Big Read: The Bain dilemma

One case, 21 years of drama and now ... two conflicting findings from retired judges Ian Binnie and Ian Callinan on whether David Bain or his father, Robin, murdered the rest of the family. So how could they reach such different conclusions? We summarise some of the key points where the two reports disagree on Bain's claim for compensation and why.

David Bain's motive

Binnie: Despite police efforts to come up with a plausible motive from 1994 until the eve of David Bain's eventual acquittal in 2009, no plausible motive ever emerged ... It is noteworthy that the police chose to exclude the one suspect [Robin] who was alleged to have a plausible if challenged motive, and pursue for 13 years the other suspect [David] for whom they had found no motive whatsoever ... If the allegations of incest against Robin are difficult to establish, and repugnant to believe, the "trigger" alleged against David is feeble ... In the absence of some evidence that David Bain suffers from what was described as a psychopathic instability, the suggestion that what happened on June 20 was triggered by a minor and long-running argument about use of a chainsaw trivialises a tragedy.

Callinan: It comes in part by way of admission by the Applicant (David Bain) himself, of an expressed hatred for his father, his objection to his father's attempt to dominate the household, his wish to see his father excluded from the household and the family, and his arguments with his father, including a very recent [and recurrent] one over the use of a chainsaw ...

I take no account, however, of the likelihood that the Applicant, if he were not charged and convicted, would have been the sole heir to his parents' estates even though he was virtually penniless, had failed his only completed year at university, had been largely unemployed for two years, and had only just recommenced, at about 21, his university course ...

There is further evidence of abnormality of behaviour ... He spoke several times of "black hands" coming to take away the family ... He had fallen into a kind of trance more than once.

Robin Bain's motive

Binnie: The murders were obviously committed by someone who was deranged - temporarily or permanently. The expert evidence was that David was quite normal. There is no evidence at all in David's case of a "trigger".

However, there is evidence that Robin was depressed and stressed by both his marriage breakdown and frustrations at work, and that his anxiety had clearly manifested itself in the weeks before the murders ... The evidence does not permit any clear finding on the issues of incest (with his daughter Laniet), disclosure and confrontation, but as the prosecutor said at the 1995 trial, "something went wrong in the house that morning to lead someone to kill". The only "something" that has been seriously suggested [but not in my view proven on the evidence] is a confrontation between Laniet and her parents to name and shame her father.

Callinan: I am not satisfied that Mr Robin Bain had seduced Laniet into, and was maintaining with her, an incestuous relationship. All of the evidence about this came from Laniet in the first place ... Laniet herself was unreliable, a prostitute and user, likely a heavy user, of marijuana ... (However) let me assume contrary to what I have just said, that there was a guilty relationship between Mr Robin Bain and Laniet: that does not mean Mr Robin Bain would possess a motive to kill her and the other members of the family except the Applicant.

Bloodied footprints

Binnie: The prosecution led evidence that the killer left footprints with a bloodied right sock in parts of the house where, on the prosecution's theory, Robin Bain would never have gone on the morning of June 20. A police detective and an ESR expert measured a complete footprint as 280mm long. The "luminol footprint" evidence was led by the prosecution at the 1995 trial to persuade the jury to eliminate Robin as a suspect. Robin's foot was 270mm long.

In tests done by an ESR scientist after the 1995 conviction, it was determined that a walking foot would likely make a print longer than itself because of the shift of weight and pressure as a person walks. David Bain's foot was 300mm. Accordingly, the prints made by the bloodied sock were too small to have been left by David Bain "but were about the right size" to have been left by Robin ...

Callinan: I am not persuaded on the balance of probabilities that any of the footprints exposed under luminol were Mr Robin Bain's footprints. There were too many differences in the various measurements made under different circumstances of the sizes of Applicant's stockinged feet ... If Mr Robin Bain made the prints he must have been wearing bloodied socks or walking in socks which would themselves have been bloodied from blood on the floor. There was no blood on the socks he was wearing when he died of gunshot. Nor was there any blood in his shoes ... If Mr Robin Bain made the footprints, his socks must have become bloodied, and he must have changed them and carefully put them in the washing basket, before washing his feet and changing into fresh ones for his suicide.

