David Bain: The case for reviewing all the evidence

by Martin van Beynen / 21 March, 2018
Robin Bain, left, and David Bain.

Robin Bain, left, and David Bain.

The case for reviewing all the evidence

Martin van Beynen assesses the cases for and against David Bain.

I was reminded over Christmas how polarising the Bain case can be. A relative told me he’d sent one of my articles doubting David Bain’s claims of innocence to a family he’d been friendly with for years. They were Bain believers and never spoke to him again.

It’s often said New Zealand is split into two even camps: those convinced of David’s guilt and those believing in his innocence. I doubt it’s that simple, but there’s no disputing the Bain case, the subject of debate for nearly 24 years, continues to fascinate the country and produce strong opinions.

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After David’s acquittal in 2009, the former broadcaster and now local body politician Michael Laws, who is in the “Bain is guilty” camp, wrote: “As there are dog people and cat people, as there are those who believe Neil Armstrong walked on the moon and others who swear he walked on a Hollywood backlot, so this morning the world – or at least New Zealand – is divided into those who believe that David Bain is guiltless, and those who do not.”

But the passionately expressed views from these two sides are often based on wrong information, omissions of alternative interpretations, red herrings, and selective readings of the evidence. Very few have done the homework required to come to an educated position, but that doesn’t seem to temper the certitude of their views. 

Recently, I gave a talk to a large group of ex-teachers and former academics. An older woman came up to me afterwards and asked why I continued to write about Bain’s guilt when “no evidence” existed to show he was the shooter. I wondered where to start.

And so we come to the pieces by Jonothan Cullinane and Kevin Sturgeon. Cullinane, the crime writer, challenges the view put by Black Hands by trotting out some of the well-worn defence arguments, without a fair appraisal of all the evidence.

Sturgeon’s approach is usually associated with those advocating for David’s innocence. He claims to have looked at the evidence afresh and come up with new analysis and interpretation. Both authors, unfortunately, make mistakes and, I believe, present their arguments with unjustified confidence. But they are sincerely held, well expressed and demonstrate the vehemence of the ongoing controversy.

Cullinane’s piece is interesting in that it highlights what cherries from the Bain evidence tree have impressed him (and no doubt other Bain supporters, too). His main argument is that Robin was confronted with his daughter Laniet’s incest allegations the night before the shootings and, in his depressed state, snapped.

Clockwise from top left: A young David Bain with his siblings (from left) Arawa, Laniet and Stephen; Parents Robin and Margaret; Laniet; Arawa; Stephen.

Unusually though, Robin, having lost his mind, did not immediately go on his shooting rampage. He went to bed with a hot-water bottle and doesn’t appear to have got up during the night.

I agree incest can’t be ruled out and the police should have looked at Laniet’s allegations much more closely. The problem for the defence is that even if this is true, why would Robin not just shoot himself? Why take the family with him and spare David?

And Laniet’s claims were all over the place. This is Justice Panckhurst on the allegations in his summing up at David’s retrial: “Did she have a baby? Was it black? Was it white? Was it aborted? Was the father of any baby a family friend, somebody who raped her, or her father? Are her accounts credible and reliable? Is there a pattern to them? Acquaintances, people in dairies and so on, seemed to have been told these things quite readily. People who were somewhat closer… didn’t hear anything of these things. Was Laniet inclined to tell them to people whom she knew less well, and people who didn’t know her family, and her father?”

Laniet’s claims need to be put in context. She also claimed to have attempted suicide by cutting her wrists, but no scars were visible.

The interesting thing is that nothing was very secret in the Bain household. But not once has David mentioned an abortion or baby or commented on Laniet’s claims about rape, except to tell a family friend that, of course, he would have known about a baby if there had been one. When the defence camp says David’s innocence is demonstrated by his reluctance to malign his father, it should remember that although Laniet’s claims about the baby are a key part of establishing Laniet’s credibility, we have yet to hear a squeak about them from David.

Laniet Bain.

Cullinane continues to be baffled by David going out on his paper-run, leaving the dead bodies for Robin to discover should he decide to get up.

Whichever way Robin came into the house – through the front door or the door downstairs leading into the kitchen/laundry – he did not need to go past any of the doorways of rooms in which bodies lay. Arawa’s room was well away from the kitchen/laundry door and Robin would have to go around two corners and through a narrow passageway to get to it.

