By AUDREY YOUNG and EUGENE BINGHAM
Crucial evidence in the Bain family murder case, including bloody fingerprints on the gun and the time that the family computer was turned on, will be reviewed by the Court of Appeal.
The court's findings could lead to a retrial of David Cullen Bain for the 1994 murders of his parents, Margaret and Robin Bain, brother Stephen, aged 14, and sisters Arawa, 19, and Laniet, 18, in Dunedin.
Justice Minister Phil Goff yesterday confirmed a Herald report revealing that a review was about to go ahead.
He also confirmed that in an unusual move, the court had been directed by the cabinet to review specific aspects of the case, in what amounts to a de facto appeal.
The court says the case could be heard as early as March.
The judges must decide whether there were evidential errors of such significance that they may have affected the jury's guilty verdict.
Bain, now aged 29, is serving a 16-year minimum life sentence in Christchurch Prison at Paparua.
Bain claims that he was out on his paper run when the pre-dawn murders took place. He says his father killed the family then left a note on the computer saying: "Sorry, you are the only one who deserved to stay."
Bain petitioned the Governor-General in 1995 for what is known as the exercise of mercy of the Crown.
The three possible outcomes of the application are:
* That the verdict stands.
* That the verdict is rendered "unsafe," in which case the convictions would be quashed and a retrial ordered.
* That the convictions are quashed and Bain is pardoned.
Leading Bain campaigner Joe Karam said the defence had "vast and substantial and uncontested" new evidence which would answer the four questions put to the Court of Appeal by the cabinet, on the advice of Ministry of Justice officials.
Mr Karam visited Bain yesterday but did not know the details of the cabinet order at that stage. "Obviously he's as pleased as we are that the case is live again, but at the same time he couldn't help but feel a sense of disappointment that ... instead of getting an answer, what he's getting is four questions."
He will see him again today.
Ministry officials found that no miscarriage of justice had occurred and their conclusions were endorsed in a peer review by a retired High Court judge, Sir Thomas Thorp.
Mr Goff said that the public's disquiet about the verdict played a significant part in the Government's decision. "I must emphasise that my recommendation to the Governor-General is being made in the interests of certainty, finality, and public confidence in the result."
Bain's lawyer, Colin Withnall, QC, said while the development was promising he was disappointed that it had taken the Government 2 1/2 years to ask for the Court of Appeal's help.
"It's outrageous that it has taken them 2 1/2 years to say, 'Please tell us what you think so that we can then consider what we do after we know what you think.'
"It's a very interim step and we could be 12 to 18 months down the track before we get a decision."
Mr Karam released a letter from Bain written yesterday:
"To my friends, supporters and public of New Zealand, today's answer to my petition was not as definite as we had hoped for but I have faith it is another step on the long road to clearing my name. I am innocent. I did not kill my family. I love my family dearly and I always will."
Questions for the court
Question 1. Was the computer turned on earlier than 6.44 am on 20 June, 1994 or, at the very least, is there a reasonable possibility that the computer could have been turned on at a time earlier than 6.44 am on that date?
The defence has evidence it says proves David Bain was away from the house when the computer was turned on by the murderer.
Question 2. Did the lens that was found in Stephen Bain's bedroom get there at a time or in a way that was unrelated to the murders or at the very least is there a reasonable possibility that this could have been so?
The defence has evidence, confirmed by police in a defamation case against Mr Karam, that a lens from glasses claimed to have been worn by David Bain and lost in a struggle with Stephen was not found on the floor as the jury was told but under clothes and other objects.
Question 3. Were the applicant's positive fingerprint marks, made in blood that were found on the rifle used to commit the murders, put there at some time before the murders or, at the very least, is there a reasonable possibility that this could have been so?
The defence has evidence it says shows that Bain's bloody fingerprints on the gun were old and animal blood, not human.
Question 4. Was the submission made by the crown solicitor in the closing address to the jury that "only one person could have heard Laniet gurgling. That person is the murderer" wrong or misleading?
The defence has evidence it says shows the first shot to Laniet's head (she had three) was fatal and that the gurgling was after death.
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