Jury has 'awesome responsibility': defence

A 15 year trip was nearing its end and the jury was given an awesome responsibility to decide whether David Bain went home tomorrow, penniless but free, his defence lawyer said.

Full coverage in tomorrow's ODT.
Full coverage in tomorrow's ODT.

The Bain case was undoubtely the most extraordinary case in NZ history, he said, because there was so much uncertainty and controversy.

"Why has it taken so many courts before we got here?"

David had sat in prison "rotting" that whole time, his singing voice unused, his family money gone, a "really nice guy", with a lovely smile and a nice way about him, Mr Reed said.

"He is not a murderer. He still loves his family and still misses them. What a tragedy to lose you family and then four days later lose your freedom."

The consequences for the jury were "awesome", he said.

"You cannot possibly consider, if you are fair and have listened to the evidence . . . that there is not a reasonable doubt on so many things."

Michael Reed finished his closing argument at the David Bain retrial in Christchurch at 3.30pm.

The court wil reconvene at 10am tomorrow morning for Justice Pankchurt's summing up.

The jury has been told they must stay together while deliberating.

3.30pm: What murderer would sort the coloureds from the whites, as David Bain did, when putting on a load of washing the morning his family was murdered?

That was the question Mr Reed asked jurors to consider during the retrial of David Bain in Christchurch today.

Mr Reed said the Bain laundry was dark and dingy, and it was possible David sorted the clothing and got blood on his hand from the blood-soaked jersey his father had put there earlier.

If the jersey was covered in blood, it would have been " a bit odd" if a little blooddidn't get on his hand.

But if he was the killer, and he was so keen to get rid of some items covered in blood, it seemed likely he would wash the white gloves as well, he said.

"It makes absolutely no sense whatsoever. It's a nonsense."

The urine argument - that Robin Bain would have had to empty his bladder before commiting the murders and killing himself - had also been proven a nonsense by a urologist who said a man of Robin Bain's age with an enlarged prostate could easily have held on.

Speaking of the topic of the message left on the computer, he noted the first word was indented and a comma was used.

"What young person would ever indent like that?", Mr Reed asked.

The defence had to consider that police officer Milton Weir had planted evidence against David Bain in Stephen's room because of the evidence about Mr Weir's untrustworthiness, documented in his own words in a report prepared when he left the police force.

In the report, Mr Weir first said he could not trust his own officers, and then that other officers did not trust him following innuendo and rumours relating to the Bain case, Mr Reed said.

What was the defence supposed to think when Mr Weir accepted the lens could not migrate by itself under an ice skate, and when he painted a sign saying "Hang David Bain" on the side of his house, he asked the jury.

He also asked why, if there was a great struggle with Stephen and David Bain was wearing his mother's glasses, there no biological matter on the glasses.

The injuries on David Bain were so minor they could have been caused by anything, including when he fell off the bed while police where there, or when police pulled him back up, Mr Reed said.

"If there had been this fight as suggested you'd have expected much more."

Mr Reed said the business of ambulance offivers saying David faked fits was nonsense: "He simply fainted."

With regards to Laniet's gurgling several expert witnesses had agreed you could survive minutes after a serious sudden brain injury.

That fitted with a scenario in which David returned only a few minutes after Robin killed himself after killing the others, Mr Reed said.

Even after the debate about which shot was fired first of the three shots to Laniet's head, all agreed she might have survived longer which ever order the shots were fired, Mr Reed said.

"This so-called gurgle is shaky and dangerous on all sorts of grounds, could she have survived longer? Yes she could."

Three witnesses said bodies gurgled after death even when not touched.

"It happens."

There was no blood under David Bain's fingerprints on the murder weapon and ESR and the Victorian forensic centre could not find any DNA on the gun.

Crown witnesses were not clear where they took samples that returned a blood result.

"No-one can agree on these things, and yet you are somehow expected to decide one way or the other, and beyond a reasonable doubt," Mr Reed said.



2.20pm: A suggestion from the Crown that David Bain wasn't showing genuine distress after his family were murdered was nonsense, the defence says.

"How is anyone meant to know how any of us respond in those circumstances?" defence lawyer Michael Reed said in his closing argument in Christchurch today.

"In fact David's psychiatrist said there he had symptoms of post traumatic stress disorder, backed up by the evidence of the undertaker who said David was acting as a person in shock and there was no set pattern to how people reacted to sudden deaths."

The 111 operator thought he might be on drugs or drunk. Other witnesses said he appeared distressed and disturbed,or in a catatonic state.