David was also well aware of when everybody in the house got up, including his father and, with his six years of experience on the paper-run, had a good idea of how reliable Robin was.

It needs to be remembered it’s also possible David finished his run much earlier than usual, shot four members of the family and then waited for his Dad in the lounge, even perhaps calling him in. The Crown scenario – that David shot his mother and siblings and then went out to do his paper-run to establish his alibi before returning home to wait for Robin – is just one scenario. It seems the most probable, but others cannot be excluded.

Cullinane makes the mistake of assuming the podcast claimed David had a masterful plan, rather than just a plan. David had a history of overestimating his abilities and although he might have tried to come up with a careful plan, the Mickey Rourke dictum quoted by Cullinane comes into effect.

What is curious about Cullinane’s piece is that he makes me out to be some sort of blundering amateur detective while he, who clearly hasn’t done his homework and doesn’t address the counter arguments or the totality of the evidence, has somehow got it right. He is of course entitled to his opinion, but I’d argue not all opinions are equal. 

Robin’s blood and brain matter on the green curtains.

Sturgeon’s analysis also suffers from a few fatal weaknesses. For instance, the position of Robin’s body and the rifle is strange, given Robin’s blood and brain matter on the green curtains but, given the variables involved, it’s impossible to discount other scenarios.

Justice Callinan, in his 2017 report on David’s compensation claim, said all the evidence relating to Robin’s position and the spread of blood did not establish any probable position before he died, nor help him decide if it was murder or suicide: “I do not think that the case can be decided on the basis of theories about or reconstructions of [blood spatter, postures etc.]”

Sturgeon is offering what is essentially an educated layman’s view. Obviously no experiments can be run to test his thesis and he has no special expertise in the area of post-shot body behaviour. Maybe Robin did crumple but he could also have staggered about and landed away from where he was shot. You can bet the defence would have found an expert to say exactly that. In most cases, someone shooting himself as Robin is supposed to have, according to the defence, would have crumpled and the rifle would not have landed so far away. But the difficulty for the prosecution is the inability to completely rule out other possible scenarios.

Better arguments about the suicide scenario include the fact Robin was right-handed yet chose to shoot himself in the left temple, in a shot that went diagonally across the head.

Sturgeon comes to the right conclusion, in my view, but he is doing what David’s advocates often do by confusing conjecture for probability and he faces the same difficulty as the prosecution, that is, nullifying the unlikely but possible.

I initially thought he had a good point about the pattern of blood on the back of David’s top. But having looked closely at the original photograph, it’s clear the top’s ribbed fabric causes the pattern that Sturgeon finds so compelling – the blood only attaching itself to the fabric’s ridges.

And even if the marks on David’s top did match the pattern of the jersey worn by the killer, the defence would argue that blood left on door jambs in the house by the blood-soaked jersey could have been transferred to David’s top when he brushed against them.

The blood on the back of David's top.

What Cullinane and Sturgeon show is how the Bain murders can still start rancorous debates in New Zealand several decades after the bodies were discovered on that freezing morning of June 20, 1994. The case divides families, friends and media personalities. It has spawned lobby groups for David, and for his father Robin, and made David an immediately recognisable figure.

Why? New Zealand has had other horrific murders that have spawned debate and controversy, yet it’s the Bain shootings that are New Zealand’s most polarising case, in the same way the O.J. Simpson case still divides the United States.

To consider what’s behind the continuing fascination with the Bain case, we need to start with a more a fundamental question. Why are we fascinated by murder and the people who commit them in the first place? Why don’t we recoil from stories about the act of one human being deliberately killing another and ban them from our thoughts? The answer, I suspect, lies in our fascination with what drives a person to cross the line between murderous thought and action.

Some killers are such monsters it’s easy to put them in a class apart. But some just seem like ordinary folks, which makes it that much easier for us to put ourselves in their place. Many people find it impossible to believe that nice, ordinary David Bain could have killed his family.

He sang in a choir, helped his mother with the chores and tried to keep his family together. He is polite, boyish, middle-class and sensitive. He is now married, and has two children. He has never wavered in protesting his innocence, even if his denials were initially muted. You can bet Scott Watson and David Tamihere didn’t get many Christmas cards from sympathisers, unlike the hundreds David Bain got when he was in jail. Nor, I am sure, did their campaigns attract large donations from wealthy grandees in the way Bain’s campaign did.

Another reason murders engage us is they arouse one of our deepest needs: the need for justice. We can disagree about punishment and penalty but none will argue that perpetrators shouldn’t be pursued and exposed.

