Bain given first fair hearing in decade, says Karam

The Privy Council has given David Bain his first fair hearing in 10 years, campaigner Joe Karam said from London yesterday.

Talking hours after the court delivered its decision to allow a full appeal of Bain's convictions for murder, Mr Karam said the Law Lords had focused on the facts.

"Today seemed simply a matter of what is right and what is not right," he said.

The atmosphere in the court was noticeably free of the undercurrents associated with the case in New Zealand, where it had been caught up in a contest between the police and Joe Karam, he said.

"There is a lot of work, but I think we can look forward with confidence to a fair hearing, I think for the first time in 10 years," he said.

"Effectively, it is the closest thing to another trial."

Bain has served 12 years of a life sentence, with a minimum 16-year non-parole period, for shooting dead his mother, father, two sisters and brother at their Dunedin home in 1994.

His defence maintains it was the father, Robin Bain, who committed the murders before turning the gun on himself.

"David is still in prison, which is the worst thing of all. Even though we have had this success, it is only one step on the road to what we are really hoping to achieve because there has been a terrible miscarriage of justice," Mr Karam said.

The three Privy Council judges who heard the application for leave to appeal were clearly disturbed by the matters Bain's counsel, Michael Reed, QC, raised, he said.

Mr Reed, of Auckland, raised 47 matters from the Court of Appeal's 2003 judgment - which rejected a retrial - to which the Crown counsel produced no answers, he said.

"I think more than anything, that has been the disturbing thing."

On some matters, Deputy Solicitor-General John Pike had conceded mistakes were made.

One example was the Crown's contention that there had been an exit wound on the body of father Robin Bain.

"But there was no exit wound, just for example, so their grasp of fact was sadly lacking, which disturbed the Privy Council profoundly."

That issue was connected to whether or not Robin Bain had committed suicide.

"Of course it was suicide, and if it was suicide then David Bain is off the hook completely," Mr Karam said.

"The Crown today, in front of the Privy Council ... conceded that these mistakes were made," he said.

Of particular significance, the Crown had conceded ground on two of three points central to the 2003 Court of Appeal decision.

"The Court of Appeal, in their decision in 2003, had three things they said would lead incontrovertibly to a verdict of guilty. On two of those things the Crown, represented by the Deputy Solicitor-General, conceded the Court of Appeal probably overstepped the mark."

Those two issues were whether Robin Bain knew where the key to the trigger lock of the gun used in the murders was kept, and the fact a rifle magazine was found balanced on its edge at the scene.

Neither of those points had featured prominently in the original Crown case but the Court of Appeal had found them incontrovertible, and said they outweighed the problem of the jury having been misled in other areas.

The third point involves bloody fingerprints on the rifle, which is also disputed.

Mr Karam said much of the credit for the result had to go to the lawyer who did much of the earlier work for Bain.

"The work that Colin Withnall, QC, from Dunedin has done on this over the previous eight or nine years was hugely helpful.

"Largely, we just re-presented what Mr Withnall presented to the Court of Appeal in Wellington. What this Privy Council decision says is that the Court of Appeal in Wellington didn't properly adjudicate on what Mr Withnall presented to them," he said.

An "absolutely thrilled" Mr Withnall was last night relieved the "springboard" he developed over seven often frustrating years had secured a hearing that "David so much deserves".

The hearing yesterday, on the petition submitted by Mr Reed, went for four to five hours.

The next step, a full appeal in front of the Privy Council in London, would be based on the paper records of evidence and was expected to take place over five days in February or March next year.

New Zealand's Supreme Court replaced the Privy Council in 2004 but the Bain application began before the ties to London were cut.

WHAT NEXT?

* The Privy Council will now hear a full appeal on the facts of the case early next year.

* The hearing is expected to take about five days.

* The Privy Council could either quash David Bain's convictions, order a full retrial or confirm the convictions.

* The granting of a full Privy Council hearing is a rare victory - second appeals, such as the Bain case, are usually restricted to points of law.

* In 166 years, only 10 New Zealand criminal cases have been granted full hearings. Of those, six were dismissed, three were allowed and one was withdrawn by the appellant, Ministry of Justice statistics show.

- OTAGO DAILY TIMES and NZPA