On 20 June 1994, Robin and Margaret Bain and three of their four children – Arawa, Laniet and Stephen – were shot to death in Dunedin, New Zealand. The only suspects were David Cullen Bain, the eldest son and only survivor, and Robin Bain, the father. David Bain, aged 22, was charged with five counts of murder. In May 1995, he was convicted on each of the five counts and sentenced to mandatory life in prison with a minimum non-parole period of sixteen years.
David's case was taken up by businessman and former rugby player Joe Karam. In 2007, his legal team, guided by Karam, successfully appealed to the Privy Council, arguing that Robin Bain was the more likely killer. The Privy Council declared there had been a 'substantial miscarriage of justice'. Bain was released on bail in May 2007. The retrial in June 2009 ended with his acquittal on all charges.
The case has been described as "the most widely discussed and divisive in New Zealand's criminal history". Speculation about it continued long after David was acquitted, including whether or not he should receive compensation for the years he spent in prison. Ian Binnie, a retired justice of the Supreme Court of Canada, was appointed in November 2011 to review the circumstances and advise the government on whether compensation should be paid. Binnie concluded that the Dunedin police made 'egregious errors' and that the 'extraordinary circumstances' in the case justified the payment of compensation. This report was rejected by the Minister of Justice, Judith Collins, on advice from the police, the Solicitor-General and High Court Judge Robert Fisher.
In March 2015, the government appointed Ian Callinan, a retired justice of the High Court of Australia, to conduct a second review of David's compensation claim. Callinan's review concluded that David was not innocent on the balance of probabilities, but the government made an ex gratia payment to him of $925,000 in order to settle the matter.
Robin Irving Bain and Margaret Arawa Cullen were married in 1969 in Dunedin, New Zealand. They had four children: David (born 1972), Arawa (born 1974), Laniet (born 1976) and Stephen (born 1980). In 1974, they moved to Papua New Guinea, where Robin worked as a missionary teacher. The family returned to New Zealand in 1988. Three years after his return, Robin became the principal of Taieri Beach School.[n 1]
In June 1994, the family lived at 65 Every Street, Andersons Bay, Dunedin.: 4 The house was old and 'semi-derelict'. Photographs presented at the trial showed most of the rooms were squalid and messy with the family’s belongings strewed in disorderly heaps. At the time of the murders, Robin and Margaret were estranged. Margaret Bain had developed an interest in new-age spiritualism. She referred to her husband as "a son of Belial – one of the Four Crown Princes of Hell". They used to fight and bicker and Margaret told an acquaintance shortly before the murders she would shoot Robin if she could. She refused to let him sleep in the house so he often slept in the back of his van near the school. When he came home on the weekends, he slept in a caravan in the garden. : 3
At David Bain's third Court of Appeal hearing, fellow teachers described Robin at the time of the killings as ‘deeply depressed, to the point of impairing his ability to do his job of teaching children’. Cyril Wilden, a former teacher and registered psychologist visited the Taieri School, and noted that ‘Robin appeared to be increasingly disorganised and struggling to cope.’ There were piles of unopened mail on his desk and his classroom was ‘dishevelled, disorganised and untidy’.
Laniet had been flatting in Dunedin but also lived with her father in the Taieri schoolhouse. She returned to the family residence on the Sunday evening of 19 June, the day before the murders, to attend a family meeting. At David Bain's retrial, witnesses said the meeting was called because Laniet, aged 18 at the time, wanted to disclose that her father had been committing incest with her prior to the murders.
David Bain was studying music and classics at Otago University and had a part-time job delivering morning newspapers. Arawa was attending teachers' training college (formerly Otago Teachers' College, later Otago University, School of Education) and Stephen was at high school.
On the morning of 20 June 1994, after returning from his morning paper run, David called the 111 emergency number at 7:09 am in a distressed state and told the operator: "They're all dead, they're all dead."
When the police arrived they found five members of the Bain family dead, having all suffered gunshot wounds – Robin (58), his wife Margaret (50), their daughters Arawa (19) and Laniet (18), and their son Stephen (14).: 6 A message was found typed on a computer that said "sorry, you are the only one who deserved to stay".: 50 Four days later, David, aged 22, was charged with five counts of murder.
Two weeks after the murders, the house was burnt down at the request of other family members. In the process, the carpet containing bloody footprints was destroyed - described by Judge Ian Binnie as a 'critical' piece of evidence used to convict David. The footprints were revealed when the carpet was tested with luminol on the day of the murders. Police officers admitted at the retrial that they should have cut out and retained the carpet with the bloodied footprints.
