. The reason of doing this, because noise could be eliminated easily and not only that the lower frequency band can be separated which makes the speech clarity better.

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  73. Don the Kiwi (1,576 comments) says:

    I listened to the replay of the tape on Ch. 1 and Ch. 3.
    Anyone who reckons he heard “ I shot the prick” is hearing things IMO.
    A lot of people e-mailing in to Campbell on Ch.3 said they thought it sounded like ” I can’t breathe” – an obviously hyperventilating Bain – and it sounded much more like that than the dectectives imagined “I shot the prick”.
    I’ll go with nothing – or “I can’t breathe”.

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  74. Short Shriveled and Slightly to the Left (762 comments) says:

    yeah I hear “I can’t breathe”

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  75. Patrick Starr (3,675 comments) says:

    ” I can’t breathe” yeah but who was saying it?

    Whafe – yep, not hard to see with that bulldozer personality….. how he sat in front of the jury for the trial, rolling eyes at crown evidence etc etc.
    Maybe TVNZ should hire him. Certainly did a better job of the interview than Sainsbury

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  76. vibenna (305 comments) says:

    Why not just listen to the tape?

    http://www.3news.co.nz/David-Bains-distressed-111-call-played-to-jurors-again/tabid/1089/articleID/103234/cat/101/Default.aspx

    I couldn’t hear anything. So the claim seems both false and highly prejudicial to me. More nonsense from the police.

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  77. Patrick Starr (3,675 comments) says:

    vibenna – you cant hear anything because that is the tape the jury heard (without all the suppressed evidence)

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  78. vibenna (305 comments) says:

    Nope, that is the original recording. Also, there is this.

    The recording is hard to decipher and Mr Bain’s defence team argued that it should stay secret. Defence Lawyer Helen Cull said the recording did not contain words, just heavy breathing. “We’re saying it’s not evidence, it’s nonsense,” she says. Judges at the Supreme Court freed the 111 tape after a short hearing earlier today. The full tape was played at the first trial and was extensively examined, but it was not until 2007 that a detective heard the “so called words” in a Dunedin sound studio. But the Supreme Court ruled the tape out saying that despite extensive analysis no experts could say Bain had uttered the words and they may just be an exhalation of breath. There were also fears that the jury could have been influenced to hear words that may not have been there.

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  79. badmac (138 comments) says:

    Funny, first time I heard it (a while back), I heard what sounded like “I can’t breath”. Hearing it again I can’t hear “I shot the prick”, it makes good press and seems to be adding fuel to the sheep who know everything because they read it in the paper or have been told by a lawyer/police man, as opposed to the 13 people who sat in the room and listened for 3 months, what would they know, they only heard everything (everything admissable that is).

    And what a great idea for the Judge to “set the scene” as soon as you tell people what to hear, they more than likely will hear it as thats what they are listening for. Like looking at clouds, if I say Elephant, my kids see the Elephant. Everybody who still beleives DB is guilty (I am not convinced he is innocent!) will hear “I shot the prick” as thats what the press have told them to hear.

    And Patrick, only one thing stupid around here, its all the people who wanted a mate of David with a recovered memory 10 years later to be able to testify and establish a patern so the Jury could be convinced that because he thought it in the past he must have used the plan now, yes lets allow a persons past to determine their guilt. He thought about rape so he must have raped, Guilty! (I have served on a Rape Jury and if we had known the persons past, ie if the police had introduced his record, we would have convicted in 5 minutes instead of considering the evidance put before us and convicting after 2 days delibration, could have saved a lot of time, hell given the guys past, we shouldn’t have even had the jury, just convicted him, after all he’d done it before so must have done it this time).

    Finally, very convient that the Supreme Court release all this stuff to get/keep people talking, it deflects from the question of should we have a supreme court or Privy council and even more, why did the system (Police, proscution, various courts, justice ministers, etc) fail so badly in this and other cases. no lets not talk about those big issues, lets endlessly debate something which cannot be changed (if a person who is now free should have been found guilty), it keeps people off the real issues, while the failings blow over, in 2 weeks talkback/blog sites will have moved on and the system will have escaped scrutiny yet again.

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  80. OECD rank 22 kiwi (2,810 comments) says:

    …but I didn’t shoot no deputy, oh no!

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  81. badmac (138 comments) says:

    If people use Vibennas link, the breathing in question is at 31 to 35 seconds. Judge for yourself.

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  82. Paul Marsden (983 comments) says:

    Utter, complete and fabricated nonsense. Follow the personal connections and motives of the Invercargill copper who first muted (pun intended), this ‘theory’, and see where they lead to.

