Not guilty
In June 1994, five members of the outwardly normal middleclass Bain family were murdered in their Dunedin home. David Bain was jailed for the murders in 1995. He never stopped claiming he was innocent and in 2009 was acquitted in a second trial. In a 10-p
David Bain could not have had a more committed and determined advocate and publicist than former All Black, professional rugby league player and successful businessman Joe Karam.
Even after David was able to speak freely and for himself, Karam has remained the face and force of the campaign.
The Karam/bain duo had no finer moment than the night of Bain’s acquittal at his second trial.
As a newspaper reporter, I enjoyed that strange hiatus between a jury retiring to consider its verdict and eventually returning to the courtroom with the result.
It could be minutes, hours or days, with no guarantee a verdict would be reached.
It was a time to sit with other reporters and court staff and to gossip, mull over evidence and give predictions.
You could tell the chief reporter you had to remain in court and wouldn’t be available to do other stories. It wasn’t a holiday, but it could be a nice rest after covering a long and complex case.
The No 1 courtroom in the High Court at Christchurch is on the fourth floor of a solid and appealing building on the west side of the Avon River where, in good weather, punts glide past on the shallow water.
During the trial Bain was seen to take a ride, lying back with a cup of coffee in his hand.
Judges sit above the proceedings at a bench over which hangs an ornately carved canopy built originally for the old Supreme Court building in Christchurch. The woodwork was restored and installed in the new High Court.
The windowless jury room is on the right of the courtroom if you are looking towards the judge’s bench. Juries have often complained about its small size and lack of windows.
When juries, during their deliberations, want to communicate with court staff they, as instructed, knock on the door. A knock can mean a question or the need for a break in the fresh air.
When the final knock comes, it’s like a battleship whistle calling the crew to action stations. Court staff summon the judge and counsel, while reporters call their newsrooms.
The public gallery begins to fill and a strange, tense quiet grips the courtroom. The tension is both tragic and exhilarating. Someone’s fate hangs in the balance and that fate is only minutes away.
If a trial is a game, and it is often described thus, then this is the time the score is announced.
June 5, 2009, turned out to be the last day of David Bain’s 58-day second trial for the murder of his family in Dunedin on June 20, 1994.
A nasty southerly hit just after midday, making TV crews worry about their live crosses should the verdict come soon.
It was a Friday and no-one wanted to spend the weekend hanging around the court building.
The previous day the jury of seven women and five men (among them an air hostess, a retired accountant, a graphic designer, two white-collar power company workers, a social worker, a cleaner, a justice of the peace, a company director, a law student) had heard Justice Graham Panckhurst’s immaculate summing up.
He was careful to be
scrupulously fair to both sides in his summary, no doubt with an eye on a possible appeal by the defence.
He did, however, make a statement that seemed to me to reveal exactly where his sympathies lay, although few would have picked it up.
In instructing the jury that they were entitled to reach deductions based on direct evidence, the judge chose an example he had suggested in pre-trial argument was a particularly strong point for the Crown.
On the morning of the murders police had found the day’s Otago Daily Times newspaper on a cabinet in the hallway of the Every St house.
Panckhurst set out the direct evidence that allowed the jury to infer Robin Bain had brought the paper in from the letterbox and placed it on the hallway cabinet.
‘‘You can only arrive at that, as I say, by inference. So what ordinarily would be a very everyday, commonplace circumstance, that a householder had wandered to the gate and picked up a newspaper. But someone intent on murder and suicide? Why would they be getting a newspaper to leave in the house when there is to be one survivor who won’t be, one would have thought, interested in reading the newspaper?
‘‘Well, the Crown says there is a simple answer to that and it is that Robin Bain was not intent on murder or suicide. He was following normal routine and had little, absolutely no idea of the fate which was to befall him after he put the paper down and went into the front room.’’
The jury started the day (June 5) with a few questions and then retired.
It seemed quite possible the deliberations would go into the night and the jury would be sent home about 6pm to start afresh the next day.
But, after about 51⁄2 hours, the knock came. There had been little time for chewing the fat with other media.
A little after 5pm, Ann Swarbrick, a gruff but goodnatured, rosy-cheeked registrar stood up to ask the jury forewoman if the jury had reached a verdict. The forewoman, a social worker, said yes.
A drum roll would have added little to the palpable suspense in the room.
Then they came, the five verdicts, all not guilty.
After the first verdict was read out, the celebrations began, drowning out the next four not guilty verdicts.
David’s supporters had crammed the lower public gallery and also the foyer where they could watch the proceedings on closed circuit television. Their cheers could be heard inside the court.
From the press bench, I heard Joe Karam, sitting at a table only metres away say, ‘‘Thank you, your Honour’’ in a way that suggested to me that gratitude was far from his mind.
It was no secret the defence camp and Panckhurst had a testy relationship.
Panckhurst and Bain’s lawyer Michael Reed, QC, clearly loathed each other and it sometimes spilled out in court.
I looked over to David standing in the dock. He looked stunned.
Panckhurst thanked the jury and told David he could leave the dock.
David returned to the cell where he had spent breaks and lunchtimes during the trial.
Each night he would emerge with his big red lunchbox to go home to the house of a former Press sub-editor, Carolyn Davies, and her husband Roger.
Their daughter Liz, a primary school teacher, like David’s parents, would in 2014 marry David and have his child.
After David had collected himself, he, with Karam by his side, left the courtroom a free man.
