Bain carries on battle, 10 years after murders

Inside his cell, David Bain gazes at old photographs of the five people he is accused of snuffing out.

They help him remember the good times, he says - good times which these days must seem increasingly distant.

It is been a decade since Bain was convicted of slaughtering his entire family in one of the country's most infamous murders. In May 1995 Bain was sentenced to what was then the longest jail term in New Zealand history - life, with no possibility of parole for 16 years - after being convicted of the June 1994 slayings of his parents, Robin, 58, and Margaret, 50, sisters Arawa, 20, and Laniet, 17, and brother Stephen, 14. They were shot in their Every St, Dunedin home.

To this day Bain maintains his innocence, claiming he has been a victim of those who "will fight to the bitter end to try to protect the reputation of the system".

Bain has not been heard from publicly for a decade, communicating only with a dedicated group of friends and his chief supporter, former All Black Joe Karam.

But as the 10-year anniversary of his conviction looms, Bain has broken his silence to speak about the long battle to clear his name, which has so far failed.

He feels "depressed and disgusted", he says, about an Appeal Court decision in 2003 which found that fresh evidence in his favour would not have been enough to sway his jury's original verdict.

"The case has been mishandled from the start," Bain says. "Everyone concerned does not want to put up their hand and admit the mistakes, but rather will fight to the bitter end to try to protect the reputation of the system and those involved.

"I was considered guilty of causing the dreadful tragedy from the day I was arrested and then my house was burned down and the system and media will not look at things objectively since then. My conscience is clear, my awareness is that I have done nothing wrong, and deserve my place in the world and want to contribute as positively as I can in my environment. Even if, for now, it is a prison."

To this day Bain is a model prisoner at Christchurch's Paparoa Prison. He listens to ageing pop stars Sting and the Eagles to relax, and says he draws strength every day from the photos he has of the five people whose lives he has been jailed for ending.

The whodunnit initially seemed simple: Robin Bain, dead in the lounge with the gun next to him, killed the family, then ended his own life. But next door, on the floor of his bedroom, 22-year-old David Bain put paid to that theory. Babbling incoherently into a telephone, the eldest Bain son was very much alive. "They are all dead" he screamed to a 111 operator on the other end of the line before falling into a sort-of trance.

It took a week to arrest David Bain and charge the young music student with the murders of his entire family.

The jury apparently had little difficulty in finding him guilty. He had blood all over his clothes, his fingerprints were on the rifle, there was evidence he had had a violent struggle with Stephen that morning. They returned their verdict in just a few hours. It was clear cut. But the Bain murders is one of those cases that will just not go away.

That's in part because Karam won't go away either.

Two books by the former All Black crusader, three failed bids for legal review behind them and a plea for Royal mercy turned down, Bain and Karam continue battling in their bid to have the infamous prisoner's convictions overturned.

This week TVNZ will screen a documentary on the case, in which film-maker Bryan Bruce pores over evidence presented to the Appeal Court hearing in 2003, reconstructs the prosecution and defence version of the killings, and finds as all other inquiries have, that Bain is guilty.

Ten years on Bain is excruciatingly careful to play by prison rules and refused to speak in person to the Herald on Sunday last week. However Karam agreed to put a series of questions to Bain on the newspaper's behalf and Bain agreed to answer them.

The convicted killer says he is comfortable in his innocence. "I take one day at a time," he says.

Coping is a matter of believing in himself and in that, he has no problem. Bain says he spends his days in the prison's engineering workshops, working 45 hours a week on computer-aided design. He goes to the gym and plays tennis when he can.

It has been reported in the past that Bain, a tall, lanky man with a penchant for classical music, had been attacked at least once by other prisoners. Now, however, he says inmates treat him with respect.

"Those who get to know me express their total belief in me," he says. "And this goes for many of the staff as well."

In fact, Bain has found himself surrounded by a strangely dedicated fan club, some of whom have revered him in public as almost an advanced human being.

Bain claims a group of about 400 supporters regularly write or visit him. His former girlfriend, Heather Hall, is among them. Though she has moved to Australia, the two remain close and keep in regular contact.

