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Latest updates: Bain trial, judge sums up

By Edward Gay

After three months, the judge in the David Bain trial is summing up the case today. Follow latest updates here by hitting 'refresh' throughout the day, or on Twitter.

4.34pm: The jury must return with a unanimous verdict, "12, nil", the judge in the David Bain retrial has said.

Justice Graham Panckhurst has thanked the jury again and sent them out to deliberate on David Bain's future.

He apologised for his lengthy summing up of the Crown and defence cases which has taken much of the day.

Justice Panckhurst told the jury that they must confirm verdicts on all counts and that will be confirmed by the jury foreman.

"No reasons are required and this reflects the requirement that the jury deliberations occur in private," Justice Panckhurst said.

"Either the Crown has proved that David committed the five murders or there is reasonable doubt and the five counts result in acquittal," he said.

The jury has left the courtroom but have been told they do not need to sit "through the night".

4.29pm: The injuries to David Bain are consistent with him being dragged out from the side of a bed after fainting, not of being in a struggle with his younger brother, according to his defence lawyers.

Justice Graham Panckhurst is summing up the defence case at the High Court in Christchurch.

Injuries were found on Bain's chest and legs but Bain's lawyers say the injuries occurred when a police officer dragged him from between his bed and bedroom wall after he fainted on the morning that five of his family members were found dead in their home.

The jury has previously heard that Bain was asked by a police doctor how he got the injuries but gave no answer.

Justice Panckhurst has also said that the defence have called witnesses to say Laniet's gurgling, which Bain told police he heard, does happen.

He said Bain's lawyer Michael Reed, QC, has also answered allegations of fingerprints being found on the rifle.

Mr Reed said of course Bain's fingerprints would be found on the rifle, because it was Bain's rifle.

Justice Panckhurst said the defence has said the fingerprint had not been found in blood on the rifle, contrary to what the Crown case said.

He also addressed the palm print found on the washing machine. The defence have said the print was caused when David Bain put the washing on and brushed against the jersey which the defence say Robin Bain was wearing and which was likely covered in blood.

Mr Reed also questioned the scientific testing which could have confused blood with other substances that contain protein, including dairy products.

4.02pm: Robin Bain changed his clothes after committing four murders and put on fresh clothes to "meet his maker", according to David Bain's defence lawyers.

Justice Graham Panckhurst is summing up the defence case in the David Bain retrial.

He said Bain's lawyer Michael Reed, QC, told the jury that they were not considering the mind of a rational person.

Mr Reed said the room where Robin Bain was found dead was the scene of a suicide, not a murder.

Justice Panckhurst said Mr Reed had given evidence that it was Robin who placed the 10-shot magazine on its edge after being used in the four murders.

Justice Panckhurst said Mr Reed argued that the computer which carried the message "Sorry, you are the only one who deserved to stay", was turned on before David got home from his paper run.

He said there was also evidence given by pathologists to say that the wound in Robin's head was a contact wound, consistent with suicide.

3.57pm: Justice Graham Panckhurst, in summing up the defence case at the High Court in Christchurch, has told the jury the defence questioned the lack of a motive for Bain to be a murderer.

"On Sunday night he [Bain] went to bed early, he heard some arguing which is consistent with the evidence he gave at the first trial. He heard the car starting, recognised it and that is rather confirmed by the withdrawal of cash from the South Dunedin Bank," Justice Panckhurst said.

He said Bain's lawyer Michael Reed, QC, had asked if it was the 22 year-old with a bright future ahead of him, or the sad old man, who was in the grips of depression.

Justice Panckhurst said Robin was under pressure at work, was depressed and that his marriage had all but collapsed, according to evidence from the defence.

"Incest [Mr Reed said] would provide a motive and he referred to a number of witnesses," Justice Panckhurst told the jury.

He said Mr Reed also talked about Laniet going home to "blow the whistle" on the incestuous relationship between her and Robin Bain.

Justice Panckhurst said there could have been an argument on the night before the killings before Robin "flipped".

He said Mr Reed also argued that Robin could have been planning the killings for some time - that he had sought to get a relief teacher for his school for the week beginning June 20, and that he got a final electricity reading at his house at Taieri Mouth.

3.53pm: Blood on David Bain is not consistent with him being the murderer, but rather a concerned brother finding his family dead, Bain's defence lawyers have said.

Justice Graham Panckhurst has begun summing up the defence case at the High Court in Christchurch.

He said the defence have given evidence that David Bain had little blood on his t-shirt, especially if he had been wearing the v-neck jersey which the Crown say he was.

