David Bain

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For the Australian rules footballer, see David Bain (Australian footballer). For the Scottish footballer, see David Bain (Scottish footballer). For the Scottish rugby union player, see David McLaren Bain.
David Cullen Bain
Born (1972-03-27) 27 March 1972 (age 41)
Dunedin, New Zealand
Nationality New Zealand
Known for Convicted of the murder of his five family members in 1995. Acquitted in retrial 13 years later.[1]

David Cullen Bain (born 27 March 1972) is a New Zealander who was convicted in May 1995 of the murders of his parents and siblings in Dunedin on 20 June 1994. 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.[2] He was bailed to the home of Joe Karam pending the retrial which was held in Christchurch. The second trial ended with his acquittal on all charges in June 2009.[1]

Karam, a former All Black, had supported Bain throughout the numerous appeals and, over the years, wrote a number of books on the case. He raised questions about the quality of the police investigation, the burning down of the Bain house three weeks after the murders, and the admissibility of certain pieces of evidence – which became the focus of many of the appeals.

This was one of New Zealand's most complex and controversial murder cases. It generated thousands of stories in the media and opposing views on whether Bain was guilty or not. Speculation continued after he was acquitted including whether or not he should receive compensation for the 13 years he spent in prison.[3][4][5]

Contents

Family background [edit]

David was born in Dunedin, New Zealand to Margaret Arawa and Robin Irving Bain and was the oldest of four children. Soon after he was born, the family moved to Papua New Guinea, where Robin worked as a missionary teacher. The family returned to New Zealand fifteen years later (in 1988) by which time Margaret and Robin were reported as having "relationship problems".[6] Robin Bain became the principal of Taieri Mouth Primary School, a two-teacher school about 50 kilometres down the coast from Dunedin.[7]

By 1994 Robin and Margaret were estranged and Robin was sleeping in the back of his van at Taieri or in the schoolhouse. David Bain and the rest of the family lived at 65 Every Street, Andersons Bay, Dunedin. Robin returned to the family home at the weekends and slept in a caravan in the back garden.[8] Robin was said to be in an incestuous relationship with his daughter Laniet that began when the family were in Papua New Guinea, and was still going on.[9] Fellow teachers later described him as "deeply depressed, to the point of impairing his ability to do his job of teaching children"[10] and said he only showered once a week. One teacher said: "We sort of gathered that he was showering about Sunday or Monday. By Wednesday and Thursday he was getting quite squiffy."[11]

Killings and first trial [edit]

Memorial to the Cullen Bain family in Mosgiel
“
111 Operator: Ambulance, can I help you?
Bain: Help.
111 Operator: Yeah.
Bain: They're all dead.
111 Operator: What's the matter?
Bain: They're all dead. I came home and they're all dead.
111 Operator: Whereabouts are you?
Bain: Every St
111 Operator: What Every St?
Bain: 65 Every St. They're all dead.
111 Operator: Who's all dead?
Bain: My family, they're all dead, hurry up.		 ”

— Excerpt of transcript of 111 call made by David Bain on 20 June 1994[12]

On the morning of 20 June 1994, David Bain called 111 at 7:09 am in a distressed state and told the operator: "They're all dead, they're all dead." When the police arrived they found five members of the Bain family had been shot – Robin Bain (the father aged 58), his wife Margaret (50), their daughters Arawa (19), Laniet (18) and son Stephen (14). Four days later, David Bain, then aged 22, was charged with the murder of all five members of his family. On 5 July 1994, the house was burnt down by the New Zealand Fire Service, at the request of the trustees of the Bain family trust and with David's permission.[13]

At his trial the prosecution claimed that David killed his entire family after completing his early morning paper round[14] – though no motive or explanation as to why David might want to kill them was provided. The lack of motive confused the presiding judge who in his summing up said the Crown had told the jury "... that these events were so bizarre and abnormal that it was impossible for the human mind to conceive of any logical or reasonable explanation".[15]

One piece of evidence was a message found typed on the family computer that read: "sorry, you are the only one who deserved to stay". The defence used this to put forward the proposition that David’s father, Robin Bain, had killed the others while David was out on his paper run – and then committed suicide.[16] Forensic evidence offered by the prosecution showed David Bain's fingerprints were on the murder weapon - but this was to be expected since it was his rifle.[17] After a three-week trial David Bain was convicted by the jury on five counts of murder and sentenced by Justice Williamson to life imprisonment with a 16 year non-parole period.[18]

Joe Karam and appeals [edit]

