Complaint unlikely to affect Bain verdict

David Bain. File photo / Pool, Christchurch Press

A complaint to the Solicitor-General over a juror on the Bain murder retrial who was convicted of a serious theft is unlikely to affect the not guilty verdict.

The revelation of the juror's conviction comes a day after police said they would look into a documentary's claim that a defence witness at the retrial gave evidence that was inconsistent with other people's accounts of events.

David Bain was convicted in 1995 of murdering his parents, Robin and Margaret, and siblings Laniet, Arawa and Stephen in their Dunedin home.

He was found not guilty in a retrial in June last year, after his defence team had argued that Robin Bain had shot the other four family members before turning the gun on himself, with the motive being his incestuous relationship with daughter Laniet.

The Crown Law office has confirmed that a complaint was received after the trial.

"It was well after the trial, end of story," spokeswoman Jan Fulstow said.

She said it was important to note that not all convictions precluded people from sitting on a jury.

But according to the Jury Act, 1981, a verdict cannot be overturned even if it is found that a jury member should not have served on a jury.

The Act states: "Verdicts not affected by informalities ... b) any person who was not qualified and liable for jury service, or who was disqualified from jury service or was not according to section 8 to serve on a jury, nevertheless served on the jury ..."

The juror, a student, pleaded guilty to stealing about $6000 from her Christchurch employer in March 2007, Fairfax newspapers reported.

Neither the prosecution nor defence was aware of her conviction at the time the jury was empanelled.

Jurors are not obliged to declare past offences, and no law prevents convicted offenders from sitting on juries.

The juror, who cannot be named for legal reasons, was convicted under her maiden name and has since changed her name twice.

She attended celebrations with the Bain defence teams and was seen hugging him after the verdict.

Robin's brother, Michael Bain, today questioned whether the trial would have been fairer had the juror been disqualified.

He said he became aware yesterday that another juror on the retrial had gained legal qualifications in Britain.

"If those two jurors had been disqualified, had the court known about these circumstances ... the trial could have been conducted in a more fair way," he told Radio New Zealand.

In the TV One documentary that screened on Tuesday, The Case Against Robin Bain, presenter Bryan Bruce said he thought Robin Bain was a victim of the 2006 Evidence Act "which allowed in all the hearsay evidence against him".

Michael Bain said it was unfair for hearsay evidence to be presented against dead people because they were unable to defend themselves.

"I've got difficulty accepting the hearsay evidence that was presented during the trial, which only served to denigrate my brother's good character," he said.

"It's unfair in principle, and I think it was unfair in this particular case.

The documentary had shown one witness's evidence was "doubtful", he said.

"The question then is how many others are there whose evidence was doubtful, and that's why I believe there should be a judicial inquiry into all of the defence evidence," he said.

"All I want is the truth, really. I don't believe personally that acquittal based on hearsay evidence is fair."

Associate Professor Scott Optican, of Auckland University, said that to assert that the Evidence Act 2006 had allowed in all hearsay evidence was "just dead wrong", and he doubted the prosecution in the Bain retrial was hampered by the disclosure rules.

Prosecuting lawyers had far greater disclosure obligations than the defence because of where they stood in the justice system, but that did not mean the defence could "ambush a trial", he said.

- With NZPA