Looking back on David Bain’s case
I had first-hand experience of background aspects of the case. For instance, I lived in Dunedin for about a year when working for the Otago Daily Times and know about running its steep streets and cold.
As I write I’m 58, the same age as David’s father, Robin, when he died, so I understand what it’s like to arrive at that age with the usual regrets and disappointments.
I was 36 at the time of the Bain shootings. Then I was writing about the satanic panics of the early 90s, the Christchurch creche trial and the sudden burst of recovered memories of child abuse sweeping the developed world thanks to books like A Courage to Heal by Ellen Bass and Laura David (1988). The zeitgeist of the time was if you felt abused and your life showed the symptoms, then you were.
Laniet’s incest allegations against her father and David’s recovered memories need to be viewed in that context.
I also have more experience of doing rounds than I care to mention. I’ve never done a paper round like David but I’ve done milk rounds and bread rounds. From this experience I know rounds are a run against the clock and times vary enormously.
Over years you also get to know a run by heart. You know where you can take shortcuts and you get to know each letterbox and driveway and section of footpath. The round can almost be done on autopilot.
I therefore view timings of David’s paper run against that background.
Like David, I am short-sighted, having, also like him, worn glasses since I was 13. My uncorrected vision is similar to his. I know how light affects my vision and how
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I mention this because if Bain was the shooter, he had to have gone around the house in the dark. Whether he wore glasses is a significant issue in the case.
As a boy, we also had guns in the house including a .22 rifle.
Having been through a couple of traumatic events, I know how memory can be affected. As a reporter for 25 years I have also covered a wide range of horrific events and deaths.
The intention to write a book on the case took a back seat as more pressing matters, such as the Christchurch earthquakes and a serious illness, took most of my attention for a couple of years.
I began the book in earnest in 2014 with no other purpose than to get the job finished. I had no publisher and I had to fit the work around my day job as a journalist.
It took another two years to go through all the documents, other material gained from Official Information Act requests and the latest reports to produce a draft of the book. It was rewritten several times.
A major publisher was interested but eventually pulled out due to the potential risk of court action.
I mentioned the problem to The Press editor Joanna Norris, who suggested turning the book into a podcast, having become a fan of the Serial Podcast series about a murder in 1999 in Baltimore, Maryland.
Initially, I thought I could just shorten the chapters of the book a bit and read them out with a few add-ons. I was able to get audio material from Bain’s second trial through an application to the court and I also obtained the audio of Bain’s 2012 interview with Justice Ian Binnie.
I found over several months last year that I would have to start again. The scripts then went through multiple changes.
I always thought good writing was just good conversation, as Ernest Hemingway said. What I found with the podcast was that a good oral narrative is not necessarily good writing. A sentence that seems fine when reading it silently will not necessarily translate into good talk.
Writing stories is about showing rather than telling. A script for a podcast is more about telling.
In some ways, writing and recording the podcast scripts was the easy part.
A large number of technical aspects needed to be taken care of, and artwork, marketing and deciding when and how to launch all took more work.
People will naturally ask if during this whole exercise I thought about changing my mind about David Bain’s guilt or innocence. The answer is that people will have to listen to the podcast.
The case has certainly exposed some aspects of our justice system that sorely need attention.
The process by which problems with Bain’s convictions were highlighted and addressed was outrageously convoluted.
A better process needs to be found and those who think they
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New Zealand is in dire need of a body to review criminal cases when new evidence emerges and when nagging doubts about a conviction can be aired in a timely way.
Bain should not have had to go to the Privy Council in London to get a new trial after it was shown the fairness of the first trial was compromised by the failure to dis- close material of potential assistance to him. Aspects of the Crown case were also presented as incontrovertible when they were, in fact, open to challenge.
The system should be grateful to Karam for exposing some shortcomings. Police murder investigation practices have benefited from his trenchant, even if sometimes unfair, criticisms. In every big case there is a Karam waiting in the wings, and that may be no bad thing.
Another issue needing review is the way expert evidence is given and used. In the adversarial system, each side can call an expert to give an opinion on an aspect of the case open to interpretation.
Despite experts being adamant they are impartial and open to other views, an element of ‘he who pays the piper calls the tune’ is inevitable.
Experts called are loath to give an inch and are trained in how to handle cross-examination. Under pressure they will reiterate their evidence is ‘‘their opinion’’ and who is to say they are wrong when the facts are open to different views, even if some of those views are outside possibilities.
Parties are not required to present expert evidence which they have solicited but that is unfavourable to their cause.
The jury is then asked to decide which expert is right or whether a reasonable doubt has been raised, a task for which they are singularly ill equipped.
A possible solution is to have an expert panel assess the technical evidence objectively and hear submissions from each party in an inquisitorial way. Courts already ‘‘hot tub’’ experts so a consensus view can go to the jury.
The panel should then provide the court and the jury with the agreed facts and some guidance on where there is room for debate.
If the jury still has further questions, they can put those in writing to the panel or ask to hear from particular experts.
It sounds convoluted but could save both time and money.
The Black Hands podcast will, I hope, dispel some of the murk around the Bain case.
I have no hopes of persuading diehards but I do hope that I have, at least, helped set the record straight.