Main article: Joe Karam

Bain maintained his innocence, and thus began a lengthy campaign to have his case reheard, spearheaded by former All Black Joe Karam. According to one of his friends, media commentator Paul Holmes, Karam was appalled at the way the family, the Police and the Fire Service arranged to burn the Bain house down.[19] He felt something was wrong with the case and began to study the evidence presented at the original trial.[20] He went to visit Bain in prison in Christchurch and subsequently visited him over 200 times.[20]

Over the next 13 years, Karam wrote four books about David Bain's case and helped him in his numerous appeals against his convictions. The first appeal was made to the New Zealand Court of Appeal in 1995 but the Court refused to even hear it on the grounds that "the Crown case appeared very strong and the defence theory not at all plausible".[21] New Zealand did not have a Supreme Court at that time, so in 1996 Bain made his first appeal to the Privy Council in Britain. However, the Privy Council also declined to hear the case.[22]

In June 1998 David Bain petitioned the Governor-General for a pardon. The Governor-General passed the application on to the Ministry of Justice which conducted an investigation into new information presented by the defence team. In 2000, Bain received his first ray of hope when Justice Minister Phil Goff said the investigation had shown that "a number of errors" may have occurred in the Crown's case against him[23] and some aspects of the case were referred back to the Court of Appeal.[22] In September 2003, those hopes were dashed when the Court of Appeal examined the new evidence but decided once again that a retrial was not needed - on the grounds that it would not have changed the jury's verdict.

Bain's legal team made a second appeal to the Privy Council and, in March 2007, Karam and the team travelled to London to lay out nine arguments why his convictions should be quashed.[24] One of the nine points concerned Robin Bain's mental state and potential motive. Reliable witnesses said Robin had been depressed, and living alone in squalid conditions in a caravan. Journals in his office at the school where he taught were found to contain stories about the mass murder of a family. The Privy Council wrote: "Many of those facts are highly contentious and the evidence could well have influenced the jury's assessment of them... If the (original) jury found Robin to be already in a state of deep depression and now... facing the public revelation of very serious sex offences against his teenage daughter, they might reasonably (have) concluded that this could have driven him to commit these acts."[25]

The Privy Council concluded that: "In the opinion of the board, the fresh evidence adduced in relation to the nine points... taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case."[25] The Privy Council quashed his convictions and ordered a retrial. Bain was released from prison and bailed to live with Joe Karam.

Second trial [edit]

The retrial was held in Christchurch in 2009. It ended with Bain's acquittal on all five charges in June 2009 after five hours and 50 minutes of deliberations.[1] Each verdict of not guilty for the five murders was greeted with cheers and applause by those in court.[26] Further clapping and cheering could be heard as the judge left the room. Outside court an emotional David Bain thanked his supporters, particularly Joe Karam. "Without Joe and his solid strength ... I wouldn't have made it through this far," Bain said.[27] One of the jury members congratulated David with a hug. Another jury member attended an after court celebration with David and his supporters.About 50 media personnel were at the High Court to cover the trial and it was reported that television coverage of the verdict matched the media flurry attracted by President Clinton's visit to New Zealand in 1999. Joe Karam said the trial would go down as the “criminal trial of New Zealand’s history”.[28]

Coroner's inquests [edit]

In 1994, the Dunedin Coroner decided no inquest was needed, as he was satisfied that the evidence shown in court had established the cause of the deaths.[29] 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.[30] 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.[31]

Compensation [edit]

In March 2010 Bain lodged an application for compensation for wrongful imprisonment.[32] His case falls outside Cabinet rules on compensation and so the Government is not obliged to pay him anything - but may do so if he is able to establish his innocence on 'the balance of probabilities' and is also considered to be the 'victim of exceptional circumstances'.[33] If Cabinet decides to pay, it normally pays $100,000 for every year of imprisonment; so Bain would receive about $1.3 million. This would cover pecuniary losses such as loss of livelihood, but also cover non-pecuniary losses such as liberty and emotional harm for the almost 13 years he spent in prison.