Arguments continue about David Bain. Picture / Janna Dixon

Robin: murder or suicide

Binnie: The Crown's position at the 1995 trial was that suicide was incompatible with such factors as the position of Robin's body, the evidence of airborne blood spatter and the sheer mechanics of Robin being able to reach the trigger given the length of the rifle.

The Crown Law Office now concedes suicide is possible but of course argues that it was unlikely ... I believe suicide was the probable cause of Robin's death.

Callinan: I have found the view of neither side's experts on these matters compelling or one more probable than the other's.

If Mr Robin Bain were a determined suicide, he could have committed it. If the Applicant were a determined murderer, he could have done the killing. I doubt very much that the geometry of blood spatter, rifle position in relation to a victim, and body positions on a particular occasion and places can be replicated in anyreliable way.

You cannot be serious - the rejected theories

Binnie (on the timing of the murders): It strikes me as inherently implausible that David Bain, however incompetent, would kill four people, then take time out to do a paper route in clothes smeared in blood [albeit covered in part by a red sweatshirt], anxious to be seen by customers along the way, leaving the scene of the massacre open to discovery by Robin before his return.

Callinan (on the "suicide note" on Robin's computer): Why did the Applicant "deserve to stay"? It was not as if, apart from his music, he had been an achiever. He wished his father to be expelled from the household and argued with him from time to time. And why, if the Applicant deserved to be spared, did Mr Robin Bain not provide an explanation for the exception he wished to make of the Applicant?

Further, why would Mr Robin Bain, if he wished to see the Applicant live and flourish, conduct himself in such a way as to cast suspicion upon the Applicant: by using the Applicant's rifle, ammunition, and white gloves; by changing his clothes before committing suicide; and, perhaps by showering and not obviously leaving his own fingerprints on the rifle?

Conclusion

Binnie: It is my recommendation that David Bain receive compensation for the wrongful 1995 conviction and the consequential 13 years in jail.

Although his factual innocence has not been established beyond a reasonable doubt, I conclude that it is more likely than not that David Bain is factually innocent according to the lower civil standard of "balance of probabilities" ... I am very conscious that Robin - unlike David - is not here to speak for himself.

Yet I believe the evidence compels the conclusion that it is more probable than not that Margaret and three of the Bain children were killed by Robin Bain before he turned the gun on himself and committed suicide.

Callinan: No matter which view a person might take as to who the perpetrator was here, there will be some unexplained or "loose ends". In the fictional murder mysteries that Mr Robin Bain was reading before his death, all of the ends are tied and the crimes elegantly solved.

People in real life and the courts that adjudicate upon conflicting facts know that all of the questions cannot always be answered, and all of the issues neatly resolved. This is such a case. Addressing the sole question that I am asked, and confining myself strictly to it, my answer is that the Applicant has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June, 1994.

The facts

• About 7.10am on June 20, 1994 David Bain rang 111 from his home on 65 Every St in Dunedin to report that his family - mother Margaret, sisters Arawa and Laniet, brother Stephen and father Robin - were "all dead". All the victims were killed in or near their beds, except Robin, who lay on the living room floor with David's rifle beside him. Someone had written on the family computer; "Sorry, you are the only one who deserved to stay".

• Bain was arrested and charged with the murder of his family and found guilty at his first trial in Dunedin in 1995. The Court of Appeal upheld his conviction in 2003 but the Privy Council in London overturned it in 2007. Bain was acquitted on all counts at his second trial, in Christchurch in 2009.

• In 2011 former Justice Minister Simon Power asked retired Canadian Supreme Court Justice Ian Binnie to advise the Government whether Bain was innocent on the balance of probabilities and should therefore receive compensation. Justice Binnie concluded Bain was innocent but the new Justice Minister, Judith Collins, disagreed and the process stalled. Collins ordered a peer review by former High Court judge Robert Fisher.

• Last year the current Justice Minister, Amy Adams, ordered a new review by retired Australian judge The Hon Ian Callinan. His report, released this week, concluded that Bain had not proven his innocence to the required standard. Faced with another legal challenge by the Bain team, the Government offered Bain an "ex gratia" (without obligation) payment of $925,000.