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  83. Patrick Starr (3,675 comments) says:

    “And Patrick, only one thing stupid around here, its all the people who wanted a mate of David with a recovered memory 10 years later to be able to testify and establish a patern so the Jury could be convinced that because he thought it in the past he must have used the plan now”

    badmac The defence called witness after witness who all had to recall what happened 13 years ago. Its only Karams TV statement that Buckleys story changed since his first police interview years ago. If his evidence is unreliable let the Jury decide that.
    Why dont you reserve your judgement of Mark Buckley after he goes on TV. Listen to him first.

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  84. Ratbiter (1,265 comments) says:

    “it was not until 2007 that a detective heard the “so called words” in a Dunedin sound studio.”

    SURELY no-one in the music industry would be so immature as to creep up behind the detective while he was listening to the Bain tape and whisper “I shot the prick” in his ear :-)

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  85. Paul Marsden (983 comments) says:

    And when I was a testosterone-fuelled youth, my mates and I wanted to screw the bjeeses outta every woman we fancied, and whom crossed our paths. We use to plan and scheme (aka fantasised) all the time how we might go about it, but of course, we never did.

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  86. david@tokyo (262 comments) says:

    At this point I’m wondering whether or not the young jogger was strikingly beautiful. She must have been something to make DB write down a devious rape plan in a notebook.

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  87. Pmoney (13 comments) says:

    The experts couldn’t agree on what was said because, technically, he wasn’t “speaking”. His vocal cords weren’t engaged. Instead, he was making sounds on an audible outbreath. Experts are no better than the ordinary person in deciding whether a person making sounds while breathing out is doing so intentionally or not. But that is the issue: should the jury have been left to decide whether (1) David was intentionally speaking and (2) what he said?

    One should also note that a few seconds later in the tape recording David uses the same method of speech: he gives part of his telephone number on an audible outbreath. We know that he was intentionally speaking at that point because he is then asked to repeat what he said by the 111 call operator, and he repeats – using conventional speech – what it sounded like he had just said. Have a listen.

    Given these contextual factors, both the High Court and the Court of Appeal thought it should be up to the jury to hear the tape in full, evaluate the expert evidence, and decide whether what they heard was a confession. After all, if it was a confession, then that would be pretty much game, set and match to the Crown. Pretty important evidence (potentially), in my opinion.

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  88. Short Shriveled and Slightly to the Left (762 comments) says:

    “Everybody who still beleives DB is guilty (I am not convinced he is innocent!) will hear “I shot the prick” as thats what the press have told them to hear.”
    no
    I hear “I can’t breathe”
    and I think he’s guilty
    so thanks for your insight

    as for the memory of David’s mate….. if my mate said he wanted to “get away with it” im pretty sure its something I would never forget

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  89. Paul Marsden (983 comments) says:

    One thing I’ve learn’t since my time here on earth, is NEVER believe everything you might hear. And one thing I’ ve learn’t about ‘experts’, is that there is no such thing.

    Maybe we best wait until David Bain tells his side of the story? And whilst I believe an innocent man should take the witness box, I can understand some of the reaons why he was advised against it. It also adds-$value to his story, just as the current debate does, as it continues on. A shrewd move, perhaps??.

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  90. OECD rank 22 kiwi (2,810 comments) says:

    When is David Bain’s pay day arriving?

    He’s a media asset, inheritance issues to sort out, fat compo cheque on the way.

    All that and he’ll be a big hit with the ladies for some time to come. Swings and roundabouts I guess.

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  91. AG (1,759 comments) says:

    OECD
    “fat compo cheque on the way.”

    Not so fast.
    http://www.odt.co.nz/news/dunedin/59998/not-eligible-compensation-dean

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  92. wikiriwhis business (3,883 comments) says:

    Facebook users warned over Bain defamation

    Updated 11:14AM Wednesday Jun 10, 2009
    By Rebecca Quilliam

    Hundreds of users of the social networking website Facebook could be sued for defamation for joining a group that claims David Bain is guilty of murder, a media law expert warns.

    Mr Bain was acquitted last Friday by a jury in the High Court at Christchurch of killing his parents and three siblings.

    However, a group called “David Bain is Guilty” has appeared on Facebook. It has more than 300 members.

    Part of the introduction to the group site says “Join this group if you still believe in justice ….”

    One message warns users about not repeating suppressed evidence on the site.

    When a Facebook user joins the group, a notification appears on their, and their friends’ sites announcing it.

    Media law lecturer Ursula Cheer told Newstalk ZB any person who joined a similar group could find themselves in hot water given Mr Bain’s recent acquittal.

    She said even a small note on a person’s individual page showing they were a member of the group could be seen as an act of defamation.

    Wellington media law lecturer Steven Price told NZPA it was defamatory to say someone had committed a murder.