Bain described the impact that imprisonment and years of negative publicity had on him to Judge Ian Binnie. He said he was assaulted soon after being sent to prison and was 'tortured' by being subject to sleep deprivation in the 'at risk' unit - which is standard practice in New Zealand prisons.[34] He suffered migraines and became so depressed he considered committing suicide. He was unable to continue studying to be an opera singer. He lost all his personal possessions and was deprived of his inheritance. He said he struggled to hold on to his sanity and attended counselling in prison for eight years. Since being released he has also found it hard to adjust and wrote: "It is not a comfortable thing being known for something as traumatic as the events I have suffered through."[35]

Because of the high-profile nature of the case in New Zealand, in 2011 former Justice Minister Simon Power chose an overseas judge - retired Canadian Supreme Court judge, Justice Ian Binnie - to examine Bain's application for compensation.[36] After a year long investigation, Justice Binnie concluded, in a 180 page report, that Dunedin's police had made 'egregious errors' and that there were 'numerous instances' of investigative ineptitude that led directly to the wrongful conviction. In particular, he described the failure of the Crown to preserve evidence in the David Bain murder investigation (the house was deliberately burnt down) as one of the 'extraordinary circumstances' that the Cabinet should take into account.[37] Binnie said the evidence established that "the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence".[38] The report concluded that 'on the balance of probabilities' Mr Bain was innocent of the murders in 1994 and should be paid compensation for wrongful conviction and imprisonment.[39]

The finished report was delivered to the New Zealand government in September, 2012.[40] The new Justice Minister, Judith Collins allowed the police and the Solicitor-General to see it and then ordered a peer review by a New Zealand judge, Robert Fisher QC. Collins choose not to provide a copy to Bain's legal team;[41] Joe Karam alleged that in addition to not allowing Bain's team to read the report, Collins leaked Fisher's criticisms of it to the press.[42]

A media spat subsequently developed between Collins and Judge Binnie, who pointed out (in an email subsequently released to the media by Collins) that Dr Fisher had not read the 10,000 pages of background files[43] and his report was the product of someone with "little familiarity" with the case.[38] Binnie said Judith Collins was engaged in political posturing and that he had "expected the minister to follow a fair and even handed process".[44] Mr Bain's lawyer, Michael Reed, QC said it was unfair that Ms Collins consulted the Solicitor-General while refusing to give a copy to the Bain team and slammed Collins' decision as a double standard.[45]

Due to huge public and media interest in the matter Collins released the report written by Justice Binnie, the review by Robert Fisher and Binnie's email response to Fisher's review.[46] Subsequently, legal colleagues in Canada including Robert Brun, QC, President of the Canadian Bar Association wrote to New Zealand media outlets in defence of Justice Binnie's integrity and expertise.[47] Nevertheless, Ms Collins said another report would have to be done[47] and that it would likely be 2013 before a final decision was made on whether compensation would be paid.[48] Otago University law professor Andrew Geddis said it would be difficult for the Government to find someone to do another report, as there was no one left in New Zealand who could be impartial, and overseas judges would be put off by Justice Binnie's rejection.[49]

In January 2013, Mr Bain filed a claim in the High Court seeking a review of Ms Collins' actions. The claim alleges Ms Collins breached natural justice and the Bill of Rights Act in her treatment of him. It also alleges she "acted in bad faith, abused her power, and acted in a biased, unreasonable and predetermined manner".[50] A Fairfax Media-Ipsos political poll found 60% believe Bain deserves a payout with only 4% of those polled making specific reference to Collins' decisions.[51]

Costs [edit]

Altogether, Bain's defence cost the taxpayer more than $3 million in legal aid[52] and at least $1.2 million in prosecution costs.[53] He spent 13 years in prison - at a cost of just under $100,000 a year[54] - adding another $1.3 million. It may end up costing even more. Justice Binnie was paid $400,000 to investigate the question of Bain's likely innocence on the balance of probabilities and to assist cabinet determine whether compensation should be paid.[40] Robert Fisher QC was then paid $206,000 to peer review Ian Binnie's report, including $7,600 paid to Fisher's girl friend, law clerk Kate Tolmie Bowden, for the 76 hours she worked on the review.[55]

Although the Government is not obliged to pay compensation, Bain could be looking at a payout of close to $2 million for non-pecuniary losses such as liberty and emotional harm, and more for pecuniary losses such as loss of livelihood, in compensation for the almost 13 years he spent in prison.[33] In that event, the total cost to the taxpayer could be in the vicinity of $7 or $8 million.