David Bain's first trial lasted three weeks and took place at the Dunedin High Court in May 1995. The Crown claimed that Bain shot his mother, two sisters and brother before going out on his morning paper run at about 5.45am; that he returned to the house about an hour later, typed a message on the computer and then waited in the lounge for his father to come in from the caravan before shooting him in the head.
The defence argued that Robin Bain shot and killed his wife and children, then turned on the computer, typed in the message to his son that "you are the only one who deserved to stay" and committed suicide.
Dean Cottle, a witness who was expected to testify about Robin Bain's incestuous relationship with his daughter Laniet, failed to show up at court when called. Cottle provided a written statement to this effect but Justice Williamson found him unreliable as a witness and, in his absence, ruled against admission of his testimony.
Judge Binnie later noted that the police never came up with a plausible motive for David to kill his entire family, although the prosecution suggested he was 'triggered' by a minor and long-running argument with his father about use of a chainsaw. In summing up, Justice Neil Williamson told the jury that the Crown had said "... that these events were so bizarre and abnormal that it was impossible for the human mind to conceive of any logical or reasonable explanation".
At the conclusion of the trial, Bain was convicted by the jury on five counts of murder and sentenced to life imprisonment with a sixteen-year non-parole period.
Support of Joe KaramEdit
Former All Black rugby player, Joe Karam, became interested in the case in 1996, when he read a newspaper article about some long-haired university students trying to raise money for David's appeal by selling jam. He gave them some money and then studied the evidence presented at the original trial. He felt "something was wrong" with the case and spearheaded a lengthy campaign to have David's convictions overturned. He visited him in prison over 200 times and wrote four books about the case. Karam stated in his books that "[Bain's] innocence is the only possible conclusion" and that he was "totally innocent". Karam was subsequently described in some media as a 'freedom fighter' and his support helped bring about a retrial in 2009 at which David was found not guilty.
Karam's support for David came at considerable personal cost. He used to be a millionaire owning more than 20 investment properties. He no longer owns these. He worked fulltime on David's case up until the 2003 appeal and friends estimate he lost up to $4 million in terms of his time, loss of earnings and costs of legal and forensic experts. Journalist, Amanda Spratt, wrote: "Ten years down the track, the friends and fortune have gone. The woman he loved left him, he sold his home and he doesn’t bother going to dinner parties any more, sick of them ending in an argument and a walk-out."
The first application was made to the New Zealand Court of Appeal in 1995, principally on whether the trial judge had erred in refusing to admit Cottle's testimony. The Court refused to hear the appeal on the grounds that the "Crown case appeared very strong and the defence theory not at all plausible.": 10, 20
In June 1998, Bain petitioned the Governor-General for a pardon, which was then passed on to the Ministry of Justice. In 2000, Justice Minister Phil Goff said the investigation had shown that "a number of errors" may have occurred in the Crown's case against Bain.
In March 2007, Bain's legal team, including Karam, travelled to London to lay out nine arguments before the Privy Council as to why his convictions should be quashed.: 40–97 Two of the nine points concerned Robin's mental state and possible motive including the possibility that he was "facing the public revelation of very serious sex offences against his teenage daughter". The other seven points concerned questions about particular pieces of evidence. The Privy Council said there was considerable doubt that Bain would have been convicted if evidence discovered post-trial had been put to the jury.
The Privy Council concluded that: "In the opinion of the board, the fresh evidence adduced in relation to the nine points ... taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case." The Privy Council quashed Bain's convictions and ordered a retrial, but noted that he should remain in custody in the meantime.: 119
On 15 May 2007, Bain was granted bail by the High Court in Christchurch. Justice Fogarty said that under New Zealand law, there was no reason for continued detention and he was bailed to the home of his longtime supporter Karam. Altogether, he served almost thirteen years of a life sentence with a minimum sixteen-year non-parole period.
The retrial took place at the Christchurch High Court, with the jury sworn in on 6 March 2009, and Bain pleaded not guilty to the five murder charges. The defence argued that Robin committed the murders and then committed suicide because he was having an incestuous relationship with daughter, Laniet, which was about to become public. The trial lasted about three months and the jury took less than a day to find Bain not guilty on all five charges.
Some commentators questioned the behaviour of jurors who hugged Bain and attended a "victory party" after the verdict. Chris Gallavin, a senior law lecturer at Canterbury University, said, "While this is unusual behaviour, the whole case is an unusual case."