    “The main defence would be, is it true? And if David Bain wanted to test that in court he could sue for defamation.”

    The person making the claim would then have to prove on the balance of probabilities, that Mr Bain did it, Mr Price said.

    “And that’s very different from a standard of reasonable doubt.”

    It would not matter whether people joined the groups before or after Mr Bain was acquitted of the crimes, they could still be taken to court, he said.

    “I think more people are feeling freer to comment now, in part because we’ve got a verdict, in part because there is no danger of prejudicing the case.

    “But, if they said it a week before the verdict, then he could sue for that now too.”

    The Facebook group also features a picture posted by one member of what appears to be a Tui billboard that says “Dad did it while I was on the paper round – Yeah Right”.

    Tui spokeswoman Jo Jalfon said the picture had been doctored and was not from the DB brand.

    Mr Price said the doctored photo would also be potentially defamatory.

    “It’s possible that there may be another defence of honest opinion, which would be interesting. Truth is not the only defence of the Defamation Act.

    “They could argue it was a joke or an honestly expressed opinion.”

    People could also be sued if they wrote on their personal Facebook page that Mr Bain was guilty.

    “(Also) if they put it up on somebody else’s site, then if David Bain wanted to sue he could sue either the person who posted it or the person who is hosting the site, or potentially the web server (ISP) itself,” Mr Price said.

    Also featured on Facebook is a group called “David Bain is Innocent”, which has 123 members.

    Another, “David Bain – Who Cares” has only two people supporting it.

    In all, there are 21 groups associated with Mr Bain.

    Of the more frivolous are: “Give David Bain His Paper Round Back”, 47 members, “David Bain Sweater Appreciation Group”, with 583 members, and “David Bain versus Mark Lundy”, 36 members.

    By a wide margin however, the most popular group on the website is “David Bain for Dancing with the Stars”, with a whopping 3975 supporters.

    - NZPA with NEWSTALK ZB

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  93. s.russell (1,558 comments) says:

    This is ridiculous.

    It should be perfectly obvious to everyone that he was trying to say: “Bananas are half price at Woolworths”.

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  94. Madeleine (230 comments) says:

    I have just waded through the case Bain just lost, his attempt to keep the tape supressed despite the trial being over, the Supreme Court Judgement suppressing and excising the disputed part of the call, and the Court of Appeal Case that originally refused to suppress it. (links to all judgements on my site)

    The reasoning the courts is interesting and it is not as cut and dried as people think, Chief Justice Elias’s argument is compelling. However, I am not sure that there was no way for the tape to be played to the jury without it having a “priming” effect; I tend to agree with the Court of Appeal which said

    As to prejudice, the primary risk is that the jury may wrongly construe the disputed sounds as an inculpatory sentence – in other words, may simply get the facts wrong. But risks of this sort – that the trier of fact may get the facts wrong – are an inescapable part of the trial process and do not in themselves usually represent the sort of prejudicial effect which warrants evidence exclusion. It is, of course, the responsibility of the judge to guard against obvious risk (and particularly one that will be more apparent to a professional judge than lay jurors) of misunderstanding. In this case, there is an obvious risk, namely suggestibility, which must be addressed. But providing this happens, we see no reason why the evidence should not be admitted. … it would be quite extraordinary for this Court (or the Judge) to deny the jury the opportunity to listen in full to what the Crown can credibly claim is a recording of the account given by the appellant, within 25 minutes or so of the completion of his paper round, of what he found when he returned to the house.

    Contrast that with the Supreme Court,

    … The prejudicial effect on the proceeding could be profound. The jury would, as Mr Raftery acknowledged, be entitled to find the accused guilty simply on the basis of an inculpatory statement unable to be proved to the satisfaction of experts or, in their estimation, of lay people. …

    Why do appeals from the Court of Appeal go to the Supreme Court instead of the Privy Council again….? Starts with L …

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  95. ross (1,454 comments) says:

    I’m surprised the tape wasn’t sent to the experts at CSI – they would have solved this riddle in minutes.

    I note that Bain wanted to exclude his own testimony from the first trial when he was retried. Didn’t he tell the truth at the first trial? Why did he want that testimony excluded?

    > Just as an aside, is Reed QC the most pompous man in New Zealand?

    I don’t know about pompous but he sure is condescending. I recently heard him say that John Key is a sensible fellow and will do the right thing when it comes to compensating Bain. Hmmm, I don’t think that approach will work, Michael.

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  96. Glutaemus Maximus (2,207 comments) says:

    Good news everyone!!

    Briscoes are having a sale!!

