Bain family murders

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The Bain family murders were the deaths by gunshot of Robin and Margaret Bain and three of their four children – Arawa, Laniet and Stephen – in Dunedin, New Zealand, on 20 June 1994. The only suspects were David Cullen Bain, the oldest son and only survivor, and Robin Bain, the father. David Bain, aged 22, was charged with five counts of murder. In May 1995 he was convicted on each of the five counts and sentenced to mandatory life in prison with a minimum non-parole period of 16 years.[1]

Bain's case was taken up by businessman and former All Black Joe Karam. In 2007, Bain's legal team, guided by Karam, successfully appealed to the Privy Council, which declared there had been a 'substantial miscarriage of justice'.[2] He was released on bail in May 2007. The retrial in June 2009 ended with his acquittal on all charges.[3]

Speculation about the case continued long after Bain was acquitted, including whether or not he should receive compensation for the years he spent in prison. Canadian jurist Ian Binnie was appointed in November 2011 to review the circumstances and advise the government on whether compensation should be paid. Binnie concluded that the Dunedin police made 'egregious errors' and that the 'extraordinary circumstances' in the case justified the payment of compensation. This report was rejected by the Minister of Justice, on advice from High Court Judge Robert Fisher.[4]

In March 2015, the government appointed Ian Callinan, a retired justice of the High Court of Australia, to conduct a second review of Bain's compensation claim.[5] Callinan's report, in which he concluded that Bain was not innocent on the balance of probabilities,[6] was delivered to the Minister of Justice on 26 January 2016. The Minister announced that no compensation would be paid, but that Bain would be given an ex gratia payment of $925,000 if he agreed to stop all further legal action.[7]

Family background[edit]

Robin Irving Bain and Margaret Arawa Cullen were married in 1969 in Dunedin, New Zealand. They had four children: David (born 1972), Arawa (1974), Laniet (1976) and Stephen (1980).[8] In 1974, they moved to Papua New Guinea, where Robin worked as a missionary teacher. The family returned to New Zealand in 1988.[9] Three years after his return, Robin became the principal of Taieri Beach School,[n 1] a two-teacher school about 50 kilometres down the coast from Dunedin.[2]

In June 1994, the family lived at 65 Every Street, Andersons Bay, Dunedin.[2]:4 The house was old and 'semi-derelict'.[2] At this time Robin and Margaret were estranged. Robin was initially sleeping in the back of his van at Taieri, but more recently in the schoolhouse three nights a week.[2]:3 He returned to the family home at weekends but slept in a caravan in the back garden.[2]:3 David was studying music and classics at Otago University and had a part-time job delivering morning newspapers. Arawa was attending a teachers' training college and Stephen was at high school.[2] Laniet had a part-time job in Dunedin and lived away from home, but had returned to the family residence on the Sunday evening of 19 June to attend a family meeting.[11]

Deaths[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."[12] When the police arrived they found five members of the Bain family had been shot to death – Robin Bain (58), his wife Margaret (50), their daughters Arawa (19) and Laniet (18), and their son Stephen (14). There was evidence of a violent struggle involving Stephen, who was partly strangled as well as shot.[2]:6 A message was found typed on a computer that said "sorry, you are the only one who deserved to stay".[10]:50 Four days later, David Bain, aged 22, was charged with five counts of murder.

Legal proceedings[edit]

First trial[edit]

The first trial lasted three weeks and took place at the Dunedin High Court in May 1995.[13] The Crown put forward that Bain shot to death his mother, two sisters and brother in undetermined order before going on his morning paper run.[2] On his return he waited for his father to come in from the caravan and go into the lounge to pray and then shot him from behind the computer alcove curtain, typed the message on the computer, arranged the scene to make it look like a suicide, and called 111.[2] The defence submitted that Robin Bain killed the other family members, typed the message and shot himself while David was out on his paper round.[14]:262

