Did David Bain do it? The case for and againstby Jonothan Cullinane and Kevin Sturgeon
Is David Bain innocent or guilty?
A crime writer and a forensic expert go head to head
After nearly a quarter-century, the Bain family murders still vex and polarise us. Either Robin Bain killed all but one of his family and then himself, or his son David murdered his parents and three siblings, on that cold Dunedin morning in June 1994. Initially convicted of the murders, David was found not guilty in 2009 at a second trial after spending 13 years in prison.
Our fascination with the case was demonstrated last year when Christchurch Press journalist Martin van Beynen released Black Hands, a 10-part podcast on the murders that was downloaded more than three million times.
Despite all the evidence and argument – and despite his acquittal – public opinion on David Bain’s guilt or innocence remains split. But surely we can sit down, sift through what we know for sure, and come to a definitive conclusion? A former forensic police officer, and a prizewinning crime writer believe you can. It’s just that they’ve come to very different conclusions…
By crime writer Jonothan Cullinane
“Any time you try a decent crime, you got 50 ways you’re gonna fuck up. If you think of 25 of them, then you’re a genius. And you ain’t no genius.” – Teddy Lewis, the character played by Mickey Rourke in Body Heat (1981)
While there I talked to Michael Bennett, who did win the Non-Fiction prize, for his book In Dark Places which details the fight to free Teina Pora. Because I thought the nature of his book indicated an interest in miscarriages of justice, and because I wanted to deflect attention from my own chest-sucking wound, I asked Bennett about the Bain case, the subject of the recent podcast, Black Hands.
“I think David Bain is the luckiest man in New Zealand, quite frankly,” he said. Hmmm, I thought, that’s an interesting way to describe someone who spent 13 years in prison. “You think he did it?” I said. “Any… particular…?” “The rape fantasy was the clincher for me,” Bennett replied.
Okay, here’s a guy who’s worked for several years on a judicial outrage, the Pora case – someone who has, as they say, written the book – but in the Bain case, another judicial outrage in the eyes of some people, has zero doubt about David’s guilt, the clincher for him being an unsubstantiated and fiercely denied allegation made by one person that was never tested in court.
That’s not to criticise Michael Bennett, who’s a charming guy. I suspect a majority of people agree with him, if the success of Black Hands is any indication. But I think it’s odd. Martin van Beynen’s podcast revisits the case and finds David guilty, based on largely the same evidence on which he was acquitted by a jury in 2009.
But two things have always baffled me. The first is, why would David murder his mother, Margaret, and his three siblings, Arawa, Laniet, and Stephen, go out and complete his paper-run – and then come home and murder his father, Robin?
Would it not have occurred to David that Robin might get up earlier than usual that morning – having been woken in the caravan where he slept by the thumping and yelling of his sons in mortal struggle in Stephen’s bedroom, for example – then go inside, find his family dead, and immediately ring 111? Or that Robin might wake up as usual, go inside, notice the acrid smell of gunpowder and blood, think, “That’s odd”, find the bodies and ring 111? Would either of these distinct possibilities not have rendered David’s meticulous and murderous planning moot?
This is conjecture, of course. We have no idea what happened that morning. Robin might not have been disturbed. But if David was indeed the Professor Moriarty of Dunedin, the Napoleon of Crime, then the possibility of such an outcome must have occurred to him when he left his father alone for nearly an hour at a blood-soaked house with four bodies?
So what was David’s contingency plan? How would he possibly have explained the horrific scene inside the house if he arrived home to find police waiting for him?
Hoping to pull off such a heinous crime meant David was putting all his faith in two unlikely outcomes: that his father was a creature of such habit he would never come into the house before David returned from his morning paper-run, and that the police investigation would be so mind-bogglingly inept he would get away with it. If I was going to kill my family, those are the sorts of things I’d consider.
Black Hands says “the risk of discovery wasn’t that great”. Really? “Because if Robin had gone into the house and gone to the kitchen or toilet before David returned, he did not need to go past any of the rooms in which there were bodies.” That’s it? No other considerations?
In fact, a map of the house’s layout (below) on the Black Hands website shows that for Robin to get from the kitchen or toilet to the room where his body was eventually found, he would have had to walk up the internal stairs. What was at the bottom of those stairs? His daughter, Arawa’s bedroom. And at the top of the stairs? Daughter Laniet’s bedroom.
