Plenty of doubt in Bain jury's verdict

BY MARTIN VAN BEYNEN
Last updated 05:00 20/06/2009

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OPINION: Journalists remain impartial at a trial, but, inevitably, after hearing all the evidence and being paid to concentrate, you reach a view.

After sitting through almost every minute of the David Bain retrial, I was quite convinced Bain killed his family on June 20, 1994, by executing them with his .22 semi-automatic rifle.

I thought many of the defence arguments had been exposed as almost ludicrously implausible and its experts revealed as endorsing some very strained interpretations of the evidence.

Not that the police case was without flaws. If the police had kept samples taken from Robin Bain's hands, and also removed and retained carpet that contained a crucial bloodied footprint, the result might have been different.

David Bain's lawyers were able to argue that the police had removed an opportunity for him to prove his innocence, but the police's lack of diligence could also be seen as a great stroke of luck for Bain.

The verdict surprised me, but should not have. If the case had been put to 10 juries, I believe six would have convicted, two would have acquitted and two would have been unable to reach a decision. Bain won the lottery.

What is a little surprising is not a single person out of the 12 in this, Bain's second jury, was prepared to argue strongly for a guilty verdict when such a damning case was in front of them. The verdict after only five hours shows that little argument could have taken place.

Several aspects about this jury should worry us all.

The two jurors - a man and a woman - who were seen to congratulate Bain after the verdicts and who went to his celebratory party were the same two who spent the last three weeks of the trial paying little attention to the evidence and closing addresses. They giggled and wrote messages to each other.

The man would often sleep through parts of the afternoon.

Initially, the woman was so disturbed by the images shown as evidence that she turned her computer screen away. By her own admission, she spent the first two weeks of the trial in tears, and the trial lost half a day because of her anguish.

Another juror, known to another member of the media covering the trial, had a serious question mark over her ability to follow the evidence. Yet another went to congratulate Bain's legal counsel after the verdict.

But such is our system and, for the meantime, we have to live with it. What we should not have to live with, without challenge, is some of the comments made after the trial.

For instance, take this comment from Bain supporter Joe Karam: "I had no doubts; no doubts since 1996. I've said, `Give us a day in court. No jury will ever convict this man. The evidence against him is nothing more than smoke and fire."'

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The fact is that the Bain defence team did everything it could do to prevent the case going to a jury and, when it was, it tried to prevent the jury giving a verdict.

After Bain's convictions were quashed in 2007, the legal team went back to the Privy Council in an attempt to get a stay (stop the trial for good), and then it applied for another stay in New Zealand before the retrial. Three times during the trial, it applied for a mistrial/stay to prevent the case reaching a conclusion.

To me, no-one looked more surprised at the verdict than Bain and his legal team.

All this shows that you have to be careful about what champions of the innocent say on television. And, next time Karam maintains Bain is innocent, he should be asked why this innocent man, who had nothing to hide, decided not to give evidence.

He may have said all he needed to say, but this jury should have heard it again.

Colin Withnall, QC, argued in this paper that it was arrogant and ridiculous to assume the jury was not satisfied of Bain's guilt, rather than satisfied of his innocence. He then seemed to suggest, making his own assumption, that the presumption of innocence should return to Bain, despite what was heard in the trial.

That might be a justifiable position in theory, but in the real world people make up their minds on available information.

Withnall presses strongly for compensation for Bain. I doubt whether Bain will apply for compensation because he must be aware, even if his legal team is not, that he was extremely lucky to get the verdict he did.

As for the relatives who supposedly took his inheritance, I don't think they need to worry about a potential lawsuit either.

Many people have said to me that the verdict doesn't really matter since Bain has served 13 years in jail anyway. In a way they are right.

I don't see much point in Bain serving any more time in jail. However, we need to keep reminding ourselves that five people were killed and the character of Bain's father, Robin, has been irretrievably besmirched.

We are now going to get countless articles and books about how the innocent Bain was persecuted by a conspiracy among the authorities. I am sure a David v Goliath film is also in the offing.

That Bain faced what I regarded as an overwhelming case will be lost in the fog of legend-building and self-justification.

And we are also going to have to put up with the cult of Bain. I was not the only one struck by the cultist element prevalent among his supporters.

It is easy to see how this has developed. We have the brave, abrasive advocate, Karam, doing all the talking. Bain, always quiet and reserved and always chaperoned by Karam, who guards him from media access and questions, remains a bare canvas on which anyone can project their views about the system.

In many ways, the result is, practically speaking, a good one. At least this is the end of the matter in terms of costly legal manoeuvres.

And what has Bain achieved?