Bain testified that after his morning paper run he entered the house without turning on the lights, and went downstairs to the bathroom where he washed his hands which were covered with black newsprint and put some clothes in the washing machine. Bain said that he noticed bullets and the trigger lock [of his rifle[2]:6] on the floor of his bedroom when he went back upstairs and turned on the light. He found his mother dead in her room, heard Laniet gurgling and found his father dead in the lounge. At 7.09 a.m. he rang the emergency number in great distress.[2]:7

In his closing address the Crown prosecutor W J Wright said that David's motive was to inherit. He said David would have the inheritance, the money the parents had put aside for the new house.[15]

In summing up Justice Neil Williamson told the jury that the Crown had said "... that these events were so bizarre and abnormal that it was impossible for the human mind to conceive of any logical or reasonable explanation".[16]

Little in the way of motive was presented for Robin. In a formal statement, Dean Cottle told police that Laniet had confided in him that her father had been having an incestuous relationship with her and that she was planning to "blow the whistle" the weekend before she and her family were killed.[2]:10 Cottle failed to show up at court when called,[17] and when he did turn up, Justice Williamson found him unreliable as a witness and ruled against admission of his testimony.[18] The defence instead submitted that "Robin was a proud school teacher who had been rejected by his family and had snapped after months of pressure."[19]

At the conclusion of the trial, Bain was convicted by the jury on five counts of murder and sentenced to life imprisonment with a 16-year non-parole period.[20]

Appeals[edit]

Former All Black Joe Karam felt "something was wrong" with the case and spearheaded a lengthy campaign to have Bain's convictions overturned.[21] He visited Bain in prison over 200 times[21] and wrote four books about the case. Karam stated in his books that "[David's] innocence is the only possible conclusion"[22] and that he was 'totally innocent'.[23] He was subsequently described in the media as a 'freedom fighter' and his support helped bring about a retrial in 2009.[24]

The first application was made to the New Zealand Court of Appeal in 1995, principally on whether the trial judge had erred in refusing to admit the evidence of Cottle. 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."[2]:10, 20 In June 1998, Bain petitioned the Governor-General for a pardon, which was then passed onto the Ministry of Justice. 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 Bain.[25] The case was then referred to the Court of Appeal for a full hearing in 2003.[2]:27 The court heard submissions over five days, but was not persuaded that there had been a miscarriage of justice and the appeal was dismissed on 15 December 2003.[2]:30–33

Privy Council[edit]

In March 2007, Bain's legal team, including Karam, travelled to London to lay out nine arguments before the Privy Council as to why his convictions should be quashed.[2]:40–97 Two of the nine points concerned Robin Bain's mental state and possible motive.[26] The other seven points concerned questions about particular pieces of evidence.[2] The Privy Council found that many of these issues were highly contentious and the jury could well have been influenced by them.[26] 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."[2] The Privy Council quashed Bain's convictions and ordered a retrial, but noted that he should remain in custody in the mean time.[2]:119

On 15 May 2007, Bain was granted bail by the High Court in Christchurch. Justice Fogarty said that under New Zealand law, there was no reason for continued detention and he was bailed to the home of his longtime supporter Karam. Altogether, he served almost 13 years of a life sentence with a minimum 16-year non-parole period.[27]

Retrial[edit]

The retrial took place at the Christchurch High Court,[28] with the jury sworn in on 6 March 2009, and Bain pleaded not guilty to the five murder charges. The trial lasted about three months and the jury took less than a day to find Bain not guilty on all five charges.[3][29] 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.[30] Karam said the trial would go down as the "criminal trial of New Zealand’s history".[30] Some commentators questioned the behaviour of jurors who hugged Bain and attended a "victory party" after the verdict. Chris Gallavin, a senior law lecturer at Canterbury University, said, "While this is unusual behaviour, the whole case is an unusual case."[31]

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 Bain.[32]

Compensation[edit]