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  97. cubit (356 comments) says:

    Joe Karam, Reed QC, untold numbers of staunch supporters, a considerable section of the entire NZ population and most importantly Baim himself have maintained adamantly for 14 years his absolute innocence and have moved heavan and earth to have his name cleared. And it would appear that the fight is to go on for some time yet to absolutely sheet home that position.

    For Bain and his supporters to hold so tenaciously to that view is commendable – but I have a small reservation that is worrying me. If the premise of his innocence is so strong and has been held so staunchly for so long why was not the opportunity taken to establish that absolutely by having Bain go into the witness box and proclaim his innocence in the one arena where his position would have been established without reservation. After all with such a history of proclaimed and genuinely held position of innocence, what had he to fear.

    Yes , I know all about the legal right whereby an accused is not compelled to give evidence but in this case as I have said, the declaration of complete innocence was so emphatically and continually made he could not have possibly had any fears about facing any questions as he could not have in any way incriminated himself. After all the evidence produced did lead to an acquital. However his proclamation of inn ocence made directly at the time of his trial would have truly allowed for the clearance of his name which is what he really wants. Have I missed something here?

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  98. billyborker (1,102 comments) says:

    madelaine twitters “Why do appeals from the Court of Appeal go to the Supreme Court instead of the Privy Council again”

    Simple. New Zealand is a mature, soverieign nation that can handle its own legal matters.

    Of course maddie thinks that we are still kiddies who need to be looked after by mummy, the normal mindset of one who is herself unable to give up childish things, such as belief in some old fart sitting on a cloud deciding humanity’s fate. Grow up maddie, become an adult,and all things will be clear.

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  99. ross (1,454 comments) says:

    > If the premise of his innocence is so strong and has been held so staunchly for so long why was not the opportunity taken to establish that absolutely by having Bain go into the witness box and proclaim his innocence..

    That’s a fair question. I note that not only did Bain not testify, he wanted the Court to exclude his testimony from the first trial. In other words, he didn’t want the jury to hear what he had previously said in relation to the case. That seems bizarre.

    However, if he expects to get compensation, he will have to answer questions from the QC who is appointed to investigate his claim. The QC may ask him difficult questions and may go beyond what Bain would’ve been asked at trial, such as the claim that he planned to rape a jogger. Of course, he could say that the claim was wrong, but if he says that about all the claims and testimony which are detrimental to his case, it might appear that he is right and everyone else is wrong.

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  100. AG (1,759 comments) says:

    Madeleine,
    “Why do appeals from the Court of Appeal go to the Supreme Court instead of the Privy Council again….? Starts with L …”

    Oh – you mean the Privy Council that overruled the Court of Appeal, quashed Bain’s original conviction and ordered a retrial? That was “good”, but the Supreme Court overruling the Court of Appeal on the tape’s admissibility is “bad”? All because it was created under a Labour Government??

    Tell me … are you REALLY so partisan that if you won Lotto under a Labour Government, you would burn the money as it clearly was evil?

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  101. Razork (375 comments) says:

    Ok, my position is that I think David Bain is guilty.

    BUT, I listened over and over to the suposed “I shot the prick” breathing and think it’s an absolute nonsense.
    IF he says anything at all, it could be anything, my wife thought she could make out “I should have been here” and then once i started to listen just for that I could hear it.
    Then after reading that other people could hear “I can’t breathe”, I listened and yep I can hear that too.

    In other words you hear what you want to hear!
    There’s no evidence there.

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  102. NeillR (347 comments) says:

    TBH, any jury that was able to return a verdict in five hours based on the mountain of evidence that was presented wouldn’t have been swayed by a “confession” on a tape. The fact that some of them partied with the defence after the case gives you a pretty good idea of their intentions.

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  103. Paul Marsden (983 comments) says:

    BP said “Simple. New Zealand is a mature, soverieign nation that can handle its own legal matters.”

    Well, if this shambles is the best that NZ’s so-called ‘finest judical minds’ can deliver up, then God saves us all.

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  104. Paul Marsden (983 comments) says:

    ross said ” However, if he expects to get compensation, he will have to answer questions from the QC who is appointed to investigate his claim. The QC may ask him difficult questions and may go beyond what Bain would’ve been asked..etc etc.

    QC huh?? Well, look at the brilliant job one QC did in the Taito Field matter? What a complete and utter, further waste of taxpayers money. Oh for heavens sake, of course a QC will not find in favour of Bain, for cying out load. Besides, it’s most likely his friday night drinking buddies all sit on the bench. No way in hell has Bain got a chance for compensation, if this path is taken.

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  105. Nookin (3,031 comments) says:

    The QC in Field was hamstrung by terms of reference and inability to compel witnesses. In this case there is extensive documentation and no shortage of people who will be willing to answer questions if that becomes necessary. The comparison is inappropriate and unfair.