Justice Panckhurst said Bain's lawyer Michael Reed, QC, said the blood
on the crotch of Bain's shorts is consistent with Bain bending down
and coming into contact with Stephen's bloody head.

He also outlined the defence's argument that blood on Robin's hands
was not tested and the appearance of a red substance under Robin's
fingernails was destroyed by police.

Justice Panckhurst said Robin also had teeth marks on his hand, which
were consistent with an uppercut punch and that further incriminates
Robin in the murder of Stephen, the defence have argued.

3.31pm: Justice Graham Panckhurst has completed summing up the Crown's case in the retrial of David Bain, saying there is a pattern of convincing circumstantial evidence which points to David being the killer, according to the Crown.

Justice Panckhurst said the Crown argues the strands of evidence are not a series of "implausible, unanswerable circumstances".

He said the gloves from David's drawer, blood stains, the delay in the 111 call, David Bain's finger prints on the rifle and a bloody hand print on the washing machine all point to David being the killer, according to the Crown.

Justice Panckhurst will shortly begin summing up the case of the defence.

3.18pm: Justice Graham Panckhurst has told the jury the Crown says the 111 call in which David Bain said: "They're all dead" shows Bain to be the killer.

Justice Panckhurst said police had questioned Bain about his 111 call comment and how it did not gel with what he was telling police - that he had only seen his mother and father.

Justice Panckhurst said the inconsistency shows, according to the Crown case, that Bain is the killer.

Witnesses have also given evidence that Bain had injuries which show markings on the chest, which the Crown argues were received while Bain was fighting with his younger brother.

3.11pm: The front room where Robin Bain was found dead was a "staged scenario", according to the Crown's evidence.

Justice Panckhurst, in summing up the Crown case, said the 10 shot
magazine standing on its side alongside Robin's body and the suicide
note that said: "Sorry, you are the only one who deserved to stay"
were all part of a "scene".

"Mr Raftery characterised it as a get out of jail card not written by
Robin but David," Justice Panckhurst said.

He said the Crown submit that Bain's paper round was an attempt at
creating an alibi and Bain purposely made himself known to an elderly
lady on his route.

3.09pm: Justice Graham Panckhurst has told the jury that the Crown put forward evidence that Laniet is unreliable.

He also said Robin was not on a downward spiral, had not been diagnosed with depression and was not "on the brink of suicide". Justice Packhurst said the Crown argued that Robin had no injuries and no items of his were used in the killings.

He said the Crown also argued that the computer was turned on just after David Bain returned home from his paper run and that in order for Robin to be the murderer, he would have had to have waited 44 seconds for the computer to fire-up while four of his family members lay dead in the house and with David about to return from his paper run at any minute.

Justice Graham Panckhurst told the jury the Crown said Robin probably woke at 6.32am, when his alarm was set, but too late to murder four people. However, it is not known when Robin woke.

The radio was on in Robin's caravan and the Crown said he went to get the paper before entering the front room, "totally oblivious to the fate he would suffer".

Justice Panckhurst spoke about the Crown's rhetorical question - "why the change of clothes?" if indeed Robin was the murderer.

He reminded the jury that there was a bloody fight between the killer and Stephen Bain.

However, no blood from Stephen was found on the body of Robin.

"But, said Mr Raftery, why on earth would a man about to commit suicide, change his clothes?" Justice Panckhurst said.

He said the Crown had asked why Robin would need to wear gloves: "He had enough on his mind."

"No real evidence of motive, no real evidence of depression and most important of all, no forensic evidence to link him to any of the bedrooms," Justice Panckhurst said, in summing up the Crown case to exclude Robin from the murders.

He said the Crown put forward evidence that all the items used in the murder belonged to David Bain, including the rifle, gloves and trigger lock key.

"David, unlike his father had every reason to put on the dress gloves"
which Mr Raftery had described as "an unequivocal pointer" to who the
murderer was, Justice Panckhurst said.

The Crown asked why there was a delay of 15 minutes between David
arriving home from the paper run and the 111 call.

Justice Panckhurst said the Crown also argues that small spots of
blood belonging to Stephen and found on David's clothes link David to
the murders.

"Note that it was only the blood of Stephen found, not the blood of
others, although he said he went into other rooms," Justice Panckhurst
said, but he said the Crown argued Bain went to the trouble of
cleaning his clothes after the murders.

He said the lens found in Stephen's room and belonging to frames found
in David's room was another item of evidence that linked Bain to the
murder of his younger brother.

