Expert Witness (24 page)

After many months of preparation, the retrial was finally ready to start and the media was in the starting blocks waiting for the starter's pistol. I missed it, because there was no need for me to be there. Rest assured there were plenty of other people there from the kick-off who were determined to keep the nation informed of progress, so I just watched the news.

When I finally did take a seat on the roller coaster ride that was the retrial, at the end of March, a good deal of my time was spent in court. Court room One of Christchurch High
Court is fairly typical of your average court and is rectangular. Entry to the main court floor is in the corner of one short side. The jury sat on one long side, two tiered rows of six seats. The judge sat to the left of the jury in what is called the bench, which was raised above the level of the main court floor at the same height as the witness box and at the opposite side from the entry door. The dock was on the opposite side of the room from the jury, facing them. The media bench (which was normally used for public seating) was off to the right of the jury, just inside and to the left of the entrance door to the court. One desk was reserved for Joe Karam — as he wasn't a lawyer and not a member of the court staff, he wasn't allowed to sit within the actual court floor. Instead he was given permission to be in court, and seated relatively close to the defence team so he could advise.

David Bain didn't sit in the dock during the trial; he was only there for the purposes of his pleas and for the verdicts. The rest of the time he sat within a few feet of the jury, facing the judge's bench but behind all counsel. Based on my many experiences in Crown and High Courts, it was slightly unusual that the court proceedings didn't seem to revolve around the defendant. Half the time you forgot he was even there, such was the performance going on around him. One media person even commented that the jury didn't seem to be in the presence of evil.

Witnesses gave evidence from the witness box, an elevated position with stairs leading up to a small, enclosed desk, with a microphone and a video screen plus a wheelie chair. The witness box faced across the main court floor to the jury so that counsel was below the level of the witness.

The witness box is a lonely and exposed position — you can almost feel the prairie winds blowing over your face, the tumbleweed rolling by and the chink of spurs as Clint Eastwood walks by, particularly during that retrial because the TV and stills camera were opposite and the black lenses were a constant reminder that everyone, literally everyone, was watching. The witness box can also be a hot and scary place, not only for people who have never given evidence before but also for experts and police officers. There were several occasions when I suspect sweaty palms were being rubbed surreptitiously on their owners' trousers or skirts.

The footage from the TV camera was beamed upstairs to the additional seating area. The footage shown up there was far more detailed than could be seen when one was actually in the main court arena. The camera randomly zoomed in on people in the court: media people texting and their facial expressions as someone sent back some thing amusing, views of the jury's footwear, socks and trouser bottoms as they entered and left their seats, expressions on people's faces they probably didn't think anyone could see. Some people should probably have brushed their hair a bit better. Lines on faces were far more emphasised on the TV footage than they were in real life. People tell you that being on screen adds 10 pounds to your weight; no one's ever told me it adds 10 years to your age as well.

I sat in the upstairs seating area towards the end of the defence case, after I'd given evidence, to check on how the other experts were getting on — there's no better way to learn how to improve the way you give evidence than watching other people do it. Had I known how much time
the cameraman spent panning around the room, lingering on people seemingly at random, I'd probably have felt much more pressured — ignorance is bliss.

Prior to the retrial, there was much comment in the media about how the proceedings would be covered. Initially, the judge ruled that the entire proceedings could be streamed on the Internet, albeit with a 10-minute delay. I under stand this was OK until it was realised that the camera wasn't turned off during a closed chambers meeting, which was held in court. As only one film camera and one stills camera were allowed in court, I assume the networks shared the footage. The whole of the chambers discussion was apparently streamed on the Internet, even though it was supposed to be private. After that, restrictions were placed on filming.

At some time during the Crown case, the instruction to the media was that they were only allowed to film David Bain for the first 15 minutes of each day. When the news was shown later that day, it some times showed a clip of David Bain that appeared to be contemporaneous with some piece of evidence that had just been given when, in fact, the evidence had been given at a time when the media wasn't actually filming him. Some times, the continuity on the news was such that people appeared to have changed their ties part way through the day's proceedings. I under stand that observant trial-watchers noted these things and the question may have been discussed in the public gallery as to whether such broadcasting was an accurate record of events.

The defence team was based in an apartment hotel, which basically meant self-catering with the benefit of maid service. The accommodation was a bit of an 80s throwback and my
overriding impression is one of burgundy and cold floors. Having said that, the bed was always comfy and the staff friendly, which cannot be underrated when you spend your days in the hostile environment of a criminal court room.

Everyone else had a ‘permanent' room because they were there practically all the time, while I was moved from room to room. The main problem with that was two-fold: waking up in the morning completely disorientated because I couldn't work out where I was or where the bedroom door was — each room had a slightly different layout, and remembering which room I was in from day to day, particularly when most of my time was spent thinking about three things at once, none of which related to my room number.

The defence team also had the use of a hotel room as its war room, which was a standard hotel room swept clean of any comforts. Just inside the door was the kitchen area, which was usually festooned with abandoned coffee plungers, half-drunk cups of tea and coffee and various newspapers. The main area of the room would have contained the comfy settees, chairs and tables but they had been replaced with entirely functional albeit depressingly school-like tables pushed together to make a large work surface. There was also a copier/fax/scanner and assorted office-type requirements, including storage for the folders of the trial transcript that grew by hundreds of pages every day. Leading off the main room was what would have been the bedroom but was kitted out with shelves and dozens of large A4 folders, piles of papers, a desk and a couple of chairs. This was my refuge area when discussions at the main table became intense and I couldn't escape out of the main door.

