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“I Shot The Prick” – The NZ Supreme Court’s Judgment On That Tape

30/11/2009

Whether the Supreme Court exercised Solomon-like judgment or perpetrated a miscarriage of justice, its decision to exclude the now-public portion of David Bain’s 111 call – and the reasons given for that decision – has introduced a surreal element into the law relating to evidence in criminal trials.  The assessment of real, observable evidence using skills which all of us possess – our understanding of the English language – removed from the tribunal of fact and delivered to a panel of so-called experts.

Overruling both the trial judge (on a pre-trial motion) and the Court of Appeal, the Supreme Court ruled that the Bain trial jury was not to hear a three-second portion in the middle of the one minute recording.  After Bain’s acquittal, the court – over Bain’s objections – allowed its decision and reasons, and the disputed portion, to be released to the media.

It is a marvel of the internet age that back in June, in my apartment in Sofia, Bulgaria, I was thus enabled to listen to a tape recording made in Dunedin 15 years ago.  And after listening numerous times to that recording, primed of course by the media coverage, I can say without hesitation that I heard David Bain say under his breathe, “I shot the prick”.  I also heard him start to then form a second unvoiced (breathless) utterance, “I sho …” but he was interrupted by the ambulance officer asking, “What phone number are you calling from?”

Is it possible that I was mistaken in what I heard?  Of course it is.  The cases are legion in which there have been disputes as to what someone said or didn’t say, even after endless replays.  Did Neil Armstrong say the now-immortalised words, “One small step for a man” or did he fluff the grammar?  As recently as this month, new research on what he in fact said was being reported in international media, nearly 41 years after the event.  And did Jimi Hendrix, in the original recording of “Purple Haze”, sing “ ‘scuse me while I kiss the sky” or “kiss this guy”?

Of course, it doesn’t matter a great deal what Neil Armstrong or Jimi Hendrix actually said.  But it matters a lot what David Bain was or was not saying during those three seconds of his 111 call.  It matters not what I think.  But it matters a lot what the Bain trial jury would have thought.

The Supreme Court’s judgment is noteworthy in that, although the five judges were unanimous in their decision to disallow the disputed portion of the 111 call, they were by no means unanimous as to why.

Two of the judges – the Chief Justice and Blanchard J – gave a lengthy joint judgment the essence of which was that the disputed portion had to be rejected as being “not relevant”.  They criticised the Court of Appeal and trial judge for overlooking this issue.  Now, the proposition that a recording of an accused speaking a short time after the crime is irrelevant might seem surprising, unreal even, to a lay person not versed in the law of evidence.  But at issue to the question of relevance was whether it could be authenticated that Bain said “I shot the prick”.  This disputed three seconds of Bain’s 111 call was not relevant, so held Elias CJ and Blanchard J, because the opinion of the expert witnesses – both, it must be stressed, prosecution and defence – was that what Bain said, indeed whether he said anything or was just breathing heavily, could not be established with any certainty.  And if expert witnesses, who listened to the recording under optimal conditions, could not say one way or the other what Bain had said, then it would be speculative for a jury to make a call on the issue.  A mid-19th century judgment was then summoned in aid of the observation that “relevance ends where speculation begins”.  (Needless to say, that case had nothing to do with a sound recording.)

A third judge, Wilson J, summarily agreed with this view whilst adding some cautionary remarks about not setting the “relevance” bar too high.  But the other two, Gault J and McGrath J, declined outright to exclude the disputed portion as failing the relevance test.  Both took the view that the evidence represented by the disputed portion of the tape was – manifestly – relevant and it was therefore for the jury to decide what in fact Bain said or didn’t say.  But because of the uncertainty, and because of the lack of assistance on point which could be expected from expert witnesses, they considered that the portion had nevertheless to be excised under the long-established rule that evidence must be excluded where its prejudicial effect outweighs its probative value.

