Compensation for Bain would be 'a travesty'
MARTIN VAN BEYNEN
OPINION: I can understand how it might be thought David Bain's lawyers raised the necessary reasonable doubt at his Christchurch retrial in May-June 2009 to get him off the five charges of murder.
Reasonable doubt is the test and although, having sat through the 58-day trial, I reached the view he was guilty, the jury, for all its faults, and there were many, had the unenviable prerogative.
What I have greater difficulty with, however, is how any independent and astute person could read all the material on the trial and interview witnesses and come out thinking Bain is probably innocent, and therefore entitled to compensation.
At the very least, I expected an uncaptured reviewer to end up with some very reasonable doubts about Bain's innocence.
It's of course impossible to know how the jurors came to their decision, but one has recently talked about her own doubts about her fellow jurors and how she and perhaps others felt pressured to acquit.
She was certainly not convinced Bain was innocent and has written to Binnie to oppose compensation.
Today, Justice Minister Judith Collins will release the Canadian judge's report for the Cabinet on whether he was satisfied Bain was more likely than not to have committed the atrocious executions in 1994 in Every St in Dunedin.
The report will no doubt be a formidable tome and will take some digesting.
The intricacies of the Bain case, with just about every facet under rancorous debate, means knee-jerk reactions to the report won't add much to the never-ending discourse about this infamous case.
What I will be looking for in Binnie's report, however, is how he reconciles all the evidence that points at least in some way to Bain being the killer with the evidence apparently implicating Robin Bain.
Because if Binnie is right, it's more likely than not that Robin Bain killed his wife and children with David's .22 semi-automatic rifle.
I don't know how much weight Binnie will give to the apparent police botch-ups in the case.
There is no doubt the investigating police could have done more rigorous testing and should never have allowed samples to be destroyed.
We should not forget, however, how complicated this crime scene was and how police were initially thrown off track by an understandable assumption they were investigating a murder-suicide.
Some of their work was meticulous, but mistakes meant some questions were left unanswered.
These omissions could be seen as providing as much assistance to Bain's case as they did to the police.
For instance, Bain's lawyers made much of some red-coloured debris under Robin Bain's fingernails that was not tested.
It provided a profitable wedge for the defence, but the debris - Robin Bain was not a clean man - could have had a perfectly innocent explanation.
Bain's advocate, Joe Karam, was adamant that blood on Robin Bain's tracksuit pants would, if every spot was tested, reveal signs of the blood of his murdered children.
In time the tests were done and all the blood was Robin's.
After the trial I itemised 24 pieces of evidence that formed the basis of the evidence against Bain (as opposed to the evidence against Robin Bain) and which were challenged in each case by the defence, on the grounds every one had an innocent explanation.
On any reading of these 24 points, the very most that could be said, in my view, was that it put the prosecution and defence on an even keel.
To me the powerful indicators of Bain's guilt are:
* His fingerprints on the rifle.
* The lens from spectacles that were useful to him but not his father found in his dead brother's bedroom.
* Inconsistencies in his various accounts.
* His brother's blood on his clothes and injuries to his face, leg and torso.
* A 20 to 25-minute unexplained interlude between discovering the bodies and ringing 111.
My view is the defence explanations were a strained interpretation. How anybody could look at all the factors and say Bain was probably innocent is beyond me.
Karam and Bain have said a lot after the verdict in 2009.
Bain has yet to answer some awkward questions. Of course it was his right to remain silent, but he was a man who had espoused his innocence for 15 years.
There are also many inconvenient questions surrounding Robin Bain if he indeed was the killer.
Here are a few:
1. How did the cadaverous Robin fight off son Stephen in a fierce fight and sustain no injuries?
2. Why did he put on David Bain's gloves to execute his family when he was going to spare David, not implicate him, and commit suicide?
3. Why did he change into fresh clothes between killing his family and taking his own life? He took the soiled clothes and put them neatly in the washing basket.
4. Why were none of Robin Bain's fingerprints on the rifle, especially since he must have clasped it tightly to kill himself in the very odd way he chose?
5. Why did he wait until David Bain was just about bouncing through the door before writing his suicide note and killing himself?
6. If he was supposed to put on fresh clothes and cleaned himself up after the killings, how come he still had spots of blood on his hands?
7. Why would he kill with a full bladder and after an undisturbed night?
8. Why did he follow his normal routine - set his alarm, get the paper from the gate - if he was so disturbed he had decided to kill the family?
9. How come it was David who was scaring the family before the killings by threatening behaviour with his rifle?
On the basis of these points, compensation for David Bain would be a travesty.
- © Fairfax NZ News
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