I was up and down to Christchurch throughout the trial, usually coming home at weekends. When I was down in Christchurch the hours were long and seemingly unending. The team in which I had been temporarily seconded was an interesting mixture of morning people (Joe Karam, Helen Cull), evening people (Matt Karam, me), all-the-time people (Paul Morten), and Michael Reed, who did either or both ends of the day, depending on circumstances. The thing is that although each person had a preference for the time of day they would have liked to work, the trial did not allow for that choice, so everyone worked all the time.

A typical day for me involved getting up at about 7 a.m. and having a quick breakfast while reading a list of things I had prepared the night before of what had to be done before court commenced for the day. At about 7.30 a.m. I'd head uncertainly into the fray of the war room. Some times it was a quiet place because a meeting was already being held somewhere else but usually it was a stampede of activity with everyone trying to get things done, whether it be photocopying, faxing, telephone calls, discussing the day ahead or all of the above at once. That sounds chaotic but it had an underlying structure where everyone had jobs to do and they did them.

David Bain would arrive at around 8.30 a.m., which brought some calm to the place; at the end of the day, the defence team was there to present a case in court on his behalf so the morning was when he made his quiet opinions about matters known to the team. What I will say is that he was very well mannered and polite and he seemed to under stand that I couldn't really talk to him because it wasn't my job and it just isn't the ‘done thing'. That made me feel bad because I'm not naturally a rude
person but in this situation, it wasn't appropriate for me to be anything else. I didn't even think it would be appropriate for me to explain that to him, so I just had to feel uncomfortable about it and he just had to put up with it. I usually made myself scarce for the morning conflabs — not really my place to be there for all that and it gave me an excuse to be away from the room and not appear rude.

Someone would then walk David Bain across to the court and deliver him into the hands of the court security. I think I walked him over twice when there was no one else available and we managed to get there without talking about anything apart from the weather. The departure of David Bain to court meant there was very little time left to finish preparing whatever it was, so there'd be a revitalised flourish of activity and the next thing you knew, they'd all be gone, leaving papers floating through the air, coming to rest like feathers in the cold silence. I say cold silence not because the silence felt cold but because it was
so
cold in the room. I wore my slippers all the time at the hotel because the concrete floors were so cold, even though they were carpeted. Why New Zealand hasn't taken wholeheartedly to central heating, double glazing and insulation I will never know.

After a quick scurry across the quadrant to the court building, which, incidentally, is a horrible brown monstrosity that would give some English urban planners a run for their money, grabbing a quick cuppa from the coffee shop and settling into the court room, the day's activities would begin.

I often wondered whether court observers, like the media or people in the public gallery, could tell when a day of contention was ahead. Unlike its portrayal on TV, trial progression can
be a tedious and ponderous series of events. Information has to be read out so that it's recorded on tape as part of the court record. In this case, the audio tapes were electronically sent to Auckland, at the other end of the country, where they were typed up and then sent back down to Christchurch for someone to print out and distribute the dozens of pages generated daily. Some times, all the lawyers disappeared off for a closed chambers meeting, leaving the rest of us sitting about waiting for some thing to happen. On some days, though, we knew before we got to court that the day ahead would be tense, interesting, nerve-wracking and some times unpredictable. On those days, the air felt prickly and there was little or no eye contact between members of the opposite legal teams. How tuned in were the media people to the atmosphere? Could they tell some thing juicy was coming? I don't know because I never really spoke to any of them but I'd be interested to find out.

At 11.30 a.m. there was a coffee break, which involved someone hurtling across the road to gather supplies from the coffee shop and then everyone piling into a reserved room for a quick discussion about progress, then back into the court for the rest of the morning session. Lunch itself was usually a hurried affair with much discussion and debate, run back to court for the afternoon session, with a coffee break for intense discussions at about 3.30 p.m. and then finish court for the day at around five.

If only that had been where it ended, but that was when the real work of the day usually began. A de-brief was held for an hour or so until hunger drove everyone away before we reconvened at about 7.30 p.m. for more planning and
discussion. Tasks assigned, most people dispersed to go and meet other people or to work on issues. Paul Morten and Matt Karam were usually wandering in and out of the war room until the early hours of the morning, dealing with legal technicalities.

Then it was up again at 7 o'clock the following morning to start all over again. Bear in mind that that was just
my
hourly input. It wasn't unusual for people to have only a few hours' sleep and spend the rest of the time preparing documents — because we all know that document preparation is a hugely time-costly exercise.

I also had most of the weekends off, whereas the defence team mostly worked seven days a week for the duration of the trial. It was just as well it ran over Easter so that everyone on all sides had a break.

The protocol for running a criminal trial dictates that the Crown has to make available to the defence the information on which it is going to rely for its case. That's the way the New Zealand justice system works and it means there shouldn't be any unexpected surprises from the Crown during presentation of their side of the case. However, there were several times when the Crown's experts went ‘off brief', which meant they started being asked questions by Crown prosecutors about things that hadn't previously been mentioned and therefore the defence didn't know were going to crop up.