KEY POINTS:
Privy Council's David Bain decision, page 4:
In paragraph 168 it added:
"The glasses and lens issue has not featured significantly in our analysis of the strength of the case against David. It does not in any way tend to exculpate David".
90. In its written case on appeal to the Board, the Crown reject any allegation of deliberate misconduct. It is suggested that the lens was close to where the officer said he saw it. The precise location of the lens was not regarded by the Crown as relevant at trial. It was submitted in oral argument that the lens was not a critical issue.
(8) David's bloodied fingerprints on the rifle
91. Evidence was given at trial that four bloodied fingerprints, identified as David's, were found on the forearm of the rifle used in all these killings. The evidence was that the prints were "defined in blood or what appeared to be blood. When I say the print was in blood – I mean that the fingers were actually contaminated by blood when going down on the gun as opposed to the fingers going down into blood that was already on the gun".
92. David, when questioned by the police on 21 June 1994, said that he had last used the gun in January or February for shooting possums. Cross-examined at trial, he repeated this. He said he could not remember touching the rifle on the morning of 20 June. He was asked to account for his fingerprints on the rifle and replied:
"I can't account for that, because I don't remember touching the gun at all that morning. All I can say is that I must have picked it up at some stage but I do not recall touching the gun at all or seeing it".
The trial judge listed David's bloodied fingerprints on the murder weapon as one of the key points in the Crown case. As the second Court of Appeal was later to observe (paragraph 22 of its judgment):
"There was no suggestion at the trial that the blood was not human. Hence the jury will undoubtedly have proceeded on the basis that it was".
93. Unknown, it would seem, to the judge, the jury and the defence at trial, the blood in which David's fingerprints were impressed had not at that stage been tested although material in the close vicinity had been tested, as had samples taken from elsewhere on the rifle, all of which were human blood. Such a test was performed on the fingerprint material, well after the trial, on 7 August 1997 by Dr Sally Ann Harbison. The reagent blank used as a control on that occasion tested negative, as it must if a valid test is to be carried out. The test was carried out on a number of samples of material taken from the rifle, other than from David's fingerprints, all of which proved positive, indicating the presence of human DNA. The test on the material in which David's fingerprints were made proved negative: it did not indicate the presence of human DNA. Dr Harbison repeated the test on 19 August 1997, but on this occasion the reagent blank tested positive, which indicated that it had been contaminated; the test was therefore invalid. The second Court of Appeal heard oral evidence from four witnesses on this subject, and found a reasonable possibility that the blood which bore David's fingerprints could have been other than human blood, put there before the killings.
94. In 1998 Dr Geursen, a biochemist with long experience of molecular biology research, obtained samples of the fingerprint material and the reagent blank from Dr Harbison. The reagent blank tested negative. The test performed on the fingerprint material yielded a result which showed, in the judgment of Dr Geursen, that the material was not of human origin. Dr Harbison has not accepted this result: she has said that the fingerprint sample she had supplied was not part of the sample tested in her first test of 7 August but was a sample from the invalid second test of 19 August. This is an explanation which, on scientific grounds, Dr Geursen does not accept. His evidence on affidavit, with much other evidence (including evidence given by him in another trial), was before the third Court of Appeal in written form.
95. The third Court of Appeal (paragraph 62) thought it
"a powerful inference that the existence of David's fingerprints in the small area on the rifle which was otherwise uncontaminated with blood, establishes that the fingers which deposited the prints were in position at the time when all the other blood came onto and was spread throughout the rifle … This aspect of the evidence, on its own, comes close to being conclusive of David's guilt. It is an almost irresistible inference that his prints must have been placed on the murder weapon contemporaneously with the murders".
The court considered (paragraph 67), on the evidence, that the excellent definition of David's fingerprints, and Mr Jones' opinion of their recent origin, constituted a very powerful case that they were deposited at the time of the killings. Later in its judgment (paragraph 130) the court expressed its inability to accept that the fingerprint blood was of animal rather than human origin. The court referred to the tests by Dr Harbison and Dr Geursen, and concluded (paragraph 135):
"In these circumstances we are of the view that nothing of moment has been raised to cast doubt on our earlier discussion of this topic which demonstrated, for the reasons there set out, that from a practical rather than a scientific point of view, David's fingerprints were almost certainly deposited on the fore-end of the rifle contemporaneously with the murders".
It added (in paragraph 168):
"The confused and uncertain science concerning the nature of the blood in which the fingerprints on the rifle were deposited does not detract from the force of the physical evidence on this topic".
