David Bain
Encyclopedia
David Cullen Bain is a New Zealand
er who featured in one of the country's most notable murder cases. He was convicted in May 1995 of the murder
s of his parents and siblings in Dunedin
on 20 June 1994. He was acquitted when retried on the same charges 14 years later.
Bain served 13 and a half years of a life sentence
before successfully appealing his original convictions to the Privy Council
in May 2007. Finding there had been a substantial miscarriage of justice
, the Privy Council quashed his convictions and ordered a retrial. After several attempts by David Bain's lawyers to obtain a stay in proceedings failed, he was bail
ed pending the retrial which began in Christchurch
on 6 March 2009 and ended 5 June 2009 with his acquittal on all charges.
This has been one of New Zealand's most complex and controversial murder cases. Aside from the debate about whether someone other than David Bain killed his entire immediate family, questions have been raised about the police investigation, juror conduct and criminality, court decisions about the admissibility of evidence, and decisions by the New Zealand Court of Appeal.
, where Robin worked as a missionary teacher. They returned to New Zealand fifteen years later in 1988 when Margaret and Robin were having relationship problems.
Once back, they returned to their home at 65 Every Street, Andersons Bay
, Dunedin
. It took David a year to settle back into school, but he joined the school choir and in the seventh form his marks improved and he went to university, encouraged by his parents. He dropped out of university and was on unemployment benefit
and working at Opera Alive for a period before returning to university to study classical music
and professional voice training lessons.
On the morning of 20 June 1994, five members of the Bain family were shot dead. The dead were Robin Bain (58), his wife Margaret (50), their daughters Arawa (19), Laniet (18) and son Stephen (14). David called 111
at 7:09 am, seeming very distressed. He had completed his paper round; what else happened that morning has been disputed.
Four days after the murders, David Bain (then aged 22) was charged by the police
with the murder of his family.
With the police having collected all the evidence they thought would be required to safely convict Bain, the house at 65 Every Street was burnt down on 5 July 1994 by the New Zealand Fire Service, at the request of the trustees of the Bain family trust, and with David Bain's consent.
The prosecution's case was, in brief, as follows: David got up by 5 am on the morning of 20 June. After getting dressed, he took his rifle and some ammunition from the wardrobe and unlocked the trigger lock
using the spare key. The spare key, which he kept in a jar on his desk, was used because he had left the usual key in the pocket of a raincoat in his father's caravan. David then shot all his family members except his father, who was out in the caravan. He fought violently with Stephen, losing a lens from his glasses in the struggle. There was much blood. He put his blood-stained clothes in the washing machine, started it, washed himself and changed into clean clothes, leaving marks in the laundry/bathroom in the process. He went on his paper run as usual at roughly 5:45 am, hurrying to arrive home slightly earlier than usual at about 6:42 am. David then went upstairs, switching on the computer at 6:44 am, where he typed in a message (then or later):
He waited for his father to come in from the caravan to pray, as was his habit around 7 am. When Robin knelt to pray in the lounge, David shot him in the head from very close range. He rearranged the scene to seem like a suicide, then called 111 to report the killings, pretending to be very agitated.
David's own story was that he got up at the usual time, put on his running shoes and the yellow newspaper bag, and went on his paper run with the dog. He arrived back about 6:42 – 6:43 am, entering by the front door, and went to his room. He took off the newspaper bag and his shoes there, then went downstairs to the bathroom where he washed his hands, black from the newsprint. He put some coloured clothes in the machine, including the sweatshirt worn on his paper run over the last week, and set it going. He went back upstairs to his room, turning on the light. He then noticed bullets and the trigger lock on the floor. He went to his mother's room, finding her dead, then visited the other rooms where he heard Laniet gurgling, and found his father dead in the lounge. He was devastated and rang the emergency number in great distress.
The Defence proposed that Robin killed the other family members, before switching on the computer, typing the message and then shooting himself.
declined to hear his appeal in 1996. The Police Complaints Authority
reviewed the Police investigation into the Bain family murders in 1997 and issued a 123-page report supporting its conduct.
After Bain petitioned the Governor-General
for a pardon, the Ministry of Justice held a further inquiry from 1998 to 2000 which found no miscarriage of justice. However the Minister of Justice, Phil Goff
, advised the Governor-General to seek the Court of Appeal's view on four items of evidence. The Court of Appeal found there was sufficient cause to reconsider the case, which they did in 2003, again dismissing Bain's appeal. Bain then appealed to the Privy Council for a second time.
Nine items of evidence were reviewed in the Privy Council findings:
The Privy Council ruled that the third Court of Appeal had exceeded its role as a reviewing body in deciding the implications of all this new evidence. The Council also addressed three points which the third Court of Appeal had relied on in confirming David's guilt:
They found that the implications of the first point were contentious, while the other two should have been decided by a jury instead of an appellate court. They felt they did not need to consider in detail several other contentious points that the third appeal court saw as pointing towards David's guilt, including blood on David’s opera gloves, Stephen’s blood being found on David’s black shorts, the timing of the washing machine cycle, David’s head injuries, and Robin’s full bladder.