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  106. Gooner (995 comments) says:

    Yeah, well maybe the words on the tape are unclear, I’ll accept that.

    But let’s talk about this:

    Mr Buckley did not approach police until after the Privy Council quashed Mr Bain’s convictions in 2007, prompting Mr Karam to question his memory.

    “What I’m saying is, 13 years after the event, this guy came along and an interpretation was put on his evidence which went far beyond what it was capable of bearing and for that reason it was ruled out.

    “I put this under a similar heading of a desperate police force desperate for evidence – ‘Any evidence will do because we don’t have much’,” said Mr Karam.

    Karam spent $330K of our money skulking around dredging up witnesses 15 years after the event who said, amongst other things, that Robin Bain had an untidy desk. So I’ll see your “desperate” claim, on witnesses dredged up many years later, and raise it by $330K.

    Hypocrite.

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  107. BlueDevil (92 comments) says:

    Now I have had a chance to hear the clip on TV3 I must agree it is very unclear but to my ear I can hear “I killed the prick”.
    Some say they can hear “I can not breath” but I cant hear the “sh” sound of “I shot the prick”

    30 seconds in
    http://www.3news.co.nz/News/Bains-full-111-call-is-no-confession—Karam/tabid/1089/articleID/108222/cat/185/Default.aspx

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  108. Being Frank (3 comments) says:

    See my posting which contains my view on this under “The Suppressed Evidence”

    http://www.kiwiblog.co.nz/2009/06/the_supressed_evidence.html#comment-572458

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  109. Fisiani (942 comments) says:

    This furore is all about an auditory Rorschach test. You probably know the basis of this well known test. You put some random splodges on a picture then ask people what they see. Some genial people claim to see people having a picnic. Psychopaths claim to see mayhem and murder on seeing the same splodges. There is NO meaning to the splodges other than that projected by the viewer.
    A copper listens to some breath sounds and hears a specific confession. No shit. Quelle surprise.
    Objective analysis by computer (ie non human) hears not a single word.
    Some of the commentators above can be made to hear a whole range of things when it is suggested to them.
    This is nothing more or less than a classical Roschach projection of the public.

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  110. Nick Archer (137 comments) says:

    Fisiani good point, on 9 to Noon on Nat Radio this morning they explored this and mentioned that if it had been presented in the retrial that a lot of experts would have had differing interpretations, it sounded a mess to me when I heard it on the news and the fact that it was never picked up before this cop thinks he heard that shows that it is like an auditory Roschach test…

    ANAUJIRAM EKOMS!!!! TSETAERG EHT SI NONNEL NHOJ!!! WON TI OD!!!! TI OD EM EDAM NATAS!!!!!

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  111. RightNow (6,638 comments) says:

    Gooner, I understand Karam has spent more like a million of his own money over the course of the last 13 years because he believed Bain is innocent. The $330k is only the amount he has been awarded from legal aid, which clearly leaves him a little bit out of pocket. In other words he spent the money first not ever knowing if he would get any of it back.

    One thing I am prepared to have an opinion on re the Bain case is that he should be awarded compensation (and if we are to minimise the cost to the tax-payer then he should be offered a reasonable amount as a final settlement, and we should avoid paying extra costs for drawing it out any further).
    My reason for this is the presumption of innocence. Bain was found guilty at the first trial but this upon appeal was eventually overturned. At the second trial he was found not guilty, and by logic he is therefore innocent in the eyes of NZ law (innocent until proven guilty).

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  112. Robert Black (423 comments) says:

    Presumed innocent until proven guilty.

    So, he was never proven innocent, he was presumed. I think that is where the distinction lays.

    Not-guilty, means the prosecution were unable to convince the jurors that he was guilty beyond a reasonable doubt. Therefore they failed to prove their case. “Not-proven,” similar to the USA approach in some states.

    Is he innocent?

    Only he knows beyond a reasonable doubt. So he is nopt proven innocent and never was.

    Is he presumed innocent in New Zealand law? Yes.

    Does this mean half the population of New Zealand still believe he is guilty and are able to quite freely?

    Yes.

    Should he be able to get on with his life freely and without being hounded by the media?

    Yes.

    Will he be hounded ny the media for the next few years if he stays in New Zealand?

    Yes. Especially if he tries to sue people and goes back to court for any reason or conncets with the media on his own accord.

    (In this regard, see Tony Veitch).

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  113. Dazzaman (1,123 comments) says:

    Compensation! He got his name cleared, what bloody more does he want! He should fly to South America or wherever….buy a Lotto ticket,….his lucks good right now. Fuck him!

