The reasons why the Clayton Weatherston trial was transferred have not been released, but those for moving the trial of Colin Bouwer and the retrial of David Bain, both by Justice Graham Panckhurst, have been. Elspeth McLean reports.
The influence of local knowledge on jurors and the risk of connection with witnesses meant there was a real risk a jury drawn from the Dunedin area would not be impartial in the David Bain retrial, Justice Graeme Panckhurst found.
In his May 2008 decision on the application to have the case heard elsewhere, he found there would be a real risk a Dunedin jury would be "afflicted with members who consciously, or unconsciously, are influenced by local knowledge of one sort or another".
"I am also concerned that real scope could exist for jurors . . . who it would prove, perhaps some distance into the trial, have a connection with a witness which renders it inappropriate for them to serve."
The necessity for evidence to be given from so many local sources would provide the opportunity for mishap.
David Bain was accused, and in his second trial found not guilty, of murdering five members of his immediate family in Dunedin in June 1994.
When considering the issue of the risk of local empathy, Justice Panckhurst said the defence contended there was real scope for victim empathy to intrude, but the Crown contended not.
Justice Panckhurst considered it more likely that empathy would be likely to have lessened rather than heightened.
He noted the case proceeded to trial in 1995 in Dunedin without, as far as he was aware, an application for change of venue.
"If there was a major concern, one might have expected an application at that time."
He considered empathy might be less intrusive than prior knowledge of the evidence or knowledge of a witness, but there would be risk in being able to secure an impartial jury in Dunedin on account of empathy.
This added to the concern about the real risk of jurors being selected who perceived they had knowledge concerning the facts of the case.
Mr Bain's counsel, Michael Reed QC, who wanted the trial moved to Auckland, made submissions on the size of the eligible pool of jurors.
He said the larger Auckland pool was an advantage, but Justice Panckhurst found the Christchurch pool was ample.