The second, and far more baffling aspect of the case for me, is the pass that Black Hands, the police and the Crown insist on giving Robin over the allegation he was having sex with Laniet. Why does that suggestion not upset people and make them question Robin’s role in the murders? Why do people insist David provide answers for everything, yet look away when it comes to Robin? Is there a worse crime than incest? Murder, generally, is an act of impulse or passion or commerce. But incest is a wilfully considered act of the most perverse and selfish kind.
“But it was only an allegation,” say Robin’s supporters. “Laniet was a fantasist! Where’s the proof?” Okay, I don’t know if they meet the proof standard but there are two things worth considering in this regard. Firstly, in the months leading up to the killings, Laniet was telling numerous people that her father had had an incestuous relationship with her. Four people – a dairy owner, a work colleague, a resident of the boarding house in which she was living, and a guy described as her pimp – related this.
Unsubstantiated allegations, yes. But to quote van Beynen: “As judges often tell juries, each bit of circumstantial evidence should be looked at like a strand of rope so that one strand may be too flimsy to hold the weight of a firm conclusion, but will gather strength as other strands combine with it to provide a compelling picture.”
Four unconnected witnesses saying Laniet had accused her father of long-term sexual abuse? Sounds like the beginning of flimsy strands gathering strength and turning into the faint outline of a compelling picture to me.
Also supporting her allegation that Robin was molesting her: Laniet was a sex worker. That’s one of the few things in this whole horrible mess that is uncontested. I imagine sex work was as atypical an occupation for a middle-class 18-year-old girl in the 1990s as it is today. I’m going to go out on a limb to suggest there might be a connection between sexual abuse and prostitution.
So how does Black Hands deal with the incest allegations? It asks: if Robin was having an improper relationship with her and if Laniet was so upset about it, why did she go to live with him in Taieri Mouth (where he was acting principal of the primary school and stayed four nights a week)? Van Beynen says, “It is indeed surprising that Laniet would move in with her father who was molesting her and about whom she was making very damaging allegations” – the implication being surely that she was at least disingenuous if not downright deceitful in her claims. But no. Laniet didn’t go to Taieri Mouth alone to live with Robin; she and a friend went there. Laniet may have gone simply because at that point in her short, sad life she had nowhere else to live.
The murderer could only have been Robin or David, given what we know about the case. Who was the more likely? Robin, who Laniet was telling people had been having sex with her since she was a child? Or David… sorry, remind me, what was his murderous beef with Laniet again?
Why do so many people look the other way when it comes to the allegations against Robin, a man in his late-50s clinging to his dead-end job in a remote school. A man (the quotes are from the podcast) whose “personal hygiene was by all accounts awful… disorganised… a walking cadaver”. He was exiled to a caravan at the back of the property, not allowed to sleep in his own home. A man whose wife constantly saw the devil in him, was forever finding fault in her husband and whose grandiose rehousing plans may not have included a place for him. A man whose nominal role as head of the household was being usurped by his elder son. A man being accused by his daughter of molestation.
Why this reluctance to seriously question his character and mental state? Is it because Robin doesn’t look like a paedophile? Why the reluctance to consider that guilt, despair and self-loathing might have finally got the better of him and caused him to explode?
There are similarities between this case and the Schlaepfer family killings in Paerata, near Pukekohe, in 1992, in which a farmer shot and stabbed to death six members of his family in a murderous rampage and then shot himself. The sole survivor was only nine, so was not required to answer leading questions from the police while in a state of shock. The Crown quickly agreed the depressed perpetrator had finally snapped – “following an argument with his wife” – and closed the case within days.
The Black Hands argument is based primarily on material from two sources: an incompetent police investigation and the testimony of David Bain himself, the sole surviving witness to the events at 65 Every St over that 12-hour period between a family meal of microwaved fish and the murders. He controlled the narrative. His version would be accepted if he played his cards right and planted a few damning clues pointing at Robin, a pretty simple thing, you’d think, for someone who conducted a killing spree around the demands of his paper-run. On the afternoon of the murders, he could have sat down with police and just flat-out lied, and got away with it.
Black Hands says, “David had clearly worked out a careful plan. Its main aim was to deflect suspicion from himself.” This clarity of his planning sure escapes me. Instead of using the interview to deflect suspicion, he answered police questions with a fatal lack of guile.