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  114. insider (999 comments) says:

    Well I think he is guilty as sin and the jury have to have been the dumbest schmucks to ever have been inbred this side of the Port Hills to have fallen for the emotion and PR spin from the defence while ignoring solid direct evidence like blood and prints and injuries and fibres and glasses and so on and on and on. (interesting another murder trial in Chch convicted on even less evidence that was also completely circumstantial)

    That said, from what I heard the Supreme COurt got it right. I think it would have been highly prejudicial and unfair. That is somewhat tempered by my sorrow at the smear job the court allowed on a sad old man who could not defend himself, in all senses.

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  115. gd (2,286 comments) says:

    the problem as I see it is that juries are going to be wondering if they are getting all the evidence or not.And if they perceive a gap in the evidence presented they may well seek to fill the gap and come to the wrong conclusion.

    Unless the jury knows it is getting all the evidence human nature is such that it will be suspicious and try to figure out motives real or imagined as to why one side or the other may have persuauded a Court to not alloe the jury to see hear the evidence

    this is not healthy and will lead to unintended consqeunces and unsafe findings.

    You cant play fast and loose with juries. It must be up to each side to put their case and then call expert witnesses if they wish to discredit the other sides evidence.

    the SC decision has now proved it was a bad move to do away with the Privy Council the PC ordered all the evidence to be put to the new trial and it wasnt.

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  116. Francis_X (149 comments) says:

    This might give folks an idea what the 111 Call (and other “suppressed” evidence) was about…

    The actual “deleted” part of the 111 call;
    http://tinyurl.com/kqygle

    “Bain 111 call not a confession – Joe Karam’s full news conference” (TV3 video)
    http://tinyurl.com/kl5zp9

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  117. Lance (2,437 comments) says:

    Oh goody..
    ‘insider’ is smarter than the 12 people on the jury and so superior in his/her intellect that he/her feels justified in calling them names. Class act

    You and Dazzman deserve each other

    BTW
    Such fine evidence that international experts could barely contain their laughter at the half arsed local effort.
    I don’t know myself for sure if he did it, but we would have known for sure if the forensics weren’t so abysmally conducted in the first place and then the evidence hastily destroyed. A fine example of how not to do it

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  118. Chuck Bird (4,658 comments) says:

    RightNow, I commend you for being such a caring human being. I believe there is a website somewhere where you can make donations for David Bain. I am of the opinion that he is far more likely to be guilty than not. Hence, I do not want my tax money going to him.

    New Zealand has a very generous compensation scheme for those wrongly convicted but one of the tests they must pass is to demonstrate that they are innocent on the balance of probabilities. The recently released tape means nothing but his discussion about using his paper run as an alibi makes his guilt seem even more likely. There may be more suppressed evidence come to light.

    I think Bain’s advisors should advise him to do what Richard Worth has done – move on.

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  119. lilman (882 comments) says:

    Ag you knob ,show me the reasonable doubt in this case then,i dare you,because it was abullshit story that the jury felt compelled to believe, go on enlighten me?

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  120. tvb (4,192 comments) says:

    When I heard it for the first time I was stunned. I clearly heard “I shot the prick”.

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  121. Chuck Bird (4,658 comments) says:

    I clearly heard, “the dirty prick shot my whole family and then killed himself”.

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  122. Dazzaman (1,123 comments) says:

    Not that it confirmed anything in my mind, he’s a killer, knew that right from the start. But the recording clearly has him saying “I shot the prick”. I think you all have your ears up your arse!

    Gee thanks Lance, your a deaf cunt too?

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  123. Gavin James (179 comments) says:

    As I commented elsewhere, Michael Reed QC, in summing up, asked the question, does he look like a psychopath?

    Well, here are some pychopaths to compare him with. I would suggest that noone really knows what a psychopath looks like until they commit a pyschopathic act.

    http://en.wikipedia.org/wiki/Andrew_Kehoe
    http://en.wikipedia.org/wiki/Charles_Whitman
    http://en.wikipedia.org/wiki/Eric_Harris_and_Dylan_Klebold
    http://en.wikipedia.org/wiki/Gang_Lu
    http://en.wikipedia.org/wiki/Seung-Hui_Cho
    http://en.wikipedia.org/wiki/Winnenden_school_shooting
    http://en.wikipedia.org/wiki/Dunblane_massacre
    http://en.wikipedia.org/wiki/Richard_Farley

    Obvious thing they all have in common. The murderers were all under the age of 50.

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  124. Gavin James (179 comments) says:

    AG:

    But Robin wasn’t on trial at all, and yet he has been portrayed by witness statements as being a bloody awful guy, depressed, printing stories about murder in the School Newsletter and committing incest. I actually think that the Privy Council were right, but they were unwittingly predicting the future. I most sincerely believe a mis-trial should be called and the whole matter be reheard. And to those who state that it is a waste of money: what price would you place on YOUR life? No, five people are dead and they deserve justice, not the person who is left behind.

