KEY POINTS:
The prosecution relied on three points to convict David Bain. The Privy Council rejected all of them in the last section of its judgment:
The first of the court's three key points was that only David knew of the existence and whereabouts of the spare key to the trigger lock. This is a point relied on by the Crown throughout. It is based on assertions by David, in themselves remarkable if he was a murderer seeking to avert suspicion or baffle proof. The force of the point depends on three assumptions.
The first is that, as David plainly believed, Robin did not know of the existence or whereabouts of the spare key. This may of course be so. But there was evidence (not mentioned by the Court of Appeal) that 20 spent rounds were found in Robin's caravan, all fired by the murder weapon and some of the same ammunition type as was used in the killings.
There was no evidence how these rounds came to be there, but the possibility may be thought to exist that Robin had on some occasion or occasions used the gun without David's knowledge and had for that purpose unlocked the trigger lock.
The second assumption is that Robin did not know there were two keys to the lock. This may again be so. But Robin had much greater familiarity with firearms than David, and might reasonably be thought to know or suspect that rifles with trigger locks are sold with two keys.
The third assumption is that Robin would not have rummaged about among David's belongings to look for the key. It was in a jar on David's desk across the room from where the rifle and the ammunition were kept. The defence contend that this is a place where a searcher might be expected to look and, if he looked, to find it.
The court's second key point was based on the blood-stained condition of the rifle generally coupled with the uncontaminated area associated with David's fingerprints, suggesting that his hand had been in position contemporaneously with the murders. The court placed great reliance on this point. But it is not a point on which (as distinct from the fingerprints themselves) prosecuting counsel relied in his closing address to the jury, it was not one of the 12 main points of the Crown case which the trial judge listed at the outset of his summing-up and it is not a point which the judge drew to the jury's attention in the course of his summing-up. There is no reason to think that this point was in the jury's mind at all. The relevant evidence has not changed. Whatever the merits of the point may be, it can hardly be fair to rely on it for the first time on appeal eight years after the trial.
The court's third key point is that the spare magazine was found standing upright on its narrow edge almost touching Robin's outstretched right hand, a position in which it was unlikely to have fallen accidentally. This is a point which prosecuting counsel made to the jury in his closing address. But the judge did not include it in his list of the Crown's main points. His only reference was to the prosecutor's argument "that when you look at the position of the magazine near [Robin's] right hand, the fact that it is standing on its edge is explainable logically only by it being put there rather than having fallen out of his hand because, if it had fallen, it would have fallen on its side".
It must be very questionable whether the jury attached significance to this point. The magazine in question was found on examination to be defective. A live round found beside the rifle showed signs of having been misfed. The possibility must exist that, the magazine having caused a misfeed, it was replaced and put on the floor. But even if it be accepted that the magazine was put in the position in which it was found and did not fall into that position, the question remains: who put it there? It could have been David. But there is no compelling reason why it could not have been Robin. This again is a jury question, not a question for decision by an appellate court. Neither singly nor cumulatively can these points fairly bear the weight which the third Court of Appeal gave to them.
It is unnecessary to review the six additional points on which the court also relied in particular: all are contentious, and one (the state of Robin's bladder) is a point which, although mentioned by the prosecutor in his closing address, was not mentioned by the judge in his summing-up.
For all these reasons, the board concludes that, as asked by the appellant, the appeal should be allowed, the convictions quashed and a retrial ordered. The appellant must remain in custody meanwhile. The order of the board for a retrial does not of course restrict the duty of the Crown to decide whether a retrial now would be in the public interest. As to that the board has heard no submissions and expresses no opinion.
In closing, the board wishes to emphasise, as it hopes is clear, that its decision imports no view whatever on the proper outcome of a retrial. Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts. The board has concluded that, in the very unusual circumstances of this case, a substantial miscarriage of justice has actually occurred. Therefore the proviso to section 385(1) cannot be applied, and the appeal must under the subsection be allowed. At any retrial it will be decided whether the appellant is guilty or not, and nothing in this judgment should influence the verdict in any way.
