Bain defence still less than convincing

MARTIN VAN BEYEN
Last updated 05:00 18/02/2012

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OPINION: I concede from the outset that I am not exactly open-minded about Joe Karam's new book on the Bain case, Trial by Ambush (HarperCollins).

I have written about the Bain case since 1997 and, after covering David Bain's 58-day retrial, penned a personal opinion piece, published in The Press, which stated bluntly that I was more than satisfied Bain was the killer of five of his family in June 1994. The jury had earlier disagreed and acquitted Bain.

To address this individual bias I have strived mightily to look at this book fairly. However, anyone who knows this case will, in my view, spot some shortcomings.

Karam makes no claim to have written an even-handed book on the strengths and weaknesses of the prosecution and the defence. But neither is there any effort to explain that he has devoted the last 15 years of his life to free Bain and therefore has a tremendous stake in convincing the public he has not wasted his time.

There is no doubt Karam has produced a persuasive book. It is well written, if somewhat repetitive, and very well edited. But it is only one side of the story and, in my view, an over-hyped one at that. Trial by Ambush is simply the defence case for David Bain written by a man with a visceral interest in being right.

Karam writes in a lawyerly way so that you could be reading the case for Bain's compensation claim, which is currently under consideration by retired Canadian judge Ian Binnie. The outraged personal tone of his first book, David and Goliath (1997), is replaced by a more measured Karam who says things like: "It is irresistible to refrain from the conclusion ..."

This might be because he has lived to regret some of his stronger statements. In David and Goliath, he writes, "I have no doubt that, if the blood staining on Robin's clothing had been analysed for blood grouping, it would have been found to be the blood of the deceased members of his family." The blood was analysed and it was all Robin's blood.

From the book we don't get an idea of what motivated Karam or the personal cost to him and his family. Where does his never-say-die pugnaciousness come from? Neither does the book contain a whisper from David Bain. Surely, aside from giving evidence at the retrial, Truth by Ambush was an opportunity for Bain to have his say and to inject some life into the book.

Another feature is the constant sanitisation of David Bain (who is 40 in March) as he was at the age of 22 in Dunedin. Karam describes him as busy and normal with a budding career as a classical singer and surrounded by a loving if disorganised family.

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That's one way of looking at it. By 1994, Bain had spent at least the previous two years on the dole, helping his mother in the garden. He was offered a job by his uncle but turned it down because he wanted to carry on working with Mum.

Together they had a dream of demolishing the ramshackle Every St house and building a refuge-type mansion. How all this was going to be accomplished is a mystery. Robin did not figure in Bain's plans (there is evidence Bain hated his father), yet he was entitled to at least half the the proceeds of the properties that would have to be sold to fund the new refuge. The plans for the new house were being drawn up by Margaret, who had no building or architecture qualifications.

Although she was not employed, she clearly did little around the house; she often did not get out of bed and she made her shopping decisions with the use of a pendulum. To David this was only a "little weird".

Then there was Bain's behaviour before the murder. He seemed to be constantly in the throes of some sort of deja vu experience, had periods when he "zoned out", and displayed some bizarre behaviour at a choir practice.

How many normal families, even disorganised ones, have Dad – whom Mum referred to in all seriousness as the Devil – sleeping in a cold, rundown caravan, while she sleeps in the warmth of a waterbed inside?

To Karam it was merely a disorganised family. When you get maggots in the bathroom, the family has gone beyond that stage.

After the trial we also heard from witnesses who remembered how Bain, as a seventh former, had schemed of using his paper-run to make it appear he could not have raped a female jogger on his route. Karam makes no mention of this.

He accuses the prosecution of cherry picking the evidence to suit itself and telling only half the story. In my view, the charges can equally be levelled at Karam himself.

The Dunedin pathologist Alex Dempster, for instance, is recruited to the Karam cause because Dempster examined Robin Bain and believed he saw a close contact wound supporting the defence's suicide scenario (silencer against the temple). Karam does not, however, mention Dempster also called the angle of the shot to the head "extremely unusual".

