David Bain

David Cullen Bain (born 27 March 1972) is a New Zealander who was convicted in May 1995 of the murders of his parents and siblings in Dunedin on 20 June 1994. Bain served 13½ years of a life sentence before successfully appealing his original convictions to the Privy Council in May 2007. Finding there had been a substantial miscarriage of justice, the Privy Council quashed his convictions and ordered a retrial.^[2] The second trial held in Christchurch ended with his acquittal on all charges in June 2009.^[1]

Speculation about the case has continued after he was acquitted, including whether or not he should receive compensation for the 13 years he spent in prison.^[3][4][5]

Family background

David Bain was born in Dunedin, New Zealand to Margaret Arawa and Robin Irving Bain and was the oldest of four children. Soon after he was born, the family moved to Papua New Guinea, where Robin worked as a missionary teacher. The family returned to New Zealand fifteen years later (in 1988) by which time Margaret and Robin were reported as having "relationship problems".^[6] Robin became the principal of Taieri Beach Primary School, a two-teacher school about 50 kilometres down the coast from Dunedin.^[7] By 1994 Robin and Margaret were estranged and Robin was sleeping in the back of his van at Taieri or in the schoolhouse. David and the rest of the family lived at 65 Every Street, Andersons Bay, Dunedin. Robin returned to the family home at the weekends and slept in a caravan in the back garden.^[8]

Killings

Memorial to the Cullen Bain family in Mosgiel

On the morning of 20 June 1994, David Bain called 111 at 7:09 am in a distressed state and told the operator: "They're all dead, they're all dead."^[9] When the police arrived they found five members of the Bain family had been shot – Robin Bain (the father aged 58), his wife Margaret (50), their daughters Arawa (19) and Laniet (18), and their son Stephen (14). Four days later, David Bain, then aged 22, was charged with the murder of all five members of his family. On 5 July 1994, the house was burnt down by the New Zealand Fire Service, at the request of the trustees of the Bain family trust and with David's permission.^[10]

Trial

At his trial the prosecution claimed that David killed his entire family after completing his early morning paper round.^[11] One piece of evidence was a message found typed on the family computer that read: "sorry, you are the only one who deserved to stay". The defence used this to put forward the proposition that David’s father, Robin Bain, had killed the others while David was out on his paper run – and then committed suicide.^[12] Forensic evidence offered by the prosecution showed David Bain's fingerprints were on the murder weapon.^[13] After a three-week trial David Bain was convicted by the jury on five counts of murder and sentenced by Justice Williamson to life imprisonment with a 16 year non-parole period.^[14]

Appeals

Bain maintained his innocence and began a lengthy campaign to have his case reheard, spearheaded by Joe Karam, a former member of the All Blacks. Karam had been appalled at the way the family, the Police and the Fire Service arranged to burn the Bain house down.^[15] He felt something was wrong with the case and began to study the evidence presented at the original trial.^[16] He went to visit Bain in prison in Christchurch and subsequently visited him over 200 times.^[16] Over the next 13 years, Karam wrote four books about Bain's case and helped him in his numerous appeals.

The first appeal was made to the New Zealand Court of Appeal in 1995, but the Court refused to even hear it on the grounds that "the Crown case appeared very strong and the defence theory not at all plausible".^[17] New Zealand did not have a Supreme Court at that time, so in 1996 Bain made his first appeal to the Privy Council in Britain; however, the Privy Council also declined to hear the case.^[18]

In June 1998 Bain petitioned the Governor-General for a pardon. The Governor-General passed the application on to the Ministry of Justice, which conducted an investigation into new information presented by the defence team. In 2000, Justice Minister Phil Goff said the investigation had shown that "a number of errors" may have occurred in the Crown's case against him,^[19] and some aspects of the case were referred back to the Court of Appeal.^[18] In September 2003, the Court of Appeal examined the new evidence but decided once again that a retrial was not needed, on the grounds that the new evidence would not have changed the jury's verdict.

Bain's legal team made a second appeal to the Privy Council, and in March 2007 the legal team and Karam travelled to London to lay out nine arguments why his convictions should be quashed.^[20] One of the nine points concerned Robin Bain's mental state and potential motive. Reliable witnesses said Robin had been depressed and living alone in squalid conditions in a caravan. Journals in his office at the school where he taught were found to contain stories about the mass murder of a family. The Privy Council wrote: "Many of those facts are highly contentious and the evidence could well have influenced the jury's assessment of them."^[21] The Privy Council concluded that: "In the opinion of the board, the fresh evidence adduced in relation to the nine points... taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case."^[21] The Privy Council quashed his convictions and ordered a retrial. Bain was released from prison and bailed to live with Joe Karam.

