Stuff.co.nz/blackhands
In June 1994, five members of the outwardly normal middle-class Bain family were found dead 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 1
Murders are a stock-in-trade for many jobbing journalists. We follow them from the actual killing to the trial and then to the sentencing if the offender is found guilty.
During a stint as court reporter in my early days at The Press newspaper I covered a number of major trials but nothing of the scale of the Bain case.
When the Bain murders happened in June 1994, in Dunedin, I was living in Christchurch, having left Dunedin about four years earlier after a stint at the Otago Daily Times.
I can’t remember my reaction to the Bain murders but it was probably that of most shocked New Zealanders.
I began writing about the shootings in 1997 after the release of David and Goliath, a book by David Bain’s advocate Joe Karam, which I found quite a convincing read.
But I knew some of the reporters who covered David Bain’s first trial who thought Bain was obviously guilty so I was sceptical about a lot of Karam’s rather dogmatic pronouncements.
I wrote reviews of Karam’s book and also of one called The Mask of Sanity by the late renowned New Zealand author James McNeish, who attended Bain’s first trial.
That sort of made me the Bain case reporter for The Press and I kept a loose watch on it until 2009 when I was assigned to cover Bain’s second trial in Christchurch.
We had been promised new defence evidence that would essentially blow the Crown case out of the water and I was genuinely ready to be convinced.
After the trial I wrote an opinion piece explaining why I thought David’s claims of innocence were not supported by the evidence and why he was probably guilty.
The article stimulated a lot of debate and appeared to have been widely read, judging by the feedback. It also meant that I had, by disparaging the jury verdict, nailed my colours to the mast.
Despite the books already written about the case, I thought it certainly deserved another, if only to update the public on the latest developments and evidence. The second trial’s transcript was well over 3000 pages while the first trial had only 500.
I hoped to write a fuller account than those written by Karam, which I regard as being mainly about the defence position.
I thought I was in a pretty good position to write a book about the case, having covered all of the retrial.
As David Bain said in a New Idea magazine article after the trial: ‘‘If anyone can pass judgement it can only be those who sat through the whole trial.’’
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 Bain’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 poorly I can see at night without corrective lenses.
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 and write new scripts for the podcast. The scripts then went through multiple changes and rewrites.
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 and prolonged.
A better process needs to be found and those who think they have been wrongfully convicted should be able to go to a review body to have their cases examined and decided in the shortest possible time.
New Zealand is in dire need of a body to review criminal cases where new evidence emerges and where 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 disclose 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 that 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.