A defence witness in David Bain's retrial has had part of his defamation claim struck out, with the Court of Appeal confirming a documentary that questioned the accuracy of his evidence could not be construed as meaning he was a liar.
Photocopier salesman Daryl Young gave evidence of his dealings with Robin Bain as principal of Taieri Beach School at David Bain's retrial in the High Court in Christchurch in 2009.
David Bain was convicted in 1995 of murdering his parents, Robin and Margaret, and siblings Laniet, Arawa and Stephen in their Dunedin home in 1994.
But the Privy Council quashed his conviction, and Bain was was found not guilty at the 2009 retrial.
Bain's defence team argued that Robin Bain had shot the other four family members before turning the gun on himself and the motive was his incestuous relationship with daughter Laniet.
TVNZ screened a documentary on the case – The Investigator Special: The Case Against Robin Bain, on July 6, 2010.
Documentary maker Bryan Bruce singled out Young's evidence as being inconsistent with that of two other people he had spoken to during his investigations.
Young had said he had sold a photocopier to Robin Bain, evidence that Bruce said was contradicted by others.
Young brought defamation proceedings against TVNZ as the publisher of the documentary, and Red Sky and Bruce as its producers, on December 14, 2011.
He alleged the documentary and associated coverage of it conveyed he was a liar, was dishonest, could not be trusted, and had committed perjury in giving evidence to the High Court.
TVNZ, Red Sky, and Bruce said the statements complained of did not bear, and were not capable of bearing, the alleged defamatory meanings.
Young alleged TVNZ, Red Sky and Bruce had also been motivated by ill will, which would defeat the defence of qualified privilege.
The Court of Appeal today dismissed the majority of Young's claims; upholding Justice Gilbert's determinations from the High Court in 2012, and further dismissing statements that the judge had held were capable of bearing defamatory meanings.
Both people interviewed by Bruce for the documentary "gave an account that could not be reconciled with Mr Young's evidence", the court said.
The court had viewed the documentary and other publications complained of, and saw no error in Justice Gilbert's conclusion that no reasonable viewer could have regarded the words as capable of conveying the defamatory meanings alleged by Young.
It also dismissed the claims of ill will motivating the publication of the documentary.
The court further said the documentary foreshadowed concerns it had about the admission of hearsay evidence critical of a dead person unable to defend himself, and the need for lawmakers to review the disclosure rules to impose the same obligations on the defence that are already on the prosecution.
Young was ordered to pay the costs of his appeal and the cross-appeal of TVNZ, Red Sky and Bruce.
Justice Gilbert's findings that a police letter Bruce passed to TVNZ, and TVNZ's reporting on that letter and the police investigation, were capable of conveying the allegedly defamatory meanings was not challenged in the Court of Appeal .
- Fairfax Media