, but later moved to west Auckland.
decided the retrial would be held in Christchurch instead of Dunedin. In February 2009, Justice Panckhurst and Chief High Court Judge Tony Randerson heard four days of arguments over whether to stay the retrial, but dismissed the application for a stay on 2 March 2009. An earlier application for a stay was made to the Privy Council in 2008 on the grounds that several witnesses had died since the 1994 trial, many of the exhibits had been lost or destroyed, and new evidence had arisen. The Privy Council referred the application back to the New Zealand courts, after the Solicitor-General assured them that the New Zealand courts would consider the points raised before them. Details of the New Zealand hearings were suppressed by the Solicitor-General.
Both sides appealed to the Court of Appeal against High Court decisions on the admissibility of various pieces of evidence. The Court of Appeal decided that some items should not be presented to the jury, and suppressed any mention of these until after the verdict. This included statements from two high school friends that David told them in 1989 how he could commit a sexual offence against a woman jogger and use his paper round as an alibi, by arriving at the usual time at some houses where he was often seen, but delivering to other houses much earlier. Evidence was also suppressed from a friend of Arawa Bain that David Bain had been intimidating the family with his gun, later to be used in the murders.
Bain's lawyers also appealed to the Supreme Court
against a High Court decision about new evidence being presented at the retrial. They won their appeal, so the disputed evidence was excluded from the retrial, and was under a suppression order until the week after the verdict, when the evidence and the reasons for its suppression were released. The disputed evidence was about a portion of the recording of David's 111 call in which he was audibly breathing heavily at the time; a detective reviewing it in 2007 in preparation for the retrial believed he heard the words "I shot the prick". Expert witnesses agreed that it was unclear whether the sounds were in fact speech, and if so what Bain may have said. For instance, one expert suggested he might have said "I can't breathe", and another expert gave the analogy of an image glimpsed in the clouds. Given the uncertainty, and the experts' cautions about presenting it to a jury, the Supreme Court decided allowing it as evidence would be unfairly prejudicial.
on 6 March 2009. David Bain pleaded not guilty to the five murder charges, and the prosecution and defence made their opening statements.
Crown prosecutor Robin Bates told the jury that all the evidence showed David Bain killed his family, describing the evidence as circumstantial but strong. He said the Crown case would show that the father, Robin Bain, was not the killer. He laid out the case against David, describing graphically what the Police found at the scene and how this was consistent with David killing each of his family members in turn. David had called 111 at about 7:10 am. When the police arrived at 7:30 am, they found him hysterical in his room, wailing "they are all dead". His brother Stephen had clearly put up a struggle, while bleeding profusely from an initial glancing scalp wound. Stephen was strangled with a t-shirt, then killed by another gunshot. Bates said David had injuries consistent with this struggle, and had Stephen's blood on his clothes. A lens from glasses David was wearing was found on the floor of Stephen's room, Bates said, and the frame and other lens were found in David's room. David's bloody gloves were found in Stephen's room, and Bates said he must have had to remove them to deal with the rifle misfeeding or jamming on a bullet. According to Bates, Robin would have had no reason to wear gloves if he intended to commit suicide.
David had told police he heard his sister Laniet gurgling, which Bates said meant he was present between her second gunshot wound and the final shot to her head which killed her. His other sister, Arawa, and his mother were both killed by a shot to the head. Robin was found in the lounge, lying on his side between a coffee table and a bean bag, dead from a single shot to the head. Next to him was the .22 calibre rifle, but his fingerprints were not found on it. Both the rifle's trigger lock and its key were found in David's room. Bates said the state of the laundry was consistent with David trying to destroy evidence, especially the green jersey he wore during the killings. Doing his paper round was meant to provide David with an alibi, Bates argued, and he had been sure to be seen along his route. Evidence would also be presented of a conversation David had with a friend six days before the murders, when he told her he had a feeling "something horrible" would happen. After the killings, he told her they were what he had told her about before.
Defence lawyer Michael Reed described the Crown's case as absurd, saying they glossed over the killer's motive and merely pointed to an argument between Robin and David over a chainsaw. He said the defence case would be that Robin killed the other family members, before killing himself. He told the jury that Robin did this because his incestuous relationship with Laniet had come to light, that she was "going around telling everybody" that he molested her, and had come home to tell her mother about the abuse that night. Reed said that Robin, a missionary and school teacher, was depressed, and his life would be ruined by the incest allegations. He said that for three years Robin had been living in a van behind the school and was banished to a caravan behind the house when he came home for the weekend. Laniet had stayed with him in the caravan, Reed said. The defence would call "startling evidence" showing Robin was the killer, including forensic evidence. Reed was scathing about the police investigation. It soon developed a one-track focus on David, he said, and other leads that did not fit this picture were dropped. Reed said some of the evidence was lost, destroyed, or never collected, including blood samples from under Robin's fingernails. He said that despite a neighbour telling Police about the incest allegations, "Laniet's diaries and letters written to her mother were destroyed" although they might have contained allegations of incest from Laniet.
?" and "Can you please clarify your statement 'It must be David to the exclusion of Robin'?" The judge replied, in part, that they must be sure the accused was guilty, after careful consideration of all the evidence, and that the Crown case had excluded Robin as killer. He said, "It is not enough he is probably guilty or even very likely guilty, you must be sure". He said that reasonable doubt was an honest and reasonable uncertainty about guilt.
