KEY POINTS:
Privy Council's Bain decision, page 2:
28. The last referred question was:
"Having regard to the Court of Appeal's opinion on question 5, is there a possibility that there has been a miscarriage of justice that would warrant the question of the applicant's convictions being referred to the Court of Appeal under section 406(a) of the Crimes Act 1961?"
The court gave its answer in paragraph 27:
"[27] Having regard to our opinion on question 5, the wording of which constitutes a relatively low threshold, and in the light of our conclusion on question 2 and what we have learned of the case generally in the course of considering the materials and evidence produced to us and counsel's submissions, we are of the opinion that there is a possibility that there has been a miscarriage of justice that would warrant the question of David Bain's convictions being referred to this Court under s406(a) of the Crimes Act 1961. Our answer to question 6 is therefore yes."
The third Court of Appeal
29. On receiving these answers the Governor-General, by an Order in Council made on 24 February 2003, referred to the Court of Appeal the question of the 5 convictions of murder entered against David Bain. She exercised this power under section 406(a) of the 1961 Act, which empowers the Governor-General, if she thinks fit, to refer the question of a conviction to the Court of Appeal. The question so referred must then be heard and determined by the court as in the case of an appeal by that person against conviction. The applicable procedure was that provided by section 385(1) of the 1961 Act which at the relevant time read:
"(1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion—
(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) that on any ground there was a miscarriage of justice; or
(d) that the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
30. Thus David's appeal against conviction returned to the Court of Appeal (Tipping, Anderson and Glazebrook JJ, "the third Court of Appeal"). This court had before it all the material before the second Court of Appeal, with some additional affidavits, all of which it admitted, and it of course had the benefit of that court's answers to the Governor-General's questions under section 406(b), which two members of the third Court of Appeal had been party to giving. The third Court of Appeal heard submissions over five days between 1 and 9 September, but it heard no oral evidence and no cross-examination. On 15 December 2003 Tipping J delivered the judgment of the court, dismissing the appeal: [2004] 1 NZLR 638.
31. Early in its judgment the third Court of Appeal addressed the appropriate legal approach in a case where fresh evidence not considered by the jury is said to undermine the safety of the jury's verdict. The correct approach in principle is not seriously in issue between the parties and is considered below.
32. In its judgment, beginning at paragraph 31, the court summarised the key points in the Crown case. These included the unlocking of the trigger lock (paragraphs 32-34), the bloodied opera gloves (paragraphs 35-36), bloodstained clothing worn by David (paragraphs 37-40), bloodstained clothing associated with David (paragraphs 41-44), the palm print on the washing machine (paragraph 45), the bathroom/laundry area (paragraphs 46-49), injuries to David (paragraphs 50-52), the glasses and lenses (paragraphs 53-56), the fingerprints on the rifle (paragraphs 57-68), the washing machine cycle (paragraphs 69-77), the scene in the lounge (paragraphs 78-87), Robin's full bladder (paragraphs 88-90) and Laniet's gurgling (paragraphs 91-93). The court also summarised (between paragraphs 94 and 162) the key points relied on by David, to several of which it will be necessary to return.
33. At paragraph 163 of its judgment the court gave its overall assessment of the case. It found (paragraph 164) "three points in the evidence of such cogency that taken together, in the context of all the evidence, any reasonable jury must in our view have seen the case against David as proved beyond reasonable doubt." Those three points concerned the trigger lock, the fingerprints on the rifle and the scene in the lounge. The court succinctly summarised the points. Only David knew of the existence and whereabouts of the key used to unlock the trigger lock. The bloodstained condition of the rifle was such that the uncontaminated area associated with the fingerprints on the forearm led to the "almost inescapable" conclusion that the hand which made the fingerprints was in position contemporaneously with the murders, and that hand was David's. The spare magazine found beside Robin's dead body was found standing upright on its narrow edge. The magazine must have been deliberately placed there by David. To those three points, "individually powerful and cumulatively overwhelming", must be added a number of supporting points in particular. These were (paragraph 166): the use of David's gloves; the presence of Stephen's blood on David's black shorts; the "unconvincingly explained" injuries to David's head; his having heard Laniet gurgling; Robin's full bladder; and the timing of the washing machine cycle. Cumulatively the case could only be seen by a reasonable jury as cogently establishing David's guilt beyond reasonable doubt. The court had no doubt (paragraph 172) that any reasonable jury considering the new evidence along with the old would find David guilty. The court was not persuaded (paragraph 174) that there had been a miscarriage of justice on the ground of further evidence or any other ground.