He is unlikely to get compensation. At least half of New Zealand now believes he murdered his family, whereas before they might have been prepared to give him the benefit of the doubt.

You might ask what makes me so certain Bain brutally killed his family in 1994 in Dunedin. For that, you have to go back to the trial evidence.

The latest revelations about the 111 call and rape-alibi evidence, which were disclosed after the trial, do not add much to the case. The danger is that the controversy over that evidence will overshadow the powerful evidence during the trial.

The reasons I am sure Bain killed his family are twofold.

The first is the incredible coincidences that we have to accept if Bain is innocent.

For instance, we have to accept, just for a start, that the following facts all have perfectly innocent explanations not connected with the death of the Bain family - Bain's clear and recent fingerprints on the murder rifle, the bruises on his face and torso, the blood of his brother on his clothes, a 20-minute delay before ringing the police after finding bodies, hearing his sister gurgling (and failing to help her), convenient changes in his story, a lens from damaged glasses (of no use to anyone else and found in his bedroom) turning up in his dead brother's room, bizarre behaviour before and after the killings, not noticing the blood all over the laundry and putting the jersey worn by the killer in the washing.

However, the best evidence relates to the implausibility of Robin Bain shooting his family and then himself. If David Bain is not the culprit, Robin had a settled night in his caravan (we know this by the amount and quality of urine in his bladder) and then got up about 5.50am, after David had left on his paper round.

Despite David admitting he hated his father and siding strongly with his mother in every dispute, he was the one Robin wanted to spare, so he had to be out of the house.

Robin removed the clothes he slept in and dressed warmly, putting on a green jersey usually worn by daughter Arawa, a beauty queen and budding teacher, of whom he was very proud.

In the caravan, he listened to the radio, which he probably switched on before getting up.

His first stop on the way to the house where his family slept was at the letterbox, where he removed the newspaper.

Once in the house, he went to David's room, where he took the rifle from the wardrobe and then looked for the key to the trigger lock. Although he scattered a few bullets around (David had more than 1000 rounds of ammunition in his wardrobe), he found the key in a pot on David's desk with ease and carefully ensured other items were left in place.

He also put on David's white dress gloves, forgetting he did not want to implicate David and also overlooking that, since he was going to end it all, it wouldn't matter much if people knew it was him, anyway.

He loaded both magazines one five-shot and the other 10-shot with hollow-nosed .22 bullets and then headed towards the bedrooms.

He shot his sleeping wife, Margaret, just above her right eye and shot Laniet, his favourite, three times once in the cheek, once in the top of the head, and once above her left ear.

By this time, he may already have shot Stephen, his 14-year-old son, who, even as a grown boy, used to sit on his knee.

Stephen, however, had woken up and grabbed the silencer on the rifle before Robin could shoot. When he did, the bullet went through Stephen's hand and tore a gouge out of his scalp.

Stephen, pumped up with adrenaline, fought for his life, but Robin, belying a frame described as cadaverous, soon had the better of the brave teenager, strangling him first with his T-shirt and, when he was incapacitated, putting a bullet through the top of his head, like he had done or was to do with Laniet.

He then went down to Arawa's room. She had got up and, as she retreated into her room, he shot her in the forehead.

By now, he was covered in blood, mainly from Stephen. Did it matter, since he was going to take his own life? It did.

He went back to the caravan, perhaps having already neatly placed his blood-spattered clothes and blood-soaked socks in the laundry basket. He did not wash his hands.

To meet his maker, he chose an old pair of light-blue tracksuit pants, an equally delapidated T-shirt, an old business shirt, a brown woollen jersey and a thick hoodie. He also donned a green knitted beanie. He put on clean socks and shoes, but no underpants.

Then, he went back to the house to take his own life.

Time was marching on.

David would soon be home from his paper round and he still had to write his message on the computer.

He turned the computer on (David must now have been nearing the house) and waited 40 seconds for the computer to bring up the page for him to write his suicide note not to explain himself but to exonerate David. "Sorry you are the only one who deserved to stay."

Then, despite executing his family in textbook style, Robin chose an extraordinarily unusual way to take his own life, placing the rifle muzzle against his left temple on a strange angle.

A shot and he was falling, spilling blood and brain matter, which somehow got on to curtains that were a long way from where his body was found.

And the spare 10-shot magazine just happened to land on its narrowest edge, right by his right hand.

Despite clutching the rifle with his unclad hands to shoot at least some members of his family and then himself, the rifle did not have a single fingerprint belonging to him, even on the steel of the silencer.

Who did it? David or Robin?

In my view, the decision wasn't that hard.

- The Press

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