Dialogue: Three clauses devalue Bain case judgment

By JOE KARAM

Last week, a written judgment on the application of former Detective Milton Weir and Detective Sergeant Kevin Anderson for a retrial in regard to their failed libel claims against me was reported in the Herald.

A rather strange dichotomy, which was picked up in no uncertain terms by the Herald, is a feature of the judgment.

On the one hand, the 12-page judgment displays the erudition, logic and attention to the law one would expect.

But then, and herein lies the paradox, in just three of the 36 clauses, it digresses into subjective views on the merits of the issues at hand as they relate to David Bain's convictions for the murders of his family in Dunedin in 1994.

It seems to me that this diversion was extraneous and irrelevant.

It therefore is no surprise that the Herald picked up on the rejection of my allegations in the judgment. For the record, just 11 paragraphs of its report relate to the actual judgment, but 16 pertain to the three clauses in question.

I take no issue with the Herald, as the judgment invited attention to these clauses because they stand out as subjective assessments in an otherwise dispassionate document.

The alarming factor is that the factual basis for the comment is sadly lacking in accuracy.

The two issues in question were absolutely central to the Crown case against David Bain.

Issue one, which the Herald referred to as "of Karam's central contentions that Bain was wrongly convicted," relates to when the Bain family computer was turned on. Put in simple terms, there was a message on the computer which was written by the killer. If David Bain was not home when that computer was activated then he could not have been the killer.

The entire substance of clause 24 of the judgment is devoted to discrediting my analysis of the evidence that in fact David was not home at that critical time, and concludes with the words, "that, in reality, the two-minute error in Mr Anderson's watch would not have the significance which Mr. Karam attaches to it."

The process by which that conclusion was reached begins with the first sentence of the clause, as follows: "In his book Mr Karam assumes that the watch being two minutes fast means the computer was turned on at 6.42 am (not 6.44) and in light of evidence suggesting Bain may have been at the roadside gate at 6.45 am he could not be the killer."

In fact I assumed nothing of the sort. I relied upon the sworn testimony of the computer expert, Mr Cox, and his deposition statement, which is quoted on page 165 of my book, that the computer was turned on at precisely 6.44 am, such time calculated on the time differential of 31hrs 32mins from when the message was saved by Detective Anderson.

Then, the use of the words "suggest" and "may" are totally misleading. The evidence that David Bain was at the roadside gate at 6.45 am was, and remains, uncontested and unequivocal.

The next sentence mentions that my view has "plausibility," but immediately recants by stating: "In fact, however, the message was not saved at 2.16 ... but some minutes later."Again, this totally ignores the deposition statement and sworn evidence of Mr Cox: "I saved that message at 1416 hrs (2.16) on 21st June 1994," as well as the job sheet of Detective Robinson, which reads: "Message saved by Cox at 1416 hrs. This time recorded by Det Anderson." Both of these documents were referred to during the trial over which Justice Anderson presided and were in his possession.

In the following sentence it is stated that Mr Cox commenced a procedure which lasted six minutes. Well, yes, he did, but he performed three entirely separate functions during that time, the first of which was to save the message, which required just 11 keyboard strokes, and took place at 2.16 according to Mr Anderson's watch. This matter was also dealt with thoroughly during my evidence.

The second matter to which I should draw attention is the way in which the judgment dealt with Mr Weir's evidence about the finding of the spectacle lens, in particular, clauses 5 and 6, in which it purports to make an objective assessment of Mr Weir's error, thereby implying that my opinion is not objective. First, however, it fails to acknowledge at all that which even Weir himself did during the trial, "that the jury in David Bain's trial was indeed misled as to the position of the lens." It then claims that the actual position of the lens was dislocated by "only a couple of cm" from the incorrect stated position, when the judge agreed with me during the course of my evidence that it was about 15cm when he held up a ballpoint pen as an indicator of the distance. Then it states that the lens was "occluded by part of a boot on the floor." In fact, as the evidence in the judge's notes proves, the lens was under the boot which in turn was under a folded raincoat, where it could not possibly have got, in the context of the Crown's case against David Bain.

Finally, but maybe most significantly, it fails to make mention of the facts which were adduced during the trial, that Mr Weir's evidence was in direct conflict with his notebook and his depositions statement, and that when he settled upon the photograph containing the specular reflection he did not alert defence counsel to its significance, thereby denying David Bain the opportunity to expose it for the bogus that it was.

Mr Weir is no doubt deeply gratified at the inclusion of these clauses. David Bain most certainly is not.

In my opinion these few sentences have added immeasurably to the travesty, and do no service to justice.