Bain tries again at Privy Council

Joe Karam

Convicted mass murderer David Bain has filed a second appeal to the Privy Council in the hope of winning a retrial.

Lawyer Michael Reed, QC, had completed a leave to appeal application, Bain supporter Joe Karam said yesterday.

He would argue that the findings of a 2003 Court of Appeal hearing on the case were invalid. That appeal was ordered by Justice Minister Phil Goff, who asked the Court of Appeal for an opinion on new evidence about the case.

The Court of Appeal said a retrial was not needed on the grounds that the new evidence would not have changed the jury's verdict.

Mr Karam said the court was wrong to do so, and Bain wanted the Privy Council to agree to a retrial on those grounds. Bain was able to appeal to the Privy Council as his case was heard when it was still New Zealand's highest court.

The Privy Council will consider the leave to appeal, then determine if there are grounds for an appeal.

Bain will argue there was radical error rendering the convictions unsafe.

He will also submit that the Court of Appeal incorrectly applied the law, and overlooked the serious defects of his trial.

Mr Karam expected the Privy Council to consider the leave to appeal in March.

Bain was seeking to either have his convictions overturned, or to win a new jury trial.

There was good reason to take the case to London, rather than with the Supreme Court in Wellington, Mr Karam said.

"Bearing in mind that the Supreme Court is constituted effectively of who were previously the appeal court personnel anyway, there is a more likely opportunity of a generous hearing at the Privy Council than there is at the Supreme Court.

"The Court of Appeal accepts there were matters that should have been disclosed to the defence, which were not - there were 10 separate instances of that.

"But again they say in their view it doesn't matter. It mattered ... but it doesn't matter because they think David is guilty, and that's effectively our complaint."

Bain was jailed a decade ago for slaying five members of his family in their Dunedin home.

It will be one of the last New Zealand cases to go to the Privy Council as its role as the highest court has, since last year, been supplanted by the Supreme Court.

- NZPA