CK Stead: Why judge was wrong on Bain

The Bain family house in Every St, Dunedin, was burned to the ground soon after the murders, by agreement with the authorities. Photo / APN

C K Stead explains why he is not surprised that Justice Minister Judith Collins ordered a review of the Binnie report on the Bain case

Associate Professor Ken Palmer's letter to the Herald was so emphatic in his support of Canadian judge the Hon Ian Binnie's report on the Bain claim for compensation, and so (it seemed to me) immoderate in its rejection of QC Dr Robert Fisher's response, I felt to have an opinion on this currently "talking" topic one must read both, which I have now done. This has not altered my view (a layman's, not a lawyer's) of David Bain's likely guilt, but it has added a new perspective. It is only reading Justice Binnie's report that I recognised how clumsy and less-than-competent the police inquiry and consequently the first Crown case were and how much of the subsequent drama sprang from those initial errors.

Reading through the detailed forensic analysis, and the challenges to it, which have accumulated over the years of Joe Karam's crusade on David Bain's behalf, it is easy to imagine how the second jury might have grown weary of detail and focused instead on the drama and the rhetoric - in particular the defence lawyer's boldness in "standing up to" the trial judge, his "courage" and his outrage. It would be tempting, in that second jury's shoes, to think, "This is such a mess. The first Crown case has been full of holes and has had to be re-patched. The Law Lords have said the first conviction was a mistrial. Why should we struggle any further? Let's say at least that the case hasn't been proved, and acquit. If he's guilty, well, he has served his time anyway."

I have an impression that in some degree, Justice Binnie may have entered the fray in the same spirit, seeing himself as someone called in to "right a wrong", though he is certainly not, I should add, one who is impatient with the facts or unwilling to wrestle with them, one at a time.

But that "one at a time" is part of the problem. As Dr Fisher points out, a circumstantial case depends on the strength of a single rope made up of many strands, any one of which may be insufficient. Justice Binnie's method is to begin with the Luminol footprints, the weakest strand (at least in the sense of being the most technical and therefore technically arguable), declare it favours David Bain, and then bring each of the other strands in the case up against those footprints and find it wanting. And it is to the footprints he returns first in his "Summary and conclusions as to factual innocence" (p.138).

Yet even Justice Binnie admits "'luminescence' in the dark does not exactly give rise to laser-like accuracy", and agrees "there must be some room for error in the Luminol measurement" (p.79/257). It seems strange, therefore, that he has "no hesitation in recommending that the Minister accept the results of the tests of Mr Walsh" [for the Defence] (p.77/251), and proceeds from that point in a manner which suggests the case for innocence has been made and needs only be demonstrated by reiterating the defence argument against each of the other strands.

His consequent bias is apparent in statements like the following: "It is only the fingerprint blood that can tie David Bain rather than Robin Bain to the killings." Only? And there is nothing at all that can tie Robin to the murder weapon except that he was killed with it!

Another example of this bias: "Nothing has been established beyond a reasonable doubt. Nevertheless, the cumulative effect of the items of physical evidence, considered item by item both individually and collectively, and considered in the light of my interview with David Bain" [my italics] ... "persuade me that David Bain is factually innocent" (p.139/ 463). But why should items of fact, none of which, Justice Binnie concedes, is "free of difficulty", be considered "in the light of" the accused's own testimony, which is more likely than any other to be false?

A further example: "If David Bain's recollection ... is accepted, and I do accept it, then the force of the prosecution's argument ... is much diminished" (p.38/124). But of course if we only have to go to David Bain for the truth, then the prosecution's argument is not just diminished - it's dead! What kind of source is the accused for the truth of the matter in a case of murder?

And that brings me to what appears to be the real weakness in Justice Binnie's argument: his naive (as it seems to me) acceptance of David Bain's truthfulness in interview, and Binnie's reliance on "innocent openness" as the explanation where the accused's testimony seems to aid the prosecution rather than himself. As a "final word" to the executive summary of his report, Justice Binnie quotes Bain's ringing statement of complaint that he has not only had to mourn for his family and spend 13 years in jail, but has had to live with the labels of "monster" and "psychopath" - all true of course, but only relevant if he is innocent, and that is still the question.

If David Bain was not the killer, his case is a sad one; but if he is, then he has had many years to go over his innocence story - so many that he must very nearly believe it himself, at least sufficiently to make it sound indistinguishable from a truthful statement.

As Dr Fisher says, any number of studies have shown that "none of us has the ability to decide whether or not a witness is to be believed based on watching and listening to that witness in person" (p.9/18).

Predisposed as he is, Justice Binnie is able to wave away David's brother's blood on his clothes; the broken glasses at the murder scene which were of use to David but not to Robin; David's fingerprints on the murder weapon and his handprint on the washing machine; David's admission that he heard his sister gurgling and that he alone knew where the trigger key to the rifle was hidden; the blood on David's gloves - and many other finer strands in that rope of circumstantial evidence. Instead of David Bain as the killer, Justice Binnie offers us (since there is no third alternative) a murder by the father, Robin, who must have worn gloves (why?) while killing his wife and children, then changed his clothes and put the blood-stained ones in the washing basket (again, why?) before killing himself, still with a silencer on the rifle (why?) and having first turned on the computer to write his confession rather than writing it by hand. Justice Binnie dispenses, it seems to me almost casually, with each of these elements, as with David's strange behaviour after the murders.

Signs of extreme stress would be expected; but what state of mind was David in that he made detailed plans for the victims' funeral; specified what lingerie his deceased sister Arawa would be dressed in; wanted the pop song Who wants to live forever? to be played for Laniet; told his aunt she was not to wear black at the funeral "because we see death as a celebration"; wanted to hold a posthumous party for Arawa on the Sunday after the murders; and spoke of "black hands" taking his family away? To me all this suggests a state of disconnection from the reality - a state of mind in which the crime itself might have been committed - as if the one who had taken responsibility for that (by every report) disastrously dysfunctional family was now ready to tidy it all away with a tasteful funeral.

In every case where the original police enquiry failed to preserve, or to look for, evidence - Robin's hands which should have been checked for gunshot residue, and fingernails for any signs of a fight with Steven, the bloodstained carpet, the whole house which was allowed to be burned down - the David Bain team has used this failure as if here was a piece of evidence that would have cleared his name; and Justice Binnie has tended to follow them in this. But in each case it could be (and in my view equally or more likely was) the destruction of an incontrovertibly damning piece of evidence for the prosecution. There are certainly no grounds for saying, or implying, that these pieces of "lost evidence" lead one to the conclusion that David Bain is "factually innocent".

One final word against the payment of compensation: to say, as Justice Binnie does, that the "factual innocence" of David has been established clearly implies the "factual guilt" of the father, Robin. Yet no case has ever been made against him, except by implication. And if the case were made, it would be so much weaker than the one against his son that it would not stand inspection for more than a few minutes. I don't think a decision by the New Zealand Government should be allowed to label Robin Bain the murderer of his family.

That the second jury found David Bain's guilt had not been proved "beyond reasonable doubt" does not mean they would have affirmed that his "factual innocence" had been demonstrated; but that is what the case for compensation requires, and what Justice Binnie affirms. It does not surprise me that when she received his report, Judith Collins felt another opinion was needed, either for confirmation or rebuttal. It does not surprise me, either, that Dr Fisher did not confirm, but found serious fault in, Justice Binnie's report.

C K Stead is a writer and emeritus professor at the University of Auckland. His latest novel, Risk, was published by MacLehose Press in October.