David Bain at the time of his arrest in 1994.

However, the danger of convicting the wrong person so offends us we have many safeguards. Better that 10 guilty people walk free than one innocent person is wrongly convicted. If the system prosecuted and jailed an innocent young man like David Bain, who came home to find his family dead, the injustice is appalling.

Equally, if David is guilty and falsely claiming innocence, he is perpetrating a great lie that should cause great affront.

Intriguing murders absorb us because we all like a good mystery. Hence the attraction of detective stories and TV crime series. We love to be kept in suspense, to wonder how things will turn out. Will the killer be found, will justice be done? We enjoy the mental exercise of spotting the red herrings and looking for clues. The complex evidence in the Bain case challenges the amateur detective in everyone to try to solve the crime. Without diminishing the horror of the shootings, it remains a classic whodunnit.

One of the most perplexing aspects of the Bain case is the question of what drove either Robin or David, neither of them natural killers, to shoot their family. The fact neither seem at all the type raises perhaps the most disturbing conclusion about the whole case: that we can’t trust our own judgment about people. We are happier declaring killers mad than confronting the fact they could be just like us.

The controversy over the case also goes to the heart of the New Zealand justice system, including the police, juries, expert evidence, the adversarial trial format and the process for examining possible wrongful convictions – highlighting problems with all facets of the system. Strong personalities were also involved. Few cases have someone as determined as high-profile former All Black Joe Karam working indefatigably to persuade the country of the rightness of his position.

Joe Karam

David Bain and his long-time advocate Joe Karam heading into the 2009 retrial at Christchurch High Court. Photo by Martin Hunter/Getty Images.

But why has the case been so polarising? Partly because it’s unresolved and unresolvable. How people respond to David is also part of the mix. However, the main cause of the polarisation is often overlooked.

The Bain murders are not like the Scott Watson or Tamihere cases, where debate over both convictions still lingers. The Bain conundrum is not whether David or some unknown person yet to be exposed committed murder. It’s whether David or Robin did it.

Such a formula means detractors can’t get away with just raising objections to specific pieces of evidence. If David is innocent, Robin must be guilty and vice versa. The evidence must be viewed from the perspective of who is the most likely killer of the two, given the evidence available.

Most controversial cases invite people to take sides, but much more so in the Bain case where the options are closed and definite. If you support one side, you have to negate the alternative.

We also need to remember that Robin is not here to defend himself. We can’t assess his personality, put questions to him, judge his demeanour or analyse his version of events. David has the field to himself.

Let’s put aside the debate over whether David’s defence team raised reasonable doubts about his guilt. I can accept a jury looking at the evidence available to them might be left not feeling completely sure David is guilty. But I’m not the criminal justice system. David has passed that test, but being found not guilty in a criminal trial is different from being innocent.

We have to weigh up the factors pointing to David and those pointing to Robin. The question of motive has to be put aside. To say David had no motive is simply a failure of imagination and ignores the full picture of David’s personality and background. But the search for a motive gets us little nearer the truth.

So, you turn to the hard evidence and the inferences that can be drawn from it. There was one crucial event that occurred during the shootings which the killer didn’t anticipate: the fight with Stephen. This was a vicious, desperate struggle in a confined place full of hard objects and sharp edges. Blood was everywhere. Stephen was held down against his bed, thrown around the room and ended up covered in bruises, grazes and blood. The killer’s gloves were saturated in Stephen’s blood.

So, who of Robin and David was the more likely to have been in the fight with Stephen?
Robin had a few tiny marks on his hands that, according to the post-mortem pathologist, were already healing. They were consistent with his handyman activities over the weekend. He had some tiny, untested smears of blood on his hands that were probably from his head wound but could have been residual blood from the fight. And that’s about it.

Robin's hand

Then we look at David. First, his fitness and size meant he was much more likely to have been able to overpower and strangle the plucky Stephen than the cadaverous Robin. David had injuries consistent with the sort of fight that went on in Stephen’s bedroom. He had bruises around his eye and the top of his forehead and a graze on his knee. Two witnesses in the second trial said they saw scratch marks around his shoulder and chest.

The defence contests the scratch marks on the grounds the doctor who examined David on the day of the shootings didn’t see them. Against that you put two reliable witnesses, one of whom says David himself showed her the marks; she drew a picture of them for the police. 

Police photographs show "bruising abpve eye and on right cheekbone".