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  125. AG (1,759 comments) says:

    lllman,
    “Ag you knob ,show me the reasonable doubt in this case then,i dare you,because it was abullshit story that the jury felt compelled to believe, go on enlighten me?”

    Get over yourself, douche. 12 people heard the evidence and found reasonable doubt. That’s all that matters. You’re just some whinger with a keyboard who needs to get a life.

    Gavin James:
    “But Robin wasn’t on trial at all, and yet he has been portrayed by witness statements as being a bloody awful guy, depressed, printing stories about murder in the School Newsletter and committing incest.”

    And your point is …? As you say, there were witnesses who claimed this about him. It’s not just sh*t that got made up out of thin air. So what are you saying … the defence shouldn’t be able to call people who say such stuff? That dead people should be sacrosanct? That it’s more important to spare the feelings of his relatives and memory than it is to avoid locking up for life a guy who may (MAY) not have committed the crime?

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  126. GJKiwi (179 comments) says:

    AG: Actually, no, I’m not saying anything of the kind. I’m saying that both sides of the story needed to be heard by the Jury, and they weren’t. In the privy council decision, they stated the reason for quashing the original convictions were that the Court of Appeal had gone beyond its jurisdiction as an appeal court in not allowing evidence to be considered a jury at trial. To quote: “Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts.” p 46, last paragraph of the decision.

    David Cullen Bain v. The Queen
    http://www.privy-council.org.uk/files/other/Bain%20final.rtf

    So, following that logic, a New Zealand appeals court has again denied the jury to consider vital evidence. I’m sure that if we were able to take this evidence to the Privy Council again, they would say the same thing.

    So, I agree, they didn’t make things up out of thin air, but I would suggest that there is a high possibility that Laniet did, considering some of the many other things she was known to have said. You and I may say anything we like, but it isn’t always true, is it?

    Also, the living shouldn’t be given more weight than the dead either, and it would appear from statements made by the Juror, that perhaps this wasn’t the case. She implied that she had seen David on many occasions, and they had obviously based some of their conclusions on this. As I demonstrated above, psychopathic murderers come in many shapes and sizes, and you definitely can’t go on appearances, which is what Michael Reed, QC, was implying in his summing up. He asked the question, does he look like a murderer? Well, you can’t judge a book by its cover.

    As for sparing the feelings of the family, as Michael Bain stated in his evidence, he would be upset whether it was David or Robin. It isn’t about sparing someone’s feelings here. It is about the truth coming out. And some of the arguments have been conveniently covered up, and not given due consideration by the trial jury, as required by law, and stated by the Privy Council in their decision.

    As for the excised evidence of the 111 call, the jury could surely have made up their minds about that. I for one think that the recording as played to the Jury at trial would have been enough to convince them that David was acting in any case. It is the most unbelievable and laughable performance I have ever heard. Again, if the Privy Council was involved, they would have said that it should be a matter for the jury to decide. Unless AG, you think that juries are all incompetent?

    Finally, based on the statistical likelihood of all of the events happening as the defence described is probably less likely than you or I winning Powerball three weeks in a row. So, lets get someone from Philadelphia specialising in forensic statistics to calculate the likely nature of events as described by the defence, and another US expert on gunshot wounds and let’s see what they think about this mess.

    What thinketh you, dear fellow? Do you think that there was justice in condemning a dead man without anyone to fight for his name? I don’t.

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  127. GJKiwi (179 comments) says:

    Rightnow: So, someone chooses to spend all of his time on a particular cause. We didn’t force Joe Karam to spend his time on this exercise. However, I would actually argue that why did he get paid $95 per hour and the jury members were only paid $80 per day? Something wrong there. They didn’t have a choice at all. They were summonsed and you can’t say no unless you have a bloody good reason. Joe Karam could have decided to call it quits at any stage, but he chose not to. Oh and the proceeds from two books. And the fame that comes with getting someone convicted of a multiple murder off the hook. You can’t take money with you when you die, but you can leave an historic legacy. Again, I don’t really think justice has been done when you consider David was found not guilty after nearly 15 years and some witnesses have died and key evidence had been disposed of.

    I think that the only two really good things have come out this: Firstly, there will be a review on the retention of key evidence of major crimes until all parties are deceased. Also, I’m sure that with today’s DNA evidence technology, such a crime would have been solved much more clearly and the police would have examined the scene and key evidence in a much more thorough manner. Secondly, juries will be much more aware that perhaps not all evidence is being presented at a trial and will ask many more questions before they are satisfied that they are making the correct decision. I for one would have personally asked numerous more questions of both the crown and the defence. And I would take naff comments from QCs, such as “Does he look like a murderer?” with a huge grain of salt.

