Opposing points laid out in Bain case

'Was it David or was it Robin?'

The jury in the Bain family murder trial has retired to consider its verdict - for a second time.

The jury was sent to consider its verdict at 4.33pm but after discussions in closed court they were brought back to amend and clarify some aspects of the judge's summation.

The judge clarified points relating to the newspaper delivered to the Bain house, the lens found in Stephen's room, the message on the computer and testing of the murder weapon.

He thanked the jury - for the second time - for their patience in listening to the last three days of closings.

He bailed Bain to his address and imposed a 8pm curfew.

He cautioned him not to speak to media until a verdict was returned.

He said the jury would need to return a unanimous verdict.

The jury almost immediately after retiring indicated to court officials that they wanted to retire for the night and begin deliberations in earnest tomorrow.

Before retiring, presiding judge Justice Graham Panckhurst summarised, point-by-point, the prosecution and defence cases.

The judge began his summation this morning by repeating the words of the judge in Bain's first trial in 1995: "Was it David or was it Robin?"

Bain, 37, is charged with the murder of his family at their Every Street, Dunedin, home on June 20, 1994.

Bain maintains his innocence and says it was his father Robin who killed the family and then himself.
 
The judge said the prosecution case was:
 
- There was no physical evidence that Robin Bain had committed the murders

- Would Robin Bain have killed his family and selected only one child to remain alive?

- The bloody footprints found in the house were made by a foot larger than the print

- It was highly improbable that Robin, hurrying to kill himself before David got home, would wait 44 seconds for the computer to turn on so he could type his suicide note

- The method of supposed suicide was awkward and unusual and there would have been easier ways to do it

- All the indications were Robin got up with anything but murder on his mind. His alarm was set too late for someone planning to commit murder.

- Why would he change his clothes, including his socks? If he was the murderer he had been in a bloody fight with his son. He would have had to take off his clothes, leave them in the washing basket and get new clothes from the caravan   

- Why would Robin Bain wear gloves to murder his family if he was going to kill himself and announce himself the murderer with a note left on the computer? And gloves he would have had to go and find in a drawer in David's room?

- If David heard Laniet "gurgling" why didn't he immediately call 111 rather than wait 15 or 20 minutes?

- All the family were killed with a single shot to the head but Laniet was shot three times. Her gurgling must have alerted him to her still being alive

- Stephen's blood on David's clothes linked David to the fight with Stephen

- David had the physical ability to subdue Stephen - "not a big boy but someone who boxed above his weight"

- The glasses lens found in Stephen's room placed David in the murder room

- Who put the glasses frame on David's chair in his room, other than David? Why would Robin do that?

- Fingerprints in blood belonging to David and Stephen were found on the rifle by experienced police officers

- Robin's purported suicide scene was "staged"

- The suicide note was unusual. It was a "get out of jail free'' note written by David, not Robin

- David's partial palm-print, in blood, was found on the washing machine used to wash the murder clothes

- In David's phone call to 111 he said "They're all dead'' yet he told police he had only seen his parents dead

- Robin's body was noticeably warmer than the others because, to create the murder-suicide scenario, David had to wait for Robin to come inside the house

- David's body bore injuries which was consistent with the theory that Stephen Bain had fought with his killer.
 
The judge then summarised the defence case:
 
-The Crown had done a "u-turn'' in shifting its focus to Stephen's room because the evidence of the other murders was too confusing

- The blood found on the clothes was in "insignificant" amounts, consistent with David, distraught, going in to Stephen's room, kneeling down beside his body and brushing his head

- There was blood only on the underside of the socks and there was none on top, inconsistent with the fight scenario

- Robin Bain's hands had blood on them that was never tested

- An injury on Robin's hand was consistent with a fight with Stephen

- Nail scrapings from Robin's hands were not tested and were destroyed before they could be tested

- Robin was fit and able and with adrenalin pumping he would have been able to kill Stephen 

- David had no motive and the reliance upon his having seen Schindler's List and appearing in Oedipus Rex was overblown

- The "black hands" coming to get him were explained by migraines coming on

- David was young with an energetic life while Robin was a sad, depressed man

- There were reports Robin had stuck two of his pupils

- He had allowed the publication of student stories about killing a family

- Robin's marriage was disintegrating. The Bains had money. Margaret Bain was planning on building a large house but shutting Robin out of it

- The incest with his daughter Laniet provided the motive. A number of people testified that Laniet was going to blow the whistle on the incest that weekend

- Robin had tried to arrange a reliever at the school, had paid his tab at the dairy, and had organised a final meter reading where he lived at Taieri Mouth

- The bloody sockprints fitted Robin's feet

- Robin changed his clothes to go and "meet-his-maker'. It was unusual but Robin was not rational at the time

- Robin knew how to use the gun and finding the key to David's trigger lock would have been easy

- The scene in the lounge was consistent with suicide. There was a misfire before the fatal shot. The magazine was standing up because Robin had replaced it with the magazine used to kill himself.

