Should the jury have been allowed to hear David Bain's full 111 call?
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Police claims that David Bain had said "I shot the prick" in his 111 call to report the deaths of his family have been revealed after being withheld from the jury considering the Bain retrial.
The Supreme Court today ruled its judgment in March suppressing the evidence from the trial could be released.
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.
The 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."
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
