David Bain's alleged rape plan, 111 call revealed

FRONTING UP: David Bain supporter Joe Karam at discusses the Supreme Court release of previously suppressed audio.
JOHN SELKIRK/Dominion Post
FRONTING UP: David Bain supporter Joe Karam at discusses the Supreme Court release of previously suppressed audio.

A heavily-disputed 'confession' in David Bain's 111 ambulance call and an alleged plan to rape a female jogger using his paper round as an alibi can finally be revealed after court suppression orders were lifted today.

The evidence was not deemed to be reliable or relevant to David Bain's retrial for the murder of five members of his family. He was found not guilty on all charges last Friday.

"I shot the prick,'' Mr Bain is alleged to have said, according to long-hidden material the Supreme Court today revealed could be released.

But his lawyers say no one can even agree there are words. ''It's not evidence, it's nonsense,'' Helen Cull, QC told the Supreme Court today.

Also today, the Court of Appeal lifted suppression on evidence suggesting that Mr Bain planned, as a 17 or 18-year-old, to rape a young female jogger.

THE 111 CALL

The Supreme Court today allowed the previously suppressed claim about the 111 recording to be revealed, 15 years after Mr Bain made the call. Earlier, the court had ruled that the jury that last week acquitted Bain should not hear the interpretation it had been given.

The alleged hidden message in the tape was discovered in 2007 when the 111 recording played to the jury at the first trial was sent to Dunedin company Strawberry Sound.

A detective and one of the company's employees heard for the first time what the Court of Appeal called ''the disputed sounds''.

But on one view the ''words'' may be nothing more than an exhalation modified by random lip and tongue movement.

The Supreme Court today refused to continue suppression of its judgment, which ruled out the evidence of what is claimed can be heard.

That means the public can now know what the jury in the second trial did not hear.

However, the judges made it clear the interpretation was not considered relevant or reliable for the trial in which Mr Bain, 37, was last week found not guilty of murdering his family.

He had been charged with shooting his parents Robin, 58, Margaret, 50, and his three siblings Arawa, 19, Laniet, 18 and Stephen, 14, on 20 June, 1994.

Ms Cull today asked for more time to prepare her argument to keep the Supreme Court's judgment secret but the court declined.

She had said releasing the judgment would fuel media speculation that the jury had not reached the proper verdict.

Media speculation had already attempted to undermine the verdict, she said, holding up a copy of today's Dominion Post in which Robin Bain was referred to as a victim.

After 15 years, one miscarriage of justice, and a three-month trial, that should be the end of the matter, she said. Even if the Supreme Court had in principle allowed the tape's interpretation to go to the jury, trial judge Justice Panckhurst would still have had to decide its authenticity, whether it was complete, and what hands it had passed through over the years.

BAIN TEAM'S RESPONSE

"Let me say unequivocally, there is no confession, there are no words," Joe Karam told media.

"When this first surfaced in 2007, if it hadn't been so serious it would have been a joke."

Mr Karam says the only people who had heard and identified the words were police.

He said a series of experts, including crown experts, had been unable to identify the alleged words.

The experts said it was impossible to determine if anything was actually said or whether it was Mr Bain groaning and breathing. And if there were words then it was impossible to tell what they were.

Other possibilities for the words were: "I can't breathe" or "I can't touch it".

The section is about one second long. All experts who analysed the tape recognised the voice of a very distressed caller who has difficulty catching his brief.

Mr Karam said he applauded the release by the courts of the 111 call because it countered speculation in blogs over recent days that a secret confession existed.

"The police were desperate for evidence. That desperation lead to a subjective analysis and placing weight on things where there in fact was no weight at all. This is a good example."

He said he had no qualms with the tape becoming public as he did not believe people would hear the alleged words.

He was confident the trial jury members would have dismissed the the allegations of a confession if they had heard the recording - but the defense team fought to keep the tape out of the trial because of the cost of calling experts to refute it.

Mr Karam said the defence team was having daily battles with the Legal Services Agency on the cost of the defence case.

WHAT THE SUPREME COURT SAID

The Supreme Court said none of the experts who considered the recording - which was sent to the United Kingdom for analysis - were able to say that the sounds amounted to words, let alone "I shot the prick". All cautioned it could be just an accident in arrangements of sounds.

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

The judgment of two of the five judges, Dame Sian Elias and Justice Peter Blanchard, said if the jury could not reasonably rely on the disputed sounds as evidence of an admission, they do not tend to prove or disprove something of consequence.

"On that basis they must be excluded as irrelevant however material they might have been if reasonably capable of being taken as an admission."

The experts are able to say only that they cannot exclude the possibility that the sounds are the suggested words. The hypothesis that they are not words at all is equally possible, the judges said.

They said the prejudicial effect could have been profound.

"If taken to be an admission the disputed sounds go directly to the ultimate issue of guilt. It would be open to the jury to convict on the basis of the admission alone."

Another judge, Justice John McGrath reached the same result by a different route.

Justice Bill Wilson said Mr Bain should not have to accept the risk of the jury thinking that they had heard the alleged admission in the sounds, after being "primed" to do so.

The scales came down firmly on the side of excluding the evidence, he said.

Justice Tom Gault said there was a real risk that a jury would accept what was suggested to them and decide that the sounds were an admission rather than just breath, when the evidence was that that could not be done.

PAPER ROUND PLAN TO ATTACK FEMALE JOGGER

The Court of Appeal today lifted suppression on another set of evidence - which suggested that Mr Bain planned, as a 17 or 18-year-old, to commit a sexual offence (presumably rape) against a young female jogger.

The High Court had allowed the evidence but it was knocked out on appeal and was not heard by the jury for the trial that finished in Christchurch last week.

It appeared Mr Bain had put his plan to writing in a notebook, Mr Bain's schoolboy friend Mark Buckley was going to say.

Another friend, Gareth Taylor, who the police also wanted to call as a witness, said he had a similar conversation with Mr Bain in 1989. Mr Bain left Dunedin's Bayfield High School after seventh form in 1990.

The Court of Appeal noted that the neither witness attributed the word "rape" to Mr Bain however the word is used by the Court for ease of reference.

The plan was to free up time for his 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.

Mr Buckley, who was not interviewed by the police until after the Privy Council decision in 2007, made a statement saying Mr Bain had told him about  the plan when they were both 17 or 18 and probably in the 7th form at Bayfield High School.

He did not take the conversation seriously at the time but it concerned Mr Bain's sexual interest in a female jogger he saw early in the morning when he was doing his paper run. Mr Bain had talked about "getting away with it" by relying on his paper round and had referred to a notebook that he produced.

The High Court in Christchurch had a special preliminary hearing on the issue and Mr Buckley was cross-examined about a falling out between him and Mr Bain over a Class of 90 item in their school magazine.

Justice Panckhurst, allowing the evidence, said he certainly did not regard the dispute over the item as "destructive" of Mr 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."

Evidence at trial was that at least two addresses on Bain's paper round got their papers 10 minutes early and Bain also told police, when interviewed the day after the killings, he had been seen or heard at the address of Kathleen Mitchell, one of his last customers.

In a statement read to the court Ms Mitchell, who is deceased, said Mr Bain had come on to her balcony and got her dog barking which he had not done for about a year.

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.

The evidence also carried a high risk of illegitimately prejudicing the appellant, the court said.

- The Dominion Post and The Press