Kiwiblog

The Herald reports:

A group of people who believe David Bain killed his family are launching a fight to prevent him getting any compensation or inheritance money. …

Mr Bain’s supporters, who say his father Robin killed the family members and then took his own life, have said they would seek compensation from the state for his years in prison.

But Justice For Robin Bain, formed from the Facebook group David Bain Is Guilty, is lobbying to prevent this happening.

The Facebook group is here, and a website here.

I think and hope the group is un-necessary as I think the chances of being able to prove David innocent on balance of probability (as oppossed to the inability to prove him guilty beyond reasonable doubt) is remarkably small.

In fact I am doubtful that Bain will make an application through the normal channels, as this will lead to a QC producing a report which will make a judgement as to who is more likely to have killed the Bain family – David or Robin. And that will be a pretty damning report I suggest.

I suspect the Bain camp will claim the rules are unfair, and will launch a campaign for compensation to be granted without going through the normal process. I may be wrong of course – time will tell.

I was fascinated to read this article in The Press by Martin van Beynen. He sat through the entire Bain trial, as a reporter. He starts off saying:

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.

And further:

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.

I’m glad he shared his views. He notes:

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.

I said something similiar – that David Bain should thank the Police as their errors did help his case.

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.

Appalling.

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.

Was she capable of emotional detachment in assessing the evidence?

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.

I hope he does apply for compensation, so a QC can advise on balance of probabilities if he is innocent or not.

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.

This is one reason I also keep covering the issue.

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 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.

Exactly – the series of “coincidences” was enormous. And then van Beynen looks at the Robin did it theory:

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. …

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. …

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 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.

What a great article. And remember van Beynen actually heard all the evidence.

The Herald reports on another piece of suppressed evidence:

Ms Koch told the TVNZ Sunday programme that the conversation with Arawa Bain happened in the Every St home a few months before the family were found dead.

“She [Arawa] said the family was scared because David was intimidating them with the gun,” said Ms Koch.

Who thinks David is going to get compensation if he applies?

I am somewhat staggered that the Supreme Court supressed claims that David Bain in his 111 call said “I shot the prick”.

Sure there is dispute over whether that is what he said, but I would have thought a jury would be allowed to hear the tape and work out for themselves if they agree with the claim or not. The High Court and Court of Appeal said they should be able to.

The suppression order has also been released this time on other evidence which the Herald printed a week or so ago. I blogged on it at the time and removed the blog item after it became clear it was still supressed. Not it is not, I have restored my original blog item.

When I read the allegations about what he said at school about his paper run, I joked to someone at the time that this now explains why he was still doing a paper run in his 20s!

Heh.

The Herald reveals evidence that was supressed. Would it have made a difference if made known to the jury? Who knows?

David Bain told a school friend that he could rape a woman and use his paper round as a false alibi, according to secret evidence that was suppressed during his murder trial.

The jury in the 12-week trial never heard the witness statements of the former Bayfield High School students, as the Court of Appeal ruled that the Crown evidence was too prejudicial against Mr Bain.

Now that Mr Bain has been found not guilty of murder, the Herald can reveal the evidence of Mark Buckley and Gareth Taylor, who say Mr Bain planned a rape of a female jogger while at high school. …

The pair told police Mr Bain had a sexual interest in the young woman and told Mr Buckley in 1990 that he could use his paper round to “get away” with the proposed crime. …

“Mr Buckley’s evidence is that the appellant proposed to free up time for this offending by arriving at the usual times at houses where he would normally see the residents (thus suggesting a normal delivery round) but delivering papers at other houses much earlier than usual,” said the Court of Appeal judgment.

Another Herald story covers the reasons for the acquital.

The jury has found David Bain not guilty.

Regardless of my personal views on who did it, he has won his day in court and the jury’s verdict stands. Joe Karam will feel a strong sense of vindication.

Ironically I believe Bain should thank the Police. If they had not stuffed up aspects of the original investigation, a different verdict might have occurred – but they did, and there was reasonable doubt

It will be interesting if he applies for compensation, as that required convincing a QC on the balance of probabilities you were innocent.

Finally as this saga comes to an end, let us remember the dead – brave Stephen, Laniet, Arawa, Margaret and Robin.

And again regardless of my personal views on who did it, let us hope David has a quiet future, where he can finally move on.

