Ruling judges didn't listen to Bain 111 tape

David Bain was found not guilty of murdering his family last week after a retrial. Photo / Simon Baker

The Supreme Court judges who ruled that the jury in the David Bain murder trial should not hear a disputed 111 call - in which police claim Bain said "I shot the prick" - did not listen to the tape themselves.

The judges at the High Court in Christchurch and the Court of Appeal, which the Supreme Court overruled, had listened to the tape and ordered it admissible as evidence, providing the jurors were not "primed" on what words Mr Bain was alleged to have said.

The disputed "confession" was revealed yesterday when the Supreme Court released its March judgment that suppressed parts of the 111 call Mr Bain made to report the deaths of his family.

Mr Bain's legal team opposed lifting the suppression but Chief Justice 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 judgment was to ensure Mr Bain's right to a fair trial. That reason no longer existed because the trial was over.

In the Supreme Court yesterday, Dame Sian said it must be made clear that the court had not considered the evidence to be relevant or reliable.

However, the unsuppressed judgment reveals that the five Supreme Court judges who ruled the Crown evidence inadmissible at trial did not listen to the 111 call.

"For the purposes of further appeal to this court, we have thought it appropriate to accept these assessments of the High Court and Court of Appeal that the disputed sounds can be heard as an admission contended for by the Crown, without further reviewing the recording," the judgment says.

"The assessment of the High Court and Court of Appeal is not inconsistent with the evidence of witnesses at the voir dire that the sounds can be heard as the suggested words.

"But we do not consider that such an impression could reasonably overcome the thrust of the evidence of the experts that drawing such an inference would amount to conjecture."

Auckland University Faculty of Law Professor Warren Brookbanks last night told the Herald it was not unusual that the Supreme Court had not listened to the 111 recordings.

He said it was likely the court would have been more interested in examining how the lower courts had reached their decisions on the recordings, rather than the content of the recordings themselves.

Bain supporter Joe Karam held a press conference yesterday to point out parts of the Supreme Court ruling that he said backed up the defence assertion that there was no confession from Mr Bain.

"None of the experts is able to say that the sounds relied upon in the recording are words, rather than meaningless exhalation of breath," the judgment says.

"If they are words, none of the experts is able to say that they amount to the words the Crown wishes to rely upon as evidence.

"Some consider such words can be heard in the recording, with effort.

"But all experts caution as to the dangers of hearing something that may not in fact be there, because of an accident in the arrangements of sound.

"The principal Crown expert uses the analogy of an image glimpsed in a cloud formation to illustrate the dangers," the Supreme Court says.

Mr Karam said the police were "desperate" for evidence when the Privy Council quashed Mr Bain's convictions in 2007 and dismissed the 111 call claim.

"There is no confession, there are no words.

"If it hadn't been so serious, it would have been a bit of a joke. We had a lot of laughs about it," said Mr Karam.

"It's like listening to a pop song. If someone tells you the words in line seven of a particular song, those are the words you think you will hear.

"These alleged words were not found by any expert as a result of any expert analysis. It was a detective on the hunt."

The words "I shot the prick" or "I shot that prick" were first heard by a detective at a commercial sound studio in Dunedin in 2007, who was reviewing the 111 call in preparation for the retrial.

The Supreme Court 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 detective said the words were there, the paramedic had heard "I shot the prick, I shot" and said he was "stunned that I hadn't heard the words previously".

But forensic consultants in Britain and experts for the defence were unable to say the sounds being relied on were actual words.

Even if they were words, they could not conclude they amounted to the phrase "I shot the prick".

Trial judge Justice Graham Panckhurst and the Court of Appeal ruled the 111 call could be played to the jury as long as the jurors were not primed to be told what words to listen for.

The interpretation of the words would then be a jury question, said Justice Panckhurst.

But as the experts said it was impossible to determine whether the sounds were words or exhalations, this was overturned by the Supreme Court.

Police have remained tight-lipped about the 111 ruling.

In a short written statement, Detective Superintendent Malcolm Burgess said: "Police have no comment to make about the Supreme Court decisions regarding the 111 tape in the Bain case."

WHAT THE JURY DIDN'T HEAR

SUPPRESSION ONE
The Supreme Court yesterday lifted suppression on Crown claims that David Bain said "I shot the prick" in the 111 call he made in 1994. The High Court and Court of Appeal ruled the jury could hear the tape but the Supreme Court ruled that the evidence was unreliable.

SUPPRESSION TWO
Court of Appeal lifted suppression from evidence that David Bain told two high school friends of how he could commit a sex crime against a woman jogger and use the timing of his paper round as what the court referred to as an alibi. Trial judge Justice Graham Panckhurst said the jury could hear it, the Court of Appeal said it was too prejudicial.

MUMBLE OR MOAN

Justice Graham Panckhurst rules the 111 call evidence admissible in the High Court at Christchurch, November 13, 2008

"In reaching this opinion I have listened to the recorded conversation on a compact disc. My view as to the interpretation of the disputed words is of no moment.

"In the result, I am of the view that the 111 tape is admissible and that the interpretation of the disputed words is a jury question. The jury will not be provided with a transcript but should have the assistance of expert evidence."

Defence team appeals against decision.

Court of Appeal rules the 111 call evidence is admissible on January 30, 2009

The Court of Appeal judges listened to the 111 call in the knowledge that the disputed sounds were "there to be heard".

"With that prior knowledge, the disputed sounds can undoubtedly be heard as an inculpatory sentence. But what is very interesting is that, with the exception of Detective Ward (and/or the staff at Strawberry Sound), no one who has listened to the tape "unprimed" would appear to have heard and construed the disputed sounds in this way".

Court of Appeal took the view that it would be "open to the jury to conclude that the disputed sounds should be construed as speech".

Defence team appeals against decision.

Supreme Court rules the 111 call evidence inadmissible on March 6, 2009

The Supreme Court did not listen to the 111 call. "The evidence is that lay persons, including jurors, would not be able to determine without assistance whether the disputed sounds constitute speech or mere exhalations of breath. The expert witnesses are unanimous, they are unable to determine that issue and therefore they could not assist a jury to do so ... There is a real risk ... that a jury would accept what is suggested to them and find that the sounds constitute an admission rather than breath exhalation when the evidence before us is that that cannot be done."