KEY POINTS:
Privy Council's David Bain decision, page 3:
58. None of the questions referred to the second Court of Appeal referred to the luminol sock prints, and it expressed no opinion on the matter.
59. Before the third Court of Appeal it was argued on David's behalf that given the size of his feet he could not have made a complete footprint measuring 280mm. Robin, it was argued, could, when allowance is made for some extension of the foot when weight is put on it, and for the inherent error in measurement, make a print of almost exactly this length. The court did not accept this. It said (in paragraph 156 of its judgment):
"In post trial evidence the forensic scientist, Mr Walsh, has said that a 300mm stockinged foot could make a print of about 280mm. He has given quite detailed reasons for that conclusion which we do not need to traverse as Mr Walsh was not called for cross-examination, either on his reasons or on his conclusion. The end result is that on the evidence David could well have made the footprints in question. The matters now raised by him come nowhere near excluding him from responsibility for the footprints. Nor do they establish that the prints must have been made by Robin."
60. This ruling prompted further recourse to Mr Walsh, which in turn resulted in a memorandum presented to the Board jointly by counsel for David and the Crown. To this were annexed a supplementary statement by Mr Walsh dated 1 February 2007 and copies of his working notes made in October 1997. The statement reads :
"I have been asked to clarify a comment I made in my 'Supplementary report to the review by Kevan Walsh of some aspects of the forensic evidence relating to Operation Bain', dated 29 October 1997.
In particular, on page 3 and in relation to a person with a 300mm foot, I stated 'it is my opinion that a print of about 280mm could be made'. That means if a 280mm print were made by a completely bloodied sole of a 300mm foot, then the print must be incomplete to the extent of 20mm. Therefore a portion from the tip of the toes, or the end of the heel, or both, must be missing from the print."
The working notes showed the results of tests done by Mr Walsh on his own feet.
61. In response to this fresh evidence of Mr Walsh the Crown applied for leave to submit a further affidavit and statement by Mr Hentschel. David's counsel resisted the application, largely because of the manner in which the statement had been obtained. The Board decided to read the statement de bene esse. It now formally admits it. In the statement Mr Hentschel explains that by "a complete print from heel to toe at 280 mm" he means that in the print he can see the toe area as well as the heel area, to differentiate it from other partial prints. He also makes observations on the difficulty of measuring luminol prints.
62. In its written case to the Board, perhaps settled before the date of the draft memorandum, the Crown relied on Mr Walsh's opinion that a 300mm foot could make a 280mm print. It was pointed out in oral argument, quite correctly, that at trial the sock prints had been accepted as David's.
(4) The computer switch-on time
63. The time at which the computer was switched on and the time of David's return home from his newspaper round are not facts of significance in themselves, and fine questions of timing are rarely significant in cases such as this. But in the present case these facts were relied on by David as significant in relation to each other. It was common ground at trial that whoever switched the computer on was the killer of Robin, and these timing points were important pegs of David's defence that he could not have switched the computer on since he did not return home until later and had not on any showing gone straight to the lounge on returning home. Although related, these points must be considered separately, since the facts relating to each are quite different.
64. On the afternoon of 21 June 1994, the day after the killings, the computer at 65 Every Street was inspected by Mr Martin Cox, a computer adviser employed by the University of Otago. The computer was still on, and still showing the message typed in the day before. Mr Cox was accompanied by Detective Constable Anderson, who recorded what he did. The evidence given by Mr Cox at trial was :
"I ascertained that 31 hours and 32 minutes had passed since the computer had been turned on. We saved the file 31 hours and 32 minutes after the computer had been switched on. I had saved the message at 16 minutes past 2 on the afternoon of 21 June. This was noted and taking 31 hours and 32 minutes back from that I ascertained the computer and the word processor had been turned on at 6.44 am, that is on the morning of 20 June 1994."
The message, he said, could have been typed in at any later stage. At trial both sides conducted their cases and the judge directed the jury on the basis that the computer had been switched on at 6.44 am, not earlier or later. The judge reminded the jury that it was one of the Crown's key points that the computer had been switched on at 6.44, just after David had returned home.