96. In its written case on appeal to the Board, the Crown submits that recent well-defined fingerprints from David's bloodied left hand were found on the forestock of the rifle. The rest of the rifle was smeared with blood. It had been wiped. The only plausible explanation is that David gripped the forestock of the rifle when he wiped it. Dr Geursen's tests are valueless, since he tested a contaminated sample. It was submitted in oral argument that the third Court of Appeal were unquestionably right on this question.
(9) Laniet's gurgling
97. Laniet suffered three gun shot wounds to her head: one to her cheek, one above her ear and one to the top of her head. The evidence was that the wound to her cheek was unlikely to have killed her at once; either of the other wounds would have been immediately fatal.
98. Dr Dempster gave evidence at trial of his findings at the post mortem examination of Laniet. He found a large amount of liquid in her lungs, which were distended largely as a result of the lungs developing pulmonary oedema. He inferred that Laniet had lived for a time after what he took to be the first of her injuries, that to the cheek. He would have anticipated that Laniet would have been making readily audible gurgling or similar noises as this material accumulated in her airways. During his evidence in chief David testified that he remembered being in Laniet's room and could hear her gurgling, elsewhere described by him as groaning type sounds muffled by what sounded like water. In his closing address to the jury prosecuting counsel submitted that "Only one person could have heard Laniet gurgling – that person could only have been the murderer". The judge reminded the jury of that submission, and of the evidence given by David and Dr Dempster.
99. As noted above (paragraph 26), one of the questions referred to the second Court of Appeal related to this matter. The court heard oral evidence given by Professor Ferris, who supported the Crown case. It was also aware of expert reports expressing a contrary opinion.
100. The evidence before the third Court of Appeal addressed two aspects of this matter: the order of the shots fired to Laniet's head; and the phenomenon of post mortem gurgling. Professor Ferris and Dr Thomson supported the Crown case that the shot to the cheek was fired first and that post mortem gurgling can only occur if a body is moved. Four deponents relied on by David disagreed on one or both of these points. These were Mr Ross, a forensic scientist who first ascertained that the shot to the top of Laniet's head had been fired through a white cloth, a fact of some potential significance, and who considered that that shot had been fired first; Dr Gwynne, a retired pathologist of long experience; Professor Cordner, Professor of Forensic Medicine at Monash University, Melbourne, who supported Mr Ross' view on the order of shots but had no personal experience of gurgling in unmoved bodies; and Mr Pritchard, who for 15 years had been the laboratory technician in charge of the Pathology Teaching Museum at the Otago Medical School, and deposed that there were many occasions when he had experienced the phenomenon of gurgling noises emanating from dead bodies, most often when a body was moved but sometimes spontaneously.
101. The third Court of Appeal observed (paragraph 93) that subject to the force and effect of the new evidence, the gurgling evidence was another substantial strand in the case against David. The court considered (paragraph 117), on the evidence, that the shot to Laniet's cheek had been the first in time. It observed (paragraph 118) that the white cloth through which the shot to the top of the head had been fired had never been found, despite a thorough search of the premises by the police, and suggested that David could easily have disposed of it on his newspaper round. The court referred to the affidavit evidence of Professor Cordner, Mr Pritchard and Dr Gwynne, but concluded (paragraph 123):
"Up to this point we do not consider the new evidence provides any sufficient basis for doubting the force of the proposition that, as David heard Laniet gurgling, he must have been the murderer".
The court referred to the evidence of Dr Thomson and Professor Ferris and concluded (paragraph 129):
"All this simply confirms the view we reached on an appraisal of David's new evidence. Any uncertainty there may have been at that point is substantially dispelled by the Crown's further evidence on this issue. Overall we consider that the new evidence does not undermine the way the jury were invited to look at this topic; certainly not to the point of our being concerned that any miscarriage of justice has occurred on this account. This point can indeed properly be viewed as strongly indicative of David's guilt".
102. The Crown submits in its written case to the Board that the veracity of the prosecution's submission to the jury gains weight from later evidence, and that David could only have heard what he described after Laniet had been shot through the cheek and before the fatal shots were fired, indicating that he fired them. In oral argument the Crown submitted that Laniet had first been shot through the cheek, and it supported Professor Ferris' evidence based on that inference.
Substantial miscarriage of justice
103. A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it. Such a miscarriage involves no reflection on the trial judge, and in the present case David's counsel expressly disavowed any criticism of Williamson J. It is, however, the duty of the criminal appellate courts to seek to identify and rectify convictions which may be unjust. That result will occur where a defendant is convicted and further post-trial evidence raises a reasonable doubt whether he would or should have been convicted had that evidence been before the jury.
