Police pick flaws in Bain evidence

Last updated 20:29 27/06/2013
ROBIN BAIN: David's father.
David Bain
Fairfax NZ
STILL FIGHTING: David Bain.
Robin Bain evidence
TV3
EVIDENCE: The marks on Robin Bain's thumb.

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Police have rejected the ''evidence'' touted by a television programme as pointing to Robin Bain murdering his family, saying they could have pointed out its flaws had they been contacted before the show screened.

TV3's 3rd Degree programme last night pointed to Robin Bain loading the gun used to kill his wife, son and two daughters in their Dunedin home in 1994.

Sooty marks on his thumb matching those on the rifle's magazine showed Robin Bain had loaded the bullets, it said.

Assistant Commissioner Malcolm Burgess said police yesterday did a preliminary examination of fingerprints taken from Robin Bain after his death.

The marks cited as crucial new evidence were likely to be cuts to the thumb as there were no prints in the same place as the dark marks in the photograph.

''Our fingerprint experts advise that this is consistent with someone sustaining cuts or damage to the fingers prior to prints being taken, which would then affect the print image,'' Burgess said.

''Had these been powder marks or smudges as claimed, we would expect to see a complete fingerprint image.''

Police would take another look at the show's theory, and re-examine the photograph.

''However, I am mindful that this theory has been put forward through a programme whose makers chose not to seek comment from police prior to broadcast, and who also refused to provide details about their story when approached by police on Tuesday.

''Had they done so then we would have pointed out that fingerprints had been presented in evidence and have always been available through the court to help them decide if their story stacked up.''

David Bain, the sole survivor of the family, was convicted of the murders, but later found not guilty at a 2009 retrial after spending 13 years in prison.

He is seeking compensation from the Government and his legal team argued the new findings would help his case.

Prime Minister John Key today said he saw no need to speed up the process for dealing with the compensation claim.

Bain's lawyer Michael Reed is calling on Key to issue his client an immediate pardon after the new information came to light, and to deal with his compensation claim ahead of other legal matters.

Key said it was not possible to ''join the dots'' between David Bain case and that of Arthur Allan Thomas, who was issued a pardon by prime minister Robert Muldoon in 1979 after being twice convicted for the murders of Jeannette and Harvey Crewe, and jailed for nine years.

''They're completely independent and they have no correlation to each other,'' Key said.

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Bain's claim for compensation was before the Government but had been put on hold at the request of his negotiating team.

''We need to go through the current process which is before the courts, and then the Government will move to the position of reconsidering whether compensation should be paid to Mr Bain or not,'' Key said.

For compensation to be paid, proof had to be shown that somebody else committed the crime. The Crown would need to take advice on those issues.

A report last year by retired Canadian judge Justice Ian Binnie into Bain's claim for compensation  slated ''egregious errors'' by Dunedin police ''that led directly to the wrongful conviction'' and stated that Bain should receive compensation.

Last  December, Justice Minister Judith Collins said Binnie's report had needed to be peer reviewed because she was concerned it appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law.

The peer review was done by Robert Fisher, QC, who found the Binnie report was well organised, comprehensive and thorough, but Binnie had gone beyond his mandate and made fundamental errors of principle.

In January Bain's legal team applied for a judicial review, saying Collins had abused her power, breached his rights to natural justice, acted in bad faith and acted in a ''biased and unreasonable manner''.

In February the Government delayed its consideration of Bain's application for compensation for wrongful conviction and imprisonment while the judicial review was carried out.

Bain's judicial review is to be heard at the High Court in Auckland. Today Reed said no date had been set for the review, and that the compensation case should be dealt with beforehand.

- Stuff

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