David Bain allegedly told school friends he could rape a woman and use his paper round as an alibi, according to Crown evidence the jury never got to hear.
Court of Appeal suppression orders on the evidence were lifted this afternoon shortly after a hearing in Wellington at which the Supreme Court lifted publication restrictions on its judgements in relation to the Bain retrial.
Evidence not allowed to go to trial by the Supreme Court included the Crown claim that Mr Bain said the words "I shot the/that prick" during his 111 call the morning his family were killed in 1994.
The jury in the 13-week trial never heard the witness statements of two school friends of Mr Bain because the Court of Appeal ruled the evidence was too prejudicial against him.
The evidence is that of Mark Buckley and Garth Taylor, who allegedly Mr Bain planned the rape of a female jogger while they were pupils at Bayfield High School in Dunedin.
Mr Buckley's evidence was that Mr Bain told him of how he could commit a sexual offence against the jogger and use his paper round to "get away with it".
According to Mr Buckley, Mr Bain had a notebook which seemed to contain details of how he could use the paper round in this way, although Mr Buckley did not actually see the notebook.
The Court of Appeal's judgement said the words "rape" and "alibi" were not used by witnesses, but were used by the court for ease of reference because they seemed to capture the essence of what was proposed in the evidence.
"Mr Buckley's evidence is that the appellant proposed to free up time for this offending arriving at the usual houses where he would normally see the residents (thus suggesting a normal delivery round) but delivering papers at other houses much earlier than usual," said the Court of Appeal judgement.
Mr Bain did not tell Mr Taylor of the paper-round alibi, but years later, but still before the murders, he warned his wife Greer about the rape conversation when she started studying music with Mr Bain.
Prosecutors wanted the jury to hear the evidence because the paper-round alibi tied in which Mr Bain's behaviour the morning of June 20, 1994.
Mr Bain said his family must have been murdered while he was on his paper-run.
Two witnesses gave evidence that he delivered his paper 10 minutes early that morning.
Another witness said Mr Bain took unusual measures to to ensure she noticed him delivering the paper that morning.
Mr Bain's lawyers appealed the admissibility of the evidence to retrial judge Justice Graham Panckhurst, who, after himself interviewing Mr Buckley, said the evidence was relevant and "striking" given what occured the day of the Bain murders.
He allowed Mr Buckley's evidence, but not Mr Taylor's.
The defence appealed his decision to the Court of Appeal and the Crown appealed his decision to not allow Mr Taylor's evidence.
The Court of Appeal found the false-alibi evidence had value, but witness statements that Mr Bain had planned a rape were too prejudicial.
"If the jury learn that the appellant, while at school, was apparently planning the rape of a female jogger, there is a risk that the jury will place more weight on the proposed offending than the use of the alibi, " the court of appeal judgement said.
The value of the evidence was also put in to question because of the differences in the paper-round alibi actually discussed and the paper-round that actually took place the morning of the killings.
Mr and Mrs Taylor were interviewed by police before the original trial. Mr Buckley did not come forward with his evidence until after a retrial was announced.
In total 10 items of evidence were appealed in the Court of Appeal.