In March 2010, Bain lodged an application for compensation for wrongful imprisonment.[33] His case fell outside Cabinet rules on compensation, meaning the government was not obliged to pay him anything, but may do so if he was able to establish his innocence on "the balance of probabilities" and was also considered to be the "victim of exceptional circumstances".[34]

Because of the high-profile nature of the case, Justice Minister Simon Power chose an overseas judge – retired Canadian Supreme Court Justice Ian Binnie – to examine Bain's application for compensation.[35] After a year-long investigation, Binnie concluded in September 2012[14] that "on the balance of probabilities" Bain was innocent of the murders in 1994 and should be paid compensation for wrongful conviction and imprisonment".[35] By the time Binnie's report was completed, Simon Power had retired from Parliament. Judith Collins, the new Justice Minister, didn't agree with Binnie's conclusions and sought feedback from the police, the Solicitor-General and former High Court judge Robert Fisher.

Fisher concluded that Binnie had made significant errors of principle[36] and recommended that a new report should be undertaken. He acknowledged that a new report could still reach the same conclusion as Binnie.[37] Collins agreed and said another report into Bain's compensation claim would have to be commissioned.[55] Binnie took exception to the criticisms of his report, arguing that he had weighed up the totality of the evidence both for and against Bain. He said the government was clearly 'shopping around' for a report that would allow it to dodge paying compensation.[38]

In January 2013, Bain filed a claim in the High Court seeking a review of Collins' actions, alleging Collins had breached natural justice and the New Zealand Bill of Rights Act.[39] In August 2014, Collins resigned and Amy Adams was appointed as the new Justice Minister. The judicial review proceedings against Collins were discontinued in January 2015.[40] Another report was commissioned and retired Australian judge Ian Callinan was given the responsibility to draft it.[5]

On 2 August 2016, Adams formally announced that Callinan had found that Bain was not innocent "on the balance of probabilities", and as a result the government would not be making an apology or compensating Bain for wrongfully spending 13 years in prison. Adams also said that Bain's legal team had indicated that they would have mounted a legal challenge against Callinan's report and that while the Crown was confident in the strength of its position no one benefited from the matter continuing to drag on. The Crown therefore agreed to make an ex gratia payment of $925,000 in recognition of the time and expenses incurred by Bain during the compensation process and the desirability of avoiding further litigation.[41]

The majority of respondents to opinion polls conducted in 2012, 2013 and 2015 thought Bain should receive compensation for the time he spent in prison.[42][43][44][45]

The total cost to the taxpayer of the David Bain case was nearly $7 million.[46] The 2009 retrial cost more than $4 million, making it the most expensive trial in New Zealand history.[47]

Bain's 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.[48] In March 2012 Bain was working for an engineering firm in Auckland.[49] In September 2012, Bain became engaged to his girlfriend, a Christchurch primary school teacher,[50][51] and they were married on 10 January 2014.[52] David Bain now[when?] works for a Christchurch engineering firm. His wife gave birth to a baby boy on 3 December 2014.[53]

Popular culture[edit]

The jumpers worn by Bain during the original trial, knitted by Margaret Bain to his own designs, became a symbol of the Bain case.[54] During the retrial, T-shirts inspired by the jumpers were sold on Trade Me.[55] Reflecting the high level of public interest in his case, in 2009, Bain was found by Internet search engine Google to be the most-searched-for New Zealander of the past year.[56]

The December Brother, a 2010 play produced by Tim Spite[57] for Wellington's Downstage Theatre, depicts re-enactments of the Bain family killings. It presents 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.[58]

See also[edit]

Notes[edit]

  1. ^ The Privy Council recorded the school as being Taieri Mouth Primary School,[2]:2 but according to James McNeish the name of the school was Taieri Beach School.[10]:123

References[edit]