"Who, asked Mr Raftery, put the frame and the loose lens onto the
chair? Robin? Why?" Justice Panckhurst said, given the nature of the
suicide note left on the family computer.

He said the Crown also submitted that the fingerprints found on the
rifle by forensic scientists were made in blood.

2.23pm: The killer, whoever it was, had confidence in himself and the rifle in order to kill the Bain family in their Dunedin home, the judge has told the jury at the David Bain retrial.

"The mindset of the assailant in this case, the person whoever it was, must have been very confident in relation to the task about to be undertaken - be it kill four and suicide or kill five," Justice Panckhurst said.

He said the killer must have had confidence in the rifle and silencer as Margaret and Stephen, especially, were killed in their bedrooms which were near to each other.

"There must have been every chance that something could go awry so the assailant must had had confidence in dealing with the situation," Justice Panckhurst said.

12.52pm: Was Robin Bain having an incestuous relationship with his daughter Laniet? The judge in the David Bain trial has begun summing up the various witness statements regarding this allegation.

Justice Panckhurst told the jury there are conflicting accounts.

He said eight Crown witnesses and 10 defence witnesses have given evidence about Laniet, although not all had been told of incest.

Justice Panckhurst said some witnesses had said Laniet and Robin appeared to have a normal relationship. Others told the court that Laniet had been raped and had an abortion. Others still said she had been raped and had a baby to her father.

Justice Panckhurst said one witness, a woman who worked as a prostitute with Laniet and has name suppression, said Laniet had stretch marks and was terrified when the pair drove past her father's school.

Justice Panckhurst said a flatmate of Laniet's was also told by Laniet that she had been sexually abused by her father.

Another witness said Laniet was going home on the weekend of the murders to "blow the whistle" on her prostitution and the incestuous relationship with her father.

"That is just a summary of what you've heard of the accounts that emanated from Laniet or accounts from people she knew and spoke to," Justice Panckhurst said.

He said there were questions about whether the baby was black or white.

"Was the father a family friend, someone who raped her, or her father?" Justice Panckhurst asked.

He said Laniet seemed open to people she did not know or who did not know her father but did not tell closer friends about the alleged incest.

The court has adjourned for lunch.

12.25pm: Did Laniet make a gurgling sound? Evidence around that question has been summarised by Justice Panckhurst at the High Court in Christchurch.

Justice Panckhurst said various pathologists and an ambulance officer have said dead bodies do make gurgling noises.

He also recalled Crown prosecutor Kieran Raftery's summing up on Tuesday. Mr Raftery reminded the jury that Margaret, Arawa and Stephen were shot once.

Justice Panckhurst said the Crown has said the fact that Laniet was shot three times is relevant to the issue of gurgling.

12.11pm: Evidence surrounding the question of whether or not Robin Bain committed suicide has been summarised by the judge in the David Bain retrial.

Justice Panckhurst said various witnesses have said the wound was a "near contact or contact wound" while others said it was not.

Whether or not Robin Bain could have reached the trigger of the rifle has also been summarised.

"How are you to resolve this conflicting evidence?" Justice Panckhurst asked.

He said the pathologists agreed that the first pathologist at the scene had an advantage over those who were forced to come to conclusions based on photographic evidence.

12.06pm: Evidence regarding important times given by witnesses in the David Bain retrial have been read out by the judge.

The times at which various witnesses got their newspapers and others saw Bain on his paper run on the morning of the killings have been read out.

Justice Panckhurst has also gone through the computer turn-on times, which include a complicated equation with many variables.

"I'm sorry, I'm confusing myself," Justice Panckhurst said at one moment when directing the jury about how they could possibly arrive at a conclusion.

The evidence is important because both the defence and Crown say the killer wrote a message on the family computer which read: "Sorry, you are the only one who deserved to stay".

Evidence given by both the Crown and defence witnesses has been summarised by Justice Panckhurst.

"So there ladies and gentlemen is the task. It remains for you to compare the assumed turn on time against what you judge to be the likely time David Bain returned," he said.

Justice Panckhurst said the question goes to how precise people are when they ascribe times to actions.

He said if he had asked the 12 jury members what time they resumed after the morning tea break then he would likely have got 12 different answers.

11.40am: Deciding the motive of the killer in the Bain case is not essential, the judge in the David Bain retrial has told the jury.

"Motive is about why and it is not essential as a matter of law for the Crown to prove why a person committed murder," Justice Panckhurst told the jury.

He said the jury may consider that there is a motive but no evidence leading to one of the possible killers and vice-versa.