Asked to account for his movements on finding the bodies, did David say he had gone from room to room, touching bodies and curtains and furniture, banging into doors, twisting his glasses, handling the rifle, accidentally smearing blood on himself and everywhere else, to conveniently create an unimpeachable alibi? Au contraire! He said he could barely remember what he did between getting home and seeing his mother sitting up in bed shot in the face – and nothing afterwards, thereby establishing the 25-minute gap between walking in the front door and phoning 111 that is such an important part of Black Hands. This guy wasn’t the Napoleon of Crime. He was the World’s Dumbest Criminal.
But what about Laniet gurgling? And the contents of Robin’s bladder? And the lens in Stephen’s room? And the 25-minute gap? And the rape fantasy? You know, the evidence. I realise there is much more, but there’s only room here for the sort of things Black Hands says “clearly raise at least a strong cause for suspicion”.
Laniet gurgling and Robin’s bladder: Top specialists gave evidence at David’s trial questioning the importance of this evidence. Yet these highly prejudicial contentions – David hearing Laniet gurgling (David must have shot her because only the killer could have heard this), and Robin’s bladder being full, meaning he hadn’t bothered to go to the toilet between getting up and his death (a cupful of wee! It can’t possibly have been Robin!) – remain part of the Black Hands case against David.
The glasses lens in Stephen’s room: There was a suggestion by the defence that one of the cops may have planted a lens in Stephen’s room to implicate David. A police photographer digitised and enhanced original video footage, according to Black Hands, and found the lens had been there all along. This would be at least 10-year-old VHS or three-quarter inch tape which presumably would not have been carefully stored in a pristine environment in the interim. With the greatest respect to the police photographer, this does not sound like an examination conducted with huge rigour.
David’s 25-minute memory lapse: I can’t account for that any more than he can. Maybe David was a 22-year-old with limited life experience who walked into something incomprehensibly violent and terrifying and wasn’t remotely equipped to deal with it, either emotionally or psychologically. The five cops who arrived at the murder scene first thing were offered counselling and stress leave the following day. Fair enough. It would have been a deeply traumatic event even if you’d had some training, even if it came with the job, and even if those five dead people weren’t your entire immediate family.
The rape fantasy: An acquaintance of David came forward before the second trial in 2009 to say that prior to the murders in 1994, David had told him how easy it would be to rape a young woman who lived on his paper-run, using his deliveries as a cover. This evidence was never heard at trial but the allegation has become part of the narrative. Why would the acquaintance make up such a story? I don’t know! Pity he wasn’t able to be cross-examined. [Note: The Court of Appeal declined to allow the witness to give evidence about this issue at trial, against the Crown’s wishes.]
Robin Bain killed his family. Why? Because his situation, I suggest, would be a pretty good place to start if you’re looking for a motive. Or maybe, like the perpetrator of the Schlaepfer family murders, the killer’s “slim hold on sanity was lost after he argued with his wife”. Maybe he was as mad as hell and wasn’t going to take it anymore. Maybe it was an argument with his son about garden maintenance. Or maybe, as van Beynen says on the Q&A on the Black Hands website, “You don’t need a motive.”
Whatever it was, something set him off, and, after killing three of his children and his wife as they slept, and before taking his own life, he sat down at a computer and composed a garbled, infantile message: “You are the only one who deserved to stay”, words directed at the person who’d tried most to keep this wretched family going – a final act of human decency which, by the cruellest of ironies, helped send the subject of his pathos, his son David, to prison for 13 years.
Jonothan Cullinane worked in the film and television industry in New Zealand for 25 years before writing his first novel, Red Herring (HarperCollins, 2016), a thriller set in 1950s Auckland at the time of the waterfront strike.
By former police inspector Kevin Sturgeon, an expert in fingerprints and forensics
What wasn’t contested at trial was the fact it was either David or Robin who was the killer: no one else was involved. I believe they were right in this regard.
David said he had come home from his paper-run, then washed the outer clothes he had worn on the run, a top, and some other clothing. Included in the wash was the green jersey evidently worn by the murderer. David [who told the 1995 trial the jersey belonged to his father], claimed he then discovered the bodies of his family and called 111. This scenario was vigorously challenged by the prosecution as, by his own evidence, there were about 25 minutes unaccounted for between David arriving home and calling the emergency number.
While the bodies of Margaret, Laniet, Arawa and Stephen were found in their bedrooms, Robin’s body lay in the lounge, the rifle nearby. He had been shot in the head. Bloodstains belonging to Robin were found on the carpet near the rifle but some distance from his body, which was beside a coffee table.