The Crown had not proved David Bain was guilty beyond reasonable doubt because they could not discount suicide, and therefore could not discount Robin.

Mr Reed said police could have taken swabs from Robin Bain, made sure his hands were wrapped before moving him and could have had an accurate time of death of they let the pathologist in earlier.

They could have had a better photographic record and could have retained the numerous vital samples.

"But this has not happened and hampered the case for us.

It has been unfair for the Crown to do all that and then present their case as they have done.

He noted that Mrs Mitchell, whom the Crown said had provided proof David Bain had used his paper run as an alibi because he unusually went right to her door to make sure she had seen him that morning, had also told police she usually left treats such as lollies or chips at her door on Mondays if the paperboy brought her paper right to the door.

12.45pm: There were too many "don't knows" in the Crown's case that David Bain killed his family, the defence said in its closing argument at David Bain's retrial in Christchurch today.

"You are going to determine David's future, you are going to determine what happens to his life, it is in your hands. What a decision you have to make, but its got to be beyond reasonable doubt.

"Everywhere you look there is uncertainty," lead counsel Michael Reed said to the jury before the court adjourned for lunch until 2pm.

The Crown did not know why David Bain killed his family.

"If you can't come up with a reason, there is no reason.

"They did not know how depressed Robin Bain was, because they had did not carry out an investigation because they had made an arrest and had to continue heading in that direction.

"They did not know if there was incest or Laniet was telling stories."

The Crown had said they did not know what time the computer was turned on, although the defence had determined it was probably turned on about 6.41am.

However, the Crown's own witness, Mrs Laney, had proved David Bain could not have been home when the computer was turned on around that time when she testified to seeing David Bain come home about 6.45 am.

"They don't want to know the time, because they, not David, have created David's alibi.

"They did not know if Robin Bain's wound was a contact would, nor did they know if he had committed suicide, or if Robin had set his alarm, or what order the murders were committed in."

12:20pm: Robin Bain changed his clothes after killing his family, because he was mentally ill and irrational and did not want to meet his maker covered in blood, defence lawyer Michael Reed has told the David Bain retrial.

"People do strange things when they commit suicide, they do odd things and kill themselves in very odd ways.

"We don't know what was in that man's deranged mind at that time.

"There were spent bullets, the same type as were used in the killings, in Robin Bain's caravan and he had a key for the trigger lock of the murder weapon."

That David Bain told police he was the only one who knew where the spare key, was irrelevant because it was unlikely the killer would admit to such a thing.

Any weight on the evidence that Robin Bain was a gentle man who would not hurt a bumblebee was discounted by Mr Reed.

Quiet, gentle people flipped and did terrible things often in life, he said.

"To suggest he wouldn't hurt a living thing is to disregard totally the irrational behaviour of a terribly depressed man."

12:10pm: A bloody sock print on the carpet in the Bain house, which must belong to the killer, came from Robin Bain because David's walking foot measured 300mm so could not have been the 280mm print recorded by police.

His father's foot measured 270mm, which witnesses had testified could on carpet leave a print of 280mm when sprayed by luminol.

Experts had also tesified the smallest enhanced luminol footprint was never smaller than the actual foot, but always longer, so David Bain's foot could never have made that print because it was longer than 280mm in the first place, Mr Reed said.

"It is as obvious as the fact night follows day, it is so obvious.

"The Crown had attempted to discredit their own tests because they proved the defence case, he said.

When the defence used David's own foot to test whether he could have made the 280mm print they were criticised by the Crown, he said, but there was no basis that David, if he was the killer, would try and make his footprint longer on purpose.

"They cannot have Robin with that bloodied footprint that is why they are making such an effort now to discredit their own evidence."

11:45am: Robin Bain had to listen to plans for a new house, which he was not to be part of, Michael Reed said as the court returned from the morning break.

He said David Bain was left penniless, a significant amount of money in the family's name was distributed to family, who gave evidence for the Crown.

Laniet Bain told many people about the incest, and had done so for some time before the deaths.

"We don't know what is the truth of what was really happening between Laniet and her father, obviously something was going on, but we do know Laniet was going around telling people that.

"If she had blurted some allegation out that night, it would have ruined their lives.

Robin went to the dairy and wanted to pay Laniet's bill, that before the deaths he asked for a final power reading at the school house and was discussing buying rifle and shooting rabbits.

Mr Reed said the jury should compare Robin with David who was described variously as relaxed convivial, horsing around on the Sunday before the deaths, upbeat level-headed, fun to be with, cheerful, a talented singer with a sense of humour, always pleasant and friendly.

He spent the next three minutes reading out excerpts from witnesses, who said similar things.