  1. ^ "David Bain timeline of events". 3 News online. 26 June 2013. Retrieved 22 October 2016. 
  2. ^ a b c d e f g h i j k l m n o p q r s t u "David Bain v The Queen". Committee of the Privy Council. 11 May 2007. Retrieved 22 October 2016. 
  3. ^ a b "David Bain found not guilty". 3 News NZ. 5 June 2009. 
  4. ^ "Summary of key findings Hon Dr Robert Fisher QC" (PDF). govt.nz. 
  5. ^ a b "David Bain: Retired judge to head compensation claim". The New Zealand Herald. 20 March 2015. Retrieved 17 January 2016. 
  6. ^ Bayer, Kurt; Davison, Isaac (2 August 2016). "No compensation for David Bain; $925,000 ex gratia payment". New Zealand Herald. ISSN 1170-0777. Retrieved 22 October 2016. 
  7. ^ A million dollars for David Bain – just don’t call it compensation, The Spinoff
  8. ^ Van Beynen, Martin (6 June 2009). "The Bain mystery". stuff.co.nz. Retrieved 25 January 2016. 
  9. ^ "David Bain – A Profile". crime.co.nz. Retrieved 4 August 2007. 
  10. ^ a b McNeish, James (1997). Mask of Sanity. Auckland: David Ling Publishing. ISBN 0-908990-46-4. 
  11. ^ Van Beynen, Martin (22 April 2009). "Laniet scared of brother David, witnesses say". press.co.nz. Retrieved 15 April 2016. 
  12. ^ Gay, Edward (17 March 2009). "David Bain could not explain 111 'they're all dead' call, court told". New Zealand Herald. ISSN 1170-0777. Retrieved 26 January 2016. 
  13. ^ "Bain takes his case to the law lords". NZ Herald. 25 February 2007. Retrieved 19 January 2016. 
  14. ^ a b Binnie, Ian (30 August 2012). "Report For The Minister Of Justice On Compensation Claim By David Cullen Bain By Hon Ian Binnie QC" (PDF). NZ Herald. 
  15. ^ McNeish, James (1997). Mask of Sanity. Auckland: David Ling Publishing. p. 244. ISBN 0908990464. 
  16. ^ McNeish, James (1997). Mask of Sanity. Auckland: David Ling Publishing. p. 264. ISBN 0908990464. 
  17. ^ "David Bain V The Queen – Privy Council Judgment, para 11". 
  18. ^ "David Bain V The Queen – Privy Council Judgment, para 46". 
  19. ^ "David Bain V The Queen – Privy Council Judgment, para 40". 
  20. ^ "David Bain trial: Three possible outcomes". The New Zealand Herald. 4 June 2009. Retrieved 13 October 2011. 
  21. ^ a b Van Beynen, Martin (10 June 2009). "Karam gets $330,000 in legal aid". stuff.co.nz. 
  22. ^ David and Goliath: the Bain family murders, (Auckland: Reed, 1997) p 223.
  23. ^ Trial By Ambush, p. 409
  24. ^ Cumming, Geoff (15 December 2007). "Joe Karam: Freedom fighter". The New Zealand Herald. Retrieved 15 April 2016. 
  25. ^ Bain Matters Referred To Court Of Appeal, press release by Phil Goff 19 December 2000
  26. ^ a b Bain could be out of jail next week, New Zealand Herald, 11 May 2007
  27. ^ "David Bain timeline of events | NZNews". Newshub. Retrieved 2016-10-22. 
  28. ^ Gay, Edward (27 May 2009). "Bain trial: 'That ladies and gentlemen is the evidence in this trial'". New Zealand Herald. ISSN 1170-0777. Retrieved 2 January 2016. 
  29. ^ Booker, Jarrod (6 June 2009). "David Bain trial: Reasons to acquit". NZ Herald. Retrieved 15 April 2016. 
  30. ^ a b "David Bain not guilty". Stuff. 5 June 2009. Retrieved 15 April 2016. 
  31. ^ Eleven, Beck (8 June 2009). "Jurors' behaviour questioned". Stuff. Retrieved 15 April 2016. 
