When Bain faced Binnie
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
‘Black Hands’ series
It was a big day for David Bain. If he was going to get a pay out from the Government, he would have to impress Justice Ian Binnie, the Canadian judge tasked by the New Zealand government to advise it on whether Bain was innocent of shooting his family on June 20, 1994.
They met on a Monday at the four-star Copthorne Hotel in Auckland on July 23, 2012. The hotel is across the road from the High Court and looks out over the stacks of containers at the Port of Auckland.
The main local news of the day was the Government’s sell-off of shares in Mighty River Power and, overseas, President Obama was speaking about the shooting of 12 people by deranged gunman James Holmes in a movie theatre in Aurora, Colorado, on July 20.
He said, ‘‘we will never know what fully causes someone to take the life of another but we do know what makes that life worth living.’’
Bain came with two lawyers, Michael Reed QC and Matthew Karam, and his long-time advocate, Joe Karam.
John Pike and Annabel Markham represented the Crown and Stuart McGilvray was there for the Ministry of Justice.
Binnie told the group, ‘‘this is not a formal courtroom’’ but it must have seemed like it.
David Bain had not spoken often about the killing of his family.
Most of the talking had been done by his advocate and publicist Joe Karam who fronted for media interviews and ran the campaign to get Bain a new trial.
But David Bain had not been silent.
Only a few months before his Binnie interview, he appeared at an innocence conference in Perth to talk about his experience in the New Zealand justice system.
After his acquittal in 2009, he made himself available for long interviews with journalist Melanie Reid, then working for TV3, and also participated in a two-part feature for New Idea magazine.
However, these public utterings did not address the evidence that could be seen as pointing to his guilt.
His second trial in 2009 presented an opportunity to confront each of the matters the Crown said showed he was the killer but he chose not to give evidence and could not therefore be cross-examined.
In the first trial in 1995 he chose a different approach, giving evidence in his own defence and exposing himself to crossexamination.
In the 17 years since the shootings, it was the only time Bain had been thoroughly crossexamined under oath about the evidential details of the case.
So Bain had cause to be nervous.
For him and the defence team it was the last step to getting some redress for the ordeal of being prosecuted and jailed for 13 years. If he could convince Binnie, compensation of at least several million dollars was on the cards.
Binnie would want to know what Bain had to say about his recovered memories and items of evidence such as his fingerprints on the rifle, the lens found in his brother Stephen’s bedroom, his injuries, his brother’s blood on his clothes and hearing his sister Laniet gurgling.
The interview would be difficult. Bain’s memory was the main problem. Even if he had in police statements or subsequent testimony given details of aspects of the case, he could often now no longer remember anything. If he could remember, he wasn’t sure if the memory was influenced by what he had heard or read about the case.
Still, he was capable of giving long, involved answers and often interrupted Binnie before the judge had finished his question.
Questions from Binnie about specific items of evidence were generally met by Bain saying his memory was very hazy at the time and even worse now.
For instance, when Binnie asked him if he could explain why his brother Stephen’s blood was found on his shorts and T-shirt, Bain said he had no explanation because his memory was so sketchy.
This made it hard for Binnie to press Bain because if Bain’s memory was so incomplete he could hardly be expected to answer detailed questions.
The same issue arose with questions about Laniet’s gurgling.
In one of Bain’s recovered memories he recounted finding Laniet in her bed and hearing her gurgling as though breathing through water.
This created a number of difficulties for him because if he was telling the truth, Laniet should in all probability have been dead and unable to breathe by the time he returned from his paper run.
Bain told Binnie he now had no recall of the gurgling and Binnie did not pursue his question about why Bain had not tried to get help for his sister when he found her with bullet wounds to her head but still apparently breathing.
The interview covered many of the damaging allegations about Bain’s character and Binnie wanted Bain’s response to an allegation from his high school friend Mark Buckley that accused Bain of having a plan to rape a jogger by using his paper run as an alibi.
Bain said the allegation was purely vindictive and untrue. He said he had witnessed Buckley doing an indecent act with a goat and this was Buckley’s way of getting back at him.
Buckley told The Press that he and his mates had played a trick on Bain who seemed naive and prudish about sex.
They had suggested they had sex with goats as practice for the real event and had simulated a sex act.
Binnie, in the end, was clearly impressed with Bain.
In his report to the Government he said he found Bain to be a ‘‘credible witness’’.
‘‘His recollection of the relevant events, while not complete, is consistent with the physical evidence.’’
His truthfulness was indicated by Bain making assertions which were surprising if was trying to hide his guilt, Binnie said.
He struggled to find a motive for Bain and, given that Bain had been shown not to be a psychopath, he found the Crown’s theory on how the shootings had been carried out, not credible.
Bain had won the battle but as events transpired not the war.