11:10am: David Bain was well-liked and happy, and people who saw him the day before the murders of his family said he was in a good mood, the defence has told the David Bain retrial this morning.

People who saw him the day before the murders said he was joking and happy, lawyer Michael Reed said

The Crown had supplied no evidence of how David Bain "went crazy and killed his family", and the suggestion that David was affected by being in the play Oedipus Rex or by seeing the movie Schindlers List were "unfair" and "nonsense".

His reference to something horrible about to happen was about his girlfriend leaving the country and him losing everything he cared for.

Images of black auras and black hands could refer to the onset of a migraine.

To have a cunning plan as the Crown had said David did, a person would need to be cold-blooded, but there the evidence showed David Bain loved his family, Mr Reed said.

To cold-bloodedly kill your family, have an hour off, come back and then shoot your father required a psychopath.

David Bain's psychiatrist had said he was not one, Mr reed said.

"Who is the more likely person to be a homicidal maniac? Is it a nice friendly jovial 22-year-old with a new girlfriend, cutting a new CD on the Friday singing, or is it this sad, sad, father on a downhill slide?"

11am: Robin Bain was strong enough to fight his son Stephen, after Stephen was woken by being shot the first time, the defence in the David Bain retrial says.

Stephen had a gouge across the top of his head and was losing a lot of blood, so it was a nonsense to say Robin could not fight him off, defence lawyer Michael Reed said

"We all know however strong and weak we are, if the occasion is right and the adrenaline is running . . .we all know we'd fight back much more than we believed we could."

"Robin had flipped" and "clearly has a mental disorder at that stage".

10:46am: The lack of testing of blood samples on Robin Bain's hands, and the subsequent destruction of the samples has "extremely disadvantaged" David Bain, Mr Reed said.

Traces of blood under Robin Bain's fingernails were never tested.

"If he was not involved in the murder why would there be blood under his fingernails, why is there other blood on his hand?"

These were examples of evidence that could have helped David.

"He sits there now facing five murder accusations. He can't have the privileges of having those samples tested again.

"The untested blood on Robin's Bain hands linked him to the murders, Mr Reed said.

10.31am: It is extraordinary that there was not more blood on David Bain if he killed his family, defence lawyer Michael Reed has told the Bain murder retrial this morning.

There was "the lightest mere smear" of blood on the back of the t-shirt David Bain was wearing, the crotch of his shorts, and several drops on the bottom of his sock.

The blood issue was entirely consistent with David Bain coming home into the house, walking into his brother Stephen's room, crouching down and getting the nearest blood on him.

There should be blood on the v-neck of the white t-shirt if the killer had worn a v-neck green jersey over it to commit the murders, but there was none, Mr Reed said.

If there was a fight and there was blood flying around blood should be found on top of the socks, but there was none, which was "almost inconceivable".

In shock and moving about, David touched something - "the lightest touch that is all it was" - and blood was smeared on his clothes.

"Wouldn't it be more suspicious if David Bain had no blood on him at all? Everything David Bain has said fits in entirely with what in fact happened."

10:10am: Mr Reed began the defence's closing argument at the retrial of David Bain today, telling the jury the Crown could not prove beyond reasonable doubt that David Bain killed his family.

Mr Reed began by thanking the jury for their patience and service to the community.

David Bain's life had not been his own for nearly 15 years and he had waited 15 years for this day, he said.

Mr Reed said he Crown yesterday did a "huge u-turn in its case. It suddenly said don't worry about things it had previously relied on."

Crown lawyer Kieran Raftery had effectively told the jury to instead rely on Stephen's room, Mr Reed said.

"Suddenly the crown realise their case is in tatters when it comes to the question of the contact wound...suicide is obvious and the situation in Laniet's room is so confused, they don't know what happened there."

He dubbed it the "don't know prosecution" because all the Crown had done was present a list of things it did not know, he said.

The Crown could not prove beyond all doubt that David Bain was the killer.

The main point was not did David Bain do it or did Robin Bain do it.

"This is not a contest for us this is a case that Robin did it, but the Crown has an onus to prove beyond reasonable doubt that it was not Robin."

He said he would show the jury the forensic evidence that Robin Bain was the killer.

• This is 37-year-old David Cullen Bain's second trial for the June 20, 1994, murders of his parents and three siblings at their Every St home.

Bain was found guilty at the end of a three-week trial in the High Court at Dunedin in May 1995, and was sentenced to life imprisonment with a 16-year non-parole term.

He was released on bail two years ago, after the Privy Council ordered a retrial.

 

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