At 4:45pm on the afternoon of 5 June 2009, the jury gave their verdict: they found David Bain not guilty on all five charges.
noted that the two jurors spent the last three weeks of the trial giggling and writing messages to each other. One juror said that each of the jurors had been approached during the retrial by people who believed David Bain was guilty.
said that Bain did not meet one of the four current criteria for compensation, namely that the convictions be quashed with no retrial ordered. While it was possible that the rules could be changed, Henaghan pointed out that Bain would also have to show it was more likely he was innocent than not. It is not enough to be found not guilty, as this does not mean that the accused person is innocent—it is not the same as the exoneration
that DNA evidence may provide, for instance. Law professor Bill Hodge has stated that this would be "an uphill battle". Bain has asked that his belongings used as evidence at trial, including the rifle that was used to kill his family, be returned to him.
If the Justice Ministry decides his claim is worth considering, it will be sent to an impartial QC, rather than a jury, who will decide whether Bain is more likely innocent than guilty. A "Justice For Robin Bain" group has been founded to work against the David Bain lobby. A group of Robin Bain supporters have launched a petition, advertised in newspapers nationwide, calling for David Bain to be denied compensation for the years he spent in prison after being convicted of murder
More recently, Bain has claimed he is innocent and a declaration that he is innocent from the Crown would be sufficient for closure.
. He was prompted by troubled feelings about the "hearsay" evidence brought against Robin and the rest of the murdered family while attention focused on David.
Michael Bain also said the wider Bain and Cullen families have been saddened by the allegations against Robin and believe the police "did a magnificent job". Joe Karam has responded by claiming Michael was in "denial" and questioning how well he knew Robin. Rosemary McLeod has described the "most salient" point rebutting that claim is the three weeks the Bain brothers spent repainting their mother's house in January 1994, followed by a stay by Robin at Michael's house on the way back to Dunedin. Four months later, Robin was dead.
The Investigator Special: The Case Against Robin Bain, a documentary created by Bryan Bruce, presented the evidence that he claimed proved Robin was not responsible for the killing of his family members. Bruce particularly focused on the lack of forensic evidence that would link Robin to the murders and the dubious nature of the chain of events that would have had to occur for Robin to commit the murders without leaving any such evidence. Subsequent Broadcasting Standards Authority complaints against One News and TVNZ News at Eight by a 'Simon Boyce' claiming that news items promoting the programme were inaccurate were rejected. Following allegations that Bruce had unfairly portrayed Daryl Young as dishonest, Bruce asked that the police investigate the matter. A police investigation found that Young had given false evidence, but that he would not be prosecuted for perjury.
The December Brother, a 2010 play produced for Wellington's Downstage Theatre, depicted reenactments of the Bain family killings based on the theories put forward by the legal teams for the defence and prosecution during the trial. New Zealand critic David Farrar
praised the production's dramatic tension and realism.
was needed, as he was satisfied that the evidence shown in court had established the cause of the deaths. After the retrial, New Zealand's Chief Coroner consulted with the local coroner
and others to decide whether to conduct inquests into the deaths, as the verdict implied the death certificates may not be accurate. He then announced that an inquest would only be held if one was requested and the High Court or solicitor-general granted the request. A Law Society spokesman said that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against David Bain.
and on the Mr Vintage website. Although 10% of the profits from the T-shirts were donated towards a charity dedicated to combating family violence, they were condemned as making a profit from people's misfortunes, with World fashion label founder Denise L'Estrange-Corbet pointing out the trial was about "the murder of his family".
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
er who featured in one of the country's most notable murder cases. He was convicted in May 1995 of the murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
s of his parents and siblings in Dunedin
Dunedin
Dunedin is the second-largest city in the South Island of New Zealand, and the principal city of the Otago Region. It is considered to be one of the four main urban centres of New Zealand for historic, cultural, and geographic reasons. Dunedin was the largest city by territorial land area until...
on 20 June 1994. He was acquitted when retried on the same charges 14 years later.
Bain served 13 and a half years of a life sentence
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
before successfully appealing his original convictions to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in May 2007. Finding there had been a substantial miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
, the Privy Council quashed his convictions and ordered a retrial. After several attempts by David Bain's lawyers to obtain a stay in proceedings failed, he was bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
ed pending the retrial which began in Christchurch
Christchurch
Christchurch is the largest city in the South Island of New Zealand, and the country's second-largest urban area after Auckland. It lies one third of the way down the South Island's east coast, just north of Banks Peninsula which itself, since 2006, lies within the formal limits of...
on 6 March 2009 and ended 5 June 2009 with his acquittal on all charges.
This has been one of New Zealand's most complex and controversial murder cases. Aside from the debate about whether someone other than David Bain killed his entire immediate family, questions have been raised about the police investigation, juror conduct and criminality, court decisions about the admissibility of evidence, and decisions by the New Zealand Court of Appeal.
Early life
David was born in Dunedin, New Zealand, the first child of Margaret Arawa and Robin Irving Bain. Soon after he was born, the family moved to outback Papua New GuineaPapua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
, where Robin worked as a missionary teacher. They returned to New Zealand fifteen years later in 1988 when Margaret and Robin were having relationship problems.
Once back, they returned to their home at 65 Every Street, Andersons Bay
Andersons Bay
Andersons Bay is a suburb of the New Zealand city of Dunedin. It is located in the southeast of the city's urban area, southeast of the city's centre...
, Dunedin
Dunedin
Dunedin is the second-largest city in the South Island of New Zealand, and the principal city of the Otago Region. It is considered to be one of the four main urban centres of New Zealand for historic, cultural, and geographic reasons. Dunedin was the largest city by territorial land area until...
