When David’s case was presented to the Privy Council in England in 2007, the defence team laid out nine different points of evidence challenging the decision made by the New Zealand courts. After considering these, the Privy Council came to the conclusion there had been a substantial miscarriage of justice – and that his conviction should be overturned. The full Privy Council decision and their discussion of the nine points is here.
1) Robin Bain’s Mental State:
At the (first) trial, Robin Bain was characterised as a “balanced, devout” school principal, while the jury were invited to view David as “disturbed”, “obsessional” and “bizarre” and therefore more likely to have carried out the killings. Following unsuccessful appeals in New Zealand, in 2007 the case reached the Privy Council in Britain.
Privy Council: New evidence presented to the Council by three teaching colleagues who knew Robin Bain indicated he had been seriously depressed and raised real concerns about his mental state at the time of the killings. Kevin Mackenzie, President of the Taieri Principals’ Association, testified that Robin had allowed the “publication of brutal and sadistic stories written by children in his class, one of them involving the serial murder of members of a family”. The Council noted that:
“(Mr McKenzie) does not regard these as stories normal children would write unless motivated to do so. He regards Robin’s decision as principal to publish them as “unbelievable” and sees them as “the clearest possible evidence that Robin Bain had lost touch with reality due to his mental state”. (Para 41)
Not only do the stories raise concerns about Robin’s mental state, they raise the distinct possibility he had been thinking about taking violent action against his family for some time and ‘rehearsed his thinking’ with the children at his school. The Privy Council concluded that if a new jury heard this testimony…
“The jury might accept the evidence of three professionals, as yet uncontradicted, that stories of the kind described above are not written by children and published in a school newsletter without participation by the principal of a two-teacher school” (para 105).
At the trial no plausible motive for either Robin or David Bain was established, although the prosecution argued that David and Robin had argued over a chainsaw that both of them wanted to use. Defence counsel submitted that Robin was a proud school teacher who had been rejected by his family and had finally snapped after months of pressure. But at the time, the only ‘evidence’ that Robin was under pressure came from Dean Cottle’s statement that Laniet was about to reveal to the family that her father had been having sex with her. This testimony was rejected by the trial judge as unreliable and not presented to the jury.
Privy Council: Over time four new witnesses came forward all of whom gave testimony supporting Mr Cottle’s allegations of incest by Robin Bain. In an upset state one day, Laniet told one of these witnesses she was “having an affair with her father” (para 47). She told another witness her father had raped her “when the family were still in Papua New Guinea” (para 48). She told another “I can’t stand what he’s doing to me any longer” (para 49).
The Privy Council concluded:
“If the jury found Robin to be already in a state of deep depression and now, a school principal and ex-missionary, facing the public revelation of very serious sex offences against his teenage daughter, they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence… The jury might, not extravagantly, have felt that this evidence put a new complexion on the case.” (para 106)
3) Sock Prints:
At the trial the prosecution claimed that a 280mm-long bloodied sock print found outside the mother’s bedroom was made by David. For some reason, this was accepted at the trial by all concerned, including the defence. It was subsequently discovered that the print actually fitted Robin Bain – his bare feet measured 270mm but the jury was never told this. After the trial, David’s bare foot was measured at 300 mm which showed his feet were too big to have made the print. This became a significant point of contention at David’s retrial.
“The fresh evidence throws real doubt on the correctness of that assumption (at the trial that the footprint was David’s)…(If the jury members had access to this new information, they) “could reasonably infer that the print.. was about the length of print that Robin would have made and too short to have been made by David…
(This) would indicate that Robin had been to parts of the house on the morning of 20 June which, on the Crown case, he would never have visited. (And), it would establish that Robin had changed out of blood-stained socks, since … the socks he was wearing when he was found dead in the lounge were not blood-stained. “
4) Computer Switch-On Time:
At the trial the prosecution argued that on the day of the murders, David killed everyone except his father before going out on his paper run – the four before, one after theory. They claimed that, with four dead bodies lying around the house, he then went out to deliver the papers leaving at about 5.45am. He got back at about 6.40am.
The prosecution argued that the family computer was switched on at 6.44am, after he got home. The precise time at which it was turned on was important because it was accepted by both sides at trial that “whoever switched the computer on was the killer of Robin” (para 63). If it had been earlier than 6.44am, that increased the likelihood that it was Robin who turned it on before David got home (and typed in the message that “you were the only one who deserved to stay”.)
“The judge reminded the jury that it was one of the Crown’s key points that the computer had been switched on at 6.44, just after David had returned home…
“It is now clear that the jury should not have been told as a fact that the computer was switched on at 6.44 am… The jury should not have been given a precise computer switch-on time, as new evidence showed it could have been earlier, or later… A jury might have considered David’s argument (that Robin turned on the computer before he got home) . . . to be strengthened, had they known the full facts”.