- David was in no position to be in the lounge first and lay in wait for his father

- The method of suicide, on Robin's weak side, was natural if he wanted to control the barrel with his stronger hand

- The trajectory of the bullet and the blood spatter were consistent with suicide

- David's behaviour after the murders was consistent with someone in great shock at finding his family dead

- His actions on his paper round were completely normal and not designed to make sure he was seen

- The police officer in charge of the investigation was untrustworthy and had planted the lens

- David's injuries were modest and were sustained when he fainted

- Robin's body was noticeably warmer than the others but he did not say Stephen was significantly colder than the others. If David was the killer, Stephen's body would have lain on the floor for hours and would have been colder than the other bodies which were clothed or in beds

- Witnesses had testified long-dead bodies could make gurgling noises like the one Laniet made. It was also possible David was actually hearing water in the washing machine

- The rifle belonged to David so you would expect to find his prints on it. There was nothing to suggest the prints were made in blood

- The palm print on the washing machine was made when David inadvertently touched Robin's bloody clothes while doing the washing that morning

- The message on the computer was more consistent with Robin who was a stickler for grammar and a computer buff

- There was blood spatter inside the rifle barrel indicating a close-range final shot

- Doubt exists everywhere you look in the prosecution case          

Earlier, Panckhurst said the Bain family murderer must have been "confident" in the task he was undertaking.

To sequentially kill four or five people the killer must have been confident in his ability both physically and with weapons.

Since the morning break the judge had been going over contentious aspects of the evidence.

He said a number of witnesses had spoken of either incest between Laniet Bain and her father or Laniet's seedy lifestyle.

The imminent revelation of the incest motivated Robin to kill the family, the defence says.

Witnesses told of Laniet telling them or others of the incest, the judge said.

Other witnesses told of Laniet's accounts of having babies after she was raped by, variously, a family friend, a Papua New Guinean man, or her father - stories scoffed at by other witnesses.

During her violent death, Bain's sister Laniet was shot through the cheek and began drowning in her own blood, he said.
Before or after the cheek shot, she was shot through the top of the head, the judge said.

Bain testified in his first trial that he heard her "gurgling" - "groaning sounds muffled by what seemed like water".

Crown witnesses have said only the murderer could have heard gurgling of the type described.

Defence witnesses have testified to hearing sounds from long-dead bodies meaning Bain could have heard the sounds some time after Laniet's death.

He outlined the convoluted evidence as to when the family computer was turned on.

The computer had the message "Sorry, you are the only one who deserved to stay'' typed on it by the murderer.

The computer's turn-on time is important as the defence say David Bain was on his paper run when it was turned on.

Panckhurst then moved to the dispute over whether Robin Bain's fatal gunshot wound was a contact or distance wound. 

There was support from experts on both sides; the Crown said David shot Robin from a small distance while the defence said Robin shot himself from close range or even with the gun contacting his head.

He cautioned the jury to decide their verdicts solely on the evidence given in the trial, without emotion or prejudice.

The judge said he was not sure of the motive of defence counsel Michael Reed's description of Bain as being "penniless' and having spent years in jail and missing a large part of his life.

If Reed's intention was to arouse emotion, the jury should set that aside, the judge said.

In covering the standard of proof, the judge said the jury had to be "sure'' of guilt.

The judge said Bain's first trial, Joe Karam's book, and the judicial history of the case should be ignored in deciding guilt.

The Privy Council was careful to say its order of a retrial was not a comment on guilt or innocence, he said.

The Privy Council, then the highest appeal court in the judicial system, ordered a retrial in 2007 after they decided Bain's first conviction was "unsafe".

The last line of the council's decision was explicit in saying their order was to have no bearing on the outcome of a subsequent trial. 

Panckhurst said the jury would be allowed to handle and examine the exhibits in making their decision.

They had previously been refused access to the gun used to kill the Bain family, though, because they were not supposed to conduct their own "experiments'' with it.

They were supposed to make their decision with what had been presented in court alone, he said.

Since March 6, the court has heard from 184 witnesses over 56 days.

Defence and prosecution teams gave their closing addresses on Tuesday and Wednesday.

Panckhurst said the wide range of aspects of the case made it ideal to be decided by a jury.

"You and only you, in the country, have heard all the evidence.''

The judge repeated the words of a witness who he said gave good advice: "Keep things simple. What's the simplest explanation of events?"

- IAN STEWARD, The Press