. It took David a year to settle back into school, but he joined the school choir and in the seventh form his marks improved and he went to university, encouraged by his parents. He dropped out of university and was on unemployment benefit
Unemployment benefit
Unemployment benefits are payments made by the state or other authorized bodies to unemployed people. Benefits may be based on a compulsory para-governmental insurance system...
and working at Opera Alive for a period before returning to university to study classical music
Classical music
Classical music is the art music produced in, or rooted in, the traditions of Western liturgical and secular music, encompassing a broad period from roughly the 11th century to present times...
and professional voice training lessons.
The killings
On the morning of 20 June 1994, five members of the Bain family were shot dead. The dead were Robin Bain (58), his wife Margaret (50), their daughters Arawa (19), Laniet (18) and son Stephen (14). David called 111
1-1-1
111 is the emergency telephone number in New Zealand. It was first implemented in Masterton and Carterton on 29 September 1958, and was progressively rolled out nationwide with the last exchanges converting in 1988...
at 7:09 am, seeming very distressed. He had completed his paper round; what else happened that morning has been disputed.
Four days after the murders, David Bain (then aged 22) was charged by the police
New Zealand Police
The New Zealand Police is the national police force of New Zealand, responsible for enforcing criminal law, enhancing public safety, maintaining order and keeping the peace throughout New Zealand...
with the murder of his family.
With the police having collected all the evidence they thought would be required to safely convict Bain, the house at 65 Every Street was burnt down on 5 July 1994 by the New Zealand Fire Service, at the request of the trustees of the Bain family trust, and with David Bain's consent.
1995 trial
The three week trial took place at the Dunedin High Court in May 1995 and was presided over by the late Justice Neil Williamson.The prosecution's case was, in brief, as follows: David got up by 5 am on the morning of 20 June. After getting dressed, he took his rifle and some ammunition from the wardrobe and unlocked the trigger lock
Trigger lock
A trigger lock is a device designed to prevent a firearm from being discharged while the device is in place. Generally, two pieces come together from either side behind the trigger and are locked in place, which can be unlocked with a key or combination. This physically prevents the trigger from...
using the spare key. The spare key, which he kept in a jar on his desk, was used because he had left the usual key in the pocket of a raincoat in his father's caravan. David then shot all his family members except his father, who was out in the caravan. He fought violently with Stephen, losing a lens from his glasses in the struggle. There was much blood. He put his blood-stained clothes in the washing machine, started it, washed himself and changed into clean clothes, leaving marks in the laundry/bathroom in the process. He went on his paper run as usual at roughly 5:45 am, hurrying to arrive home slightly earlier than usual at about 6:42 am. David then went upstairs, switching on the computer at 6:44 am, where he typed in a message (then or later):
- sorry,
- you are the only one who deserved to stay
He waited for his father to come in from the caravan to pray, as was his habit around 7 am. When Robin knelt to pray in the lounge, David shot him in the head from very close range. He rearranged the scene to seem like a suicide, then called 111 to report the killings, pretending to be very agitated.
David's own story was that he got up at the usual time, put on his running shoes and the yellow newspaper bag, and went on his paper run with the dog. He arrived back about 6:42 – 6:43 am, entering by the front door, and went to his room. He took off the newspaper bag and his shoes there, then went downstairs to the bathroom where he washed his hands, black from the newsprint. He put some coloured clothes in the machine, including the sweatshirt worn on his paper run over the last week, and set it going. He went back upstairs to his room, turning on the light. He then noticed bullets and the trigger lock on the floor. He went to his mother's room, finding her dead, then visited the other rooms where he heard Laniet gurgling, and found his father dead in the lounge. He was devastated and rang the emergency number in great distress.
The Defence proposed that Robin killed the other family members, before switching on the computer, typing the message and then shooting himself.
Conviction and sentencing
On 29 May 1995, after a three week trial, David Bain was convicted by the jury on five counts of murder. On 21 June 1995, Justice Neil Williamson sentenced him to life imprisonment with a 16 year non-parole period.Appeals against conviction
Bain maintained his innocence, and as they received media support his supporters conducted a lengthy campaign to have his case reheard. An initial appeal to the New Zealand Court of Appeal was dismissed in 1995, and the Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
declined to hear his appeal in 1996. The Police Complaints Authority
Police Complaints Authority (New Zealand)
In New Zealand, the Independent Police Conduct Authority is an official governmental body with the following duties:* receive complaints about the conduct of Police officers* oversee the investigation of complaints made to the Authority or to the Police...
reviewed the Police investigation into the Bain family murders in 1997 and issued a 123-page report supporting its conduct.
After Bain petitioned the Governor-General
Governor-General of New Zealand
The Governor-General of New Zealand is the representative of the monarch of New Zealand . The Governor-General acts as the Queen's vice-regal representative in New Zealand and is often viewed as the de facto head of state....
for a pardon, the Ministry of Justice held a further inquiry from 1998 to 2000 which found no miscarriage of justice. However the Minister of Justice, Phil Goff
Phil Goff
Philip Bruce Goff is the current Leader of the Opposition and the Leader of the New Zealand Labour Party. During the Fifth Labour Government, he served in a number of ministerial portfolios, including Minister of Defence of New Zealand, Minister of Corrections, Minister of Foreign Affairs and...
