Tortuous search for justice

David Bain was convicted of murdering five members of his family in 1995, yesterday he was found not guilty. Debbie Porteous reports on what has been described by defence lawyer Michael Reed QC as the "most extraordinary case in New Zealand legal history".

The Bain family (from left) Robin, Margaret, Laniet, Arawa and Stephen.

Fifteen years ago, a 22-year-old Dunedin music student told police he had arrived home after completing his newspaper delivery round to find his brother, two sisters and parents dead.

On Thursday this week, a second jury retired to decide if David Bain, now 37, was telling the truth.

For more than three months, the jury of seven women and five men listened as hundreds of pieces of circumstantial evidence were presented in the retrial of Mr Bain.

The pieces of the puzzle were presented in a trial interrupted frequently by objections, interjections and breaks for legal argument.

Much has happened since school principal Robin (58), his wife Margaret (50) and their children Arawa (19), Laniet (18) and Stephen Bain (14) were shot to death in their Every St, Andersons Bay, home.

Far from resting in peace, the dead family members have seldom been out of the news.

David Cullen Bain was convicted by a Dunedin jury in 1995 of their murders and served 12 years in prison for the crimes.

The strange and strained family life of the Bains has been put under a very public microscope, from their years as missionaries in Papua New Guinea to allegations of prostitution, incest, extreme new age beliefs and dysfunctional relationships.

But not everyone thought the jury in the first trial got it right.

Freeing David Bain became a cause.

Started by a group of people known to him from his days in Dunedin's operatic and theatrical circles, the fight was taken over by the indefatigable Joe Karam in 1996.

His campaign raised questions about the evidence that put David Bain behind bars for life with a minimum parole period of 16 years.

Mr Karam criticised the police investigation of the murders and claimed there was new evidence to suggest Robin Bain, not his son David, could have been the killer.

The big breakthrough came in 2007 when the Privy Council in London decided, because of the defence claim of new and relevant evidence, a miscarriage of justice had occurred.

On this basis the case was remitted to New Zealand for retrial.

The defence then brought a series of applications, including going back to the Privy Council, for an order that there be no retrial.

The Law Lords quashed Mr Bain's murder convictions and ordered New Zealand courts to consider whether a new trial was needed.

Mr Bain was granted bail a few days later, but was not allowed to return to the South Island, Wellington or Hamilton, where members of his wider family lived.

It is implicit in Mr Bain's plea of not guilty that he denies committing the murders.

However, he claims to have no memory of what occurred that morning and cannot say he did not commit the murders.

On March 5 this year, those who felt Mr Bain had been victimised by the original police investigation got their chance to have a retrial, but this time it would be in Christchurch, in front of a jury far removed, both geographically and emotionally, from the events that took place at 65 Every St, Dunedin, in 1994.

In the beginning . . .

The Bain family murders are arguably New Zealand's most complex and controversial murder case.

It all began on June 20, 1994, when the people of Dunedin awoke to the horrifying news that the Bain family had been murdered.

Five people had been shot, four of them as they lay sleeping, in their Andersons Bay home.

From the outset, police investigated the scenario that Robin Bain had killed his family, then himself, sparing only his eldest son.

Four days later, police arrested David Bain and charged him with killing his family.

The five family members were buried on June 26. David, by then in custody, did not attend the funerals.

The Bain home was burned to the ground two weeks later with the consent of David and the extended family.

A three-week trial followed a year later, in which 80 witnesses gave evidence for the Crown, and three, including David Bain, were called by the defence.

The Crown presented 10 main points of evidence it said pointed to David Bain as the killer.

The evidence included:

> The lens from David's glasses found in Stephen's room.

> That he heard Laniet gurgling (so must have been the killer).

> That it was David's gun and his bloody fingerprints were on it.

Defence lawyer Michael Guest argued if David Bain was the "cold-blooded killer and planter of false trails" as alleged by the Crown, he would have better covered his tracks.

He also pointed out that any one of several scenarios in which Robin Bain killed his family and then shot himself could have fitted the evidence.