65. When the examination was made, Mr Cox was not wearing a watch. He therefore relied on the timings provided by DC Anderson's watch. The constable's watch, having no second hand and no divisions marked between the five minute intervals, was not a very suitable one for making exact measurements. It moreover appeared that it had at the relevant time been 2 minutes fast. Thus it would appear, making the retrospective calculation, that the switch-on time was 6.42 am. But it was suggested that the message had not been saved at 2.16 but at some time, perhaps 2 minutes or more later. This was not accepted by the defence. Hence, as recorded in paragraph 23 above, one of the Governor-General's questions referred to the second Court of Appeal related to the switch-on time. That court heard oral evidence from two witnesses, and received additional affidavit evidence not the subject of cross-examination. The court's conclusion has been quoted above. It held (paragraph 15 of the judgment) that had the inaccuracy of the constable's watch been brought out at trial the jury would have been bound to contemplate a switch-on time of 6.42 am, but (paragraph 16) whether 6.42 am was the correct time it was not possible to say.
66. Further evidence of a detailed and technical nature has been filed by both sides since the ruling of the second Court of Appeal. The issue remains highly contentious. The parties are agreed that the computer could have been switched on as early as 6.39.49 am, but there is no agreement on the most likely switch-on time.
67. Before the third Court of Appeal the Crown pointed out that the inaccuracy in the constable's watch had been recorded in a jobsheet disclosed to the defence before trial, and admission of the evidence was resisted on that ground. But the court considered (paragraph 106) that "it can be said that the Crown should have ensured the correct position was brought to the jury's attention". The court went on, however, to rule (paragraph 111) that "we find ourselves unable to conclude, with any confidence or precision, exactly when the computer was switched on" and (paragraph 112) :
"The most that can be said about the new evidence relating to the computer switch-on time, when viewed in isolation, is that it cannot be regarded as excluding David in the sense of showing that it was physically impossible for him to have committed the murders."
68. In its written case to the Board the Crown rehearses the parties' competing contentions on timing and complains that the stance of David's counsel today differs from that adopted by his counsel at trial. In oral argument the Crown supported the approach of the third Court of Appeal.
(5) The time of David's return home
69. On the morning of 20 June 1994, within hours of the killings, Detective Sergeant Dunne questioned David about the timing of his newspaper round. David said that he left home at about 5.45 and arrived back at about 6.40. He made a written statement in which he said that at 6.40 exactly he was just past Heath Street on the way up to his house. He said it took 2 or 3 minutes to walk up to the house. In evidence at trial he confirmed that account, but added that the 2 or 3 minutes was an approximation, "I can't tell you how long it takes exactly".
70. The Crown case at trial was that on this morning David had begun earlier or covered the route more quickly than usual, in order to make sure that he could secrete himself in the alcove off the lounge before his father reached the room. To this end the Crown read (by consent) the statements of several witnesses the purport of whose evidence was that on that morning their newspapers had been delivered earlier than usual. The Crown adduced evidence of the time it had taken police officers to walk and run David's route. The Crown also read (by consent) the statement of Mrs Laney who worked at a rest home in Every Street up the hill beyond No 65. In her statement (made on 27 June 1994) she said that she was supposed to start work at the home at 6.45 am but on the morning of 20 June she was a bit late. She drove up Every Street past No 65, and as she did so noticed a person going past the partially opened gate of that house. She thought she must be running late as she normally saw that person down by Heath Street. She looked at the clock in her car and it read 6.50 am. She knew the clock was 4-5 minutes fast as it was about 6.45 am as she drove past him. She described what she thought he was wearing, but saw no dog, which she had seen with him before.
71. In his closing address to the jury, prosecuting counsel submitted, referring to Mrs Laney: "She passed at speed. Did not identify the [accused]. Saw someone at the gate. She thought at [6.45] am". In a summary of the Crown case prepared for the first Court of Appeal this remained the Crown's contention: "Laney observed some person at the gate of the house (whom she was unable to identify) at around 6.45 am".
72. In his summing-up to the jury, the judge re-read most of Mrs Laney's statement, and reminded the jury of the other evidence. When the jury asked him to re-read Mrs Laney's statement, he did so. No question relating to this point was referred to the second Court of Appeal, which accordingly did not address it.