, advised the Governor-General to seek the Court of Appeal's view on four items of evidence. The Court of Appeal found there was sufficient cause to reconsider the case, which they did in 2003, again dismissing Bain's appeal. Bain then appealed to the Privy Council for a second time.
2007 Privy Council appeal
In 2006, the Privy Council agreed to hear Bain's appeal against the verdict of the Court of Appeal, and this hearing took place over five days in March 2007. On 10 May 2007, the Privy Council quashed David Bain's murder convictions, concluding that "a substantial miscarriage of justice has actually occurred." They recommended a retrial, noting "nothing in this judgement should influence the verdict in any way."Nine items of evidence were reviewed in the Privy Council findings:
- 1. Robin Bain's mental state
- The jury did not know that Robin (the father) was "quite seriously disturbed", had reportedly hit a student at the school where he was principal, and had published brutal and sadistic children's stories in the school's newsletter, one of which involved the serial murder of members of a family.
- 2. Motive
- Laniet had apparently told a friend just before the killings that she was planning to confront her parents that weekend about an incestuous relationship between her and her father Robin, but the trial judge had ruled the friend's evidence inadmissible because he saw it as unreliable. The jury therefore never heard about this possible motive for Robin. (The exclusion of this evidence was the principal question in the first appeal.) Since then, two other people had come forward stating that Laniet had told them about the incest, and another two had given supporting statements.
- 3. Size of bloody sock prints
- Prints from a right sock impregnated with blood were detected using luminolLuminolLuminol is a versatile chemical that exhibits chemiluminescence, with a striking blue glow, when mixed with an appropriate oxidizing agent...
in Margaret's room, going in and out of Laniet's room, and in the hallway outside Margaret's room. They all seemed to be from the same foot, measured at 280 mm in length. These were in places where Robin would not have gone under the Crown's theory of events. It was accepted during the trial that the prints were David's, and the prosecutor summed up saying they were too big to be Robin's. The jury were not told Robin's feet were measured to be 270 mm in length. Later measurements showed David's feet to be 300 mm in length. According to the Privy Council report, the new evidence "throws real doubt" on the assumption during the trial that the prints could not have been Robin's.
- Prints from a right sock impregnated with blood were detected using luminol
- 4. Time the computer was switched on
- The jury was told and later reminded by the judge that the computer was turned on at precisely 6:44 am, just after David had returned home. However the exact time was not precisely recorded. A computer advisor employed by the University of OtagoUniversity of OtagoThe University of Otago in Dunedin is New Zealand's oldest university with over 22,000 students enrolled during 2010.The university has New Zealand's highest average research quality and in New Zealand is second only to the University of Auckland in the number of A rated academic researchers it...
determined the time that the computer was switched by identifying how long it had been going, and what the current time of day was. However he was not wearing a watch himself and relied on the watch of an accompanying constable, DC Anderson. The constable's watch had no seconds hand and only five minute interval divisions, and later upon examination appeared to be two minutes fast. During the Privy Council appeal both sides agreed that the computer could have been turned on as early as 6:39:49 am.
- The jury was told and later reminded by the judge that the computer was turned on at precisely 6:44 am, just after David had returned home. However the exact time was not precisely recorded. A computer advisor employed by the University of Otago
- 5. Time David returned home
- Someone was seen by a passing motorist entering the gate at 65 Every St at 6:45 am. The reliability of this time was left more doubtful than necessary in the minds of the jury, because they were not told that the police had checked the car's clock. Nor were they (or the defence) told of a second statement made by the motorist, in which she mentioned that she saw the yellow paper bag over his left shoulder. After retiring, the jury asked to read the motorist's statement, regarding when David arrived home; the judge then re-read her (first) statement.
- 6. Ownership of glasses
- The jury heard a statement from an optometrist that glasses found in David's room were David's, conflicting with David's testimony that they were his mother's. David was then cross-examined about this in a way that raised doubt over his credibility. The optometrist had in fact changed his mind shortly before testifying, and believed his statement had been changed to say they were the mother's, but this had not happened. The jury asked a question about this issue after retiring, and were reminded of the conflicting testimony by the judge. The Privy Council concluded that while the ownership of the glasses was not a vital matter in itself, the conflicting evidence may have detracted from David's credibility in the eyes of the jury.
- 7. Left-hand lens
- The left-hand lens of these glasses was found in Stephen's room. During the trial, Detective Weir testified that it was found there in the open. This was seen as more consistent with the Crown's case that it become dislodged during the struggle there than what is now accepted, that it was found under a skate boot under a jacket, and was covered in dust. This may have misled the jury. Subsequent evidence suggests that it was indeed dislodged in Steven's struggle with David, being moved only when Stephen's body had to be removed.
- 8. David's bloody fingerprints on rifle
- David's fingerprints were found on the rifle, impressed there by bloody fingers. During the trial it was assumed that this was human blood. (Other blood on the rifle was definitely human.) A test of the fingerprint blood afterwards did not test positive for human DNA, and the prints may have resulted from possum or rabbit shooting months beforehand.
- 9. Laniet's gurgling noise
- The jury was told that only the murderer could have heard Laniet gurgling. The second Court of Appeal heard some contradictory evidence and concluded it was not so clear-cut. The third Court of Appeal decided that it was, but was criticised by the Privy Council for having stepped outside its reviewing role here.