After nine and a-half hours, the jury in the High Court at Dunedin returned a verdict of guilty on all five counts of murder.

Mr Bain was sentenced to life imprisonment, with a 16-year minimum parole period not including the year he had already spent in jail, on June 21, 1995, a year and a day after the murders.

In January 1996, Mr Karam became involved in the fight to free Mr Bain.

A former All Black, Mr Karam became much better known through his campaign to right what he saw as a great legal system injustice.

All-consumed by his absolute certainty there was enough doubt about evidence to show Mr Bain should not be in jail, Mr Karam's loyalty to the cause has never wavered.

He became involved with the case after reading articles about the trial and Mr Bain's supporters, who were launching an appeal to raise funds to refer the case to the Privy Council in London.

David Bain's appeal to the Court of Appeal had failed the month before and this seemed to be his last chance.

Mr Karam did not know Mr Bain.

"What drew me in was not meeting David's friends or David Bain. It was simply an analysis of evidence that led me to believe there was some misrepresentation. Seen in its proper light, it suggested he was not guilty. It was not some simple belief that David was innocent."

Mr Karam supported the appeal.

He also obtained the rights for all magazine articles and books - which he would share with Mr Bain - although he has always denied he was in it for the fame, publicity or money.

A successful Auckland businessman in the late 1990s, and the father of three, Mr Karam's 13-year fight to free Mr Bain has reportedly cost him millions of dollars, his home and some business interests.

He says it was purely the evidence that drove him to take on such a huge financial and emotional burden, and he becomes angry at suggestions he has become obsessed and has lost perspective.

Mr Karam's extensive knowledge of the case led to him being installed as an honorary member of the defence team, appointed by himself acting on Mr Bain's behalf.

When the Privy Council in London turned down the 1996 appeal, Mr Karam replaced Mr Guest with Dunedin lawyer Stephen O'Driscoll and Dunedin barrister Colin Withnall QC, and when Mr Withnall stood down from the case after seven years, he was replaced by Michael Reed QC, who has led the legal battle to have Mr Bain acquitted.

Two books about the Bain family murders were released in 1997. David and Goliath by Mr Karam detailed his hypothesis that Robin killed his family and then himself in an attempt to hide details of an incestuous affair with daughter Laniet.

The book also criticised Mr Bain's original defence team and called the police inquiry "bungled and incompetent".

It targeted investigating police officers Milton Weir and Kevin Anderson, insinuating they had behaved corruptly to get their man.

The allegations were later the subject of a failed defamation suit against Mr Karam.

Police said the book contained factual errors and was in part pure speculation, but to allay public concerns, an "independent" review of the investigation was ordered.

The review, carried out by a senior police officer, vindicated the investigation and found no evidence of any criminal behaviour or misconduct by any officer.

James McNeish's book, The Mask of Sanity, suggested there was no question David Bain was guilty.

After researching the psychology of the Bain family unit over several years, Mr McNeish, an author and playwright, offered a motive - that David Bain killed his family to escape them and the "collective madness" which emanated from his mother's paranormal diversions and religious beliefs.

The defence case

As the debate continued through the media between those fighting to free David Bain and those convinced the right man was behind bars, many allegations were made, but it was the contention that Robin Bain could have been the killer that became the central plank of the defence in David Bain's retrial.

During 57 days in court over three and a-half months, the jury heard from 54 defence witnesses and 130 prosecution witnesses.

More than 3700 pages of evidence were presented.

In the preceding 18 months, dozens of legal arguments over the admissibility of evidence at trial were held in the High Court.

Dozens of those decisions on the various applications were appealed to the Court of Appeal; some of their decisions were appealed in the Supreme Court.

Much of what was argued in those hearings was suppressed.

Finally, on March 7, the Crown, led by Auckland lawyer Keiran Raftery, opened with its contention there was strong circumstantial evidence pointing conclusively to David Bain as the murderer and that Robin Bain did not kill anyone.

Evidence linking David Bain to crime scenes were:

> Stephen's blood on David Bain's clothing.

