A Mosgiel man who flew to Australia to evade giving evidence at the David Bain retrial has escaped prosecution for obstructing a fire officer a year ago because police took too long to lay the correctly worded charge.

Dean Cottle, a 49-year-old car salesman, was last August charged with knowingly obstructing a member of the Fire Service ''in the attempted performance of a duty''.

The officer wanted to put out a car on fire on the property and the alleged offence arose from an argument over whether the officer needed to enter the house.

In 2009, Cottle was a prospective witness in Bain's retrial. He was an acquaintence of Bain's 18-year-old sister Laniet.


Bain was found guilty in 1995 of murdering his parents, brother and two sisters in Dunedin in 1994. He was acquitted after a retrial in 2009.

A warrant for arrest was issued for Cottle prior to the 2009 retrial, but he flew to Brisbane a few days later.

Today, Cottle denied the charge of obstruction and was to have had a defended hearing in the Dunedin District Court.

But when the case was called, counsel Len Andersen said the police now wanted to replace the original charge with one under a different section of the Fire Service Act.

He objected to that because it was too late to bring a new charge, Mr Andersen told Judge Kevin Phillips.

Prosecutor Sergeant Adrian Cheyne then asked to amend the wording of the existing charge to bring it within the correct section of the act.

Andersen also objected to that.

Amending the charge would effectively make it a new charge and the time limit for a new charge had expired, he said.

Judge Phillips agreed. He could not allow the amendment because that would allow police to circumvent the time limit.

''I don't consider they should be able to have another go at this late stage,'' he said.

Cheyne then said he had no option but to withdraw the charge.