73. After the trial it became evident that the Police Constable who took Mrs Laney's statement on 27 June 1994 checked the clock in Mrs Laney's car and found it to be 5 minutes fast. This was endorsed by the constable on a copy of Mrs Laney's statement, but was not brought to the attention of the defence, the judge or the jury.
74. It also became evident that Mrs Laney was re-interviewed by the police on 28 March 1995, just before the trial. This was to "firm up on the timings of the paper round" and "clarify any ambiguities" in her statement. She explained that the digital clock in the dash of her car was at least 5 minutes fast. When it was 7.0 o'clock her car clock would show 7.05. She made and signed a second statement. In this she said that she saw the paper boy standing in the gateway to No 65. He was a tall person, but she could only see the outline of his body, not his face or head because of the darkness. What she did see was the yellow paper bag over his left shoulder. Because she saw him she thought she was running late. She looked at her digital car clock. It read 6.50. Whenever she had seen the paper boy he was carrying the yellow bag. She usually saw him further away, before Heath Street. She identified him as "a tall thin guy, late teens, early 20s". When she looked at her clock and it read 6.50 she knew it was 5 minutes fast, so she believed the real time was 6.45. When the news came on, the clock was usually 5 past the hour.
75. In paragraph 109 of its judgment the third Court of Appeal said:
"We mention again here the fact that Ms Denise Laney claimed to have seen David outside the gate to 65 Every Street at 6.45 am. The circumstances in which she came to that view are such that her suggested time cannot be regarded as anywhere near precise. The greater detail in her second statement which was not disclosed to the defence does not, in our view, lead to any materially greater precision".
The court referred to the 59 second imprecision in a digital car clock and Mrs Laney's failure to correlate her calculation with any verifiable time signal but only with the commencement of the news on a station or stations which she did not identify. It noted (paragraph 110) that Mrs Laney thought she was running late, but an alternative explanation was that David was running early. When (paragraph 111) all the relevant evidence was assessed, including the evidence about the various sightings on the paper run, and times and distances from those sightings to 65 Every Street, the court found itself unable to conclude with confidence and precision when David returned home. Relating the computer switch-on time and the return home time, the court concluded (paragraph 113):
"The new evidence widens the potential time gap but it cannot be regarded as clinching the matter in David's favour by reason of physical impossibility. The times involved do not have nearly enough precision or reliability to produce that consequence. The timing evidence is such that a reasonable jury could conclude that it was physically possible for David to have committed the murders; whether the Crown had proved he had done so would then be a matter for assessment on all the other evidence".
The court made no reference to the jury's request to hear Mrs Laney's evidence re-read, and did not consider the possible significance of that request.
76. In its written case to the Board, the Crown admits that the non-disclosure of Mrs Laney's second statement to the defence was "an unfortunate error" and the prosecutor's comment that Mrs Laney did not identify David, although strictly accurate, would have been better omitted. But it is submitted that the second statement does not materially assist David's argument that he could not have switched on the computer because he had not returned home in time. The Crown criticises the detail of Mrs Laney's statements, suggesting inconsistencies between the two. In oral argument, the Crown supported the approach of the third Court of Appeal.
(6) The glasses
77. It is common ground that David was short-sighted with a degree of astigmatism in one eye. He ordinarily wore glasses for some activities. A few days before the killings his glasses were damaged and he took them to be repaired. The Crown case was that during part or all of the time that he was killing the members of his family David wore another pair of glasses, the distorted frame and detached right-hand lens of which were found in his room after the killings. The detached left-hand lens of those glasses was found after the killings in Stephen's room. The Crown contended that this lens was dislodged when David was struggling with Stephen. Issues have arisen concerning the glasses and the lens found in Stephen's room ("the left-hand lens"). It is convenient to review these issues separately.
78. At the trial the Crown called Mr Sanderson, a highly qualified optometrist on the staff of Otago University. He examined the glasses and the left-hand lens. He testified that the two lenses were similar, but not identical, to glasses prescribed for David two years earlier.