    As I stated elsewhere, the police are being condemned for a botched investigation, but originally, they thought that it was an open and shut murder/suicide, and therefore, until Milton Weir stuck up his hand, they weren’t investigating David Bain at all. As well, it was a dark, cold day, in a dingy, dirty and ill-lit house, and it was an extremely complex crime scene. David Bain is an extremely fortunate man to be free today. All of the key evidence points to him as the killer and only some extremely clever arguments by the defence have allowed him to get off. Good on him. Cheats do sometimes prosper.

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  128. lilman (882 comments) says:

    Ag, toss pot,listen up when I rack 742 comments on this forum then you surley can say Im A whinger with a key board who needs to get a life.

    THEY WERENT ON TRIAL WALLY, Bain was.
    He had his chance to talk ,to take the stand but he was a coward,and now Karam is fluffing the defenses claim on a plea bargin.
    If you tell a lie long enough people will believe it.
    As for not liking evidence because it would predudice the jury against David, tuff shit ,Mr D Bain shouldnt have said he planned a sexual assualt on a woman then use his paper round as an alibi, stunningly the same alibi he used when his family was murdered.
    Dont blame the truth, blame your poster boy, your a sucker and the funniest thing is you dont know you have been played.

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  129. hiphip (92 comments) says:

    I clearly heard “I shot the prick”. No wonder the Bain camp went to such lengths to conceal it. This evidence should have been allowed in the trial !! Other suppressed evidence, such as sexual assault plans using the paper round as an alibi, were very important too. I was surprised the Crown did not appeal the retrial – money isn’t everything – there is the matter of justice for those so brutally murdered: Robin Bain (58), his wife Margaret (50), their daughters Arawa (19), Laniet (18) and son Stephen (14). Why was David the only one who deserved to live?

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  130. GJKiwi (179 comments) says:

    hiphip: Minor correction. Why was David the only one who deserved to stay?
    Read two things, and then ask yourself, should the evidence have been admitted? I’m not so worried about the 111 call, as that is open to interpretation. Firstly, read Michael Laws excellent column this morning. I disagree with quite a lot of what Michael Laws has to say, by the way. http://www.stuff.co.nz/opinion/2499330/The-nation-is-divided-over-David-Bain

    Secondly, the last paragraph of the Privy Council judgement, as I stated above.
    http://www.privy-council.org.uk/files/other/Bain%20final.rtf

    Having watched the Sunday documentary on this evidence last night, I am completely stunned as to why the Appeals Court did not allow this evidence. And more surprising still was the woman who was on the stand and wanted to add something to her evidence, and they cut her short! She wanted to say that Arawa had told her that David was using the rifle to intimidate the family members around the house! And this was immediately before the killings took place! Wow, and they allowed almost completely hearsay evidence to be presented on the defence behalf. Yes, Michael Laws is right, it is all a game and whoever plays the game best wins.

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  131. GJKiwi (179 comments) says:

    Who here would be willing to sign a petition calling for another retrial, this time admitting the suppressed evidence? Say yes if you are and no if you are not? We would need about 100,000 signatures and would you be willing to donate sufficient funds to get it to the Supreme Court. I am. I think that if people donated about $5 each times about 100,000 and donate the remaining proceeds to charity, to be placed in a Trust fund, we could get this off the ground.

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  132. Paul Marsden (983 comments) says:

    hiphip said “I clearly heard “I shot the prick”. No wonder the Bain camp went to such lengths to conceal it”

    I heard it too. But I also heard ‘I’m out of breath’ or, words to that affect. If someone had also planted the seed in my mind the words may have been ‘a space ship has landed” I probably would have considered that notion too.

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  133. Urbanhymns (1 comment) says:

    June 11, 2009 -Startling new evidence is revealed that was ruled to be to prejudical and was admissable. The evidence revealed suggests Daivd had been intimidating the family with the rifle used in the killing’s and that he had bosted he could get away with sexual assualt by using his paper run as an alibi. Also the entire 111 call is realeased and digitally enhanced with David thought to have said “I shot the Prick”.

    In 2007 the Privy council ruled that a miscarriage of justice had taken place on the grounds the Jury had not heard all the evidence and were entitled to do so.
    They ordered a retrial and subseqently again the Jury did not get hear all the evidece, which would suggest again there has been a miscarriage of justice.

    What does this now mean ??? Is it time for a retrail.

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  134. hiphip (92 comments) says:

    it makes me sad so many people are hard of hearing, and don’t even know it. the words are clearly a confession and should have been played without any ‘explanation’.

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