I wonder how many pages the newspapes tomorrow will devote to the story? Half a dozen?

UPDATE: You can vote in the blog poll in the side bar on whether or not you agree with the verdict.

Okay the trial is over, and the jury has retired. I’ve checked and the jury is sequestered until they reach a verdict which means opinions here should be unable to sway the jurors.

I decided when the trial started to note down all the improbable things you have to believe for David to have done it, and for Robin to have done it. And while it is not a matter of who is guilty on the balance of probabilities, looking at such things can help determine if doubt is reasonable.

So what do you have to beleive, to think Robin was the killer. This list is not comprehensive, and is even a bit repetitive. But here goes:

1. It was a lucky guess when David Bain told 111 ambulance officer they are all dead, despite later saying he only saw two bodies
2. Again a lucky guess hen DB told police officer they are all dead
3. The 25 minute gap between DB finding his family dead and calling 111 is in no way connected with trying to wash clothes and removed blood.
4. The bruise on David’s head and scratches on his chest and graze on his knee – none of which he could explain, were just a coincidence
5. The lens from his glasses found in Stephen’s room happened weeks ago and he never noticed OR someone else had borrowed the glasses
6. The lack of fresh injuries on Robin despite the massive struggle with Stephen is just the product of healthy living
7. David’s finger prints on gun are from a previous time
8. David telling a friend he had premonition something bad was going to happen was a genuine psychic experience
9. Stephen’s blood on David’s clothing was nothing to do with the struggle – OR someone else borrowed his clothes
10. Robin managed to execute his family on a full bladder
11. The lock and key to the rifle being found in David’s room is not relevant as they were obviously placed there
12. Robin decided to wash David’s green jersey to remove blood and the fibres from jersey found under Steven’s finger nails
13. David’s bloody palm print on the washing machine was from him checking the bodies
14. The Ambulance officer was wrong when he said in his opinion Bain was pretending to have a fit
15. Robin Bain would logically wear gloves to prevent fingerprints despite it being a murder-suicide
16. That Robin Bain would type a message on a computer for David telling him he is the only one who deserves to live, instead of writing a note. A hand written note incidentally would have cleared David.
17. Also that having just shot his family, and knowing David was due home, that Robin would wait 44 seconds for the computer to boot up to leave a message
18. Robin would decide David deserved to live, but go out of his way to frame him for murder
19. Robin Bain placed fibres from Davids jersey under Stephen’s finger nails
20. Robin Bain would shoot himself with a gun in the most awkward way possible?
21. That Robin Bain changed jerseys after he had killed his family and in particular Stephen Bain, washed the jersey, hung it on the line and then change into a brown jersey before killing himself?
22. That there is a logical reason that David Bain can not account for the injuries on his face, the bruise or the scraped knee, yet knows he did not have them during his paper run.
23. That Robin Bain put blood on the inside of David’s duvet and on his light switch
24. That there is an innocent explanation for why David says he put on washing before he discovered the bodies, yet there is a blood print on the washing machine.
25. That Laniet was being paranoid when she told friends she was scared of David
26. That the “family meeting” David called the previous night and insisted everyone attended was not a way to make sure everyone would be at home to kill.
27. That Robin Bain would wear a hat while shooting himself in the head.
28. That even though David told a relative he hated his father, his father did not know this and deliberately decided David was the only one who deserved to live
29. That David either imagined hearing Laniet gurgling or she gurgled 20 minutes after death
30. That Laniet allegations of incent with Robin was true, as was her claims she had given birth three times by the age of 12 and a half.
31. That Robin Bain managed to kill four family members without a single trace of his blood, skin, or DNA being left at the scene.
32. That it is a coincidence that on the morning of the murders Bain took his dog onto a property, ensuring he would be noticed to give him an alibi.
33. That the magazine found balanced on an edge next to Robin was not placed there by David but fell onto its edge from Robin’s arms.
34. That a sickly Robin Bain managed to overpower his teendage son who put up a furious fight
35. That Robin Bain went and got the newspaper from outside, despite planning to shoot himself

I remember during the first trial being convinced David was guilty and over the years you feel less certain as things get chipped away. I found the reports of the trial very useful at reminding me of the overwhelming foresnic evidence against Robin having done it.

Now the defence has been very cunning. They have challenged every piece of evidence and cast doubts on it. Some may say this is reasonable doubt.

