Post by sparrow on Jun 5, 2009 20:21:04 GMT 12
With thanks to bingbong:
What the jury didn't hear
By MARTIN VAN BEYNEN - The Press
Last updated 17:22 05/06/2009
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Two potentially crucial pieces of evidence were not heard by the Bain trial jury.
One is under such tight suppression orders that nothing more can be said other than that an 11th hour appeal to the Supreme Court in the week of the Christchurch trial had it excluded.
However the other piece of evidence - which suggests Bain planned, as a 17- or 18-year-old, to sexually offend against a female jogger and use his paper run as an alibi - can be reported now the Bain trial jury has reached a verdict.
Bain had planned the sexual offence so carefully he had put his plan to writing in a notebook, the evidence was going to say.
The plan was to free up time for his sexual offending by arriving at the usual time at houses where he would normally see witnesses (suggesting a normal delivery round) but delivering papers at other houses much earlier than usual.
The witness, who was not interviewed by the police until after the Privy Council decision in 2007, said the discussion started as they were walking home from school and carried on in Bain's bedroom.
The High Court allowed the evidence in but it was knocked out by the Court of Appeal.
The evidence was provided by Bain's school friend Mark Buckley who made a statement saying David had told him about the plan when they were both 17 or 18 and probably in the 7th form at Dunedin's Bayfield High School.
Buckley said he did not take the conversation seriously at the time but it concerned David's sexual interest in a female jogger he saw early in the morning when he was doing his paper run. David had talked about "getting away with it" by relying on his paper round and had referred to a notebook which he had produced.
The High Court in Christchurch had a special hearing on the issue and Buckley was cross-examined about a falling out between him and Bain over an item in their school magazine.
Justice Panckhurst, allowing the evidence in, said he did not regard the dispute over the item as "destructive" of Buckley's evidence.
"The relevance of Mr Buckley's evidence is that it indicates that about four or five years earlier the accused had in mind to use his paper round as the means for "getting away with" other criminal behaviour. So viewed the evidence is logically relevant," the Judge said in his ruling.
"A number of Crown witnesses are to give evidence of sightings of the accused in the course of his paper round. This closely mirrors the thought process which the accused outlined to Mr Buckley in the school boy conversation."
The Court of Appeal, however, said the paper round was not an "entirely orthodox" alibi. The alibi in the killings was not particularly similar to what was proposed in the sexual offending and the alibi was not an essential part of the Crown case.
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The evidence also carried a high risk of illegitimately prejudicing the appellant, the court said.
Other features of the case can also be reported now suppression orders have expired with the jury's verdict. These features include:
* The defence tried at least twice during the trial to have a mistrial declared for what it termed "prosecutorial misconduct". The bids were rejected by Justice Panckhurst.
* Before the trial the defence tried to have Justice Panckhurst removed from the case. His son is the best friend of Bain's cousin's husband. The Court of Appeal rejected that application.
* The police lost an important witness after a detective went to the Victorian Police Forensic Science Department in 2007 and uplifted notes made by scientists in tests done for Joe Karam in 1997. The witness, a police armourer, had concluded Robin had not committed suicide. The police only found out about the opinion after looking through the documents and were denied the ability to use it because it was "fruit from the poisoned tree".
* A friend of Arawa Bain had wanted to tell the court Arawa had told her David had a gun and it made the "family feel scared". Justice Panckhurst ruled out the evidence as it was unfairly prejudicial, he said.
What the jury didn't hear
By MARTIN VAN BEYNEN - The Press
Last updated 17:22 05/06/2009
Share
Text Size
Relevant offers
Two potentially crucial pieces of evidence were not heard by the Bain trial jury.
One is under such tight suppression orders that nothing more can be said other than that an 11th hour appeal to the Supreme Court in the week of the Christchurch trial had it excluded.
However the other piece of evidence - which suggests Bain planned, as a 17- or 18-year-old, to sexually offend against a female jogger and use his paper run as an alibi - can be reported now the Bain trial jury has reached a verdict.
Bain had planned the sexual offence so carefully he had put his plan to writing in a notebook, the evidence was going to say.
The plan was to free up time for his sexual offending by arriving at the usual time at houses where he would normally see witnesses (suggesting a normal delivery round) but delivering papers at other houses much earlier than usual.
The witness, who was not interviewed by the police until after the Privy Council decision in 2007, said the discussion started as they were walking home from school and carried on in Bain's bedroom.
The High Court allowed the evidence in but it was knocked out by the Court of Appeal.
The evidence was provided by Bain's school friend Mark Buckley who made a statement saying David had told him about the plan when they were both 17 or 18 and probably in the 7th form at Dunedin's Bayfield High School.
Buckley said he did not take the conversation seriously at the time but it concerned David's sexual interest in a female jogger he saw early in the morning when he was doing his paper run. David had talked about "getting away with it" by relying on his paper round and had referred to a notebook which he had produced.
The High Court in Christchurch had a special hearing on the issue and Buckley was cross-examined about a falling out between him and Bain over an item in their school magazine.
Justice Panckhurst, allowing the evidence in, said he did not regard the dispute over the item as "destructive" of Buckley's evidence.
"The relevance of Mr Buckley's evidence is that it indicates that about four or five years earlier the accused had in mind to use his paper round as the means for "getting away with" other criminal behaviour. So viewed the evidence is logically relevant," the Judge said in his ruling.
"A number of Crown witnesses are to give evidence of sightings of the accused in the course of his paper round. This closely mirrors the thought process which the accused outlined to Mr Buckley in the school boy conversation."
The Court of Appeal, however, said the paper round was not an "entirely orthodox" alibi. The alibi in the killings was not particularly similar to what was proposed in the sexual offending and the alibi was not an essential part of the Crown case.
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The evidence also carried a high risk of illegitimately prejudicing the appellant, the court said.
Other features of the case can also be reported now suppression orders have expired with the jury's verdict. These features include:
* The defence tried at least twice during the trial to have a mistrial declared for what it termed "prosecutorial misconduct". The bids were rejected by Justice Panckhurst.
* Before the trial the defence tried to have Justice Panckhurst removed from the case. His son is the best friend of Bain's cousin's husband. The Court of Appeal rejected that application.
* The police lost an important witness after a detective went to the Victorian Police Forensic Science Department in 2007 and uplifted notes made by scientists in tests done for Joe Karam in 1997. The witness, a police armourer, had concluded Robin had not committed suicide. The police only found out about the opinion after looking through the documents and were denied the ability to use it because it was "fruit from the poisoned tree".
* A friend of Arawa Bain had wanted to tell the court Arawa had told her David had a gun and it made the "family feel scared". Justice Panckhurst ruled out the evidence as it was unfairly prejudicial, he said.
