David Bain

From Wikipedia, the free encyclopedia
Jump to: navigation, search
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 42)
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 13½ 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] The second trial held in Christchurch ended with his acquittal on all charges in June 2009.[1]

Speculation about the case has continued after he was acquitted, including whether or not he should receive compensation for the 13 years he spent in prison.[3][4][5]

Family background[edit]

David Bain 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] On his return, Robin became the principal of Taieri Beach 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 and the rest of the family lived at 65 Every Street, Andersons Bay, Dunedin. Robin used to return to the family home at the weekends and slept in a caravan in the back garden.[8] One witness at the first trial, Dean Cottle, was a friend of Laniet's. He revealed that Robin Bain was in an incestuous relationship with his daughter that began when the family were in Papua New Guinea. After the trial he said that Laniet was about to tell the rest of the family what had been going on.[9] Fellow teachers described Robin Bain at this time as "deeply depressed, to the point of impairing his ability to do his job of teaching children".[10]

Death of his family[edit]

Memorial to the Cullen Bain family in Mosgiel

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."[11] 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) and Laniet (18), and their 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.[12]

Trial[edit]

At his trial the prosecution claimed that David killed his entire family after completing his early morning paper round[13] but were unable to provide a motive. The presiding judge said the Crown told the jury "that it was impossible for the human mind to conceive of any logical or reasonable explanation".[14]

One piece of evidence presented at the trial 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.[15] However, Dean Cottle's testimony that Robin Bain was in an incestuous relationship with his daughter, Laniet, was ruled 'unreliable' and not presented to the jury. Years later the Privy Council commented on this saying: "Thus the jury never learned of this possible motive attributed to Robin."[16]

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.[17]

Support of Joe Karam[edit]

Bain maintained his innocence and began a lengthy campaign to have his case reheard, spearheaded by Joe Karam, a former member of the All Blacks. Karam had been appalled at the way the family, the Police and the Fire Service arranged to burn the Bain house down.[18] He felt something was wrong with the case and began to study the evidence presented at the original trial.[19] He went to visit Bain in prison in Christchurch and subsequently visited him over 200 times.[19] Over the next 13 years, Karam wrote four books about Bain's case and helped him in his numerous appeals.

Karam's motives were questioned and he was frequently criticised for his support of David Bain. Over the years he successfully sued or took defamation cases against two police officers, North & South magazine, the New Zealand Herald, journalist Rosemary McLeod and others. Karam spent a 'considerable fortune' supporting Bain through his numerous appeals and was subsequently described in the media as a 'freedom fighter'. Without his support, it is unlikely that there would ever have been a retrial.[20]

Appeals[edit]

Court of Appeal 1995[edit]

The first application was made to the New Zealand Court of Appeal in 1995. The principal matter to be addressed was whether the trial judge had erred in refusing to admit the evidence of Mr Dean Cottle - who claimed that Robin Bain's daughter, Laniet, told him her father had been having sex with her for over 12 months and this was still going on. The Court of Appeal refused to hear the appeal on the grounds that "the Crown case appeared very strong and the defence theory not at all plausible."[21]

Second Court of Appeal 1998[edit]

The case garnered wide publicity, and expressions of public concern led to a joint review by the New Zealand Police and the Police Complaints Authority. In June 1998 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, Justice Minister Phil Goff said the investigation had shown that "a number of errors" may have occurred in the Crown's case against him.[22] To assist with the Governor-General's review, six specific questions concerning the case were referred to the Court of Appeal.[23] The Court also received over 50 affidavits from 42 witnesses, 13 of whom were questioned before the court at a hearing which lasted from 14 to 18 October 2002.

The Court eventually concluded: "We are of the opinion that there is a possibility that there has been a miscarriage of justice that would warrant the question of David Bain's convictions being referred to this Court under s406(a) of the Crimes Act 1961." This meant the case was then referred back to the Court of Appeal for a full hearing (the third).[24]

Third Court of Appeal 2003[edit]

The case was referred to the Court of Appeal a third time in 2003. This time the court had before it all the material which was presented to the second Court of Appeal, the benefit of that court's answers to the Governor-General's six questions, plus some additional affidavits. The third Court heard submissions over five days between 1 and 9 September, but did not allow oral evidence or cross-examination. At the end of the day, the court was not persuaded by the additional information that there had been a miscarriage of justice and the appeal was dismissed on 15 December 2003.[25]

Privy Council 2007[edit]

In March 2007, Bain's legal team including Joe Karam, travelled to London to lay out nine arguments before the privy Council as to why his convictions should be quashed.[26] One of the nine points concerned Robin Bain's mental state. 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.[27]

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."[28] The Privy Council quashed his convictions and ordered a retrial, but noted that "the appellant must remain in custody meanwhile".[29]

High Court bail hearing 2007[edit]

On 15 May 2007, Bain was granted bail by the High Court in Christchurch in a hearing that lasted only one hour. Justice Fogarty said that under New Zealand law, there was no reason for continued detention and he was bailed to the home of his long time supporter, Joe Karam. Altogether, he served 12 years of a life sentence with a minimum 16-year non-parole period.[30]