Two key pieces of evidence are hammered by Karam to "prove" his case. One is testimony from rest-home worker Denise Laney, who saw the "paper boy" squeezing past the gate at the Bain residence as she was driving to work on the day of the murders. She was due to start work at 6.45am and was concerned about being late because she nomally saw the "paper boy" further up Every St. She told police her clock said 6.50am but it was often about five minutes fast.

This, according to Karam, is cast-iron proof of Bain's innocence because he could not, therefore, have been in the house to turn on the computer on which the killer left a message. What he neglects to mention is that, at the retrial, Laney told the court not to "rely" on her digital radio clock and, second, she was definitely not late for work. The timing of the computer turn-on is especially murky but the reader is given no sense of this in Karam's book.

The evidence about the timings are at best messy and both the prosecution and defence drew support from them. But the timing evidence is certainly not as one-sided as Karam suggests. Some of the timing evidence is, in my view, extremely unfavourable to Bain.

The second item of key evidence is the bloody footprints found in the Every St house. Clearly, if Karam can show the footprints were made by Robin Bain, then he is home and dry. This is because Robin's socks, when he was found, had no blood on them, showing he must have changed them between shooting the family and then himself.

Robin's foot was 270mm long and David's 300mm. A bloodied footprint in the house measured 280mm, but the scientist who did the testing stressed the footprint might not show the "extremities of the heel and toe".

Karam hangs his hat on testing done by both defence and prosecution experts who had subjects dip their feet in a tray of pig's blood and then walk on various surfaces.

These tests showed it was very unlikely a person with a foot of David's size would make a 280mm print under luminol testing (it is usually larger). As with most reconstructions, this testing was flawed from the start. The variables were huge. Were the socks the same? Was weight put on the feet the same? Did the carpet in the tests match the Every St carpet? Was the amount of blood on the socks the same?

Again, like so much of the evidence which Karam hitches to the Bain wagon, we have an example which could be construed as supporting either side. The question for Karam is why there was so much of this evidence which, on at least one reasonable interpretation, supports Bain being the killer of his family.

At the trial I counted at least 20 items of important evidence which, in my view, pointed to Bain's guilt. According to the book, they all have innocent and logical explanations, but key points such as the damaged glasses found in Bain's room, sister Laniet's gurgling, the fingerprints on the rifle, the blood on Bain's clothes and the bruises on his face are formidable although admittedly not unimpeachable pieces of evidence.

Interestingly, Karam does not mention the bizarre if not ludicrous scenario that would have played out if Robin had been the killer. This involves Robin putting his bloodied clothes in the washing basket and then changing his clothes and socks before killing himself in a highly unusual way.

The trial-by-ambush scenario as trumpeted by the title of the book is not sustained. I had to wonder if this was because the defence was not immune to springing things on the prosecution and had to be counselled by the judge on several occasions.

Karam also leaves himself open by castigating the police and prosecution for not disclosing certain material to the defence. One could also ask why, if Bain has nothing to hide, does Karam not mention the opinion he commissioned from Senior Constable Henry Glaser, an armourer at the Victorian Institute of Forensic Medicine, who said Robin Bain's death was most likely not suicide.

Neither is there mention of Karam and Bain's defence team opposing, in 2008, further testing of exhibits, such as the pieces of skin found in Stephen Bain's room. Of course the defence is perfectly entitled to withhold unfavourable opinions that it has commissioned and block the prosecution where it can. But a book is different, and, if Karam purports to be searching for the truth, he might have addressed some of these issues.

It's surprising that, given the many years Karam has spent on the case, he makes some glaring errors. Margaret Bain was not shot in the eye, David was not shooting a video on the Friday night before the killings (it was an audio recording), and Karam misspells Justice Panckhurst's name throughout. This is a long book and errors can be expected, but Karam knows this case intimately and had two years to write it.

Karam is right about many things in the Bain case. Some of the police bungles were inexcusable, but neither was it the shoddy inquiry he makes it out to be. It's true some tests, if done, might have exonerated Bain, but also they might have supported his alleged guilt.

