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Guilty or Not Guilty?

The Bain Homicide Case (Part IV)

by Kevin Sturgeon

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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?

Where does that leave the claims by the defence council, Michael Reed QC, that Robin murdered his family because of Laniet’s claims of incest?

Where does it place Michael Reed’s assertion to the jury that Robin had murdered his family, then had changed his clothes as “he would not want to meet his maker covered in the blood of his victims?” This was pure fabrication invented by Michael Reed QC and his team, 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. And there were other such flamboyant statements made by the same man, to the court. I saw a short clip on National television where he was telling the jury that he had demonstrated to them that Robins hand(s) were covered in blood.

In fact, all he had done earlier was put on one of David Bain’s blood-soaked gloves found on the floor in Stephen’s bedroom. He later extrapolated this to the nonsense he gave to the jury, no doubt hoping his early demonstration would confuse the jury into believing his deliberate lies.

There was no such blood covering his hands. This was confusing and deliberate fantasy which he surely could not have believed himself.

The first trial jury was not asked to decide on such nonsense, fortunately for them. They did have the opportunity to hear David give testimony then too, but this was denied the last jury.

Can the various defence witnesses paid for by the legal aid allocations, now defend their positions?

If some might hide behind the phrase “that was my considered opinion” or similar, does their standing in the wider legal community diminish? Perhaps that should be the case. They took the remunerated option to refute the prosecution experts. All in all, only one side was correct. The other witnesses must have been in error, carelessly or deliberately.

Judge Binnie’s Review

The Canadian High Court Judge Ian Binnie was tasked with determining if David Bain was entitled to compensation for the years he had spent in jail. To do so he would have to find David Bain was more likely innocent than not. He found for David Bain.

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 indicated clearly Robin rather than David was the offender.

These nebulous peripheral items were the very ones the Privy Council decided were sufficient in total to quash the original conviction. They deliberately recorded that they made no comment on the guilt or innocence of David Bain, just that the above issues should have been traversed. They were not covered in the first trial.

At the very best, the defence was debatable. It made much of things such as the length of the luminol footprints in blood, when there were in fact no exhibits. The latter had been lost. (Judge Pankhurst interceded to point out that there was no bloodstain in Stephen’s bedroom big enough to allow a full-sized footprint to be transferred out of the room anyway.) However, the jury had heard witnesses and eloquence from the defence which could not be unheard. There would have been more complexity to contemplate. But to reach the decision Judge Binnie made, he must have believed the many circumstantial defence constructions.

It can be found in Judge Binnie’s report that he believed the testimony David Bain had given when he interviewed him. He therefore convinced himself that evidence from other trial witnesses must have been perjury if it refuted David’s narrative. An example of this arose when being interviewed by Kim Hill on National Radio recently.

He said, “people had come out of the woodwork to give evidence because of the notoriety of the case.” He was referring to the witness who gave sworn testimony in court of the raked finger-marks she had seen across David’s chest. Another witness, independently, made a statement describing the same scratch marks he had seen during David’s admission to prison. Surely, Binnie was biased in dismissing such strong evidence because he had been successfully conned by David Bain.

As all had agreed that the murderer was either David or Robin, by eliminating David on the balance of probabilities, he tacitly indicted Robin. Where was the evidence against Robin? There was none at all! There was only conjecture and unprovable assertions by the defence!

Interestingly, Judge Ian Binnie had a professional background in business and corporate law, not criminal law.

Judge Ian Callinan

Australian Judge Callinan read Binnie’s report (and the case file). He found it wanting and mistaken. He did criticise the defence tactics and witnesses and noted inconsistencies David Bains own evidence. His summary was perceptive, accurate and correct, I believe.

Not Guilty?

Whatever it was that convinced the jury David was not guilty will probably never be known. They may well have misunderstood the Privy Council decision, as it was commonly believed they had found David Bain not guilty. This was not true, of course.

Perhaps the police errors? Or an inept prosecution? Could it have been the dramatic defence mechanisms? It might even have been an impressionable and inadequate body of people comprising the jury, who could not grasp or correctly interpret the evidence. If David was in fact guilty though, the system has let everybody down. And not for the first time.

The Bain trial points to inadequacies which must be addressed and can be addressed. It is not acceptable if the defence, or the prosecution, are permitted to formulate narratives then locate witnesses to add spurious credence.

It would be a refreshing start to have that the primary goal of any court case was to reveal the truth. Not a conviction at any cost OR a defence at any cost, wherein the truth becomes an inconvenient and discarded by-product.

Egos should be left in the lobby!

It must be in the interest of all New Zealanders to look carefully at the 800 year old, British based justice system, then bring it up to date.

Kevin Sturgeon is a fingerprint expert and retired Inspector with the NZ Police. A member of IFPI, he is currently the director of Fingerprint and Forensic Services Ltd.

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May 2019 (#218)

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