At a preliminary hearing in London yesterday, the Privy Council rejected a bid by David Bain's defence team to hear an appeal to dismiss the multiple murder charges against him.
In a decision that took less than a few minutes after hearing 50 minutes of defence and crown submissions, the Law Lords ruled a New Zealand court should decide if the retrial should go ahead.
Bain supporter Joe Karam said an application for a stay of proceedings would now be held in the High Court in Christchurch in February, a week before Bain's retrial was scheduled to begin.
Bain's lawyers argued a retrial would not be fair because witnesses had died and exhibits were damaged and because there was new forensic evidence.
If the Law Lords had known what the defence knew now, the Privy Council would have last year ordered an acquittal instead of a retrial, Michael Reed QC said.
During the hearing Lord Hoffman, chairman, asked Mr Reed to focus his submissions on how last year he asked for a new trial and not an acquittal, and why he had "changed horses" and returned at short notice to seek a stay of the new trial he had won last year, Fairfax reported.
After the proceedings, Mr Reed hailed the hearing a success because Solicitor-general Dr David Collins gave an undertaking that the points the defence wanted to raise before the Privy Council would be heard by the New Zealand court.
"We believe now, back in New Zealand, we can get a full and fair hearing that we always wanted," he said.
But University of Auckland law expert Associate Prof Scott Optican said he was not sure what the defence had really gained from travelling to the Privy Council.
"Probably a) it was worth a shot, and b) it gave them a leg up to say this is how the application should be heard, but I'm not sure the New Zealand courts needed to be told that."
The bottom line was that any new evidence presented by the defence needed to convince a court that no reasonable jury would convict based on that evidence or that Bain could no longer get a fair trial.
Either way the instinct of an appeals court, such as the Privy Council, was to have the new evidence presented in court before a jury, so their decision was not surprising.
However, the defence's previous bid to the Privy Council had been successful, and defence lawyers would do whatever they could within the law to represent their clients properly, so they were entitled to give it a try.
"The council did not say the defence's evidence was not worth being heard and [the defence] did get a hearing, so that tells you something," Prof Optican said.
Bain was released on bail in May 2007 after serving 13 years in prison for the murders of five members of his family in Dunedin in 1994.
His convictions were set aside by the Privy Council, and a fresh trial is due to begin early next year.
During yesterday's hearing Mr Reed tried but failed to stop Mr Karam sounding off about the "obscenity" of the case not being thrown out.
It had already cost the New Zealand taxpayer millions and was stopping Bain getting on with his life, Mr Karam said.
He has been in London for a month, having DNA, forensic and blood spatter forensic evidence analysed.
Joe Karam later told media it was not the end of the road as there were avenues available within New Zealand, including the stay application, to have the retrial "knocked out".