The law
34. The third Court of Appeal applied well-settled principles in its approach to fresh evidence. Thus it referred to the threshold conditions of sufficient freshness and sufficient credibility, while acknowledging that the overriding requirement is to promote the interests of justice. The court admitted all the fresh evidence submitted, and no complaint is made of its ruling on this point.
35. The court went on, in paragraph 24 of its judgment, to observe that when fresh evidence is admitted, it must move on to the next stage of the enquiry
"which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such a real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty."
The court pointed out (paragraph 25) that its concern is whether the jury, not the court, would nevertheless have convicted had the posited miscarriage of justice not occurred. This was consistent with
"the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result."
36. This approach followed the earlier ruling of Keith and Tipping JJ in R v McI [1998] 1 NZLR 696, 711, where they said:
"But it is important to recognise that the Court is not thereby invited to come to its own view about whether the appellant was in fact guilty of the crime or crimes alleged. Rather, the Court is required to assess whether, without the error or deficiencies of process, the jury would still have convicted. It is what the jury would have done without the errors or deficiencies which is the issue, not what the Court thinks of the ultimate merits of the conviction. If, in spite of the errors or deficiencies, the jury would have convicted anyway, there can be no prejudice to the appellant from those errors or deficiencies."
37. The third Court of Appeal's ruling in the present case has recently been endorsed and followed by the Court of Appeal in R v Haig [2006] NZCA 226. The court there pointed out (paragraphs 58-60) that New Zealand authority differs somewhat from English authorities such as Stafford v Director of Public Prosecutions [1974] AC 878 and R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72 and Australian authority such as Weiss v The Queen (2005) 4 CLR 300 in its emphasis on what the actual trial jury might have decided had it had the opportunity to consider the fresh evidence. Attention was also drawn to that court's approach to the fresh evidence it had received. In paragraph 82 it said:
"While we accept that there are credibility issues associated with some of the deponents that are apparent on the material we have, it is significant that none of the witnesses were called for cross-examination. In that context, we do not see how we could fairly conclude that the new evidence in question is insufficiently credible to be material to the miscarriage of justice issue".
In paragraph 87 it added:
"Hogan has sworn an affidavit in which he has explained the admissions attributed to him. It may be that a jury would accept Hogan's explanations of the alleged admissions attributed to him, or alternatively might conclude that if Hogan had made the admissions alleged, they were simply in the nature of boasts and did not detract from the truthfulness of his evidence. But, on the state of the evidence before us – which has not been the subject of cross examination – it would not be appropriate for us to reach a conclusion to this effect."
38. Counsel representing David made no significant criticism of the third Court of Appeal's formulation of the relevant principles. Their complaint was directed to the court's application of those principles. Thus, they submitted, the court had not given practical recognition to the primacy of the jury as the arbiter of guilt but had taken upon itself the task of deciding where the truth lay; had done so with inadequate regard to what was known of the jury's thinking; had done so in relation to matters which the jury had had no opportunity to consider; had done so despite the admission of contradictory affidavits by witnesses, many of whom had not been cross-examined; and had failed to appreciate the extent to which the case had changed from that on which the jury had based their verdict. All these criticisms the Crown roundly rejected.