I think it is important to look at the totality of the evidence, rather than individual aspects. While one can not define reasonable doubt, let us be stats geeks and say if you could it is doubt beyond 99.99%. And let us say that there are ten crucial forescnic items that point to David being the killer. But let us say that in each case the defence has introduced a 10% doubt.

But the defence have to knock out all ten items. And that 10% doubt, gets multipled and over the ten items is a 0.00000001% doubt.

Now before people howl at me, of course it is not a formula. But the point is you have to look at reasonable doubt over all the evidence, not just each individual aspect.

But before I say what I think the jury will do, let us look at what you need to beleive, to think David is the killer.

Well there isn’t a lot. Almost all the evidance fits in perfectly with the theory. The best I can come up with is:

1. That he managed to finish his paper run quicker than normal
2. That his foot at 300 mm couldn’t make a 280 mm luminol print
3. That he was prepared to risk his father waking up early and finding the family dead

The defence summing up was very weak – trying to play on sympathy for poor David, and saying look at him – does he look like a psychopath.

So personally I have absolutely no doubt that David Bain killed his family. Regardless of what the jury finds, I just do not regard the Robin theory as having any serious credibility.

But I am not at all confident the jury will find him guilty? Why? Because the Police did stuff up a lot of the initial evidence gathering. Their failure to test everything and keep everything may have allowed the defence to plant reasonable doubt with the jury – or even get a hung jury that would be as good as an aquittal for Bain.

If Bain is found not guilty, or it is a hung jury, it will be interesting to see if he applies for compensation. You see the test for compensation is not reasonable doubt, but whether he is innocent on the balance of probabilities as assessed by an Independent QC on the evidence. People may debate reasonable doubt – but I do not think anyone would debate the balance of probabilities.

If Bain is found guilty again, then he will be resentenced. If he gets the same non parole period, I think he will be eligible for release in around three years.

As with everyone else, I await the verdict with great interest.

A reader e-mailed in last week:

I was at the High Court yesterday watching the David Bain case, and I could see the laptop screen of one of the Crown’s lawyers and I could note that at the time when I looked he was reading your blog

That’s quite cool. Would be cooler if the Judge was reading it also

Talking of the Bain case, I am finding bloody useful the detailed blogs done by the NZ Herald on each day’s proceedings. Not as good as live streaming, but gives you a much better idea of the evidence that just one short story at the end of the day.

I’m actually using the Herald blogs to compile two documents. One is what you have to believe that Robin did it, and one is what you have to believe that David did it. I plan to blog them once the jury retires!

The Herald has excellent coverage of the Bain trial. They have updates here and a lead story here. They summarise the prosecution case:

• Stephen Bain’s blood was found on David Bain’s clothing.
• A lense from Bain’s glasses was found in Stephen’s room while the frames and another lense were found in Bain’s room.
• The trigger lock and the key to the .22 calibre rifle were also found in David Bain’s room.
• Bain had also tried to wash blood out of some of his clothing, including a green jersey, in the laundry.
• “Woollen green fibres were taken from under Stephen’s finger nails which match the fibres from the green jersey,”
  
• A partial palm print of David Bain was found on the washing machine.
• Bain was also seen to have scratches on his chest above his nipples.
• A policeman also noticed a bruise on Bain’s temple, about the size of a 50 cent piece.
• No finger-prints belonging to Robin Bain were found on the .22 calibre rifle.
• There was about 20 minutes of “lost time” between the time that the Crown believes he finished his paper round – 6.45am – and the 1,1,1 call made by Bain – 7.10am – from the family home.
• Alleged Bain had also displayed some “unusual behavior” in the days leading up to the murders.
• Alleged Bain told a friend that he had had a premonition and that he “sometimes knew what was going to happen”. He also “told her he had a feeling something horrible was going to happen”.

Now this is only the prosecution’s side.Still to hear from the defence.

I am sure almost everyone here has a view on this case, but it would be safer not to express a view as to guilt or innocence until the trial is over. Not that I think any jurors will be reading Kiwiblog to help them decide the verdict – but better safe than sorry. General discussion about the strength of the evidence is probably okay.

The Privy Council has rejected a bid by David Bain to have im acquitted of the murders of his family, without a trial.

Good. The case deserves a trial to resolve it.