After the retrial, New Zealand's Chief Coroner consulted with the local coroner and others to decide whether to conduct inquests into the deaths, as the verdict implied the death certificates may not be accurate. However no inquests were held; a Law Society spokesman pointed out that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against Bain.
Following his acquittal, Bain undertook a three-month European holiday paid for by his supporters. Ten months later, he was struggling to find work and had no money. Auckland defence lawyer Peter Williams QC said Bain would be suffering from the stigma experienced by ex-prisoners re-entering the workplace.
In March 2010, Bain lodged an application for compensation for wrongful imprisonment. His case fell outside Cabinet rules on compensation, meaning the government was not obliged to pay him anything, but may do so if he was able to establish his innocence on "the balance of probabilities" and was also considered to be the "victim of exceptional circumstances".
Ian Binnie's reportEdit
Because of the high-profile nature of the case, Justice Minister Simon Power chose an overseas judge – retired Canadian Supreme Court Justice Ian Binnie – to examine David's application for compensation. After a year-long investigation, Binnie concluded in September 2012 that the Dunedin police made a number of egregious errors "that led directly to the wrongful conviction", and that "on the balance of probabilities," David was innocent of the murders in 1994 and should be paid compensation for wrongful conviction and imprisonment". By the time Binnie's report was completed, Simon Power had retired from Parliament.
Judith Collins, the new Justice Minister, disagreed with Binnie's conclusions and sought feedback on his report from the police, the Solicitor-General and former High Court judge Robert Fisher before releasing it to David's legal team. Fisher claimed that Binnie had made significant errors of principle, so Collins decided yet another report into Bain's compensation claim would have to be commissioned.
Ms Collins publicly criticized contents of Binnie's report while insisting to Binnie that what was in it was confidential. Their disagreement turned into a public spat with Binnie accusing Collins of "playing politics with the report". Binnie took exception to the criticisms, arguing that he had weighed up the totality of the evidence both for and against David. He said the government was clearly "shopping around" for a report that would allow it to dodge paying compensation.
In January 2013, David filed a claim in the High Court seeking a review of Collins' actions, alleging Collins had breached natural justice and the New Zealand Bill of Rights Act and that she "acted in bad faith, abused her power, and acted in a biased, unreasonable and predetermined manner". In August 2014, Collins resigned over her involvement in the Dirty Politics saga and Amy Adams was appointed as the new Justice Minister. The judicial review proceedings against Collins were discontinued in January 2015.
Ian Callinan's reportEdit
Another report was commissioned and retired Australian judge Ian Callinan was given the responsibility to draft it. On 2 August 2016, Adams formally announced that Callinan had found David was not innocent "on the balance of probabilities". However, Callinan never interviewed him and was instructed that he was not allowed to read Ian Binnie's report as part of his investigation. When Callinan's report was made public, David's legal team described it as a 'train wreck', indicating they intended to challenge it in court. In response, the government offered to make an ex gratia payment of $925,000 provided David dropped all legal challenges.
Reflecting the high level of public interest in his case, in 2009, David Bain was found by the Internet search engine Google to be the most-searched-for New Zealander of the past year.
The majority of respondents to opinion polls conducted in 2012, 2013 and 2015 thought Bain should receive compensation for the time he spent in prison.
Cost to the taxpayerEdit
The total cost to the taxpayer of the David Bain legal case was nearly $7 million. The 2009 retrial cost more than $4 million, making it the most expensive trial in New Zealand history. The three reports into whether David should receive compensation - by retired Canadian judge Ian Binnie, Australian judge Ian Callinan, and Robert Fisher QC - cost the taxpayer a total of $877,000.
Books, podcasts, TVEdit
- Joe Karam. David and Goliath: the Bain family murders (Auckland: Reed, 1997) ISBN 0-7900-0564-6
- James McNeish. The Mask of Sanity: The Bain Murders (Auckland: David Ling, 1997) ISBN 0-908990-46-4.
- Joe Karam. Bain and Beyond (Auckland: Reed, 2000) ISBN 0-7900-0747-9
- Joe Karam. Innocent!: seven critical flaws in the conviction of David Bain, 2001 [a booklet]. ISBN 0-473-07874-0
- Joe Karam. Trial By Ambush: The Prosecutions of David Bain, 2012 ISBN 978-1869508340
- Judith Wolfe and Trevor Reeves. In the Grip of Evil: The Bain Murders (Dunedin: Square One Press, 2003) ISBN 0-908562-64-0
- Michael Sharp. The Bain Killings Whodunnit? :ISBN 978-0-473-31230-5
- Martin van Beynen. Black Hands. 10 episode podcast. (Stuff 2020).