Second trial

The retrial was held in Christchurch in 2009. It ended with Bain's acquittal on all five charges in June 2009 after five hours and 50 minutes of deliberations.^[1] Each verdict of not guilty for the five murders was greeted with cheers and applause by those in court.^[22] Outside court an emotional Bain thanked his supporters, particularly Karam. "Without Joe and his solid strength ... I wouldn't have made it through this far," Bain said.^[23] About 50 media personnel were at the High Court to cover the trial, and it was reported that television coverage of the verdict matched the media flurry attracted by President Clinton's visit to New Zealand in 1999. Karam said the trial would go down as the "criminal trial of New Zealand’s history".^[24]

Coroner's inquests

In 1994, the Dunedin Coroner decided no inquest was needed, as he was satisfied that the evidence shown in court had established the cause of the deaths.^[25] After the retrial, New Zealand's Chief Coroner consulted with the local coroner and others to decide whether to conduct inquests into the deaths, as the verdict implied the death certificates may not be accurate. However no inquests were held; a Law Society spokesman pointed out that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against David Bain.^[26]

Compensation

In March 2010 Bain lodged an application for compensation for wrongful imprisonment.^[27] His case falls outside Cabinet rules on compensation and so the Government is not obliged to pay him anything, but may do so if he is able to establish his innocence on "the balance of probabilities" and is also considered to be the "victim of exceptional circumstances".^[28] Because of the high-profile nature of the case in New Zealand, in 2011 former Justice Minister Simon Power chose an overseas judge - retired Canadian Supreme Court Justice Ian Binnie - to examine Bain's application for compensation.^[29] Bain described to Binnie in detail the impact that imprisonment and years of negative publicity had on him.^[30]

After a year long investigation Binnie concluded, in a 180 page report,^[31] that Dunedin's police had made "egregious errors" and that there were "numerous instances" of investigative ineptitude that led directly to the wrongful conviction. In particular, he described the failure of the Crown to preserve evidence in the murder investigation, by burning down the house, as one of the "extraordinary circumstances" that the Cabinet should take into account.^[32] Binnie said the evidence established that "the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence".^[33] The report concluded that "on the balance of probabilities" Mr Bain was innocent of the murders in 1994 and should be paid compensation for wrongful conviction and imprisonment.^[34] The finished report was delivered to the New Zealand government in September, 2012.^[35]

Justice Minister Judith Collins allowed the police and the Solicitor-General, but not Bain's legal team, to see the report and then ordered a peer review by a former High Court judge, Robert Fisher. Fisher concluded that Binnie "went beyond his mandate" and that "it would be unsafe to act upon the Binnie report."^[36] Collins said another report would have to be done^[37] and that it would likely be 2013 before a final decision was made on whether compensation would be paid.^[38] A media spat developed between Collins and Binnie, who pointed out (in an email subsequently released to the media by Collins^[39]) that Fisher had not read the 10,000 pages of background files^[40] and said his review was the product of someone with "little familiarity" with the case.^[33] Eventually Collins released the report written by Binnie, the review by Fisher, and Binnie's email response to Fisher's review. ^[41]

In January 2013, Bain filed a claim in the High Court seeking a review of Collins' actions. The claim alleges Collins breached natural justice and the New Zealand Bill of Rights Act in her treatment of him.^[42]

Life after acquittal

Following his acquittal, Bain undertook a three-month European holiday paid for by his supporters. Ten months later, he was struggling to find work and had no money. Auckland defence lawyer Peter Williams QC said Bain would be suffering from the stigma experienced by ex-prisoners re-entering the workplace.^[43] In September 2012, Bain became engaged to his girlfriend, a Christchurch school teacher,^[44][44][45] and they were married on 10 January 2014.^[46] While in prison he had been engaged to another woman for about five years, but after several failed appeals, this relationship did not work out.^[47]

Popular culture

The jumpers worn by David Bain during the original trial, knitted by Margaret Bain to his own designs, became a symbol of the Bain case.^[48] During the retrial T-shirts inspired by the jumpers were sold on TradeMe.^[49] Reflecting the high level of public interest in his case, in 2009, David Bain was found to be by internet search engine Google the most-searched for New Zealander of the past year.^[50]

The December Brother, a 2010 play produced by Tim Spite^[51] for Wellington's Downstage Theatre, depicted re-enactments of the Bain family killings. It presented two scenarios – the first with David Bain murdering his family, and the second with his father, Robin Bain, carrying out the killings, then taking his own life. The play was based on the theories put forward by the legal teams for the defence and prosecution during the trials.^[52]

See also

• Arthur Allan Thomas

References

Further reading

• Joe Karam David and Goliath: the BAIN family murders (Auckland: Reed, 1997) ISBN 0-7900-0564-6
• James McNeish The Mask of Sanity: The Bain Murders (Auckland: David Ling, 1997) ISBN 0-908990-46-4.
• Joe Karam Bain and Beyond (Auckland: Reed, 2000) ISBN 0-7900-0747-9
• Judith Wolfe and Trevor Reeves In the Grip of Evil: The Bain Murders (Dunedin: Square One Press, 2003) ISBN 0-908562-64-0

External links

• News media coverage:
  • David Bain trial, stuff.co.nz.
  • Bain retrial, Otago Daily Times.
  • David Bain News, TVNZ.
  • David Bain, 3 News.
  • David Bain Case, The New Zealand Herald
• Chronology of Bain's Legal Battle, from infonews.co.nz.
• Application for Royal Prerogative of Mercy: David Cullen Bain, Minister of Justice, 31 October 2000.
• Crime.co.nz Unofficial NZ law enforcement web site with information on the case.
• Privy Council Appeal No 9 of 2006, David Cullen Bain v. The Queen. Full text of Privy Council ruling, 10 May 2007. RTF format.

• News about the marriage of David Bain to Liz Davies