Come back with 12-nil verdict, judge tells jury

The jury in the David Bain retrial will continue deliberating today to decide whether he walks free or is sent back to prison.

The 12 jurors were sent out by Justice Graham Panckhurst late yesterday afternoon but returned a short time later to ask a question.

The content of the question was discussed in chambers and cannot be reported. It will be dealt with this morning.

Bain, 37, is accused of murdering his parents and three siblings in their Dunedin home on June 20, 1994. His defence team says his father, Robin, 58, shot the family dead before committing suicide with the rifle found next to him.

Justice Panckhurst told the jury of five men and seven women that they must return with a unanimous verdict, "12-nil".

He apologised for his lengthy summing up of the Crown and defence cases which took much of the day but said the jury must confirm verdicts on all counts.

"Either the Crown has proved that David committed the five murders or there is reasonable doubt and the five counts result in acquittal," he said.

At the start of the day Justice Panckhurst asked: "Was it Robin or was it David?" The same question was asked of the original jury which heard the first trial in 1995.

"It can, in fact, be refined in this way: is it proven beyond reasonable doubt that David killed all five members of his family, including Robin, so the Crown has proven beyond all reasonable doubt that this was not a case of suicide?" Justice Panckhurst asked.

The question goes to the heart of the trial that has now gone on for more than three months and included evidence from 184 witnesses, written statements, graphics, hundreds of photographs, a film of the Bain family home and the distorted audio of Bain's 111 call.

Justice Panckhurst told the jury they must consider only evidence given in the courtroom, not "newspaper comment or rumour", and that they must put aside any sympathies or prejudices they might have.

"There is simply no place for emotion when it comes to the difficult task you have in judging evidence and bringing in verdicts on five counts of murder," he said.

Justice Panckhurst also referred to the summing up of Bain's lawyer Michael Reed, QC, on Wednesday.

"You may think of the plight of David Bain as the sole survivor of that family 15 years on, given his plight of sitting through this trial for the second time."

The judge said he was not sure why Mr Reed made mention of Bain's situation but they were not to respond in sympathy but to assess the evidence in a "cool, calm, dispassionate manner".

They should use their "collective wisdom" and worldly experience when assessing the validity of witnesses and evidence. It was not enough to come to a conclusion of probably guilty or likely guilty: "You've got to be brought to the point where you are sure."

The jury will have almost 4000 pages of evidence to help them answer important questions, including did Robin Bain commit suicide? Whose bloody footprints were found in the home? Who typed the message: "Sorry, you are the only one who deserved to stay"? And who had the violent fight with Stephen? In short, they will answer: "Was it Robin or was it David?"