Bain - Family Mass Murders
The brutal and devastating death of the Bain family in Dunedin, New Zealand on 20 June 1994 is the most notorious and documented murders of Aotearoa to date. The Bain family murders is a case where the mother, Margaret, father, Robin, and three of their four children, Arawa, Laniet, and Stephen, were killed by gunshot. David Bain, the eldest son of 22 years of age at the time, was one of two suspects. The second suspect, who was a victim themselves, was Robin, the father. David Bain was convicted of five counts of murder and spent 12 years in prison before he was released on bail following a successful appeal to the Privy Council after several unsuccessful appeals within the High Court, Court of Appeal, and Supreme Courts of New Zealand. On Appeal to the Privy Counsel, they quashed David’s convictions, ordering a new trial. David Bain’s retiral resulted in a not guilty verdict – David Bain was acquitted on all five counts of murder. This case and the subsequent acquittal are still largely discussed and debated throughout New Zealand – the question of David Bain’s guilt or innocence will always remain perplexing.
The Scene
The Bain family were shot and killed inside the large, two-story, six-bedroom home. Margaret and Laniet were shot in their beds, in their respective bedrooms. Arawa was found on the floor of her room as was Stephen, whose room led off of his mother’s room. Laniet’s death was not peaceful, she did not die straight away like her mother and sister; her death was slow, painful and, according to David, was heard gurgling as she choked on her own blood. Stephen’s fate was no better. There was a violent struggle between Stephen and the murderer. Stephen was strangled before being shot. An important piece of evidence was found in Stephen’s room – a lense from David’s glasses. Robin, who is estranged from Margaret, but would stay on the property in a caravan from time to time, was shot in the lounge and found on the floor near a sofa and the .22 calibre Winchester semi-automatic rifle. In the upstairs lounge there was a computer turned on. On the computer screen were the words “sorry, you are the only one who deserved to stay”. Blood marks were found on walls, light switches, the staircase rail, and in the kitchen/laundry area. Bloody footprints were also found throughout the house and, for one reason or another, David washed and hung his clothing before Police arrived. Of further significance is that fibres from the jersey David washed were found under Stephen’s nails, and David had fresh marks on his face and knees to which no explanation could be given as to why. David’s bloody fingerprints were also found on the .22 calibre Winchester semi-automatic rifle used to kill the Bain family.
Bain Family Residence and victim locations - 65 Every Street, Dunedin 1994
The Crown Prosecution’s Case
In brief, the Crown Prosecution’s case against David was that at around 5.00am on 20 June 1994, David woke and got dressed. He then took his .22 calibre semi-automatic rifle, unlocked the trigger with a key which he kept in a jar on his desk, and grabbed ammunition from his wardrobe. David then shot, in an unknown order, Margaret, Stephen, Laniet, and Arawa. During the struggle with Stephen, David sustained some scratches and bruises, and broke his glasses – a lens of which was found in Stephen’s room. David then proceeded to do his paper route from 5.45am, as was his normal practice, returning home at around 6.42am. David went straight upstairs and turned the computer on at 6.44am, typing the words “sorry, you are the only one who deserved to stay” on the screen. David then waited in the alcove of the downstairs lounge for Robin to come in and pray, as was his normal practice, just before 7.00am – David then shot and killed his father, staging the scene to look like a murder a suicide. David then called emergency services to report the killings, acting as though he was in a state of despair and distress. The Crown relied on 12 points for their case:
1 The rifle used to kill the family was David’s. The key and trigger lock were hidden by him, in an unusual spot, presumably with only his knowledge.
2 David’s bloody fingerprints were found on the weapon.
3 David’s bloodstained gloves were found in Stephen’s room.
4 David had fresh injuries to his forehead and knee without explanation. Stephen had fought with the offender before ultimately being overpowered and killed, evidenced by injuries to his body.
5 David’s glasses (with a missing lense) were found on a chair near Stephens room. The lense was found near Stephen’s body.
6 Bloodstained clothing, including a green jersey with fibres matching those found under Stephen’s fingernails, were washed.
7 There was blood found on top of the washing machine powder container, the basin, and light switches.
8 Droplets of blood were found on David’s socks.
9 The computer had been turned on at 6.44am, after his return home.
10 David’s partial recovery of memory about how blood came to be on him may suggest some reasonable explanation, but in its entirety of the evidence, cannot be justifiable.
11 His account to his aunt that “they were dying, dying everywhere” and the fact he heard Laniet gurgling, suggests recollection of them having been alive that morning, before they were killed at the hands of himself.
12 The pathologist’s evidence is that Robin is unlikely to have shot himself, given the angle of the gunshot wound. Robin could not have killed the others, because no other person’s blood was found on him, no fingerprints of his were on the rifle, no gun powder residue was found on him. If he did indeed commit murder suicide, why would Robin change his clothes, wash them, and clean up the scene so no such evidence could be found on him? How could he have killed himself, leaving no prints on the weapon?