The Privy Council ruled that the third Court of Appeal had exceeded its role as a reviewing body in deciding the implications of all this new evidence. The Council also addressed three points which the third Court of Appeal had relied on in confirming David's guilt:
- Knowledge of spare key to rifle
- Bloody rifle clearer around David's fingerprints
- Spare magazine standing upright
They found that the implications of the first point were contentious, while the other two should have been decided by a jury instead of an appellate court. They felt they did not need to consider in detail several other contentious points that the third appeal court saw as pointing towards David's guilt, including blood on David’s opera gloves, Stephen’s blood being found on David’s black shorts, the timing of the washing machine cycle, David’s head injuries, and Robin’s full bladder.
Bail
Although the Privy Council said Bain should be kept in custody, he was released on bail on 15 May 2007 following a hearing at the Christchurch High Court. More than 100 people attended, with the gallery erupting in cheers following the judge's decision. It was ruled that Bain posed no threat of offending if released. He was bailed to live with one of his longest supporters, former All Black Joe KaramJoe Karam
Joseph Francis "Joe" Karam is a former New Zealand representative rugby footballer, an entrepreneur and a campaigner for acquitted murder accused David Bain.-Early life:...
, but later moved to west Auckland.
Retrial
The retrial was announced on 21 June 2007 by Solicitor-General David Collins. The decision to conduct a retrial was based on a series of factors including the seriousness of the crimes, the time Bain had spent in prison and the availability of witnesses and exhibits. The Solicitor-General also declared that any further public discussion of the evidence or other matters that might influence a jury could be considered contempt of court. Various appeals and applications were made to the courts about the conduct of the retrial.Appeals and court applications
Following an application to the High Court, Justice PanckhurstGraham Panckhurst
Graham Panckhurst QC is a New Zealand High Court Judge. Panckhurst is a graduate of Canterbury University. In 1985 he was appointed as Crown Solicitor for Canterbury and the West Coast...
decided the retrial would be held in Christchurch instead of Dunedin. In February 2009, Justice Panckhurst and Chief High Court Judge Tony Randerson heard four days of arguments over whether to stay the retrial, but dismissed the application for a stay on 2 March 2009. An earlier application for a stay was made to the Privy Council in 2008 on the grounds that several witnesses had died since the 1994 trial, many of the exhibits had been lost or destroyed, and new evidence had arisen. The Privy Council referred the application back to the New Zealand courts, after the Solicitor-General assured them that the New Zealand courts would consider the points raised before them. Details of the New Zealand hearings were suppressed by the Solicitor-General.
Both sides appealed to the Court of Appeal against High Court decisions on the admissibility of various pieces of evidence. The Court of Appeal decided that some items should not be presented to the jury, and suppressed any mention of these until after the verdict. This included statements from two high school friends that David told them in 1989 how he could commit a sexual offence against a woman jogger and use his paper round as an alibi, by arriving at the usual time at some houses where he was often seen, but delivering to other houses much earlier. Evidence was also suppressed from a friend of Arawa Bain that David Bain had been intimidating the family with his gun, later to be used in the murders.
Bain's lawyers also appealed to the Supreme Court
Supreme Court of New Zealand
The Supreme Court of New Zealand is the highest court and the court of last resort in New Zealand, having formally come into existence on 1 January 2004. The court sat for the first time on 1 July 2004. It replaced the right of appeal to the Judicial Committee of the Privy Council, based in London...
against a High Court decision about new evidence being presented at the retrial. They won their appeal, so the disputed evidence was excluded from the retrial, and was under a suppression order until the week after the verdict, when the evidence and the reasons for its suppression were released. The disputed evidence was about a portion of the recording of David's 111 call in which he was audibly breathing heavily at the time; a detective reviewing it in 2007 in preparation for the retrial believed he heard the words "I shot the prick". Expert witnesses agreed that it was unclear whether the sounds were in fact speech, and if so what Bain may have said. For instance, one expert suggested he might have said "I can't breathe", and another expert gave the analogy of an image glimpsed in the clouds. Given the uncertainty, and the experts' cautions about presenting it to a jury, the Supreme Court decided allowing it as evidence would be unfairly prejudicial.
Opening statements
The jury for the retrial was sworn in before Justice Graham PanckhurstGraham Panckhurst
Graham Panckhurst QC is a New Zealand High Court Judge. Panckhurst is a graduate of Canterbury University. In 1985 he was appointed as Crown Solicitor for Canterbury and the West Coast...
on 6 March 2009. David Bain pleaded not guilty to the five murder charges, and the prosecution and defence made their opening statements.
Crown prosecutor Robin Bates told the jury that all the evidence showed David Bain killed his family, describing the evidence as circumstantial but strong. He said the Crown case would show that the father, Robin Bain, was not the killer. He laid out the case against David, describing graphically what the Police found at the scene and how this was consistent with David killing each of his family members in turn. David had called 111 at about 7:10 am. When the police arrived at 7:30 am, they found him hysterical in his room, wailing "they are all dead". His brother Stephen had clearly put up a struggle, while bleeding profusely from an initial glancing scalp wound. Stephen was strangled with a t-shirt, then killed by another gunshot. Bates said David had injuries consistent with this struggle, and had Stephen's blood on his clothes. A lens from glasses David was wearing was found on the floor of Stephen's room, Bates said, and the frame and other lens were found in David's room. David's bloody gloves were found in Stephen's room, and Bates said he must have had to remove them to deal with the rifle misfeeding or jamming on a bullet. According to Bates, Robin would have had no reason to wear gloves if he intended to commit suicide.