This was an allusion to the likely impact on a jury of hearing for themselves the disputed portion of the tape.  Whether or not “primed” as to what to listen for, at some point in the trial the jury would have been presented with the question whether or not Bain had said “I shot the prick”.  And – so the reasoning went – from that moment they could well have heard precisely those words, even if – as was the case during the first trial and indeed until 2007 – those words had not been heard by anyone else involved with the case.  The likelihood that, thus prompted, the jury could then have heard words amounting to a damning confession coming from Bain’s mouth, even though expert witnesses would have told them that those words were only one possible explanation of the sounds, was what – in the opinion of Gault and McGrath JJ – made the disputed portion unacceptably prejudicial to Bain’s entitlement to a fair trial.

There is an element of unreality in this resolution by the Supreme Court of what it described as a “difficult case”.

First, implicit in all the decisions is what can only be described as a condescending attitude towards juries.  All five judges took the stance that the Bain jury could not be expected to hear the disputed portion of the tape, and what the Crown contended for its content, without then being compromised in their overall assessment of Bain’s guilt or otherwise.  As was noted on more than one occasion, if the jury had – unanimously of course – concluded that Bain did indeed whisper “I shot the prick”, that alone would have been enough to convict him.  So, seemingly, because the question was of such moment it was unsafe to let the jury decide it.  But isn’t that precisely why we have the jury system?

We are not here concerned with purely scientific evidence such as DNA or fingerprints.  A jury of lay people cannot be expected to decide for itself the ownership of a smudge of genetic material or a partial print found at a crime scene.  But is not human speech – in one’s native tongue – the lifelong experience of all of us?  And could not this particular jury – of, we may assume, intelligent and open-minded people – have been expected to factor into their assessment of what Bain had or hadn’t said not only the expert testimony but the likelihood or otherwise of Bain actually using such words during his 111 call?

The Supreme Court, or three of them, said they – the jury – would have been only speculating.  But juries routinely “speculate” – when they observe an accused giving evidence, for example.  How else to describe a jury’s impression of nervous gestures, refusal to make eye contact, unusual pauses, perspiration, prevarication, and so on.  The jury is sitting there making an assessment of whether the accused is telling the truth or is lying and who is to say that the process is not to some extent speculative?  Of course, juries don’t assess an accused’s testimony in a vacuum – typically there is a range of other evidence which the jury can and must factor into their assessment of an accused’s demeanour when giving evidence.

It is difficult to avoid the conclusion that the Supreme Court did a considerable disservice to the role of juries in deciding that this particular jury could not but have been prejudiced against Bain if it had been allowed to listen to the disputed portion of his 111 call.  Yet it is entirely possible that the reverse would have occurred.  If even one jury member had found the Crown’s contention for the disputed portion to be fanciful, even outrageous, it could have tipped the balance against the Crown’s overall case and rendered impossible a unanimous verdict of guilty.

And this leads to a further unreality in the Supreme Court’s decision.  It is also possible – as the judges were bound on the expert evidence to acknowledge though they chose not themselves to listen to the recording – that Bain did indeed say “I shot the prick”.  If that possibility had been allowed to go before the jury, it is likely that Bain would have felt compelled, and would have been so counselled by his defence team, to take the stand to refute that possibility.  Of course he was not obliged to do so (though he had opted to testify in his first trial).  But had Bain then given evidence of what he had or had not said during the 111 call, the jury could have added to the mix his evidence – including his demeanour in giving that evidence – in reaching its verdict.  David Bain was after all the only witness who could have said with certainty what was or wasn’t on that recording.  The Supreme Court’s decision to suppress the disputed portion of the tape effectively denied the jury the opportunity to hear from that witness.

And here’s the nub of it.  The Supreme Court based its judgment not on its own assessment of the recording but on what an arbitrary selection of expert witnesses – all but one in England, it may be noted – thought about it.  Yet the learned judges share one crucial attribute with the members of the Bain jury – a great, an innate, familiarity with the English language as spoken by New Zealanders.  An attribute shared also of course with the great mass of New Zealanders who have listened to the unexpurgated recording since the trial’s conclusion.  Our view of it is irrelevant.  The Bain jury’s view – which was pre-empted by the Supreme Court decision – was not.

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