5) Time David Bain Came Home:
At the trial the time that David got home was closely connected with the arguments about when the family computer was turned on. The prosecution produced a witness, Denise Laney, who claimed she had seen a man resembling David Bain near the family home at 6.45am but the jury were led to believe her identification was problematic and her timing only approximate – in which case David could have got home a little earlier than Mrs Delany claimed, shot his father and turned on the computer at 6.44am.
Privy Council: Mrs Delany made a second statement to the police which suggested her perspective on timing was more accurate than the prosecutor claimed. But this statement was not read to the jury. So Mrs Delany’s complete evidence was not presented, and she was never cross-examined. The Council concluded:
“The reliability of her time estimate was a matter for the jury, who never heard the full evidence and never heard Mrs Laney cross-examined, because the defence did not know her clock had been checked by the police and did not know she had made a second statement… The fresh evidence might lead a reasonable jury to infer that her identification was not in doubt and her estimate of time reliable” (para 109).
6) Who Owned the Glasses:
The trial: David Bain was short sighted. The Crown claimed that during the killings he wore glasses – the frame and detached right-hand lens were subsequently found in his room. The left lens was found in Stephen’s bedroom and the Crown contended that this lens was dislodged when David was struggling to subdue his 14 year old brother. David said the glasses belonged to his mother. Mr Sanderson, an optometrist at the trial, testified that the two lenses were similar, but not identical, to glasses he had prescribed for David two years earlier.
Privy Council: Before the trial, the optometrist saw a photo of Mrs Bain wearing the glasses, and acknowledged he had made a mistake.
He communicated his view to Detective Sergeant Weir, who acknowledged that this was probably correct and said Mr Sanderson’s statement would be changed accordingly. Mr Sanderson gave evidence in the belief that his statement had been changed. He now realises, reading the transcript of his evidence to the jury at trial, that his change of opinion was not conveyed to them” (para 82).
As part of their deliberations, the jury asked for clarification on who the glasses belonged to. The Council concluded:
“The jury were given an answer which did not reflect (the optomistrist’s) revised opinion and which could have led the jury to draw an inference unfairly adverse to David.”
7) The Left-Hand Lens:
The trial: The other lens from the glasses was found in Stephen’s room, covered in dust, underneath other articles on the floor. But at the trial, statements made to the jury placed the lens in a visible and exposed position, consistent with the Crown case that it was dislodged in a struggle.
Privy Council: The third Court of Appeal accepted the jury had undoubtedly been misled about the location of the lens, but said it didn’t matter as it was not deliberate. The Privy Council took a very different view of this. They said:
“What mattered was what the trial jury made of the incorrect evidence and, even more importantly, what they would have made of the correct evidence (para 111).
The correct evidence was:
“It was possible that the lens had been in position before the struggle and had not been disturbed. The left-hand lens was dusty. Both lenses had been examined by ESR and no blood, hair, human tissue or finger-prints were found on either (para 87).
8) Bloody Fingerprints On Rifle:
The trial: Four bloodied fingerprints, identified as David’s, were found on the forearm of the rifle used in the killings. At the the trial, the jury was led to believe that the blood was human. The trial judge even listed David’s bloody fingerprints on the murder weapon as one of the key points in the Crown case.
Privy Council: The Council determined that unknown to the judge, the jury and the defence at trial, the blood in which David’s fingerprints were found had not been analysed (although samples taken from elsewhere on the rifle had been tested and were human blood). When the ‘blood’ in which David’s fingerprints were visible was tested and analysed three years later – in 1997 – it proved negative and did not indicate the presence of human DNA.
David said that he had last used the gun in January or February for shooting possums. The Council concluded:
“The blood analysis evidence was consistent with the blood being… the possible result of possum or rabbit shooting some months before… these were not issues which the trial jury had any opportunity to consider” (para 112).
9) Laniet Bain Gurgling:
The trial jury was encouraged to regard David’s statement that he heard his sister gurgling as an indication of his guilt, on the basis that only the murderer could have heard her death throes.
Privy Council: The Privy Council noted that Court of Appeal hearings examined the phenomenon of post-mortem gurglings, and was told by experts such gurgling can take place for a period of time after death. The Privy Council said the Court of Appeal dismissed this possibility…
“without hearing any of these expert witnesses and without giving any reason for discounting the evidence of (these) witnesses. The Board feels bound to rule that the (Appeal) court assumed a decision-making role well outside its function as a reviewing body…” (para 113).
Substantial miscarriage of justice
The Privy Council concluded:
“In the opinion of the Board the fresh evidence adduced in relation to the nine points summarised above, taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case. It is the effect of all the fresh evidence taken together, not the evidence on any single point, which compels that conclusion.”