I doubt this book will change many minds. Karam has once again done a superb job for David Bain. Perhaps more debatable, in my opinion, is whether he has done such a fine job for justice.

BAIN WITNESS SAYS EVIDENCE MISINTERPRETED

A key witness in the Bain trial believes Joe Karam has put the wrong emphasis on her crucial timing evidence in his new book, Trial by Ambush.

Another witness has also told The Press that David Bain's sister, Arawa, told her that Bain controlled the lounge where his father was found shot and had threatened the family more than once with his rifle.

Karam's book Trial by Ambush was published this month and presents the case for why David Bain should never have been tried for the murder of his family - Stephen, 14, Laniet, 18, Arawa, 19, Margaret, 50, Robin, 58 - on June 20, 1994.

Bain was acquitted after a retrial in Christchurch in 2009.

He is now seeking compensation from the Government.

In his book, Karam says evidence from witness Denise Laney is tantamount to an exoneration of Bain. But Laney has told The Press that she explained to Karam, at the time he was gathering evidence for Bain's defence, what exactly she could say and claims he hung up on her.

On the day of the murders, Laney was on her way to work at a resthome up the road from the Bain's Every Street address when she saw David Bain at the gate of their house.

Her car's digital clock read 6.50am but was fast at the time, which was confirmed by a police test seven days later, finding it five minutes fast.

The timing adds weight to Karam's contention that Bain could not have been in the house when a computer was turned on and used by the killer to write a message.

However, Laney said Karam had read too much into her evidence. He had wanted her to be a defence witness but she told him she did not know how fast the digital clock was, and she believed she was not late for her start time of 6.45am.

When she saw Bain he was further up the street than normal and it caused her to worry that she was late.

"I thought: 'Oh God I'm running late', but it was misinterpreted. I tried to get it across in the courtroom I was not late; every day was pretty much the same.

"As I said to Joe Karam ... I said: 'Look, the best time frame I can give you is somewhere between 20 to and quarter to seven and he just hung up in my ear'."

Laney said she had tried to stay out of the debate about the case but was "cross" her evidence seemed to be continually misinterpreted.

Karam told The Press he called Denise Laney in 1998. "I have no recollection of hanging up on her, and would not expect that I would have. The call was some 12 or 13 years ago as I best remember it. I can only recall that she was reluctant to discuss her evidence with me."

He referred to her evidence at the retrial in 2009.

"My book relies on her sworn testimony on that occasion when she confirmed her digital car clock said 6.50am when she saw the person we now know was David Bain squeezing in the gate at 65 Every St; the police checked her car clock and it was five minutes fast and that she was a little late for work."

In the other disclosure, Kirsten Koch, a student at Otago University and a close friend of Arawa, said she went with Arawa to the Bain house at the end of May 1994.

They had talked in the front room, which was the tidiest in the house. Arawa had to go to David's room to get the key for it.

"I thought it strange David was allowed to have the key (to the lounge). I thought it was Robin's room. And she said: 'Oh well, David doesn't consider the room to be Robin's room and he wants everything to be the way it is and nothing to be touched'."

Then she mentioned Robin was allowed to go in for an hour in the morning to use the computer and Arawa and Stephen were allowed to go in for a time before school.

"Arawa said things had been a bit tense recently. David was threatening them with a gun and she said: 'He is just trying to bully us.' Then she tried to backtrack and tried to smile and talk about it in quite a jovial way."

She said Arawa did tell stories and it was sometimes hard to know how seriously to take her.

Karam said Koch first gave gave evidence at the retrial.

"She said she first made a statement to the police in 2008, 14 years after the incident. The comments you now attribute to her were not in that evidence.

"However she did say, amongst other things, that Robin appeared to her to be depressed; that she did not see Robin and Margaret together very often because they lived apart and that Arawa told her 'that there were family secrets she couldn't reveal to me'.

"She also confirmed she had not seen Arawa very much for some years because 'our relationship had become slightly severed in the sixth form', which was about three years before the tragedy."

- © Fairfax NZ News

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