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.[31] Outside court an emotional Bain thanked his supporters, particularly Karam. "Without Joe and his solid strength ... I wouldn't have made it through this far," Bain said.[32] Karam said the trial would go down as the "criminal trial of New Zealand’s history".[33] Some commentators questioned the behaviour of jurors who hugged Bain and attended a "victory party" after the verdict.[34]

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.[35] 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. However no inquests were held; a Law Society spokesman pointed out that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against David Bain.[36]

Compensation[edit]

In March 2010 Bain lodged an application for compensation for wrongful imprisonment.[37] 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".[38]

Response by Simon Power[edit]

Because of the high-profile and contentious nature of the case in New Zealand, in 2011 former Justice Minister Simon Power chose an overseas judge - retired Canadian Supreme Court Justice Ian Binnie - to examine Bain's application for compensation.[39] Bain described to Binnie in detail the impact that imprisonment and years of negative publicity had on him.[40]

Justice Binnie's report[edit]

After a yearlong investigation Binnie concluded, in a 180-page report,[41] 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 murder investigation, by burning down the house, as one of the "extraordinary circumstances" that the Cabinet should take into account.[42] Another was the failure of the police to test Robin’s hands and clothing for residue of firearms discharge.[43] 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".[44] 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.[45] The finished report was delivered to the New Zealand government in September, 2012.[46]

Response by Judith Collins[edit]

By that stage Simon Power had retired from Parliament and Judith Collins was the new Justice Minister. She allowed the police and the Solicitor-General to see Binnie's report but not Bain's legal team. She then ordered a peer review by a former High Court judge, Robert Fisher.

Justice Fisher's report[edit]

Fisher concluded that Binnie's report was "well organised, comprehensive and thorough. It is a valuable collation of the evidence currently available in relation to this claim". He then said that Binnie made "fundamental errors of principle" and "went beyond his mandate" in that he "did not have authority to express any conclusion on the question whether there were extraordinary circumstances such that compensation would be in the interests of justice." He said a new report would need to be done with the principles applied to the evidence correctly. He also acknowledged: "That is far from saying that a fresh assessment would produce any different outcome. It is perfectly possible that it would vindicate (Justice) Binnie's conclusions."[47]

Collins responded by saying another report would have to be done further delaying the outcome.[48] A media spat developed between Collins and Binnie, who pointed out (in an email subsequently released to the media by Collins[49]) that Fisher had not read the 10,000 pages of background files[50] and said his review was the product of someone with "little familiarity" with the case.[44] Eventually Collins released the report written by Binnie, the review by Fisher, and Binnie's email response to Fisher's review.[51]

Judical review of the Minister's actions[edit]

In January 2013, Bain filed a claim in the High Court seeking a review of Collins' actions. The claim alleges Collins breached natural justice and the New Zealand Bill of Rights Act, "acted in bad faith, abused her power, and acted in a biased, unreasonable and predetermined manner".[52] This delayed any decision on compensation for at least another year.

Response by Amy Adams[edit]

In August 2014, Judith Collins resigned in the midst of the furore over Dirty Politics. Four months later, David Bain's legal team had confidential discussions with the new Minister of Justice, Amy Adams, about compensation. Mr Bain's legal team included Michael Reed QC and Joe Karam and the discussion was chaired by Justice John Faire. In January 2015, Amy Adams announced that judicial review proceedings against Judith Collins had been discontinued and that Cabinet would resume consideration of his bid for compensation.[53]

Life after acquittal[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.[54] In September 2012, Bain became engaged to his girlfriend, a Christchurch primary school teacher,[55][56] and they were married on 10 January 2014.[57] 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.[58]

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.[59] During the retrial T-shirts inspired by the jumpers were sold on Trade Me.[60] 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.[61]

The December Brother, a 2010 play produced by Tim Spite[62] 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.[63]

See also[edit]

References[edit]