The issues raised by the fresh evidence
39. In seeking to establish their case that the appeal should be allowed, the convictions quashed and a retrial ordered, David's counsel relied in argument before the Board on a large number of issues and on a considerable volume of very detailed evidence. It is not, in the Board's opinion, necessary or even desirable to attempt to consider all these issues or to rehearse all this evidence. Instead, the Board will review nine of what appear to be the most salient issues, referring only to such evidence as is necessary to appreciate the significance of each.
(1) Robin's mental state
40. As noted above in paragraph 14, the jury were invited to view David as "disturbed", "obsessional" and "bizarre" in his behaviour. There was an evidential basis for this submission since it appeared that in the days before the killings he had had premonitions of impending calamity, had described déjà vu experiences and had made curious references to "black hands". Defence counsel submitted at the trial that Robin was a proud school teacher who had been rejected by his family and had snapped after months of pressure. But there was no evidence to support this suggestion. Faced with the judge's blunt question – "Who did it? David Bain? Robin Bain?" – the jury might well have inclined to think it was the disturbed young man (if such indeed he was, and there was evidence suggesting the contrary).
41. Before the third Court of Appeal were three affidavits from deponents well-disposed towards Robin. The first of these is Mr Kevin Mackenzie, at the time principal of a primary school near Taieri and President of the Taieri Principals' Association. He and his colleagues judged in early 1994 that Robin was deeply depressed, to the point of impairing his ability to do his job of teaching children, and to help him Mr Mackenzie organised a seminar directed to work-related stress but chiefly targeted at Robin's depression. On 23 June 1994, after the killings, Mr Mackenzie visited Robin's school: he found the classroom and office dishevelled, disorganised and untidy; piles of unopened mail were on Robin's desk. Mr Mackenzie was particularly disturbed by the writing and publication in the school newsletter of certain brutal and sadistic stories written by pupils at the Taieri School, one of them involving the serial murder of members of a family. He does not regard these as stories normal children would write unless motivated to do so. He regards Robin's decision as principal to publish them as "unbelievable" and sees them as "the clearest possible evidence that Robin Bain had lost touch with reality due to his mental state".
42. A second witness, Mr Cyril Wilden, is a former teacher and a registered psychologist. In the latter capacity he from time to time visited the Taieri School, where he noted Robin's depressed state of mind. Robin appeared to be increasingly disorganised and struggling to cope. Mr Wilden asked Robin whether he was receiving regular medical attention. Robin said that he was. Mr Wilden formed the view that Robin was clinically depressed with a form of reactive depression. When he learned of the killings he immediately assumed that Robin's mental state had deteriorated to the point where he was no longer able to cope and that he had taken the lives of his family and then his own life. Mr Wilden shares Mr Mackenzie's view of the children's stories, observing that "Children write stories in response to stimuli", and Mr Wilden thinks it likely that the stimuli came from Robin's teaching at the school.
43. The third witness, Ms Maryanne Pease, is also a former teacher and a registered psychologist. She never met Robin, but visited his school after the killings. She had never during her short career encountered comparable disorganisation. A pupil reported that Robin had hit him. She regards the publication of the children's stories, selected by the principal, as a matter of grave concern, causing her to believe that he was "quite seriously disturbed".
44. The third Court of Appeal reviewed this new evidence in paragraphs 141-146 of its judgment. It observed of the children's stories (paragraph 142) that
"There is, however, no evidence that Robin encouraged or otherwise induced the children to write these stories which could well have been prompted by movie watching".
In paragraph 143 the court held:
"This evidence of Robin's mental state gives some balance against the evidence led at trial which tended to suggest that David himself was not coping well with the family situation. That is an evidentiary advance from David's point of view. But it is important to recognise that this further evidence neither diminishes the force of the individual strands in the Crown's case against David already identified, nor does it of itself provide any evidence that Robin actually did kill the others and then himself…"
The court's conclusion (paragraph 145) was:
"Although David's new evidence about Robin's mental state represents an advance in that respect from the evidence at trial, a reasonable jury could well still consider that David's own mental state was at least as relevant as that of Robin."
