Bain family murders

For the Australian rules footballer, see David Bain (Australian rules footballer).

David Cullen Bain (born 27 March 1972) is a New Zealander who was convicted in May 1995 for the murder of his parents and siblings on 20 June the previous year. He served 12 years of a life sentence before his final appeal to the Privy Council was successful in May 2007. Finding there had been a substantial miscarriage of justice, the Privy Council quashed his convictions and recommended a retrial. He was released on bail to await the retrial, which began on 6 March 2009. It is being held in Christchurch, and is scheduled to take three months.

His case has been the subject of numerous appeals and inquiries, and is one of New Zealand's most controversial murder cases.

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 Guinea 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 the unemployment benefit and working at Opera Alive for a period before returning to university to study classical music 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 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.

The house at 65 Every Street was burnt down on 5 July 1994 by the New Zealand Fire Service, at the request of the Bain family trust.mk

Criminal trial

The three week trial took place at the Dunedin High Court in May 1995 and was presided over by Justice Neil Williamson.

The Prosecution's portrayal of events 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): "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 has maintained his innocence, and 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 Council 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.

Final 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 Thursday, May 10 2007 the Privy Council quashed David Bain's murder convictions, concluding that "a substantial miscarriage of justice has actually occurred." They recommended a retrial, which the Solicitor-General of New Zealand later confirmed would take place.

Privy Council findings

The emergence of much new evidence after the trial led to the later appeals and the eventual overturn of Bain's convictions, pending a retrial. Nine of the most important items 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 luminol 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.

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 Otago 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.

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 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.

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:

1. Knowledge of spare key to rifle
2. Bloody rifle clearer around David's fingerprints
3. 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 again. He was bailed to live with one of his longest supporters, former All Black Joe Karam, but later moved to west Auckland.

Retrial

The retrial was announced 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 have since been made to the courts about the conduct of the retrial.

The retrial is currently under way, with the jury being sworn in on 6 March 2009. David Bain pled not guilty to the five murder charges, and the prosecution and defence made their opening statements. The trial is scheduled to last three months, with around 150 witnesses being called by the Crown and a dozen by the defence.

Appeals and court applications

Following an application to the High Court, Justice Panckhurst decided the retrial will 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 have died since the 1994 trial, many of the exhibits have 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 have been suppressed.

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 will be excluded from the retrial. Details of the hearing remain suppressed.

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 jamming or a misfed 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.

Controversy

Four books have been published about the Bain murders:

• Joe Karam David and Goliath: the BAIN family murders (Auckland: Reed, 1997) ISBN 0-7900-0564-6
• James McNeish 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

This was and remains, one of New Zealand's most complex and controversial murder cases. The debate continues whether it was David or Robin who murdered the Bain family.

References

• Privy Council Appeal No 9 of 2006, David Cullen Bain v. The Queen. Full text of Privy Council ruling, May 10, 2007. RTF format.

External links

• Current media coverage:
  • David Bain trial, stuff.co.nz.
  • Bain retrial, Otago Daily Times.
  • David Bain News, TVNZ.
  • David Bain, TV3.
• 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.
• New Zealand Herald articles: "The case against David Bain" (May 27, 2007) by David Fisher. Also, "Five deaths demand a new Bain trial" (June 3, 2007) by Deborah Coddington, and a response by Joe Karam: "Horrible details still haunt extended family" (June 10, 2007). The retrial decision: "Solicitor-General's statement on Bain retrial" (June 21, 2007) and an editorial in response: "Solicitor-General targets media - and misses" (June 23, 2007).