> David's bloody gloves in Stephen's bedroom.

> One lens from glasses David was wearing being found in Stephen's room while the frame and the other lens were in David's room.

> Scratches and gouge-marks on David which were consistent with the struggle the Crown said took place in Stephen's room.

> David said he heard Laniet gurgling.

> Evidence in the bathroom/laundry consistent with David having attempted to destroy evidence by washing a blood-stained green jersey the Crown said he had been wearing.

> David's bloody palm-print was found on the side of the washing machine.

> David owned the rifle and his fingerprints were on it and the key David said only he knew about was used to unlock the rifle's trigger lock.

The Crown also said David Bain used his paper run as an alibi for the murders.

Mr Reed called the Crown's case "absurd".

He said the police investigation was flawed and accused police of not investigating some matters that clearly should have been looked at, namely that Robin Bain was about to be exposed for committing incest.

He said evidence would show Robin Bain was dangerously depressed and had "flipped".

Much of the new evidence introduced at the retrial, by both sides, was about Robin Bain's state of mind and his actions before the killings.

For each point the Crown raised which, it claimed, proved David Bain's guilt, the defence showed a different version and different result.

The Crown produced three pathologists who said they believed Robin Bain had not committed suicide.

Defence specialists showed the jury 12 different ways he could have.

The Crown produced a friend and a colleague who said there were no indications Robin Bain was depressed.

The defence produced half a dozen witnesses who variously said he was a walking cadaver, was depressed, haggard, unkempt and frustrated.

The defence claimed Robin Bain was the only one with a motive for the killings, that his daughter was about to reveal their incestuous relationship.

The Crown outlined no motive for David Bain.

A police expert said David Bain's fingerprints on the murder weapon were in blood; a British fingerprint expert said they were not in blood, whether human, animal "or any other type".

The Crown said Robin Bain could not have committed the shootings without going to the toilet; the defence produced an expert who said a man of Robin Bain's age and with an enlarged prostate could hold on for as long as he liked.

There were too many unknowns for the jury to be certain, beyond reasonable doubt that David Bain was the killer, Mr Reed said.

David Bain did not take the stand.

• On the sidelines

So, the trial progressed; a long affair characterised by sniping, objections and breaks for legal argument - and that was only by counsel.

Sitting alone at a small table in the downstairs gallery of Christchurch High Court 1, among the various media and police representatives, was Mr Karam.

An ever-wriggling observer, he regularly shook his head passionately when he took issue with something said, muttered, and called over the defence counsel to advise them.

Even his son, Matthew, a lawyer acting for the defence, appeared at times exasperated by Mr Karam's antics.

In the public gallery upstairs during the last week of the retrial, the activity was nearly as strange.

Four girls in school uniform sat alongside a middle-aged man using opera glasses to watch the goings-on downstairs.

David Bain's aunts and uncles filled one side of the front row and members of the Friends of David Bain group filled the other.

A woman in her 50s from Wellington, who had been following the case as part of an online chat-group for two years, had managed to get a cheap flight and was pleased she had not missed the final week.

Beside her, a Christchurch woman in her 40s said she had never before stepped inside a courtroom, but knew this was history in the making and felt she could not miss being part of it.

Elderly supporter Catherine Gibb, of Dunedin, attended court every day of the trial.

Her continued presence and hug for David at the end of most days said something about loyalty and support.

The aunts and uncles who took David in and looked after him in the aftermath of the killings also watched proceedings from above, off and on, for the entire three months.

Feelings upstairs had been quite tense at times, with open displays of hostility early on, one said.

Those flashes of anger passed, but the terrible sadness of the trial never stopped haunting Robin Bain and Margaret Cullen's siblings.

Certainly, the trials of David Bain have engrossed New Zealanders.

The retrial became the talk of lunch rooms, dinner tables and bus-stops across the country,but for those searching for some meaning and explanation as to why such a horrible thing could have happened, there will be no satisfaction from this trial.

- debbie.porteous@odt.co.nz

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