45. In the Crown's written case to the Board it is submitted that the fresh evidence of Robin's mental state adds little or nothing to what was before the jury at trial. The point is made that there is no evidence that Robin selected the children's stories for publication, or that he even taught the children who wrote them. The Solicitor General and Mr Pike did not address this subject in oral argument.
(2) Motive
46. As noted above (paragraphs 11-12), the trial judge ruled against admission of Mr Cottle's evidence not because it was hearsay but because it was judged to be unreliable, a decision upheld by the first Court of Appeal against whose decision the Board refused leave to appeal. The question whether Laniet intended to make or had made sexual allegations against her father at around the time of the killings was accordingly not canvassed before the trial jury. Nor was it raised in the questions referred to the second Court of Appeal.
47. Before the third Court of Appeal were four affidavits. The first deponent, Mr Kedzlie, kept a shop in Dunedin. He says that Laniet lived opposite and was a regular customer. He describes an occasion when Laniet visited his shop distressed and crying. He asked what was the matter. She replied that there had been troubles at home, she was on drugs and she was having an affair with her father. On this occasion, according to him, she "burbled on" in an unspecified way about pregnancy and an abortion. Mr Kedzlie placed this occasion in March or April of 1994.
48. A second affidavit is sworn by a deponent who asks that her identity be treated as confidential. She deposes that in 1993 she ran an escort agency and engaged Laniet as a prostitute. She had many conversations with Laniet, who on one occasion asked how the deponent had become involved in prostitution, to which the deponent replied that she had been raped at the age of 15. This seemed to upset Laniet, who said that the same thing had happened to her and, on further questioning, identified her father as the culprit. It had started, she said, when the family were still in Papua New Guinea.
49. The third affidavit is sworn by Mr Sean Clarke who in early 1994 was a student at Otago University and was a friend of both David and Laniet. He describes an occasion on 27 May 1994 when he was waiting to meet David and Laniet came up to him. She also wanted to meet David and chatted to Mr Clarke while waiting. She said she was living at Taieri Mouth with her father. She was upset because David didn't arrive and, when asked what the problem was, said she wanted to move back to the family house but had had an argument with her mother and did not know whether she would be welcome. She wanted David to intercede. She was agitated and in tears and said: "I want to move back because I can't live with him anymore. I can't stand what he's doing to me any longer." Both she and Mr Clarke left before David arrived. Mr Clarke made a note for himself: "Must talk to [David]. What is going on between Laniet and her dad?"
50. The fourth affidavit is sworn by Mr Brian Murphy, a director of Murphy Corporation in Dunedin. On Friday 17 June 1994 he interviewed Laniet for a job as a tele-marketer. He decided to employ her. She was due to start on Monday 20 June and seemed very happy and excited about getting the job.
51. The third Court of Appeal (paragraph 149) considered this evidence to be clearly of sufficient reliability to be admitted before a jury:
"It demonstrates at least the reasonable possibility that Laniet did have an incestuous relationship with her father, was proposing to break it off and was going to make disclosure. It thereby arguably provides some evidence that Robin may have been in a state of mind consistent with doing what David contends he did. This too represents some advance for David on this point from his position at trial, albeit it could perhaps be seen as giving David a motive or reason as well, in wishing to destroy those in his family he considered should not survive. But, as with the evidence of Robin's mental state, this new evidence does not provide any basis for concluding that Robin did actually commit the murders. David has now produced evidence as to why Robin might have had reason to do so, but the evidence does not of itself establish that he might actually have done so. While we must and do certainly bear the new evidence on this and the previous head firmly in mind, its proper compass must be appreciated".
In paragraph 168 the court repeated:
"There is no evidence positively implicating Robin Bain on any tenable basis. Motive and the state of his mind must be seen in that light. Those matters could not possibly be seen by a reasonable jury as producing a reasonable doubt about David's guilt which is so clearly proved by the combination of affirmative points to which we have drawn attention".
