Court told of father's depression

A school newsletter published by Robin Bain, the dead father of convicted multiple murderer David Bain, carried a story by a 10-year-old about the murder of a father, a mother, two daughters and a son, the Court of Appeal has been told.

The Taieri Beach School newsletter was published before Mr Bain, his wife, Margaret, their two daughters Arawa and Laniet and their son Stephen were found dead from gunshot wounds in their Dunedin home in June 1994.

Elder son David was convicted of the murders in 1995 and sentenced to life with a minimum of 16 years. He has always claimed Robin Bain killed the family and then himself.

In new evidence heard in the Court of Appeal in Wellington yesterday, a principal and three Education Ministry officials said Robin Bain's mental state was deteriorating in the months before the killings.

Kevin MacKenzie, then the Taieri School Principals Association president, said by affidavit that Mr Bain "had lost touch with reality" and was affected by deepening depression.

His workplace was dishevelled and his decision to publish children's stories about violent deaths was inappropriate.

Robin Bain was principal of the small school on the outside Dunedin at the time.

The court is hearing a second appeal by David Bain, 31, against the murder convictions after a series of applications to the Governor-General saw the case referred back to examine whether there had been a miscarriage of justice.

The court dismissed Bain's first appeal in December 1995 and in May 1996 the Privy Council in London declined to hear an appeal. Former All Black Joe Karam has been campaigning to have Bain freed.

The Crown claimed that Bain shot his mother and siblings with his silencer-equipped hunting rifle early on July 20, 1994, went on his paper delivery round, and then shot his father on his return about 6.45am.

It was claimed Bain then typed a message on the family computer purportedly from his father saying David Bain was the only one who deserved to live.

David Bain's supporters have long argued that the police got the computer timing wrong and that he could not have returned home from his paper run at the time the computer was switched on.

His lawyer, Colin Withnall, QC, canvassed those arguments again yesterday, but his new evidence was the affidavit from Mr MacKenzie and others from Dunedin specialist education services manager Patrick Crowley and SES psychologists Cyril Wilden and Maryanne Pease.

Though David Bain claimed at the trial that his father was the killer, no evidence was given about Robin Bain's mental state.

Mr MacKenzie and the SES staff approached the Bain defence team in 2001 after seeking permission from the ministry to tell of their observations of Mr Bain.

Mr Wilden said he had had increasing concern about Robin Bain's mental state in 1994 and asked him if he was getting treatment for his obvious depression.

He said Mr Bain's judgment was impaired and he had struck two pupils in the weeks before his death.

The moment he heard of the killings, he assumed Robin Bain was the killer - as did the police initially.

Mr Wilden's greatest concern was the publication of the "completely inappropriate stories" in the newsletter. One of the stories, The Porcelain Doll, was about the killing of a family of similar makeup to the Bain family.

The three judges hearing the appeal questioned Mr Withnall at length about what they were being asked to make of that.

Mr Withnall said it indicated that Mr Bain's mental faculties had deteriorated so much that he was no longer rational.

Earlier yesterday, Mr Withnall said David Bain had been seen at an intersection near his home at 65 Every St returning from his paper run at 6.40am. Another witness saw him at the gate of 65 Every St at 6.45.

It was not in dispute that whoever turned on the computer was the killer, Mr Withnall said, but with evidence that the computer was switched on at 6.42am, Bain could not have done it.

Mr Withnall accused the police of deliberately misleading the trial jury about the lens from a pair of spectacles found in Stephen's bedroom.

The jury was told the lens, allegedly dislodged in a fight when David Bain was shooting Stephen, was found in the open on the floor but police knew it was hidden under a jacket and boot. An optometrist had wanted to tell the jury the spectacles were Mrs Bain's but was led by the Crown in such a way that his evidence appeared to say they were an old pair of Bain's.

Recent DNA testing had found that the blood on the rifle containing Bain's fingerprints was not human and was most likely another mammal such as a rabbit.

Mr Withnall also tabled evidence from medical experts that Laniet could have "gurgled" long after her death because of an organic reaction from blood that seeped into her lungs after she was shot.

The Crown cited Bain's testimony that he heard Laniet gurgle when he returned from his paper run as evidence he was the killer, because she would have died instantly from two of the shots she received and could not have breathed after them.

However, Mr Withnall said evidence from a mortuary assistant was that such noises did come from dead bodies, especially when there was blood in the lungs.

The case continues tomorrow.

HOW IT HAPPENED

June 20, 1994: David Bain's parents, Margaret and Robin Bain, sisters Arawa, 19, and Laniet, 18, and brother Stephen, 14, are shot dead at their home in Andersons Bay, Dunedin. The murder weapon is 22-year-old David's rifle. He is arrested.

June 21, 1995: Bain is ordered to serve at least 16 years of a life sentence.

December 1995: His first appeal is dismissed.

April 1996: Privy Council rejects petition to dismiss convictions.

April 1997: Former All Black Joe Karam questions police evidence in his book, David and Goliath.

November 1997: Police Complaints Authority says police handled the case correctly and new DNA evidence further implicates Bain.

June 1998: Petition for mercy sent to Governor-General.

December 2000: Governor-General asks Court of Appeal for an opinion on new evidence, mainly over Bain's alibi (see below).

February 2003: After reading judges' opinion, Justice Minister Phil Goff refers case back to Appeal Court for another hearing.

September 1, 2003: Hearing starts before three Appeal Court justices.

DAVID BAIN'S ALIBI

Bain claims he was out on his paper round when the murders happened. His father killed the family and then himself, leaving a note on the computer saying, "Sorry, you are the only one who deserved to stay".

SOME QUESTIONS THE COURT WILL CONSIDER

The time the computer was turned on, and whether David Bain could have been at home when it was.

Whether a spectacle lens found in one of the bedrooms was related to the murders, and was evidence of a struggle.

Whether a bloody fingerprint on the rifle could have been there before the killings.

Whether gurgling that Bain heard from Laniet's body could have occurred after she died.

POSSIBLE OUTCOMES

The verdict stands.

The verdict is rendered "unsafe" and a retrial ordered.

Convictions are quashed and Bain is pardoned.

- NZPA