  32. ^ "Coroner's verdict could not spark action against Bain – Law Society". The New Zealand Herald. NZPA. 8 June 2009. Retrieved 13 October 2011. 
  33. ^ Shuttleworth, Kate (14 December 2012). "Dunne: Bain should be compensated". The New Zealand Herald. Retrieved 15 April 2016. 
  34. ^ Vance, Andrea (4 December 2012). "Collins seeks second opinion on Bain". The Press. Retrieved 15 April 2016. 
  35. ^ a b Young, Audrey (10 September 2012). "Bain innocent and deserves payout, judge tells Cabinet". NZ Herald. 
  36. ^ "Justice Binnies report markedly generous to Bain | Politics". Newshub. 2012-12-13. Retrieved 2016-10-22. 
  37. ^ Fisher, Robert (13 December 2012). "Interim Report for Minister of Justice on Compensation Claim by David Bain" (PDF). The New Zealand Herald. NZ Herald. 
  38. ^ Trevett, Claire; Dougan, Patrice (23 February 2015). "Government not dodging Bain compo – PM". New Zealand Herald. Retrieved 15 April 2016. 
  39. ^ Quilliam, Rebecca (30 January 2013). "Bain takes High Court action against Collins". New Zealand Herald. Retrieved 15 April 2016. 
  40. ^ Dougan, Patrice; Bayer, Kurt (23 January 2015). "Cabinet to look at David Bain compensation". New Zealand Herald. Retrieved 15 April 2016. 
  41. ^ New Zealand Herald. "No compensation for David Bain; $925,000 ex gratia payment". M.nzherald.co.nz. Retrieved 2016-10-22. 
  42. ^ Fisher, David (28 December 2012). "Poll: Give Bain compo". NZ Herald. Retrieved 15 April 2016. 
  43. ^ Vance, Andrea (21 February 2013). "Majority favour compo for Bain". The Press. Retrieved 15 April 2016. 
  44. ^ Gower, Patrick (13 March 2013). "Poll shows support for Bain compensation". TV3. Retrieved 15 April 2016. 
  45. ^ "Poll backs compensation for David Bain". TVOne. 10 May 2015. Retrieved 15 April 2016. 
  46. ^ "The $7m bill for David Bain's innocence campaign". Retrieved 20 November 2016. 
  47. ^ Nzpa, By Kelly Burns and (10 July 2009). "Bain's retrial cost police $476,000". Retrieved 20 November 2016 – via Stuff.co.nz. 
  48. ^ Hume, Tim (18 April 2010). "Free Bain struggles to find employment". Stuff.co.nz. Retrieved 15 April 2016. 
  49. ^ "David Bain moving on with life | NZNews". Newshub. 2012-03-05. Retrieved 2016-10-22. 
  50. ^ "David Bain gets engaged". 3 News NZ. 11 September 2012. 
  51. ^ Bayer, Kurt (11 September 2012). "Family 'delighted' by Bain engagement". NZ Herald. Retrieved 15 April 2016. 
  52. ^ Ensor, Blair (10 January 2014). "David Bain to tie the knot today". Stuff.co.nz. Fairfax Media. Retrieved 10 January 2014. 
  53. ^ "Baby happiness for David Bain - National - NZ Herald News". Nzherald.co.nz. 2014-12-06. Retrieved 2016-10-22. 
  54. ^ Van Beynen, Martin (4 May 2009). "Bain jersey 'his own design'". Stuff.co.nz. Retrieved 15 April 2016. 
  55. ^ "David Bain Support T-shirt – Red". Trade Me. 9 March 2009. Archived from the original on 13 August 2011. Retrieved 13 August 2011. 
  56. ^ "Top NZ Google searches for 2009 revealed". 3 News NZ. 2 December 2009. 
  57. ^ "Wellington.scoop.co.nz » Downstage: Tim Spite directing new work". 
  58. ^ Cardy, Tom (11 August 2010). "Play's Bain theories survive lawyers". Manawatu Standard. Retrieved 13 October 2011. 

Further reading[edit]

External links[edit]