A pathologist, Professor Ferris, testified that anyone shot through the centre of the brain would drop immediately to the floor. He was a very experienced witness who had performed more than 2000 autopsies on head-shot victims.
I’d observed this instant collapsing in animals during my hunting days. It’s as if a marionette had its strings cut; it would just crumple immediately into a heap. With all power to muscles switched off, there can be no staggering, just collapsing into a pile. The body’s final position would be determined by the pose held at the time of the shooting. An upright person would crumple directly to the floor, or if leaning, along a lateral line in that direction.
The defence simulated how Robin might have stood to effect his suicide. He would have either leaned forward and/or to the left. From this position, I don’t believe he could have fallen or pivoted back. The .22 calibre round would have had no impetus effect on the body to propel him backwards. He would have collapsed forwards or to the left. Instead, Robin was found on his back, some distance away from his blood stains on the carpet and alcove curtains. How was that possible? Why was the rifle not under or near the body? The whole setting in the photograph suggests something was wrong.
Approximately 65cm above floor level in the lounge, a smudge of Stephen’s blood was discovered on the left-hand green curtain. The rifle was smeared with Stephen’s blood, but the only blood found on Robin’s body was his own or too little to analyse. Also on the curtain were drips of Robin’s blood, skull and brain. How could his body have been so low as to drip this material there, yet end up by the coffee table?
Even more perplexing is the blood pattern on Robin’s forehead, running from where the bullet entered his left temple. Photos of Robin’s body show blood running across his forehead from the entry wound, meaning it somehow ran upwards from his temple to reach his forehead, then across his head to the other side and to the back of his head. It is difficult to understand how it could have travelled this way, given Robin was discovered lying, essentially, prone, on his back.
So, what has happened? I believe the body must have initially been facing downwards to have the blood run in the direction described from his temple but has then been moved. If the body was moved, this could explain the drops of Robin’s blood found on the carpet near the alcove curtains.
Who could have done this? David was by now the only person in the house left alive. But why would he move the body? I suggest that if Robin was shot by David while the latter hid behind the alcove curtains, as the prosecution alleged, he might have wanted to deflect any attention from the alcove.
The smudge of Stephen’s blood on the curtain could have been inadvertently deposited, either from the blood-smeared rifle or from David himself. Remember, Robin did not have Stephen’s blood anywhere on him, though theoretically he could have transferred Stephen’s blood onto the curtain while writing the message on the computer, then changed his clothes before committing suicide.
A bullet shell was found well inside the alcove and would have been lost to David in the dark. It was exactly where a spent round would have been automatically ejected, out of the right-hand side of the rifle, if fired inside the alcove. How it could otherwise have got there, through the narrow gap between the curtains, is problematic, to say the least.
Police found a magazine for the rifle, on its narrow edge, beside Robin’s right hand. It had no fingerprints and was apparently wiped clean. In the photos, it can be seen Robin could not have held the magazine in his right hand while shooting himself, according to the demonstration given in court. Why would he want to do so, anyway?
So that presumes Robin placed it on the floor beforehand. To then have his body land within centimetres of the delicately balanced magazine is hard to believe.
An ESR scientist found blood smudged on the rear of the T-shirt David was wearing when police arrived. It was worn under the clothing he had washed. She also located blood soaked into the lower front of the black shorts he was wearing. David would not have been able to see the blood on the back of the T-shirt, nor the dark patch of blood on his black shorts. That blood was all Stephen’s.
In the first trial, when David gave evidence, he said he just touched Stephen’s shoulder when he found him on his bedroom floor. How, then, was it possible to have attained the blood stains in such awkward positions? David chose not to take the stand at his second trial.
There was never any satisfactory explanation for the blood on his clothes. Defence counsel suggested David somehow inadvertently collected these stains while walking around the house and brushing against bloodstains left by the killer. An accidental transfer would be extremely unlikely, especially on the crotch of his shorts and on the lower back of his T-shirt.
The green jersey: The house was in darkness, and the murderer went from room to room after shooting Stephen, leaving blood smudges on two door jambs.
It is accepted the killer wore the green jersey later put in the wash by David. Green fibres from the jersey were found under Stephen’s fingernails as a result of him desperately fighting for his life against the murderer. During the struggle, a considerable amount of Stephen’s blood was left around his bedroom, on his bed and, it’s accepted, on the killer, and the jersey he was wearing.
