Bain trial: Who did it? Judge sums up evidence

By Edward Gay

Justice Graham Panckhurst completed his summing up of 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 told the jury the Crown says the 111 call in which David Bain said: "They're all dead" shows Bain to be the killer.

He has now begun summing up the defence case.

Justice Panckhurst is summing up at the High Court in Christchurch following the prosecution and defence closing addresses, earlier this week.

The jurors are expected to retire to consider their verdicts this afternoon. Bain is accused of murdering his parents and three siblings in the family's Dunedin home in June 1994.

His defence lawyers say his father Robin Bain murdered four of his family members before turning the gun on himself.

How to reach a verdict

Earlier, Justice Panckhurst asked the jury: "Was it Robin or was it David?"

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.

He told jurors that if there was uncertainty in their minds they must acquit David Bain.

Justice Panckhurst told the jury that deciding the motive of the killer is not essential.

"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 had to determine the facts, assess the evidence, resolve the conflicts, and decide what was proved and not proved to a required standard.

The verdicts must be solely based upon evidence given in this court room, he said.

There was oral evidence, a video link overseas, read evidence from witnesses who have died or not appeared in court, videos, tape recordings, graphics, demonstrations, photographs and exhibits.

The jury would have available to them three written statements Bain made to police, and they had heard the transcript from the first trial when he took the witness stand.

Justice Panckhurst said the Crown case was entirely dependent upon circumstantial evidence. There was no direct evidence from an eyewitness. But that was not unusual.

Crime was typically committed in stealth and to avoid detection, Justice Panckhurst said.

Circumstantial evidence could be compelling. It came from not one single witness but from a number of different sources, which built a picture.

If ever there was a case of a broad spectrum of evidence this was it, he said.

Summing up the evidence

Justice Panckhurst then summed up evidence in specific areas of the case.

In evidence surrounding the question of whether or not Robin Bain committed suicide, he 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 was also 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.

He also summarised the evidence of whether Laniet Bain made a gurgling sound.

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.

Disregarding prejudices

He also told the jury to disregard any sympathy or prejudices they may have in the David Bain retrial.

"The defence told you of the time David spent in prison, and on bail, that he is penniless, facing the ordeal of retrial and is now aged 37.

The purpose was that they intended to invoke sympathy, but that has no part in this trial."

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

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

Earlier, Bain was greeted by friends as he arrived at the court with supporter Joe Karam.

They wished him well and he replied "See you later."

- with NZPA

- NZ Herald

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