Despite his repeated failures to prove his innocence, surveys have shown the public harbours a good deal of doubt about his guilt. It is only, he says, "the hierarchy" who are unsympathetic.

And it is that hierarchy which Bain and Karam are poised to take on again.

Now the pair's hopes rest with the Privy Council where they expect to file papers within the month.

An earlier appeal to the council failed to convince it a new trial was needed on the basis that witness Dean Cottle's evidence had been wrongly disallowed. Cottle was an acquaintance of Laniet's and claimed she had told him her father had been having sex with her.

Cottle's evidence was that Laniet was heading home to tell her family about her father - a possible motive, the defence contended, for Robin to kill his family.

The trial judge had ruled Cottle was an unreliable individual but since then his story has been backed up by others. Though the Appeal Court ruled the evidence about Laniet and Robin was now admissible, it nevertheless didn't persuade the judges.

That most recent appeal was ordered by Justice Minister Phil Goff in 2003. The court had been asked for an opinion on new evidence about the case, concluding there was "sufficient possibility of a miscarriage of justice" to warrant a new hearing.

But at the end of that, judges ruled that none of the new evidence - including fresh doubts about the time a computer was turned on to write Robin's suicide note, which the prosecution said was written by David; and fingerprints on the rifle which the defence argued came from animal blood put there months before - would have been enough to sway a jury from a guilty verdict.

Three things stood out for the Appeal Court judges as compelling:

Only David knew where the spare key to his rifle's trigger lock was; his fingerprints could only have got on the gun at the time of the murders, and it was inconceivable the spare gun cartridge that lay beside Robin Bain could have landed on its edge if the father had killed himself. The implication being David planted it.

But Karam says there are serious flaws in that logic.

He says the Appeal Court was wrong to say a retrial was not needed because the new evidence would not have changed the jury's verdict. And it is on these grounds Bain's team wants the Privy Council to agree to a retrial.

As an example, he says, the Appeal Court ignored one of the most powerful pieces of new evidence.

Otago optometrist Gordon Sanderson says he made a mistake when he told police the glasses found in the bloodbath of Stephen's bedroom were David's. The Crown argued they had fallen off David during a violent struggle with Stephen.

Shortly before the 1995 trial, Sanderson went to the police and said his statement that the glasses were David's was wrong and they were in fact Margaret's. He had even seen a picture of her wearing them.

In an affidavit, Sanderson swears he was told by the police his statement would be changed.

Instead, his affidavit explains, Sanderson realised later that the jury was read his original version. And crucially, when they came back from deliberations to ask the judge whose glasses were found in Stephen's room, the judge re-read the incorrect Sanderson statement claiming they were Bain's. Bain had been fiercely cross-examined about this, maintaining in court that the glasses were his mother's. Says Karam: "If we were told there was only one thing you can appeal on what would it be? It would be Gordon Sanderson saying 'I went into the Crown and police and said I wanted my evidence changed so it would be telling the truth and they said yes, but it didn't happen'."

Though the fact the real Sanderson evidence was not given to the court was uncontested by the Crown, it is not referred to at all in the Appeal Court decision.

"I'm not suggesting this proves his innocence or guilt," says Karam. "It's an example of where the Court of Appeal has failed to properly address the issues."

Meanwhile, he has his own theory about why they continue to fail in the courts.

"It is that we don't want some rugby-playing King Country boy coming along and kicking our system in the guts and we will bury him once and for all. I think it is personal, to be quite honest."

Nevertheless, police and prosecutors maintain to this day the case against Bain is clear-cut.

Crown Prosecutor Nicola Crutchley tells Bruce in his documentary that it defies all logic that a perfect set of prints would have remained on the gun from an earlier hunting trip.

Bruce is also convinced of his guilt, as are dozens of experts like Christchurch criminologist Greg Newbold and head of the Police Association, Greg O'Connor.

The film-maker questions whether 16 years in prison is long enough for the murderer of five members of his own family.

And Karam tends to agree.

"If someone had done that, they deserve more than 16 years."

He, however, is convinced that person was not David Bain.

- HERALD ON SUNDAY