What the jury didn't hear

Inflammatory secret evidence and allegations of backroom bargaining between the prosecution and defence are emerging in the wake of the David Bain verdict.

Ensuring the case will remain controversial, the Supreme Court has released previously suppressed evidence, including a hotly disputed phone call "confession" and allegations that Mr Bain had planned to use his paper round as an alibi for a rape.

One second of a 111 phone call recording allegedly includes the line: "I shot the prick." The jury never heard the recording during Mr Bain's retrial because the courts deemed it irrelevant and prejudicial a move applauded by legal experts.

The High Court in Christchurch today allowed media outlets to play copies of the 111 tape in which Bain supposedly made the statement.

Claims and counter-claims also flew yesterday that the prosecution and defence had discussed a plea bargain during the three-month retrial.

Mr Bain was found not guilty in the High Court at Christchurch last week of the murders of five members of his family in 1994.

In a judgment suppressed until yesterday, the Supreme Court said it had kept evidence of the 111 call secret because it was hotly disputed. Even a Crown expert admitted there were dangers in trying to interpret the unclear recording. Other experts doubted whether the sounds were even words or just the effect of random lip and tongue movements as Mr Bain breathed out.

The full tape was played to the first jury in 1995 but it was not until 2007 that a detective took a recording to a Dunedin sound studio. The detective and a studio employee are believed to be the only people to have heard the words without first having been "primed" that they were audible.

Bain supporter Joe Karam said no words were uttered and the only sounds were Mr Bain's distressed breathing. "Let me say unequivocally: there is no confession, there are no words."

The Court of Appeal also kept from the jury evidence from two school friends that Mr Bain told them he planned to rape a female jogger and use his paper round as an alibi. The court said using a false alibi was not a "fundamental" element of the Crown case and could be highly prejudicial.

One of the two men, Mark Buckley, who now owns a Dunedin gym, was going to testify that Mr Bain had planned the rape so carefully that he wrote it in a notebook.

The plan was to free up time for the 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.

Evidence was given at the murder trials that at least two houses on Mr Bain's round got their papers 10 minutes early.

Another friend, Gareth Taylor, whom police also wanted to call as a witness, said he had a similar conversation with Mr Bain in 1989.

Mr Karam said the rape plan allegations were another example of "desperate" police trying to push evidence beyond what they could sustain.

He said he had asked Mr Bain about this incident. "David may well have been, as 17 years old are, quite enchanted by the girl across the road."

Legal experts have backed the Supreme Court's decision to keep the information secret until now. Auckland lawyer John Billington, QC, said the jury could not be expected to decide on what the 111 call said if experts could not. "It's a no-brainer you just don't let that evidence in."

Wellington lawyer and Civil Liberties Council chairman Michael Bott said the "rape" evidence was based on a conversation 15 years ago and had no value whatsoever. "All it does is give armchair critics something to throw at Mr Bain when he has already been through enough as it is."

Mr Karam also claimed the Crown approached Mr Bain's leading lawyer, Michael Reed, QC, with a deal "in relation to a plea bargain". "The Crown was conceding a lot, the Crown were offering concessions."

But Mr Reed rejected that suggestion as "nonsense, absolute nonsense ... I think Joe misunderstands something".

Crown Law spokeswoman Jan Fulstow said claims of a plea bargain or concessions were "completely untrue".

WHY IT WAS SUPPRESSED

THE 111 CALL:

-The Supreme Court said even experts using specialist equipment could not say whether David Bain was speaking words at all, let alone "I shot the prick".

-One expert likened it to an image glimpsed in the clouds.

-If the jury could not reasonably conclude that the disputed sounds were a confession then they must be excluded as irrelevant.

-The unfairly prejudicial effect on the trial could have been profound.

THE "FALSE ALIBI" EVIDENCE:

-The Court of Appeal said using a false alibi was not a "fundamental" element of the Crown case against Mr Bain for the murders.

-If the jury heard that he had planned to rape a jogger, there was a risk they would put more weight on the planned offence than the relevance of the proposed use of an alibi.

-The potential for "illegitimate prejudicial impact is very concrete",the court said.

- The Dominion Post