David had told police he heard his sister Laniet gurgling, which Bates said meant he was present between her second gunshot wound and the final shot to her head which killed her. His other sister, Arawa, and his mother were both killed by a shot to the head. Robin was found in the lounge, lying on his side between a coffee table and a bean bag, dead from a single shot to the head. Next to him was the .22 calibre rifle, but his fingerprints were not found on it. Both the rifle's trigger lock and its key were found in David's room. Bates said the state of the laundry was consistent with David trying to destroy evidence, especially the green jersey he wore during the killings. Doing his paper round was meant to provide David with an alibi, Bates argued, and he had been sure to be seen along his route. Evidence would also be presented of a conversation David had with a friend six days before the murders, when he told her he had a feeling "something horrible" would happen. After the killings, he told her they were what he had told her about before.
Defence lawyer Michael Reed described the Crown's case as absurd, saying they glossed over the killer's motive and merely pointed to an argument between Robin and David over a chainsaw. He said the defence case would be that Robin killed the other family members, before killing himself. He told the jury that Robin did this because his incestuous relationship with Laniet had come to light, that she was "going around telling everybody" that he molested her, and had come home to tell her mother about the abuse that night. Reed said that Robin, a missionary and school teacher, was depressed, and his life would be ruined by the incest allegations. He said that for three years Robin had been living in a van behind the school and was banished to a caravan behind the house when he came home for the weekend. Laniet had stayed with him in the caravan, Reed said. The defence would call "startling evidence" showing Robin was the killer, including forensic evidence. Reed was scathing about the police investigation. It soon developed a one-track focus on David, he said, and other leads that did not fit this picture were dropped. Reed said some of the evidence was lost, destroyed, or never collected, including blood samples from under Robin's fingernails. He said that despite a neighbour telling Police about the incest allegations, "Laniet's diaries and letters written to her mother were destroyed" although they might have contained allegations of incest from Laniet.
Testimony
A teacher at Laniet's school testified that Laniet had been very open in conversations with him, in which she said that she gave birth to a black child in Papua New Guinea after being raped. He said she had later changed her story, saying that she had an abortion.Verdict
The retrial lasted three months, with 130 witnesses being called by the Crown and 54 by the defence. The last evidence was presented on 27 May 2009. The jury retired for several hours the following week to consider their verdict after hearing closing statements from the prosecution and defence, and the judge's summing up. They had two questions for the judge the following morning: "What are the rules of reasonable doubtReasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
?" and "Can you please clarify your statement 'It must be David to the exclusion of Robin'?" The judge replied, in part, that they must be sure the accused was guilty, after careful consideration of all the evidence, and that the Crown case had excluded Robin as killer. He said, "It is not enough he is probably guilty or even very likely guilty, you must be sure". He said that reasonable doubt was an honest and reasonable uncertainty about guilt.
At 4:45pm on the afternoon of 5 June 2009, the jury gave their verdict: they found David Bain not guilty on all five charges.
Jurors' conduct and concerns
After the verdict, one of the jurors (a thief with a conviction from 2007) hugged by David Bain outside the court building, and another juror shook Bain's hand. That evening these two jurors briefly joined a party being held by Bain supporters, to which they had been invited by Joe Karam. Reports vary on why and when they left, this being either "after only a few moments" because they then felt it might be inappropriate, or minutes later because they were asked to leave. These actions have been seen as questionable, and have prompted calls for a review of how jurors are prepared for such cases. Opposition justice spokesperson Lianne Dalziel said the jury should have been debriefed together after giving their verdict. Journalist Martin Van BeynenMartin van Beynen
Martin van Beynen is a New Zealand print journalist and columnist for the The Press, Christchurch.-Early life:Of Dutch extraction, van Beynen was raised in Auckland. He attended St Peter's College. where he played Rugby union. He attended the University of Auckland where he graduated with an M.A...
noted that the two jurors spent the last three weeks of the trial giggling and writing messages to each other. One juror said that each of the jurors had been approached during the retrial by people who believed David Bain was guilty.
Possible compensation
David Bain could receive compensation for spending 13 years in prison before being found not guilty. Justice Minister Simon Power said no application for compensation had been received as of 5 June 2009, but any application would be considered on its merits. Otago University's Dean of Law Mark HenaghanMark Henaghan
Raymond Mark Henaghan is the Dean of the Faculty of Law of the University of Otago in Dunedin, New Zealand. His research interests include family law, especially law relating to children, law regarding the human genome, and judiciary law....
said that Bain did not meet one of the four current criteria for compensation, namely that the convictions be quashed with no retrial ordered. While it was possible that the rules could be changed, Henaghan pointed out that Bain would also have to show it was more likely he was innocent than not. It is not enough to be found not guilty, as this does not mean that the accused person is innocent—it is not the same as the exoneration
Exoneration
Exoneration occurs when a person who has been convicted of a crime is later proved to have been innocent of that crime. Attempts to exonerate convicts are particularly controversial in death penalty cases, especially where new evidence is put forth after the execution has taken place.The term...
that DNA evidence may provide, for instance. Law professor Bill Hodge has stated that this would be "an uphill battle". Bain has asked that his belongings used as evidence at trial, including the rifle that was used to kill his family, be returned to him.