104. In the opinion of the Board the fresh evidence adduced in relation to the nine points summarised above, taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case. It is the effect of all the fresh evidence taken together, not the evidence on any single point, which compels that conclusion. But it is necessary to identify the source of the Board's concern in relation to each point.
Robin's mental state
105. Many questions were directed at trial to establishing David's mental state. The jury may well have accepted the Crown's characterisation of it. Contrasted with Robin who, despite the irregularity of his domestic and marital life, may well have appeared to be a mature and balanced, devout school principal, David could have appeared much more likely to engage in a frenzy of killing. The third Court of Appeal acknowledges that the fresh evidence redresses the balance in favour of David, and represents an evidentiary advance for him. But only the jury can assess the extent to which the balance is redressed and the evidence advanced. The jury might accept the evidence of three professionals, as yet uncontradicted, that stories of the kind described above are not written by children and published in a school newsletter without participation by the principal of a two-teacher school, and there is no evidence to support the suggestion that they could have been inspired by movie watching. The jury might, not extravagantly, have felt that this evidence put a new complexion on the case. It is true, of course, that this evidence does not alter the underlying facts of the killings. But many of those facts are highly contentious, and the evidence could well have influenced the jury's assessment of them.
Motive
106. Williamson J held that any evidence which might shed light on the motive for these killings must be relevant. That opinion has not been challenged. At trial no plausible motive was established why either Robin or David should have acted as one or other of them undoubtedly did. Mr Cottle's evidence was rejected as unreliable, and no complaint is now made of that decision. But the question must arise whether his evidence would have been rejected had it been known that three other independent witnesses gave evidence to broadly similar effect. The third Court of Appeal again acknowledged that this fresh evidence represented some advance for David, but discounted it as providing no basis for the conclusion that Robin committed the murders. This, again, is a matter for the assessment of a jury, not an appellate court, and the jury's assessment would depend on what evidence they accepted. If the jury found Robin to be already in a state of deep depression and now, a school principal and ex-missionary, facing the public revelation of very serious sex offences against his teenage daughter, they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence.
Luminol sock prints
107. At trial, it was asserted and accepted that the 280mm complete toe to heel sock print, found outside Margaret's room, seen and measured by Mr Hentschel, was David's because it was too big to be Robin's. The fresh evidence throws real doubt on the correctness of that assumption. The jury could reasonably infer that the print, if a complete print, was about the length of print that Robin would have made and too short to have been made by David. A question now arises whether, as Mr Walsh suggests, his earlier report was misunderstood and misapplied by the third Court of Appeal. If the jury had concluded that the print had, or might have been, made by Robin, the jury might have thought this significant for three reasons. First, it would indicate that Robin had been to parts of the house on the morning of 20 June which, on the Crown case, he would never have visited. Secondly, it would establish that Robin had changed out of blood-stained socks, since if he made the print he must have been wearing blood-stained socks and the socks he was wearing when he was found dead in the lounge were not blood-stained. Thirdly, if he changed his socks, the jury might not think it fanciful to infer that he changed other garments as well, as (on David's case) he had. The implausibility of Robin changing his clothes if he was about to commit suicide, was a point strongly relied on by the Crown, as something a normal and rational person would not have done. But the jury might conclude that whoever committed these killings was not acting normally or rationally.
The computer switch-on time
108. It is now clear that the jury should not have been told as a fact that the computer was switched on at 6.44 am. It may have been switched on nearly 5 minutes earlier; it may perchance have been switched on at 6.44; it may theoretically have been switched on later. A prosecutor alert to the fresh evidence now before the court would have had to approach the switch-on time with a degree of tentativeness. The third Court of Appeal observed that this evidence, viewed in isolation, could not be regarded as excluding David in the sense of showing that it was physically impossible for him to have committed the murders. That is so. But there is no burden on David to prove physical impossibility. The onus is not on him. The jury might reasonably have considered this peg of David's argument on timing to be strengthened had they known the full facts.
The time of David's return home
109. The jury were invited to treat Mrs Laney's identification of David as problematical and her estimate of time as at best approximate. The fresh evidence might lead a reasonable jury to infer that her identification was not in doubt and her estimate of time reliable. The third Court of Appeal concluded (see paragraph 75 above) that her suggested time could not be regarded as anywhere near precise and that the new evidence did not clinch the matter in David's favour by reason of physical impossibility. But the reliability of her time estimate was a matter for the jury, who never heard the full evidence and never heard Mrs Laney cross-examined, because the defence did not know her clock had been checked by the police and did not know she had made a second statement. There is again no burden on David to prove physical impossibility. It is noteworthy that the trial jury asked to be reminded of what Mrs Laney had said, presumably because they were concerned about either her identification or her estimate of time. It may be that the fresh evidence would have allayed their concern. But the third Court of Appeal do not mention the jury's question. This fresh evidence could reasonably have been regarded as strengthening the second peg of David's argument.