79. When David gave evidence at trial he said that these were not his glasses. They were an older pair of his mother's which he wore on occasion. He added:
"I know of the evidence of the optometrist, there is a dispute with my evidence as to whether those glasses were mine or someone else's. I have no doubt they were my mother's glasses, yes. On occasions in the past I have worn my mother's glasses if my own glasses were not available, but only for watching TV programmes, basically that is it, or going to lectures".
He could not say how they came to be in his room. David was cross-examined:
"Q The pair of glasses which have been produced to the court, a saxon frame?
A Yes.
Q You say they are not yours but they are an older pair of your mother's?
A That's right.
Q The ophthalmologist, Mr Sanderson, from the hospital was of the opinion that they were an earlier prescription of your existing optometry prescription?
A That is incorrect …
Q The ophthalmologist was of the opinion that the prescription of the two lenses that fitted the frame are similar to the prescription prescribed for you in October 1992. Do you recollect him giving that evidence?
A I do, that is only in one lens though, not the other.
Q You say he is wrong?
A Yes".
80. The judge in his summing-up gave no direction to the jury on the ownership of the glasses but, as recorded above (paragraph 15), the jury asked a question about it. The judge reminded the jury of what Mr Sanderson and David had said.
81. The Governor-General referred a question to the second Court of Appeal about the left-hand lens but not about the ownership of the glasses. The second Court of Appeal did, however, hear evidence from Mrs Janice Clark, who said David had admitted to her that he had worn the glasses over the week-end before the killings, and from Mr Wright, the prosecutor at the trial, who understood that fact to have been privately conceded by defence counsel. These facts are contested but are not immediately material. In addition, the court heard evidence from Mr Sanderson. The effect of his evidence was that, shortly before the trial, there became available a photograph of Margaret wearing the glasses in question, and this caused him to change his opinion and conclude that the glasses were Margaret's, not David's. The second Court of Appeal made no finding on the subject.
82. Before the third Court of Appeal was a further affidavit of Mr Sanderson. In it he says that a short time before the trial he was shown a photograph of Margaret wearing what were clearly the frames in question. He realised that his original opinion that the glasses were David's was totally wrong. They were Margaret's, not David's. He communicated his view to Detective Sergeant Weir, who acknowledged that this was probably correct and said Mr Sanderson's statement would be changed accordingly. He gave evidence in the belief that his statement had been changed. He now realises, reading the transcript of his evidence to the jury at trial, that his change of opinion was not conveyed to them.
83. The third Court of Appeal (paragraphs 53-56) drew inferences adverse to David from the finding of the glasses in his room and the fact that they were of some use to him and none to Robin. It acknowledged (paragraph 138) that David was:
"cross-examined in a way which could have suggested that he was not correct in this evidence. The ownership of the glasses was thus apparently put in issue. The jury seems to have thought so because they asked a question: the glasses found in the accused's/Stephen's rooms, whose were they according to the optometrist?"
In paragraph 140 the court continued:
"The force of the ownership point is that David now contends that although the Crown knew that the glasses belonged to his mother, his evidence to that effect at trial was nevertheless challenged. The Crown suggests that this was not so but we are of the view that the jury could have seen the Crown as challenging David's evidence in this respect and thus as impugning his credibility. This point and the point concerning the evidence about the lens might in other circumstances have given rise to concern from a process point of view. In the particular circumstances of this case, however, we do not consider that these matters raise any risk of a miscarriage of justice. The real point was that the glasses were of no use to Robin but could have been used by David: see the discussion in paras 55 and 56. For reasons which are essentially the same as those pertaining to the further evidence issue as a whole, we do not consider that the Crown's approach to this aspect of the case has caused any miscarriage of justice".
84. In its written case to the Board the Crown contends that ownership of the glasses was not a plank of its case against David. His use of the glasses over the week-end before the killings was understood to be conceded. Mr Sanderson was not briefed to give evidence about ownership at the trial, but in a rather confusing way appeared since the trial to have misgivings about the effect of his testimony. The photograph shown to Mr Sanderson by the police was received from Papua New Guinea shortly before the trial. The Crown did not invite the jury to conclude that David was a liar when he said the glasses were his mother's. In oral argument the Crown stressed that the ownership of the glasses was not an issue at trial.
