Should the jury have been allowed to hear David Bain's full 111 call?
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Allegations that David Bain said "I shot the prick" in his 111 call to police have been dismissed by Bain's supporter Joe Karam.
"There is no confession, there are no words," Mr Karam told a media conference in Auckland today.
He said seven Crown witnesses were unable to tell if
there were words, let alone what the words meant.
"If it hadn't been so serious, it would have been a bit of a joke."
Mr Karam dismissed the passage and criticised the police.
"Upon the ordering of the new trial and subsequent to the Privy Council decision, the police were desperate for evidence. That desperation led to a subjective analysis and placing weight on things where in fact there was no weight at all," Mr Karam said.
The Supreme Court released 111 call evidence today that it had suppressed in the early days of the retrial in March.
In doing so, Chief Justice Sian Elias said it must be clear that the Court had not considered the evidence to be relevant or reliable.
Mr Karam said the passage in dispute was found by a detective in 2007 with no expertise in analysing audio.
Mr Karam quoted a Crown witness, Professor French, from the Supreme Court finding released today, who said it would be "dangerous to put before a jury an interpretation of the questioned material as 'I shot the/that prick'".
Mr Karam said: "All experts analysing this tape have recognised the voice of a very distressed caller who has difficulty catching his breath.
"Throughout the tape, they all acknowledge the existence of a number of passages where David was struggling to get his words out and struggling to get breath."
Mr Karam said he was happy that the Supreme Court had released the suppressed evidence because there had been rumours circulating in some internet blogs.
Mr Karam said given that Crown witnesses cannot decide on whether words were spoken, let alone what they were, the detective is the only witness the Crown could have relied on.
He said another Crown witness, included in the Supreme Court finding, said she heard the words: "I can't touch it".
A Witness for the defence, Dr Foulkes, said he heard the words: "I can't breathe".
Mr Karam said Dr Foulkes took random examples of breath from the 111 call and combined them to show that words that do not exist can be heard in breath.
He said some of the breathing produced sentences such as: "I can't breathe" and "I shot something".
Mr Karam said he had opposed releasing the evidence to the jury because it would have meant the defence would have had to fly in two more witnesses from overseas.
He said the defence team were having to go to Legal Aid Services every week to ask for more money and the less witnesses they had to fly to New Zealand, the better.
The 111 call
The Supreme Court judgement reveals that a police detective preparing for the retrial had listened to the tape at a commercial sound studio in Dunedin in 2007 and heard the words "I shot the prick" or "I shot that prick".
Click here for the contested transcript
The judgement said the words had not been recognised in the first trial in 1994 and did not form part of the transcript. Nor had the ambulance officer who took the call heard them.
When the ambulance officer was again played the tape after the police detective said the words were there, he had heard "I shot the prick, I shot" and said he was "stunned that I hadn't heard the words previously."
However, both forensic consultants in the United Kingdom and experts for the defence were unable to say the sounds being relied on were actual words "rather than meaningless exhalation of breath."
They also said if they were words, they could not conclude it amounted to the phrase "I shot the prick."
Mr Bain's chief lawyer Michael Reed QC today called the alleged recorded comment "clouds in the sky and imagination".
"There is nothing on the tape of any value whatsoever."
"It is all clouds in the sky and imagination."
"It depends who tells you what's on there on first as to what you hear. If someone tells you it says "I can't breathe", you hear that. They are non-sounds that may be heard, and all the world experts agree."
Dr Chris Gallavin, of the Canterbury University School of Law, said while the alleged comment on the 111 call would have no impact on Mr Bain's murder acquittal, it would influence public opinion.
"Unfortunately it's just going to feed the flames of the element of the public that still staunchly believe there is blood on David's hands. In a sense, it's going to feed the rumour mill, and the conspiracy theorists. Whether we think David had something to do with it or not, he's been acquitted by a jury. It's just a further element that speaks in favour of David never really being able to get out from under the cloud of suspicion."
"A significant portion of New Zealand is going to use this as further evidence that he actually (committed the murders). I don't know if we are ever going to leave him alone. He may have to leave New Zealand to get some peace."
Police have been contacted for comment but are remaining tight lipped about the finding.
In a short statement released by Detective Superintendent Malcolm Burgess this afternoon, he said: "Police have no comment to make about the Supreme Court decisions regarding the 111 tape in the Bain case."
Crown Law will also not comment on the finding, spokeswoman Jan Fulstow would not say why.
The High Court and Court of Appeal had initially turned down defence applications for the evidence to be suppressed in this year's trial, but the Supreme Court upheld the application and it was not revealed to the jury.
David Bain's lawyer Helen Cull said the court's judgement revealing the contended evidence should not be released as it would invite intense speculation and affect Mr Bain's rights to a presumption of innocence.
She said the disputed words were so unclear that they did not pass the rules as evidence.
However, Dame Sian Elias said it would be "an extraordinary step" for the court to keep its reasons for making any decision secret. She said the initial reason for suppressing the judgement was to ensure Mr Bain's right to a fair trial. That reason no longer existed because the trial was over.
She also rejected Ms Cull's application for an adjournment. Ms Cull claimed the Bain team had not had time "or frankly the energy" to properly prepare for the application and was given only 48 hours notice.
- with Jarrod Booker