If the Justice Ministry decides his claim is worth considering, it will be sent to an impartial QC, rather than a jury, who will decide whether Bain is more likely innocent than guilty. A "Justice For Robin Bain" group has been founded to work against the David Bain lobby. A group of Robin Bain supporters have launched a petition, advertised in newspapers nationwide, calling for David Bain to be denied compensation for the years he spent in prison after being convicted of murder
More recently, Bain has claimed he is innocent and a declaration that he is innocent from the Crown would be sufficient for closure.
Aftermath
In the aftermath of the final appeal, Michael Bain, brother of Robin Bain, gave an interview to the ListenerNew Zealand Listener
The New Zealand Listener is a New Zealand magazine. First published in 1939 and edited by Oliver Duff and the Monte Holcroft it originally had a monopoly on the publication of of upcoming television and radio programmes. In the 1980s it lost its monopoly on the publication of upcoming television...
. He was prompted by troubled feelings about the "hearsay" evidence brought against Robin and the rest of the murdered family while attention focused on David.
Michael Bain also said the wider Bain and Cullen families have been saddened by the allegations against Robin and believe the police "did a magnificent job". Joe Karam has responded by claiming Michael was in "denial" and questioning how well he knew Robin. Rosemary McLeod has described the "most salient" point rebutting that claim is the three weeks the Bain brothers spent repainting their mother's house in January 1994, followed by a stay by Robin at Michael's house on the way back to Dunedin. Four months later, Robin was dead.
The Investigator Special: The Case Against Robin Bain, a documentary created by Bryan Bruce, presented the evidence that he claimed proved Robin was not responsible for the killing of his family members. Bruce particularly focused on the lack of forensic evidence that would link Robin to the murders and the dubious nature of the chain of events that would have had to occur for Robin to commit the murders without leaving any such evidence. Subsequent Broadcasting Standards Authority complaints against One News and TVNZ News at Eight by a 'Simon Boyce' claiming that news items promoting the programme were inaccurate were rejected. Following allegations that Bruce had unfairly portrayed Daryl Young as dishonest, Bruce asked that the police investigate the matter. A police investigation found that Young had given false evidence, but that he would not be prosecuted for perjury.
The December Brother, a 2010 play produced for Wellington's Downstage Theatre, depicted reenactments of the Bain family killings based on the theories put forward by the legal teams for the defence and prosecution during the trial. New Zealand critic David Farrar
David Farrar (New Zealand)
David Peter Farrar is a New Zealand political activist, blogger, and pollster. He is a frequent commentator in the media on Internet issues. Farrar has held many roles within the New Zealand National Party and has worked in Parliament for four National Party leaders.His blog, Kiwiblog, is the most...
praised the production's dramatic tension and realism.
Coroner's inquests
In 1994, the Dunedin Coroner decided no inquestInquest
Inquests in England and Wales are held into sudden and unexplained deaths and also into the circumstances of discovery of a certain class of valuable artefacts known as "treasure trove"...
was needed, as he was satisfied that the evidence shown in court had established the cause of the deaths. After the retrial, New Zealand's Chief Coroner consulted with the local coroner
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
and others to decide whether to conduct inquests into the deaths, as the verdict implied the death certificates may not be accurate. He then announced that an inquest would only be held if one was requested and the High Court or solicitor-general granted the request. A Law Society spokesman said that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against David Bain.
Popular culture
The jumpers worn by David Bain during the original trial became a symbol of the Bain case. During the retrial T-shirts inspired by the jumpers were sold on TradeMeTradeMe
Trade Me is the largest Internet-auction website operating in New Zealand. Managed by Trade Me Ltd the site was founded in 1999 by New Zealand entrepreneurSam Morgan who sold it to Fairfax in 2006 for NZ$700 million...
and on the Mr Vintage website. Although 10% of the profits from the T-shirts were donated towards a charity dedicated to combating family violence, they were condemned as making a profit from people's misfortunes, with World fashion label founder Denise L'Estrange-Corbet pointing out the trial was about "the murder of his family".
Further reading
- Joe Karam David and Goliath: the BAIN family murders (Auckland: Reed, 1997) ISBN 0-7900-0564-6
- James McNeishJames McNeishSir James Henry Peter McNeish, KNZM , a New Zealand novelist, playwright and biographer, was born in Auckland in 1931 and travelled the world as a young man - working as a deckhand on a Norwegian freighter in 1958, and recording folk music in 21 countries...
The Mask of Sanity: The Bain Murders (Auckland: David Ling, 1997) ISBN 0-908990-46-4. - Joe Karam Bain and Beyond (Auckland: Reed, 2000) ISBN 0-7900-0747-9
- Judith Wolfe and Trevor Reeves In the Grip of Evil: The Bain Murders (Dunedin: Square One Press, 2003) ISBN 0-908562-64-0
External links
- News media coverage:
- David Bain trial, stuff.co.nz.
- Bain retrial, Otago Daily Times.
- David Bain News, TVNZ.
- David Bain, 3 News.
- David Bain Case, The New Zealand Herald
- Chronology of Bain's Legal Battle, from infonews.co.nz.
- Application for Royal Prerogative of Mercy: David Cullen Bain, Minister of Justice, 31 October 2000.
- Crime.co.nz Unofficial NZ law enforcement web site with information on the case.
- The Investigator- The Case Against Robin Bain