(7) The left-hand lens
85. The exact location of the left-hand lens in Stephen's room was of obvious significance if it was a place where it could probably have fallen during a struggle between David (wearing the glasses) and Stephen.
86. At the trial Detective Sergeant Weir gave evidence on this point with reference to a blown-up photograph of a portion of the floor in Stephen's room. He told them "You can just make out the edge of the spectacle lens just in front of the ice skating boot". The officer left the witness box to point out the location in the photograph to the jury, counsel and the judge. The photograph was taken, he said, on Monday 20 June when Stephen's body was still there, and the lens was on the underneath side of the skate. Cross-examined, he said that the lens was exactly where he had said. At the invitation of the judge, he again left the witness box and pointed with his pen to the image of the lens in the photograph. Faithfully reflecting this evidence, the judge reminded the jury of the Crown case that the left-hand lens was found in Stephen's room quite near his body.
87. By the time of the hearing before the second Court of Appeal, Mr Weir's contemporaneous notes and typed-up job sheet had been disclosed. The former recorded "Locate lens from glasses beneath clothing etc in front of bunks" and the latter "Underneath the ice skating boot is a lens from a pair of optical glasses". Mr Weir was called as a witness and was cross-examined. In answer to questions, he accepted that his evidence at trial as to where he had found the lens had been wrong, and that he may have misled the jury, although not intentionally. He had found the lens under a skate boot under a jacket, and it was not the object he had identified in the photograph. He agreed it was unlikely that the skate boot had been pushed to where it was found during a struggle. It was possible that the lens had been in position before the struggle and had not been disturbed. Both lenses had been examined by ESR and no blood, hair, human tissue or finger-prints were found on either. The left-hand lens was dusty.
88. The second Court of Appeal's conclusion on this point is quoted in paragraph 24 above. This conclusion was preceded by two paragraphs which merit quotation:
"[18] There can be no doubt that a lens was found in Stephen Bain's bedroom. The frame from which it came and the other lens were found in David Bain's bedroom. There has been much controversy as to exactly how and where the lens in question was found, and how Detective Sergeant Weir came to his mistaken belief that he could see the lens in a particular photograph. We do not consider it to be helpful to traverse all the issues covered on these and allied points. The Crown's thesis that David Bain was wearing the glasses when engaged in a struggle with Stephen, before shooting him, is certainly a tenable one on the evidence. Indeed, in the absence of any other explanation for the lens being found in Stephen's bedroom, where he was killed, the Crown's thesis is a strong one. The issue for us, however, is whether it is reasonably possible the lens could have got into the vicinity of Stephen's dead body in a manner or at a time which was unrelated to the murders. That could be so only if the lens was there prior to the time when the murderer entered the room to shoot Stephen. There is no direct evidence suggesting how or why a lens from a pair of glasses Stephen never wore, and had no need to wear, was already on the floor in his bedroom, prior to his being shot.
[19] Against that we recognise that the lens had no forensic evidence on it; no blood, no fingerprint, indeed nothing of note. That circumstance could be explained by the fact that although the lens was already in the room, and in the close vicinity of where Stephen's dead body was found, it was covered up by clothing at the time the suggested struggle and the shooting took place. There is support for that possibility in Detective Sergeant Weir's own contemporaneous note that when searching Stephen's bedroom he found the lens 'beneath clothing etc' in front of the bunks".
89. The third Court of Appeal's general approach to this issue in paragraphs 53-56 of its judgment has already been summarised. It returned to the glasses and lenses in paragraph 136, observing: "We do not regard the evidence on this aspect of the case as assisting the Crown's case to any appreciable degree". It acknowledged that the lens the officer pointed out in the photograph was not a lens, and continued (paragraph 137):
"The jury were led to believe that the lens was discovered out in the open, whereas Detective Sergeant Weir had recorded in contemporaneous notes that he had found it beneath clothing. It was more consistent with the Crown's theory for the lens to be found in the open rather than under clothing, albeit it could have got covered up during the struggle. The jury were undoubtedly misled by the Detective Sergeant's evidence. We will bear that in mind when we come to our overall conclusion. It is fair, however, to record that nothing we have seen, read or heard leads us to the view that the jury were deliberately misled …"