- Black Hands drama series TVNZ, 31 Octobe 2020.
- The Bain Family Murders. Channel 4, United Kingdom August 2022.
- ^ The Privy Council recorded the school as being Taieri Mouth Primary School,: 2 but according to James McNeish its name was Taieri Beach School.: 123
- ^ "Bain father and son were suspects". Otago Daily Times. 26 March 2009. Retrieved 2 April 2017.
- ^ David Bain V The Queen - Privy Council Judgment, Privy Council, 11 May 2007 para 8
- ^ a b "David Bain timeline of events". 3 News online. 26 June 2013. Retrieved 22 October 2016.
- ^ a b c d e f g h i j k l m "David Bain v The Queen". Committee of the Privy Council. 11 May 2007. Retrieved 22 October 2016.
- ^ a b "David Bain found not guilty". 3 News NZ. 5 June 2009.
- ^ A Case that divides a nation, Stuff,
- ^ Report recommending Bain compensation is 'flawed', NZ Herald, 13 December 2012
- ^ Request for the Callinan report on David Bain’s compensation claim, Office of the Ombudsman, para 5
- ^ "Summary of key findings Hon Dr Robert Fisher QC" (PDF). govt.nz. New Zealand Government. Archived from the original (PDF) on 19 May 2017. Retrieved 15 March 2019.
- ^ a b "David Bain: Retired judge to head compensation claim". The New Zealand Herald. 20 March 2015. Retrieved 17 January 2016.
- ^ a b "No compensation for David Bain; $925,000 ex gratia payment". New Zealand Herald. 2 August 2016. Retrieved 22 October 2016.
- ^ Van Beynen, Martin (6 June 2009). "The Bain mystery". stuff.co.nz. Retrieved 25 January 2016.
- ^ "David Bain – A Profile". crime.co.nz. Retrieved 4 August 2007.
- ^ a b McNeish, James (1997). Mask of Sanity. Auckland, NZ: David Ling Publishing. ISBN 0-908990-46-4.
- ^ Report For The Minister Of Justice On Compensation Claim By David Cullen Bain By Hon Ian Binnie QC, 30 August 2012, para 31.
- ^ The perfect family, Stuff Interactives
- ^ David Bain V The Queen - Privy Council Judgment, Privy Council, 11 May 2007, Scoop, paras 41-43
- ^ David Bain V The Queen - Privy Council Judgment, Privy Council, 11 May 2007, para 3
- ^ Van Beynen, Martin (22 April 2009). "Laniet scared of brother David, witnesses say". press.co.nz. Retrieved 15 April 2016.
- ^ Bain's sister Laniet was to tell of incest, NZ Herald, 16 May 2009
- ^ Gay, Edward (17 March 2009). "David Bain could not explain 111 'they're all dead' call, court told". The New Zealand Herald. ISSN 1170-0777. Retrieved 26 January 2016.
- ^ Burning the Bain home, Te Ara
- ^ Report For The Minister Of Justice On Compensation Claim By David Cullen Bain By Hon Ian Binnie QC 30 August 2012, para 566
- ^ "Bain takes his case to the law lords". The New Zealand Herald. 25 February 2007. Retrieved 19 January 2016.
- ^ David Bain V The Queen - Privy Council Judgment, Privy Council, para 7
- ^ "David Bain V The Queen – Privy Council Judgment, para 10, 11". Retrieved 15 March 2019.
- ^ "David Bain V The Queen – Privy Council Judgment, para 46".
- ^ Big Read: The Bain dilemma, NZ Herald, 6 August 2016.
- ^ McNeish, James (1997). Mask of Sanity. Auckland: David Ling Publishing. p. 264. ISBN 0908990464.
- ^ "David Bain trial: Three possible outcomes". The New Zealand Herald. 4 June 2009. Retrieved 13 October 2011.
- ^ a b Van Beynen, Martin (10 June 2009). "Karam gets $330,000 in legal aid". stuff.co.nz.
- ^ David and Goliath: the Bain family murders, (Auckland: Reed, 1997), p. 223.
- ^ Trial By Ambush, p. 409.
- ^ Cumming, Geoff (15 December 2007). "Joe Karam: Freedom fighter". The New Zealand Herald. Retrieved 15 April 2016.
- ^ David's promise, NZ Herald, 20 May 2007
- ^ Listener, 21 April 2007
- ^ Bain Matters Referred To Court Of Appeal, press release by Phil Goff, 19 December 2000.
