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David Bain found not guilty

Friday 5 Jun 2009 4:44 p.m.

The jury in the David Bain retrial has found him not guilty of murdering his family in Dunedin 15 years ago.

The seven women and five men on the jury at the High Court at Christchurch retired about 4.30pm yesterday after Justice Graham Panckhurst summed up three-month trial which heard evidence from 184 witnesses, which total 3707 pages of evidence.

Bain was accused of shooting dead his parents, Robin and Margaret, sisters Laniet and Arawa and brother Stephen in their Every Street, Dunedin home in June 1994. But the defence contended that Robin carried out the killings before turning the gun on himself.

Bain, now 37, had been found guilty of the murders after a three-week long trial in 1995.

But a retrial was ordered after the Privy Council sitting in London ruled that a "substantial miscarriage of justice" had taken place at the first trial.

To get its not guilty verdicts, the David Bain defence team needed to provide grounds for reasonable doubt and a convincing villain.

They needed to make the trial about David's father Robin.

They needed to make him appear potentially suicidal, and they had to make him strong enough to win the fight to the death with his 14-year-old son, Stephen, and physically capable of shooting himself in the head with a rifle.

The Crown said the suicide was too difficult: that he would not have been able to juggle the heavy .22 calibre rifle, with the silencer on the end, and hold it at the improbable angle required to shoot himself in the temple.

But there was a day when all that changed. Wednesday April 8.

On that day, about a month into the three-month High Court hearing in Christchurch, the trial came alive.

The defence said the suicide was viable and produced seven photographs to show how Robin could have killed himself with the rifle.

Suddenly, suicide was at least a possibility and Robin was back in the picture.

The experts would argue the details, and disagree for weeks.

For some, the rifle was held close to the head, and for others it was more distant.

Photographs were examined minutely. Every blemish on the skin of Robin Bain seemed to be on trial there for a time.

And the bottom line is that some of the highly qualified experts who came along to High Court No 1 to give evidence had to be just plain wrong.

The defence spent weeks establishing the black and bleak world view of school principal Robin Bain, struggling with his health, his job, his marriage.

His life was a mess whether living in an old Commer van near Taieri Beach School south of Dunedin during the week, or living in a caravan at the family home at Every Street, in the city, at the weekends.

His life was coming apart, the defence said.

And on the night before the killings it all came to a ghastly head with a family meeting and presumably the revelation that Robin had been sexually abusing his 18-year-old daughter Laniet for years.

It seems that so many of the Bain family had to die because they knew something.

This strange, dysfunctional family had secrets and their house with its eccentric lines, slumps, faded and peeling paint, looks rather like a metaphor for the oddities within.

Robin was painted as being at the edge of reason, disorganised, hopeless, ill and frail -- a walking cadaver one witness said.

Margaret was a mother who wanted to bulldoze the place and build again, but not a house, a retreat. She was a mother who had new age spiritual beliefs, and once decided that she was going to go to bed for six weeks.

Arawa, aged 19, seems to have been the one who kept the household ticking over.

Laniet no longer lived there but stayed that night. She had been working in the sex industry but had given it up. Portrayed by the Crown as a flake, a girl who claimed to have had three children by different fathers and an abortion by the age of 12-and-a-half.

The defence said she was in an incestuous relationship with her father, and she mentioned that time and again -- not just to her friends, her workmates, but even to the grocer who lived across the road from her flat.

Stephen was a fit, strong boy and he undid the killer's plan.

How could a teenage boy be such a danger?

By waking up, probably.

When the killing began in the morning, Laniet Bain was probably the first to be shot.

In fact, she seems to have been at the centre of the maelstrom that engulfed the family in that pre-dawn hour on June 20, 1994, at number 65 in the street with the oddly inappropriate name, Every Street.

Then the killer shot Margaret, killed in her bed.

There was only a curtain between her bedroom and Stephen's room and it seems like the sound must have woken the boy.

He got up. He was moving when the killer entered through the curtain and he put up a fight that upset all the plans for the quiet dispatch of the family.

The first shot went through Stephen's raised hand and glanced off his head. There was blood spurting and the boy fought for his life.

He scratched, struggled, and had to be strangled into submission with his own t-shirt twisted around his neck. It seems he was still conscious as the killer took the rifle and fired the final head shot that killed him. He had his hand up to the rifle even then.

For reasonable doubt, the jury had to accept that Robin Bain was capable of getting into this fight and winning.

The Crown said it could not be Robin, because he was too small and not strong enough. Stephen was 55kg and Robin was 72kg.

But Robin's brother, Michael Bain, said last time he saw Robin, he was able to pick up a very heavy bag that he couldn't lift himself.

The defence made the point that Stephen had been shot in the head and probably through the hand as the brutal encounter began.

He may have been stunned, shocked, in pain and one-handed. Could that have been enough to give the older man the advantage?

But it begs the question: why did the killer wear gloves -- white opera gloves that belonged to David and were found covered in blood in Stephen's room?

What was Robin's plan if he needed to conceal his fingerprints? Before he supposedly made the decision to kill himself, can it be that he was hoping to frame David for the murders?

If it was only David who had any reason to wear gloves, what was the defence's reply?

It was simply this: Don't try to make up a rational explanation for someone who was acting irrationally.

The defence had to contrast the two men, forcefully and in detail.

It said the elder man was suicidal, depressed, revealed as a sex abuser, while his son David loved his family and had everything to live for.

