David Bain's lawyers have applied to the Christchurch District Court to examine new Crown witnesses before Bain's retrial on five murder charges - a move that would, if granted, be unusual and surprising, says a leading New Zealand defence lawyer.
A two-day hearing, to discuss the defence's pretrial application to examine a substantial number of the Crown's 56 new witnesses, began in the district court yesterday.
Christchurch QC Nigel Hampton said, when contacted, the defence was, in effect, asking for another depositions hearing, and in his 43 years as a defence lawyer no judge had granted a depositions hearing before a retrial.
"It will be unusual if he allows it. It's a bit of an anomaly."
An examination of new witnesses before the trial made sense for the defence, because of the time between trials, and in case the Crown's case had changed, Mr Hampton said.
"I can see why in this case the defence would be trying to do this, particularly if it's scientific evidence.
"You want to be able to find out as much as you can in advance of the trial; the strengths and weaknesses of that evidence.
"It's all very well having it on paper, but it's very much different being able to examine it and cross-examine it at a depositions hearing. That's extraordinarily valuable.
"There are advantages to be gained . . . tactically and substantively at trial."
The judge would first have to decide whether he actually had the jurisdiction to order any pretrial examination of witnesses.
If he did grant the defence's request, it would probably take at least a week to examine so many witnesses, depending on the depth of their evidence.
Asked how that might affect the trial start date, Mr Hampton said, "They would just have to fit it in somewhere before February."
Bain's retrial, on five murder charges, is set to begin on February 16 next year in the High Court at Christchurch.
He is accused of murdering his family in their Andersons Bay, Dunedin, home, in 1994.
In May 2007, he was granted bail after the Privy Council in London ruled there had been a miscarriage of justice.
He had already spent 13 years in prison for the murders.
In June 2007, the Solicitor-general ordered a retrial.
So far, five pretrial applications, including a successful application to change the trial venue have been heard.
As with the other hearings, all other details from this week's hearing before Judge Phil Moran have been suppressed.