The glasses
110. The Crown is right in its contention that the ownership of the glasses, as opposed to the wearing of them on the morning of 20 June, was not in itself a live issue at the trial. But Mr Sanderson was understood to say that the glasses were David's, David said they were not his but his mother's and David was then cross-examined in a way that (as the third Court of Appeal accepted) impugned his credibility. If ownership of the glasses was in itself an immaterial matter, David's credibility was certainly not: the central question the jury had to resolve was whether they could be sure that David's account of events was untrue. While it cannot be known what motivated the jury to ask the question as to whose the glasses were, according to Mr Sanderson, it may have been because they saw in this a valuable indication of David's credibility or lack of it. If Mr Sanderson's fresh evidence be accepted, the jury were given an answer which did not reflect his revised opinion and could have led the jury, reasonably in the circumstances, to draw an inference unfairly adverse to David.
The left-hand lens
111. Detective Sergeant Weir told the jury that he had found the left-hand lens in a visible and exposed position in which, as is now accepted, he had not seen or found it. His evidence to the jury was more consistent with the Crown's case that the lens had become dislodged during a struggle than the finding of the lens, covered in dust, under other articles on the floor. The third Court of Appeal accepted that the jury had undoubtedly been misled by the officer's evidence. From the jury's point of view it did not matter that, as the court also held, the misleading was not deliberate. Nor, in the Board's view, with respect, is it determinative that the glasses and the lens had not featured significantly in the third Court of Appeal's analysis of the strength of the case against David. What matters is what the trial jury made of the incorrect evidence and, even more importantly, what they would have made of the correct evidence.
David's bloodied fingerprints on the rifle
112. The trial proceeded on the assumption that David's fingerprints on the forearm of the rifle were in human blood. It is now known that although blood from other parts of the rifle had been tested before trial and found to be human blood, the fingerprint material had not been tested. When it was tested after the trial it gave no positive reading for human DNA. Thus the blood analysis evidence was consistent with the blood being mammalian in origin, the possible result of possum or rabbit shooting some months before. If Dr Geursen's evidence is accepted, the blood was positively identified as mammalian in origin. There are a number of highly contentious issues arising from this evidence, including the integrity of the sample on which Dr Geursen performed his test and the reliability of Mr Jones' opinion on the age of the fingerprints and his comments on the similarity in appearance between David's fingerprints on the forearm of the rifle and prints made by Stephen on the silencer. But these were not issues which the trial jury had any opportunity to consider, and they are not, with respect, issues which an appellate court can fairly resolve without hearing cross-examination of witnesses giving credible but contradictory evidence.
Laniet's gurgling
113. The trial jury was encouraged to regard David's evidence of Laniet's gurgling as a clear indication of his guilt. The second Court of Appeal heard oral evidence from Professor Ferris, but concluded that the issue was not so straightforward. The evidence before the third Court of Appeal revealed a sharp conflict of opinion as to the order in which the shots were fired at Laniet's head (arguably relevant to the congestion of the airways and the likelihood of gurgling) and the phenomenon of post mortem gurgling. Without hearing any of these witnesses, and without giving any reason for discounting the evidence of the witnesses relied on by David, the court found it possible to regard the issue as concluded in the Crown's favour by its further evidence. But the evidence of Professor Ferris is the subject of sharp expert criticism. The Board feels bound to rule that the court assumed a decision-making role well outside its function as a reviewing body concerned to assess the impact which the fresh evidence might reasonably have made on the mind of the trial jury.
114. It appears that counsel for both parties agreed that there should be no oral evidence and no cross-examination before the third Court of Appeal. But that is not an agreement which the court was bound to accept, and such an agreement, if made, could not empower the court to choose between the evidence of deponents, accepted as credible, but testifying to contradictory effect.
115. While challenging the detail and the significance of the nine points discussed above, and other points relied on by the defence which the Board has not discussed, the real thrust of the Crown's case on appeal is to emphasise the strength of the many facts pointing clearly towards David's guilt. This, as is evident from the quotations given above of passages in the judgment of the third Court of Appeal, is the essential basis upon which the court dismissed the appeal. The Board does not consider it necessary to review these points in detail, for three reasons. First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial. The Board should, however, touch on the three key points which the third Court of Appeal identified as establishing David's guilt all but conclusively: see paragraph 33 above.
116. 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 twenty 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.
117. 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 8½ years after the trial.
118. 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.
119. 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. The parties are invited to make written submissions on the costs of these proceedings within 21 days. 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.