David was portrayed as jovial, convivial right up to the day before the murders -- a man who had made a music CD the week before and might have had a career ahead as an opera singer.

The difference too was that David Bain was right there in court looking calm, normal, rational.

He was confronted by the crime's ghastly images on the court's computer screens as much as anyone else, and looked away.

He was seen every day walking between the defence team's lodgings nearby and the Court House.

When he arrived at the courts on the day of the defence closing by Michael Reed QC, a group at the doors clapped and wished him luck.

On one Saturday early in the trial, he could be seen with a coffee in hand, taking a punt ride on the Avon River near the courts.

It was done without media attention, except for a court reporter waiting at a bus stop. The normality of it was stunning.

The defence played upon his presence with skill, with Mr Reed's very last exhortation to the jury: "Put David out of his misery, return him to freedom with a not guilty verdict on all charges."

For ex-All Black Joe Karam the odds must have seemed somewhat more threatening that a rugby field.

On the field, where Karam first made a name for himself, the man with the ball only has 15 players out to get him.

But Karam has portrayed his long fight to free David Bain as him against the police and crown monolith.

He even entitled one of his three books, David and Goliath.

"Since we won leave to appeal to the Privy Council in 2006, I have been full time," Karam said during a break towards the end of David Bain's three-month retrial.

"It has been me versus 25 detectives."

He has been everywhere during the trial, organising and overseeing, passing notes, even taking his turn on the defence team's coffee run to Coffeesmiths across the road from the Court House.

The Bain campaign gained traction when Karam got involved 11 years ago, but it has meant taking on a huge burden for the businessman.

That has included the successful defence of a defamation action taken against him by a police officer.

He has said that involved 2-1/2 years of "working night and day" to prepare David Bain's defence.

He has earlier put the personal cost - in terms of actual costs, lost earnings and lost opportunities - at between $3 million and $5 million.

That doesn't include the resources that he must have poured into the running of one of the most extraordinary and perplexing trials that New Zealand has ever seen.

Key dates in the Bain case:

June 20, 1994 - David Bain's parents, Robin and Margaret, two sisters Laniet and Arawa and brother Stephen are shot and killed in their Dunedin home. Bain calls emergency services in a distraught state.

June 24, 1994 - Bain is charged with five counts of murder. The following day the rest of his family are farewelled by 1000 mourners.

July 7, 1994 - Bain home is razed by Fire Service at request of family.

October 1994 - Depositions hearing begins and Bain is committed for trial in May 1995.

May 8, 1995 - Three-week-long murder trial begins in the High Court at Dunedin.

May 29, 1995 - Jury finds Bain guilty on all five murder counts.

June 21, 1995 - Bain sentenced to mandatory life term, with a minimum non-parole period of 16 years.

December 19, 1995 - Court of Appeal dismisses Bain appeal.

May, 1996 - A petition to Privy Council seeking leave to appeal fails.

July 22, 1996 - Court of Appeal lifts suppression order covering defence witness Dean Cottle and evidence that was to have been presented at Bain's murder trial. It alleges Laniet told Cottle that her father was having an incestuous affair with her and she was going to confront the family about it.

February, 1997 - Bain defence team prepares petition to Governor-General seeking a pardon.

April 16, 1997 - Joe Karam launches his book, David and Goliath. It says Robin, not David, was the killer, and that police botched the investigation.

May 5, 1997 - Police appoint Assistant Commissioner Brion (crrt) Duncan to head an independent inquiry reviewing police handling of the murder investigation.

June 23, 1997 - James McNeish releases his book, The Mask of Sanity, concluding that David was the killer.

November 25, 1997 - Police in the murder investigation are cleared by the joint police and Police Complaints Authority inquiry. It finds no major flaws in the police investigation and says criticism that police were incompetent is unjustified.

March 1998 - Police say Dunedin officers will sue Karam over claims in his book.

June 1998 - Petition of 113 pages and 290-page supporting document seeking a pardon for Bain is lodged with the Governor-General.

June 1999 - Former Dunedin pathologist Jim Gwynne presents petition to Governor-General seeking pardon for Bain. Dr Gwynne says evidence shows Robin Bain committed suicide.

June 9, 2000 - Damages suit brought against Karam by two Dunedin detectives, one since retired, fails at the High Court in Auckland.

December 19, 2000 - Bain has aspects of his case referred back to the Court of Appeal. Justice minister Phil Goff said an investigation had shown that "a number of errors" may have occurred in the Crown's presentation of its case.

October 2002 - Court of Appeal considers four aspects of the case referred to it by Mr Goff.

December 20, 2002 - Mr Goff announces the case is to be reheard in full by Court of Appeal.

December 13, 2003 - Court of Appeal decides a retrial was not needed on the grounds that the new evidence would not have changed the jury's verdict.

June 7, 2006 - Bain's legal team wins right to a full Privy Council hearing.

March 8, 2007 - Five-day Privy Council hearing in London begins.

May 10, 2007 - Privy Council quashes Bain's convictions, saying there had been a substantial miscarriage of justice.

May 15, 2007 - Bain released on bail, in High Court at Christchurch.

June 21, 2007 - Solicitor-General David Collins orders a retrial.

March 6, 2009 - Retrial starts in the High Court at Christchurch.

June 5, 2009 - Jury finds Bain not guilty on the five murder charges.

NZPA

 

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