There is a clear pattern in the knitting that appears on the cuffs and waistband of the green jersey. I aligned the bloody marks found on the doorways with the marks in Stephen’s blood on the rear of David’s T-shirt and believe both have the same pattern, created by coming into contact with the green jersey that was covered in blood. If the blood stains on the T-shirt are carefully examined, even the individual stitches on the jersey are reproduced, along with the patterns. There is not a full transfer of the pattern, because the whole jersey would not have been soaked in blood.
Also, the image on the T-shirt is transferred from the underside of the blood-soaked jersey onto the T-shirt, whereas the blood stains from the doorway are from the outside of the jersey, which will have led to some difference in the marks.
How could the jersey’s waistband/cuff patterns have got onto the rear of the T-shirt, other than if David was wearing the green jersey – the green jersey we know the killer was wearing?
During the trial, David was asked to try on the green jersey and it seemed to be too small for him. However David had put on weight in jail while awaiting trial. When Justice Callinan later measured the jersey against David’s anorak, he found there was little difference in size, except in the sleeves.
The 2009 trial: If you now consider that proof has been produced to make David the murderer, where does that leave the many specialist and expert witnesses who gave evidence for the defence? Only one side was correct. The other witnesses must have been in error, even if they believed their statements.
Where does it leave the claims by the senior defence counsel that Robin murdered his family because of Laniet’s claims of incest? Where does it place the defence assertion to the jury that Robin murdered his family, then changed his clothes as “he would not want to meet his maker covered in the blood of his victims”? (The defence did not explain why Robin’s maker might overlook the fact he had just murdered his family.) This was surely pure conjecture, invented to explain why Robin had none of Stephen’s blood on him.
Would such an outrageous claim have been effective with a gullible jury? Apparently so.
The first trial jury had the opportunity to hear David give testimony, but this was denied the jury at his retrial.
Canadian High Court judge Ian Binnie was tasked with determining if David Bain was entitled to compensation for the years he spent in jail. To do so, he would have to find him more likely innocent than not. He found for David.
Did Binnie make his decisions with any accuracy? After all, he had the entire file to peruse and took eight months to do so. While there were errors of omission made during the police investigation and some evidence was lost before the second trial, none of those factors, in my opinion, indicated clearly that Robin rather than David was the offender. At the very best, the defence was debatable.
However, the jury had heard witnesses and eloquence from the defence which could not be unheard. Likewise, Justice Binnie must have believed the many circumstantial defence constructions, believed David’s testimony when he interviewed him, and doubted the accuracy or truth of other trial witnesses. Indeed, in an interview, he noted, “people had come out of the woodwork to give evidence because of the notoriety of the case”.
As both sides agreed that the murderer was either David or Robin, by eliminating David on the balance of probabilities, Binnie tacitly indicted Robin. Where was the evidence against Robin? There was none at all! There was only conjecture and unprovable assertions by the defence. Had he, like the jury, been successfully conned by David?
In contrast, Australian judge Ian Callinan criticised the defence tactics and witnesses, and noted inconsistencies in David’s own evidence. His summary was perceptive, accurate and correct, I believe.
Whatever it was that convinced the second jury David was not guilty will probably never be known. Was it the police errors? An inept prosecution? The dramatic presentations by the defence? It might even have been that an impressionable and inadequate body of people comprised the jury, unable to grasp or correctly interpret the evidence.
However, if David was, in fact, guilty, the system has let everybody down. And not for the first time. The Bain trial points to inadequacies that must and can be addressed. It’s not acceptable for the defence, or the prosecution, to formulate narratives then locate witnesses to add spurious credence.
It would be a refreshing start to have the primary goal of any court case to be revelation of the truth. Not a conviction at any cost or a defence at any cost, wherein the truth becomes an inconvenient and discarded by-product.
Kevin Sturgeon has been involved with all aspects of fingerprint work since 1975 and wasin charge of the country’s largest fingerprint office when he retired from the NZ Police as an inspector in 1995. He has worked in the UK as a senior fingerprint expert and is a director of Auckland company Fingerprints & Forensic Services Ltd. He has given evidence and technical advice on fingerprint issues in many countries relating to a variety of cases, including murder and fraud.
This was published in the March 2018 issue of North & South.
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