11.23am: Don't be "mesmerised" by expert witnesses but "pay heed" to what they have said, the judge in the David Bain retrial has told the jury.

Forensic, scientists, pathologists and medical experts have all given evidence at the trial over the past three months. Many have disagreed with each other about important aspects in the case.

"How are you to resolve conflict when experts themselves can't agree?" Justice Panckhurst asked.

He told the jury that their evidence "warrants respect" but also "a healthy evaluation".

"You have heard all the evidence and only you, in this community, in this country," Justice Panckhurst said.

"If ever there is a case where there is a broad spectrum of evidence which requires evaluation, this is it, and that of course makes it an ideal case for consideration by a jury," he said.

11.09am: The judge in the David Bain retrial has warned the jury about lost evidence.

Yesterday Bain's lawyer Michael Reed, QC, raised questions over blood
samples from Robin Bain's hands that were never tested by modern
science and destroyed by police.

Mr Reed told the jury yesterday that such tests could effectively
prove Bain innocent.

However Justice Panckhurst warned the jury in their consideration of
speculation.

"Speculation is wrong. Sensible logical evaluation is called for," he said, adding that they, as the jury, must make up their own minds.

11.01am: The jury has been warned about hearsay evidence in the David Bain retrial.

Justice Panckhurst cited the example of Dean Cottle who now has a warrant out for his arrest after failing to turn up to give evidence.

Justice Panckhurst read the evidence of Mr Cottle from David Bain's first trial in 1995, in which Cottle said Laniet was having a sexual relationship with her father Robin.

Justice Panckhurst told the jury today that they had also heard from other witnesses that Cottle was blackmailing Laniet and threatening to go to her parents to tell them of Laniet's prostitution.

"The weight to be given to hearsay evidence is up to you," Justice Panckhurst said.

But he reminded them that they had not heard the hearsay evidence "from the horse's mouth".

10.49am: No one saw David or Robin Bain with a rifle on the morning of June 20, 1994 and the Crown must rely on circumstantial evidence, Justice Graham Panckhurst has told the jury.

He said that was not unusual in a criminal case.

Justice Panckhurst used the analogy of a rope, with one cord being able
to bear some weight, while many bear considerable weight. He said
consistent evidence is much the same.

He told the jury that the starting point of any trial is the presumption of innocence.

Justice Panckhurst said it is the Crown's responsibility to prove all
five charges.

"There is no onus on the accused to prove or disprove anything. There
is no onus on the accused to give evidence, let alone prove anything,"
he said.

Justice Panckhurst said it was not enough to come to a conclusion of
"probably guilty" or "likely guilty".

"You've got to be brought to the point where you are sure," he said.

He said if there is "reasonable uncertainty" then they must acquit Bain.

"You are here to decide who the assailant was, who the killer was,"
Justice Panckhurst said.

10.32am: The jury has been told by Justice Graham Panckhurst to disregard any sympathy or prejudices they may have in the David Bain retrial.

"You may think the plight of David Bain as the sole survivor of a family 15 years on and his plight of sitting through the trial for the second time," Justice Panckhurst said, referring to the summing up by Bain's lawyer Michael Reed, QC yesterday.

Justice Panckhurst said he was not sure why Mr Reed made mention of Bain's situation but said they were not to respond in sympathy.

"Your role is to assess the evidence in a cool calm dispassionate manner," he said.

He told the jury they should use their "collective wisdom" and worldly experience when assessing the validity of witnesses and evidence.

10.22am: Justice Panckhurst has reminded the jury that they are to determine the facts based on evidence given from 184 witnesses over the past three months.

"The verdicts are for you, they are not my responsibility," Justice Panckhurst said.

He told the jury that if he "indicates a view" about any of the evidence they are to disregard it.

"The verdict must be solely based upon evidence given in this court room," Justice Panckhurst said, repeating the directions he made on March 6, the first day of the trial.

"It is the basic right of any accused under our system to be judged solely on the basis of evidence, not on newspaper comment or rumour from outside this court room," he told the jury.

10.15am: "Was it Robin or was it David?" Justice Panckhurst has asked the jury.

The same question was asked of the original jury panel which heard the
first trial in 1995.

"It can be redefined in this way: Is it proven beyond reasonable doubt
that David killed all five members of his family including Robin,"
Justice Panckhurst asked.

10.09am: The jury in the David Bain trial have arrived at court with overnight bags.

Judge Graham Panckhurst told the jury yesterday that they would be put
into isolation as they considered their verdict.

This morning they will listen to the summing up by Justice
Panckhurst and could begin considering their verdict this afternoon.

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