On top of costs to the taxpayer, Joe Karam said his crusade to clear Bain had cost him most of his personal fortune; Karam's friends estimated his personal losses could be as much as $4 million in terms of his time, loss of earnings and costs of legal and forensic experts.[56]

Subsequent events [edit]

Personal [edit]

Following his acquittal, Bain undertook a three-month European holiday paid for by his supporters. Ten months later, he was struggling to find work and had no money. Auckland defence lawyer Peter Williams QC said Bain would be suffering from the stigma experienced by ex-prisoners re-entering the workplace. "There's obviously a very strong prejudice against people who can say their recent CV was inside prison," he said.[57] In September 2012, Bain became engaged to his girlfriend, a Christchurch school teacher.[58][58][59] While in prison he had been engaged to another woman for about five years but after several failed appeals, this relationship did not work out.[60]

Justice related [edit]

In an interview with TV3's 60 Minutes, Bain said life in prison had been a very damaging experience and that there were times when he felt like giving up. He also spoke about the importance of unwavering support of long-time advocate Joe Karam. He said the hardest thing to get used to after leaving jail was walking down the street and learning to do every day things by himself without having to wait for permission.[61]

In March 2012, Bain was invited to speak at a three-day conference on legal justice issues in Perth, Western Australia. The conference was billed as a world-first gathering of forensic experts, lawyers and justice advocates. It was Bain's first speech in which he talked about the impact the events have had on him. He said his first trial still haunted him and that his time in prison was a continual battle with depression. Bain spoke about his family and said he would never recover from their loss.[62] He was still having counselling and said: "Every time I talk to the counsellor, every time I talk to Joe or my lawyers, I have to re-live that nightmare."[63]

In February 2013, Dr Anna Sandiford, a leading forensic scientist and adviser to the defence at the 2009 acquittal, said she plans to launch a charity for people who have been wrongly convicted. She said she was concerned that outdated legal processes and cuts in legal aid are contributing to a growing number of wrongful imprisonments. Sandiford, who immigrated to New Zealand from Britain in 2008, said inadequate police investigations, substandard forensic science and a poorly prepared defence were the main causes of wrongful imprisonment. She said legal aid cutbacks in New Zealand meant Crown prosecutors were better funded than the defence and overseas expert witnesses were reluctant to testify because it was too hard to get paid.[64]

Popular culture [edit]

The jumpers worn by David Bain during the original trial, knitted by Margaret Bain to his own designs, became a symbol of the Bain case.[65] During the retrial T-shirts inspired by the jumpers were sold on TradeMe.[66] Reflecting the high level of public interest in his case, in 2009, David Bain was found to be by internet search engine Google the most-searched for New Zealander of the past year.[67]

The December Brother, a 2010 play produced by Tim Spite for Wellington's Downstage Theatre, depicted re-enactments of the Bain family killings. It presented two scenarios – the first with David Bain murdering his family, and the second with his father, Robin Bain, carrying out the killings, then taking his own life. The play was based on the theories put forward by the legal teams for the defence and prosecution during the trials.[68]

See also [edit]

References [edit]