- ^ a b Bain could be out of jail next week, New Zealand Herald, 11 May 2007.
- ^ "David Bain timeline of events". Newshub. Retrieved 22 October 2016.
- ^ Gay, Edward (27 May 2009). "Bain trial: 'That ladies and gentlemen is the evidence in this trial'". The New Zealand Herald. ISSN 1170-0777. Retrieved 2 January 2016.
- ^ David Bain trial: 'Banished' father murdered family - defence, NZ Herald, 6 March 2009
- ^ Booker, Jarrod (6 June 2009). "David Bain trial: Reasons to acquit". The New Zealand Herald. Retrieved 15 April 2016.
- ^ "Jurors' behaviour questioned". Stuff.co.nz. 8 June 2009. Retrieved 15 April 2016.
- ^ "Coroner's verdict could not spark action against Bain – Law Society". The New Zealand Herald. NZPA. 8 June 2009. Retrieved 13 October 2011.
- ^ Hume, Tim (18 April 2010). "Free Bain struggles to find employment". Stuff.co.nz. Retrieved 15 April 2016.
- ^ Shuttleworth, Kate (14 December 2012). "Dunne: Bain should be compensated". The New Zealand Herald. Retrieved 15 April 2016.
- ^ Vance, Andrea (4 December 2012). "Collins seeks second opinion on Bain". The Press. Retrieved 15 April 2016.
- ^ a b Young, Audrey (10 September 2012). "Bain innocent and deserves payout, judge tells Cabinet". The New Zealand Herald.
- ^ David Bain's compo report had list of 'errors', Stuff, 13 December 2012
- ^ Binnie, Ian (30 August 2012). "Report for the Minister of Justice on Compensation Claim By David Cullen Bain By Hon Ian Binnie QC" (PDF). The New Zealand Herald.
- ^ Judith Collins stands by her word in Bain's compensation case, 20 February 2015
- ^ "Justice Binnies report markedly generous to Bain". Newshub. 13 December 2012. Retrieved 15 March 2019.
- ^ Collins, judge feud over Bain, Stuff, 13 December 2012
- ^ Trevett, Claire; Dougan, Patrice (23 February 2015). "Government not dodging Bain compo – PM". The New Zealand Herald. Retrieved 15 April 2016.
- ^ Quilliam, Rebecca (30 January 2013). "Bain takes High Court action against Collins". The New Zealand Herald. Archived from the original on 27 June 2013. Retrieved 16 June 2013.
- ^ Dougan, Patrice; Bayer, Kurt (23 January 2015). "Cabinet to look at David Bain compensation". The New Zealand Herald. Retrieved 15 April 2016.
- ^ David Bain 'disgusted' judge ruled out innocence in compensation application without interview, NZ Herald, 19 November 2016
- ^ Ian Callinan Report, para 21.
- ^ David Bain 'disgusted' judge ruled out innocence in compensation application without interview, NZ Herald, 19 November 2016
- ^ "Top NZ Google searches for 2009 revealed". 3 News NZ. 2 December 2009.
- ^ Fisher, David (28 December 2012). "Poll: Give Bain compo". The New Zealand Herald. Retrieved 15 April 2016.
- ^ Vance, Andrea (21 February 2013). "Majority favour compo for Bain". The Press. Retrieved 15 April 2016.
- ^ Gower, Patrick (13 March 2013). "Poll shows support for Bain compensation". TV3. Retrieved 15 April 2016.
- ^ "Poll backs compensation for David Bain". TVOne. 10 May 2015. Retrieved 15 April 2016.
- ^ "The $7m bill for David Bain's innocence campaign". 2 August 2016. Retrieved 20 November 2016.
- ^ "Bain's retrial cost police $476,000". 10 July 2009. Retrieved 20 November 2016 – via Stuff.co.nz.
- ^ The $7m bill for David Bain's innocence campaign, Stuff, 2 August 2016.
- ^ McConnell, Glenn (31 October 2020). "Bain family warned Black Hands producers the TV series would make them 'grieve all over again'". Stuff. Archived from the original on 1 November 2020. Retrieved 3 November 2020.
- ^ "The Bain Family Murders - All 4". www.channel4.com. Retrieved 1 September 2022.
- News media coverage:
- David Bain case timeline, govt.nz
- Application for Royal Prerogative of Mercy: David Cullen Bain, Ministry of Justice (New Zealand)
- David Bain Case crime.co.nz, commercial web site