Next, the blood. Stephen’s blood was found on David’s socks, the back of his T-shirt and on the crotch of his shorts. It’s quite possible David picked up these from splotches of blood left on the door jambs as he went around the house finding the bodies. But the blood on the crotch of his shorts is hard to explain.

What else connects David to the fight? A damaged spectacles frame was found on a chair in David’s room with both lenses missing. One was beside the frame on the chair and the other was found in Stephen’s room. David has never explained the glasses, which were actually his mother’s but occasionally used by him, being in his room and damaged. The defence claims the lens in Stephen’s room was planted, but evidence shows the lens was there on the day of the shooting but moved slightly when Stephen’s body was removed.

Then you have to consider David’s fingerprints on the rifle smeared with Stephen’s blood but with spaces clear of blood between the prints, which suggests David could have been holding that part of the rifle while the rest of it was being covered in blood.

The fingerprints were clear and fresh according to the police fingerprint technician, who was sure they were made with blood already on David’s fingers. The defence says the fingerprints could have other explanations, but I believe they strain credibility.

In my opinion, David starts out way ahead as the prime contender to be the murderer. Throw into the mix, then, the strange evidence of David hearing his sister Laniet gurgling when she had been shot three times in the head and would almost certainly have been dead for 15 minutes before David found her, on the defence timeline.

Okay, dead bodies do apparently make noises, usually when they are moved, and Laniet could still have been alive after what would in nearly 100% of cases be instantly fatal wounds. Either way, David decided there was nothing he could do for Laniet and left without seeking help immediately.

So we have five strong pieces of circumstantial evidence against David and nothing much against Robin.

The one thing we know for sure about David is that he is not reliable. He changes his story (sometimes within hours), he appears initially to have seriously considered whether he was the killer, he behaves strangely, he recovers memories which help his case, he talks about convenient black-outs, he deludes himself about his family and, yes, in my view anyway, he tells lies and fakes medical conditions.

Well, maybe Robin was the shooter and the evidence pointing at David is misleading and an unfortunate coincidence. But let’s look at what the reasonable bystander is asked to believe if Robin was indeed the killer.

The first is that Robin snapped after Laniet exposed their incestuous relationship and he turned into a killer who went on the rampage. Yet after the incest revelation he went to bed with a hot-water bottle and probably paid off the credit card.

He then supposedly readied himself, choosing to wear David’s white gloves, presumably to avoid fingerprints on the rifle, despite intending to shoot himself and spare David. He went on to shoot the family and have the vicious fight with Stephen but remarkably did not get any blood from the family on him, left no discernible fingerprints on the rifle and got not a decent scratch or bruise on him.

So he must have changed his clothes before shooting himself. Well, maybe, but if he changed in his caravan he left no blood there and chose his scruffy old weekend clothes and woolly hat to meet his maker.

Defence witness Philip Boyce demonstrates how a bullet wound in Robin Bain's head could have been self-inflicted during David Bain's retrial at Christchurch High Court in 2009.

Then he is supposed to have shot himself, but not before writing a cryptic message on the computer, using the wrong tense for the verb “deserve” and despite being in a hurry, to complete his plan before David returned home.

He shot himself in the left temple despite being a right-hander, with the shot going diagonally across the brain, something a Crown pathologist claimed was extraordinary if the shot was self-inflicted. Remarkably, none of his blood was found on the rifle, not even on the muzzle of the silencer.

Then he crumpled or staggered but landed with his right hand just next to the rifle’s spare magazine standing on its narrow, concave edge.

This is not to say everything was tied up neatly by the Crown case. The police investigation was in many ways unsatisfactory and it’s still hard to come up with a totally convincing re-enactment. Unfortunately, not all cases can be tidied up neatly like in a crime novel.

Arguments go either way and it’s impossible to be absolutely certain. However, remember the equation. Robin or David?

As I’ve said before, it’s not really that hard.

Martin van Beynen trained as a lawyer before diverting into journalism, where he’s remained for nearly 30 years. Since the late 1980s, he’s worked for Christchurch’s The Press and its websites; he’s won numerous journalism awards, including the prestigious Wolfson Fellowship to Cambridge University. His book Trapped: Remarkable Stories of Survival from the 2011 Canterbury Earthquake, was published in 2012. He launched his 10-part podcast on the Bain murders, Black Hands, last year. 

This was published in the March 2018 issue of North & South.

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