  1. ^ a b c "David Bain found not guilty". 3 News NZ. June 5, 2009. 
  2. ^ Bain v. The Queen, 2006, paragraph 119.
  3. ^ Bain innocent and deserves payout, judge tells Cabinet, NZ Herald 10 September 2012
  4. ^ City divided on compo for David Bain, NZ Herald 10 September 2012
  5. ^ Stead, C.K. Why Judge was Wrong on Bain, NZ Herald 05 January 2013
  6. ^ "David Bain – A Profile". crime.co.nz. Retrieved 4 August 2007. 
  7. ^ David Bain V The Queen - Privy Council Judgment, Friday, 11 May 2007, para 2
  8. ^ David Bain V The Queen - Privy Council Judgment, Friday, 11 May 2007, para 3
  9. ^ David Bain V The Queen - Privy Council Judgment, Friday, 11 May 2007, para 10
  10. ^ David Bain V The Queen - Privy Council Judgment, Friday, 11 May 2007, para 41
  11. ^ Fingerprints on rifle made by David Bain
  12. ^ Trevett, Claire (11 June 2009). "Bain 111 tape claim: 'I shot the prick'". The New Zealand Herald. Retrieved 13 October 2011. 
  13. ^ "Archive: The day the Bain family's house was burned down, 07-Jul-94 - Video". 3 News. 11 May 2007. Retrieved 13 October 2011. 
  14. ^ David Bain v The Queen, para 6
  15. ^ Summing Up of Justice Williamson para 210
  16. ^ Laws and Karam lock horns over Bain killings, Stuff.co.nz 7 August 2010
  17. ^ "Fingerprints on rifle made by David Bain". The New Zealand Herald. 23 April 2009. Retrieved 1 February 2013. 
  18. ^ "David Bain trial: Three possible outcomes". The New Zealand Herald. 4 June 2009. Retrieved 13 October 2011. 
  19. ^ Paul Holmes: Bain case was Karam's 'magnificent obsession' New Zealand Herald, 7 June 2009
  20. ^ a b Karam gets $330,000 in legal aid stuff.co.nz, 10 June 2009
  21. ^ Read the full judgment of the Privy Council on David Bain (page 1), NZ Herald 10 May 2007, para 20
  22. ^ a b "Timeline: David Bain case". TVNZ. 6 March 2009.
  23. ^ Bain Matters Referred To Court Of Appeal, Press release by Phil Goff 19 December 2000
  24. ^ David Bain v The Queen Opinion: Privy Council 11 May 2007 paras 40 to 97
  25. ^ a b "Bain could be out of jail next week". The New Zealand Herald. 11 May 2007.
  26. ^ "David Bain speechless after not guilty verdicts read". 3 News NZ. June 5, 2009. 
  27. ^ David Bain not guilty, Stuff website 5 June 2009
  28. ^ David Bain not guilty, NZ Herald, 5 May 2009
  29. ^ Harvey, Sarah (17 October 2009). "Cases stuck in coroner's mind". Otago Daily Times. Retrieved 13 October 2011. 
  30. ^ Porteous, Debbie (2 July 2009). "No new inquests into Bain deaths". Otago Daily Times. Retrieved 13 October 2011. 
  31. ^ "Coroner's verdict could not spark action against Bain – Law Society". The New Zealand Herald. NZPA. 8 June 2009. Retrieved 13 October 2011. 
  32. ^ Dunne: Bain should be compensated
  33. ^ a b Collins seeks second opinion on Bain, The Press, 4 December 2012
  34. ^ Psychological abuse of vulnerable prisoners, Infonews 22 April 2012
  35. ^ Bain: I wanted life in opera, NZ Herald 17 December 2012
  36. ^ Bain innocent and deserves payout judge tells Cabinet, NZ Herald 10 September 2012
  37. ^ Bain-compo judge hits back at minister, NZ Herald 13 December 2012
  38. ^ a b Editorial: Minister errs in dismissing judge's Bain compo report, NZ Herald, 14 December 2012
  39. ^ Bain innocent and deserves payout, judge tells Cabinet, NZ Herald 10 September 2012
  40. ^ a b "Bain compo judge paid nearly $400,000". 3 News NZ. October 11, 2012. 
  41. ^ APNZ (12 December 2012). "Binnie hits back at Bain report critics". The New Zealand Herald. Retrieved 30 December 2012. 
  42. ^ Joe Karam: This injustice almost as bad as the first one
  43. ^ David Bain's claim in limbo,
  44. ^ Binnie hits back at Bain report critics, NZ Herald, 12 December 2012
  45. ^ "Govt accused of Bain double standard". 3 News NZ. December 12, 2012. 
  46. ^ Report recommending Bain compensation is 'flawed', NZ Herald 13 December 2012
  47. ^ a b Bain breaks his silence NZ Herald 16 December 2012
  48. ^ "Bain compo decision 'next year'". 3 News NZ. November 29, 2012. 
  49. ^ "Bain compo claim poses problems". 3 News NZ. January 23, 2013. 
  50. ^ Bain takes High Court action against Collins
  51. ^ After 18 years, David Bain case still divides
  52. ^ "David Bain legal bill tops $3 million". 3 News NZ. April 28, 2012. 
  53. ^ Bain case cost Crown Law $1.2m, MPs told
  54. ^ Chief Justice Sian Elias, Blameless Babes, p 588
  55. ^ Bain fee topped $200k
  56. ^ David's promise, New Zealand Herald 20 May 2007
  57. ^ Free Bain struggles to find employment, Stuff.co.nz18 April 2010
  58. ^ a b "David Bain gets engaged". 3 News NZ. September 11, 2012. 
  59. ^ Family 'delighted' by Bain engagement, NZ Herald 11 September 2012
  60. ^ Life behind bars cost Bain dearly, NZ Herald 7 June 2009
  61. ^ David Bain tells of life in prison, Stuff.co.nz 14 March 2012
  62. ^ Tearful Bain tells of his pain, Sunday News 11 March 2012
  63. ^ David Bain: It's a waking nightmare, NZ Herald 10 March 2012
  64. ^ Help for wrongly convicted
  65. ^ Martin Van Beynen (4 May 2009). "Bain jersey 'his own design'". Stuff.co.nz. 
  66. ^ "David Bain Support T-shirt - Red". Trade Me. 9 March 2009. Archived from the original on 13 August 2011. Retrieved 13 August 2011. 
  67. ^ "Top NZ Google searches for 2009 revealed". 3 News NZ. December 2, 2009. 
  68. ^ Cardy, Tom (11 August 2010). "Play's Bain theories survive lawyers". Manawatu Standard. Retrieved 13 October 2011. 

Further reading [edit]

External links [edit]

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