In the foyer jubilant supporters mobbed him. The scientist who had marshalled the scientific evidence in his defence, Anna Sandiford, held back from the throng but had tears running down her face.
I approached Carolyn Davies for a comment but she was tearful and speechless.
Karam spotted TV1 journalist Chris Cooke in the foyer. Cooke had made no secret of his belief in David’s guilt and Karam asked him if he wanted to apologise.
Cooke smiled and shook his head.
The Press reporter John Hartevelt, dressed in a suit and a newcomer to the trial, looked more like one of the legal team or court staff as he attached himself to the Bain party, now on their way downstairs.
He watched David crying, repeatedly pushing the base of his palm across his forehead.
‘‘Crying’s fine. There is nothing wrong with crying,’’ Karam told David. Outside in the dark, lights and a podium had been set up for a press conference. As the team waited inside the sliding doors for David to compose himself, Karam turned to the lawyers and said, ‘‘I would just like it, if you don’t mind, if David and I went out first.’’
He met wholehearted agreement.
‘‘Come on Smiley,’’ Reed said. ‘‘Go get ’em.’’
David needed more time. He took deep breaths between tears.
‘‘You’re the toast of the country, boy,’’ Karam said. At last they emerged. The media waited for David to speak but he was so overcome, that his famous voice, the deep tenor that could span three octaves, failed him.
Then, tall, thin-faced, almost in tears, he said: ‘‘All I can say is without Joe and his solid strength and without the love of the people who have supported me since day one, I would not have made it through to this stage. Joe has been through everything for me.’’
Karam then took the floor, saying David and the defence had been forced to embark on what would go down as the criminal trial of New Zealand history.
‘‘What has mattered, what has really mattered, is that the truth, as I said 13 years ago, has finally fallen where it has always been.’’
A cry of, ‘‘Good on you Joe,’’ broke in.
‘‘It has only been a very unfortunate attitude by various authorities, and now is not the time to bring them up, that has caused this thing to last until 2009. And put this good man here through what he has been through. I could not have fought the evil that I’ve had to fight without David. A lot will be said over the next few days, but David and I would like to have a tipple right now.
‘‘What kept me going is he is an innocent man beaten down by a lot of myths and legends, which have been fuelled by some very irresponsible reporting over the years.
‘‘I had no doubts, no doubts since 1996. I’ve said, ‘Give us a day in court. No jury will ever convict this man. The evidence against him is nothing more than smoke with no fire’.’’
Karam had no doubt earned his tipple but readers of his book David and Goliath, published in 1997, might have wondered about the paragraph where Karam wrote of the many occasions he had woken ‘‘in the depths of the night in a cold sweat over his possible deceit, over a piece of evidence that doesn’t seem to fit, over a casual statement made, thinking, ‘what the hell have I got myself into here?’’’
Readers of Karam’s book might also have wondered why the Bain camp had fought so hard against having the retrial if they were so keen on their day in court.
Soon the Bain camp’s side of the formalities were over and then Detective Superintendent Malcolm Burgess read out a press statement from the same podium. By then, only two reporters were still there to hear what the police had to say.
Burgess said police accepted the verdict, reiterating the investigation in 1994 was thorough and impartial.
But the news was all about David, and no-one was very interested in the police.
David and Karam started the long walk back to Karam’s hotel, flanked by media and supporters. A party was planned.
Just before they reached Karam’s hotel in Cranmer Square, the party stopped. Hartevelt was still there.
‘‘Righto, David. Big smile. Big smiles, hands up. Victory, victory, victory, David.’’
One of the jurors, a law student who was later revealed to have a recent conviction for stealing a large sum from her Christchurch employer, had earlier gone up to David and given him a hug.
A male juror, who seemed to have become good friends with the hugging juror during the trial, shook David’s hand. Both jurors later turned up at the party, although didn’t stay long.
After the reports were written and the paper left to the night editors, The Press editor Andrew Holden, a genial, ambitious Australian, took a bunch of us out to dinner at Mexican restaurant Burrito Brothers in New Regent St.
We thought we had done a good job and the next day’s paper would be full of Bain trial material.
After the dinner, fellow Press reporter Keith Lynch and I decided to take the Saturday newspaper, hot off the presses and with David Bain and Joe Karam pictured on the front page, to the Bain party.
When we got to the hotel, the party was long over and we left a newspaper at reception. As we walked away Karam leaned out of his third- or fourth-storey window and shouted down to offer us a drink.
We found Karam, his partner and his son Richard in their apartment still celebrating their success. Bain was well gone, as was Reed, but the wine was still flowing and we sat down to find Karam wanting to relitigate the case.
I told him the defence hadn’t convinced me and he took it in good spirit. I remember telling him that tonight he didn’t need to fight the battle. He had won. Today was his day.
We had a few drinks and Lynch took aside a rather angry Richard, upset by some of the coverage in the newspaper, to placate him with Irish charm.
As we left, Karam took me by surprise by grabbing me in what I thought at the time was an affectionate headlock.
I wish I’d been quick enough to say, ‘‘Joe, I didn’t know you felt like this’’.
Looking back, I’m not sure what his intention was and I can’t be certain how I reacted. I like to think I kicked his legs from underneath him as I was going down.
In any event, we both ended up on the floor lying next to each other as though the maul had collapsed.
It was all very good-natured and we parted friends. In retrospect, it seems an ignominious end to a momentous
day.