  1. ^ a b c "David Bain found not guilty". 3 News NZ. 5 June 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 5 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, Para 10
  10. ^ David Bain V The Queen - Privy Council Judgment, para 41
  11. ^ Trevett, Claire (11 June 2009). "Bain 111 tape claim: 'I shot the prick'". The New Zealand Herald. Retrieved 13 October 2011. 
  12. ^ "Archive: The day the Bain family's house was burned down, 07-Jul-94 - Video". 3 News. 11 May 2007. Retrieved 13 October 2011. 
  13. ^ David Bain v The Queen, para 6
  14. ^ Summary by Judge Williamson, para 210
  15. ^ Laws and Karam lock horns over Bain killings, Stuff.co.nz 7 August 2010
  16. ^ David Bain V The Queen - Privy Council Judgment, 11 May 2007, para 12.
  17. ^ "David Bain trial: Three possible outcomes". The New Zealand Herald. 4 June 2009. Retrieved 13 October 2011. 
  18. ^ Paul Holmes: Bain case was Karam's 'magnificent obsession' New Zealand Herald, 7 June 2009
  19. ^ a b Karam gets $330,000 in legal aid stuff.co.nz, 10 June 2009
  20. ^ Joe Karam: Freedom fighter, New Zealand Herald, 15 December 2007
  21. ^ Read the full judgment of the Privy Council on David Bain (page 1), para 10 & 20, NZ Herald 10 May 2007
  22. ^ Bain Matters Referred To Court Of Appeal, Press release by Phil Goff 19 December 2000
  23. ^ Read the full judgement of the Privy Council on David Bain (page 1), NZ Herald 10 May 2007, para 22
  24. ^ Read the full judgement of the Privy Council on David Bain (page 1), NZ Herald 10 May 2007, para 27
  25. ^ Read the full judgement of the Privy Council on David Bain (page 1), NZ Herald 10 May 2007, para 30 - 33
  26. ^ David Bain v The Queen Opinion: Privy Council 11 May 2007 paras 40 to 97
  27. ^ Bain could be out of jail next week, New Zealand Herald, 11 May 2007
  28. ^ David Bain v The Queen Opinion: Privy Council 11 May 2007 para 104
  29. ^ David Bain v The Queen Opinion: Privy Council 11 May 2007 para 119
  30. ^ http://tvnz.co.nz/content/1122892
  31. ^ "David Bain speechless after not guilty verdicts read". 3 News NZ. 5 June 2009. 
  32. ^ David Bain not guilty, Stuff website 5 June 2009
  33. ^ David Bain not guilty, NZ Herald, 5 May 2009
  34. ^ http://www.stuff.co.nz/national/crime/2480624/Jurors-behaviour-questioned
  35. ^ Harvey, Sarah (17 October 2009). "Cases stuck in coroner's mind". Otago Daily Times. Retrieved 13 October 2011. 
  36. ^ "Coroner's verdict could not spark action against Bain – Law Society". The New Zealand Herald. NZPA. 8 June 2009. Retrieved 13 October 2011. 
  37. ^ Dunne: Bain should be compensated
  38. ^ Collins seeks second opinion on Bain, The Press, 4 December 2012
  39. ^ Bain innocent and deserves payout judge tells Cabinet, NZ Herald 10 September 2012
  40. ^ Bain: I wanted life in opera, NZ Herald 17 December 2012
  41. ^ "REPORT FOR THE MINISTER OF JUSTICE ON COMPENSATION CLAIM BY DAVID CULLEN BAIN". The New Zealand Herald. 
  42. ^ Bain-compo judge hits back at minister, NZ Herald 13 December 2012
  43. ^ Report by Hon Ian Binnie, 30 August 2012, p 157
  44. ^ a b Editorial: Minister errs in dismissing judge's Bain compo report, NZ Herald, 14 December 2012
  45. ^ Bain innocent and deserves payout, judge tells Cabinet, NZ Herald 10 September 2012
  46. ^ "Bain compo judge paid nearly $400,000". 3 News NZ. 11 October 2012. 
  47. ^ "INTERIM REPORT FOR MINISTER OF JUSTICE ON COMPENSATION CLAIM BY DAVID BAIN". The New Zealand Herald. 
  48. ^ Bain breaks his silence NZ Herald 16 December 2012
  49. ^ http://www.justice.govt.nz/media/in-focus/topic-library/David-Bain-reports/justice-binnie/07Response-from-Justice-Binnie.pdf/at_download/file
  50. ^ David Bain's claim in limbo
  51. ^ Report recommending Bain compensation is 'flawed', NZ Herald 13 December 2012
  52. ^ Bain takes High Court action against Collins
  53. ^ Cabinet to look at David Bain compensation, New Zealand Herald , 23 January 2015
  54. ^ Free Bain struggles to find employment, Stuff.co.nz18 April 2010
  55. ^ "David Bain gets engaged". 3 News NZ. 11 September 2012. 
  56. ^ Family 'delighted' by Bain engagement, NZ Herald 11 September 2012
  57. ^ Ensor, Blair (10 January 2014). "David Bain to tie the knot today". Stuff.co.nz. Fairfax Media. Retrieved 10 January 2014. The former Dunedin student - acquitted of killing five members of his family - was to marry Liz Davies, a primary school teacher at Bishopdale's Cotswold School. He proposed to her in September 2012. 
  58. ^ Life behind bars cost Bain dearly, NZ Herald 7 June 2009
  59. ^ Martin Van Beynen (4 May 2009). "Bain jersey 'his own design'". Stuff.co.nz. 
  60. ^ "David Bain Support T-shirt - Red". Trade Me. 9 March 2009. Archived from the original on 13 August 2011. Retrieved 13 August 2011. 
  61. ^ "Top NZ Google searches for 2009 revealed". 3 News NZ. 2 December 2009. 
  62. ^ http://wellington.scoop.co.nz/?p=26163
  63. ^ Cardy, Tom (11 August 2010). "Play's Bain theories survive lawyers". Manawatu Standard. Retrieved 13 October 2011. 

Further reading[edit]

External links[edit]