The Case of the Defence – David’s Narrative
In brief, David’s defence was that he had woke at his normal time, put on his running gear, took out his yellow newspaper bag and set off on his normal paper route with his dog at about 5.45am. David took an interest in how long he ran the route, and said he arrived home at around 6.42 to 6.43am. David went straight to his room, took off his running gear, hung the newspaper bag, and went downstairs into the bathroom. David then sorted some coloured clothes, including his running gear and put the washing machine on. He says he then returned to his room where he put the light on and noticed bullets and the rifles trigger lock on the floor. David then checked his mother’s room, noticing the light was on, and found her dead. He visited the other rooms, heard Laniet gurgling, and found everyone dead – Robin being the last person he found dead. David then called emergency services in a state of acute distress. The case of the defence is that Robin murdered his family, left a note on the computer accordingly, before committing suicide by shooting himself in the side of his head.
It has never been suggested that anyone other than David or Robin committed these murders, nor that it was more than one person – whoever the culprit was, was responsible for the killings of the entire Bain family to the exclusion of David. The question has always been, was it pre-meditated, cold-blooded murder, or was it a tragic murder suicide?
Appeal to the Privy Council
The biggest challenge for the defence was providing narrative as to the motive of Robin for killing his family, leaving behind only David. The motive and evidence they were reliant on was not deemed admissible in the original trial for reasons of hearsay and reliability. The evidence was that Laniet had moved out of home, and had told a friend, Dean Cottle, that she was working as a prostitute and had been sexually abused by Robin, her father, for about a year. Dean’s evidence was that Laniet had told him she was going home the weekend of the killings to tell her family “everything”.
This evidence is clearly hearsay; however, given Laniet was now murdered, there was no way of questioning the reliability and accuracy of this evidence. His Honourable Justice Williams did not rule this evidence out on the basis of hearsay – it is clearly relevant and goes directly to motive of why Robin may have killed his entire family. The issue, as His Honour saw it, was reliability. His Honour concluded that it would not be reasonably safe to admit the evidence, nor to conclude that the evidence would have sufficient reliability or probative value as Dean had avoided service of a subpoena to appear in Court, did not appear in Court as directed, nor could he be located. However, Dean voluntarily attended court after closing submissions were given. His Honour heard from him (without the jury present) but Dean’s recollection of his evidence was poor, and appeared confused. His Honour again ruled that the evidence was inadmissible as it was lacking reliability. The jury subsequently never learned of this theory from the defence which went directly to motive for Robin to kill his family.
Further, the defence had evidence from several witnesses as to Robin’s mental state leading up to the killings. These were from pupils who worked closely with Robin at the school he taught at. The evidence was that Robin was depressed, and had encourage students write about brutal and sadistic stories. One of those stories, written by a student, which was published by Robin, was about the serial murder of family members. Two of these witnesses were psychologists. Both concerned that he had lost touch with reality and was seriously disturbed. The Court of Appeal did not allow a retrial with this new evidence on the basis that, in conjunction with all evidence heard at trial, a reasonable jury would still consider David’s own mental state, and unlikely to result in a different outcome. There was also an additional witness who confirmed Laniet had told her she was raped by her father, Robin, and had engaged in prostitution with her. Laniet was also deposed to have been on drugs and having an affair with her father by another witness, including having an abortion of a child that was her fathers. The Court of appeal noted its reliability in proving there was, potentially, an incestuous relationship between Laniet and Robin, but no evidence to suggest Robin was indeed the culprit in murdering the family, to the exclusion of David. They again determined that on the entirety of the evidence, a reasonable jury would still find David guilty beyond reasonable doubt. There was further evidence available as to the bloody fingerprints found on the gun, potentially having been old, and could have been animal, not human blood – this was also not a possibility for the jury to consider in trial as the blood was not tested. The Privy Council, in considering this evidence that was never available to the trial jury, found that a substantial miscarriage of justice did occur. This evidence, as a whole, had the jury been given the opportunity to consider it, may well have reached a different verdict. It may well give rise to reasonable doubt – a decision for a jury, not the presiding Judge, or those considering the appeals process.
Retrial – June 2009
David Bain remained in custody while the retrial of all five charges for murdering his family were reheard on the evidence previously provided in the original trial, together with all new evidence that supported his defence, raising doubt that indeed Robin had motive, and the mental state to commit murder suicide. The jury at retrial found there was reasonable doubt, and did not return a guilty verdict. David Bain was found not guilty, and acquitted of all charges of murder. He was a free, and innocent man.
David later pursued damages for the loss of life, legal costs incurred, and wrongful imprisonment at the failure of the justice system to provide him with a fair trial in the first instance. The Minister, in determining this case, asked Honourable Ian Binnie, formerly a supreme court judge of Canada, to assess two things – whether he was satisfied David was innocent to the balance of probabilities, and if so, was he satisfied David was innocent beyond reasonable doubt. The answer; David was innocent to the balance of probabilities, but not beyond reasonable doubt. Interestingly, in an additional assessment by Ian Callinan, a former Justice of the supreme court Australia, advised David had not established his innocence on the balance of probabilities. David and his Counsel vehemently asserted they disputed this assessment and were adamant about pursuing further litigation.
In avoidance of further litigation, the Crown offered an ex gratia (“by favour”) payment in full and final settlement of $925,000.00 for his legal expenses and the miscarriage of justice which, upon retrial, resulted in a not guilty verdict. No statement of innocence was ever provided as sought by David. This brought all issues to an end in 2016, but the question still remains – Was it David, or was it Robin?