52. The Crown, in its written case to the Board, submit that this fresh evidence does not diminish its case against David or provide a direct motive for Robin to kill members of his family while sparing David. Attention is drawn to the absence of evidence of any disclosure by Laniet over the weekend, and to a statement by the appellant to a relative that the weekend "was a little bit tense but it wasn't anything more than it usually was when Dad was home". The Crown did not elaborate this submission in oral argument.
(3) Luminol sock prints
53. Luminol is a chemical which under certain conditions reacts with blood to produce blue luminescence. It may be used, and is most valuably used, where the blood is not visible to the naked eye. The outline of a print made by a bare foot, or a foot wearing socks or shoes, may be briefly illuminated and measured. Between 20 and 24 June 1994 Mr Hentschel, a forensic chemist employed by the Institute of Environmental Science and Research Limited ("ESR"), a Crown Research Institute, in Christchurch took part in the examination of the Bain house at 65 Every Street. During that examination he treated the carpet with luminol. A number of sock prints were identified, made by a right foot wearing socks which had become stained with blood. These prints, some of them incomplete, were found in Margaret's room, going into and out of Laniet's room and in the hallway outside Margaret's room, pointing towards the front door. It appeared that all the prints had been made by the same foot. In his evidence given at trial, Mr Hentschel said of that print
"I said I measured it at 280 mm. That print encompassed both the heel and the toes, that was a complete print from heel to toe."
This evidence he repeated:
"The other prints that I detected with luminol showed the toes as well, taken from the top of the toes to the heel."
Giving oral evidence to the second Court of Appeal, Mr Hentschel testified to the same effect.
54. The situation of this complete print was a matter of some potential significance, since while David testified in evidence that he had gone from room to room, and there was enough blood in the house for a sock to become impregnated, the print was found in a place where, on the Crown case, Robin would never have been. If, on leaving his caravan in the garden on the morning of 20 June, Robin had entered the house by the front door, he would have turned right into the lounge, the first room on his right. If he had entered by the lower door and gone up the stairs, he would have turned right and then left into the lounge. He would have had no occasion to enter Margaret's or Laniet's rooms, and no occasion to go down the hallway where the complete print was found. In the course of his summing-up to the jury the judge reminded them of the Crown submission that "there was not one piece of evidence that Robin Bain had been into the rooms of the deceased on this particular morning".
55. At trial it was accepted that the prints had been made by David. It is not clear why this should have been accepted, save that evidence was given by Mr Hentschel that socks taken to be Robin's were measured at 240 mm, and socks taken to be David's were measured at 270 mm. Evidence was given of the inside measurements of their respective shoes, showing Robin's at 275 mm and David's at 304 mm, but this did not displace the assumption and the jury were not told, by the Crown or the defence, that Robin's feet had been measured in the mortuary and found to be 270 mm. Thus in his closing address to the jury the prosecutor submitted (according to his very full note): "There are the [Luminol] footprints – stocking feet – [too] big to be father's". The judge echoed this submission in the passage quoted above in paragraph 14 and reminded the jury that defence counsel accepted the prints were David's while resisting the inference that this identified him as the killer.
56. On a date after the trial Mr Joseph Karam measured David's feet. He found them to be 300mm. This measurement has not been verified. But it is consistent with David's inside shoe size, it is consistent with his height (6' 4"), it is consistent with independent evidence that David has large hands, and it is consistent with the shoe size and foot measurement of Mr Walsh, mentioned below. The measurement is not understood to be challenged.
57. On 29 October 1997 Mr Kevan Walsh, a forensic scientist also employed by ESR, made a report for the Police and Police Complaints Authority inquiry already mentioned. He was asked to determine whether or not David could make bloodied sock prints which were 280mm in length. He noted certain difficulties in the task, including a possible measurement error of +/- 5mm. He described tests he had done on himself, his left foot measurement being 298mm when standing, his height being 6' 3" and his shoe size being 12, the same as David's. From his experiments he concluded
"that a walking person with a 300mm foot, making sock prints with the sock completely bloodied, would be expected to make a print greater than 280mm. However, it is my opinion that a print of about 280mm could be made."
