Plan to 'rape' jogger revealed

A side of David Bain not revealed to the jury in his retrial was a seventh-former who allegedly planned to rape a young female jogger and use his paper round as an alibi.

The evidence that suggests Bain planned, as a 17 or 18-year-old, to rape the jogger can be reported now that the jury has reached a verdict and suppression has been lifted by the Court of Appeal. The High Court had allowed the evidence, but it was knocked out on appeal.

Bain had put his plan to writing in a notebook, a schoolboy friend of Bain's, Mark Buckley, was going to say.

Another friend, Gareth Taylor, whom the police also wanted to call as a witness, said he had a similar conversation with Bain in 1989. Bain left Dunedin's Bayfield High School after the seventh form in 1990.

The plan was to free up time for his offending by arriving at the usual time at houses where he would normally see witnesses (suggesting a normal delivery round) but delivering papers at other houses much earlier than usual.

Buckley, who was not interviewed by the police until after the Privy Council decision in 2007, made a statement saying Bain had told him about the plan when they were both 17 or 18 and probably in the seventh form at Bayfield High.

He did not take the conversation seriously at the time, but it concerned Bain's sexual interest in a female jogger he saw early in the morning when he was doing his paper round.

Buckley claimed Bain had talked about "getting away with it" by relying on his paper round and had referred to a notebook which he produced.

The Court of Appeal noted that the word "rape" was not attributed to Bain. They used the reference for ease of use and because it seemed to capture the essence of what was proposed.

The High Court in Christchurch had a special preliminary hearing on the issue, and Buckley was cross-examined about a falling-out between him and Bain over a Class of '90 item in their school magazine.

Justice Panckhurst, allowing the evidence, said he did not regard the dispute over the item as "destructive" of Buckley's evidence.

"The relevance of Mr Buckley's evidence is that it indicates that about four or five years earlier, the accused had in mind to use his paper round as the means for `getting away with' other criminal behaviour. So viewed, the evidence is logically relevant," the judge said in his ruling.

"A number of Crown witnesses are to give evidence of sightings of the accused in the course of his paper round. This closely mirrors the thought process which the accused outlined to Mr Buckley in the schoolboy conversation."

Evidence at trial was that at least two addresses on Bain's paper round got their papers 10 minutes early, and Bain told police, when interviewed the day after the killings, that he had been seen or heard at the address of Kathleen Mitchell, one of his last customers.

In a statement read to the court, Mitchell, who is deceased, said Bain had gone on to her balcony and got her dog barking, which he had not done for about a year.

The Court of Appeal said the paper round was not an "entirely orthodox" alibi. The alibi in the killings was not particularly similar to what was allegedly proposed in the sexual offending and was not an essential part of the Crown case.

The evidence carried a high risk of illegitimately prejudicing the appellant, the court said.

Buckley, who still lives in Dunedin, where he owns a commercial gymnasium, told The Press he got to know Bain when Bain enrolled at Bayfield High in the sixth form after his family returned from working in Papua New Guinea.

"He came across as a bit different and he used to spend a lot of time at lunchtime just sitting by himself and being a bit of a loner," Buckley said.

"He didn't look too distressed by the whole thing, but you could tell he was a bit alienated. I just felt a bit sorry for him always sitting in the common room by himself and stuff, so I just went over and started chatting to him."

The talk about the alleged plan to offend had surprised him, given Bain's personality.

He did not think the Bain he knew could have shot his family, but the pair lost touch after the seventh form.

"I didn't think he was capable of doing it back then. I felt really sorry for him thinking not only has he found his family killed but now he has got the finger pointed at him and how horrific that must be."

Buckley got to know the Bain family.

"I never found them too bizarre. The mother was into the alternative stuff," he said.

"The only weirdness was the state of the house. To me, it was more like a family moved in from another country and you expect it to be chaotic to start, but it never changed."

One of the unusual things about Bain was his speech, Buckley said.

"He was an awkward kid to start off because he was tall and skinny, and when he spoke he came across as being very proper and he was into singing and choirs, and he was a very unusual character from that point of view," he said.

"But once he settled in and met people with similar interests he was fine. He was just not a typical Kiwi boy. He wasn't condescending, but just a lot more refined than the average schoolboy and very respectful of elders."


Other features of David Bain's murder trial can be reported now that suppression orders have expired with the jury's verdict. These features include:

The defence tried at least twice during the trial to have a mistrial declared for what it termed "prosecutorial misconduct". The bids were rejected by Justice Panckhurst.

Before the trial, the defence tried to have Justice Panckhurst removed from the case. His son is the best friend of Bain's cousin's husband. The Court of Appeal rejected that application.

-The police lost an important witness when a detective went to the Victorian police forensic science department in 2007 and uplifted notes made by scientists in tests done for Bain supporter Joe Karam in 1997. The witness, a police armourer, had concluded Robin Bain had not committed suicide. The police only found out about the opinion after looking through the documents and were denied the ability to use it because it was "fruit from the poisoned tree".

-A friend of Arawa Bain had wanted to tell the court that Arawa had told her David had a gun and it made the "family feel scared". Justice Panckhurst ruled out the evidence because he said it was unfairly prejudicial.

Law expert backs decision not to let jury hear 111 call

The courts were right not to let the David Bain retrial jury hear a disputed 111 tape or allegations that Bain planned a rape, says a Christchurch law expert.

Canterbury University senior law lecturer Chris Gallavin said the courts had to decide whether evidence was "relevant and reliable" and whether its importance outweighed any unfair prejudice.

He said the disputed sounds on the 111 call and Bain's alleged plan to rape a jogger and use his paper round as an alibi failed those tests. "I think it's quite legitimately kept from the jury," he said.

Bain's 111 call to St John to report the death of his family contains "disputed sounds" that could be Bain saying "I shot the prick", but may be nothing more than an exhalation modified by random lip and tongue movement.

Gallavin said an apparent confession could be considered highly significant, and the Court of Appeal and the trial judge ruled the jury should hear the tape.

"But the Supreme Court found it wasn't relevant because experts had listened to it using state-of-the-art technology ... and they couldn't be sure what the words were or even if they were real words," he said.

"A lay person wouldn't have had a hope in hell of telling, so it hadn't passed the threshold of reliability."

Gallavin said the allegation of a planned rape was prejudicial likely to make Bain seem more capable of murder while the alleged alibi plan was not highly relevant.

"The Crown case didn't proceed really on the basis of the paper round being an alibi, so it's probative value [ability to prove] is suddenly diminished," he said.

Gallavin questioned the value of the Bain retrial as he believed it could never be proved who killed the Bain family.

"It's a flip-of-the-coin case heads it was David, tails it was Robin," he said.

The 111 call:

Why it was suppressed:

-The Supreme Court said even experts using specialist equipment could not say whether Mr Bain was speaking words at all, let alone "I shot the prick".

-One expert likened it to an image glimpsed in the clouds.If the jury could not reasonably conclude that the disputed sounds were a confession then they must be excluded as irrelevant.

-The unfairly prejudicial effect on the trial could have been profound.


The Press