Martin van Beynen recalls the day David Bain was acquitted
In a 10-part podcast, Martin van Beynen re-examines the David Bain case. Here, he recalls how he ended up being in a Joe Karam headlock on the day Bain was acquitted.
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 Bain 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.
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 lie 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 and 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 seven women and five men of the jury (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 which 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 Bains’ home in Every St, Dunedin.
Justice 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 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 good-natured, 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.
Bain’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 furthest from his mind.
It was no secret the defence camp and the judge had a testy relationship. Justice Panckhurst and Bain’s lawyer Michael Reed, QC, clearly loathed each other and it sometimes spilled out in court.
I looked over to Bain standing in the dock. He looked stunned.
Justice Panckhurst thanked the jury and told Bain he could leave the dock.
Bain returned to the cell, where he had spent breaks and lunchtimes during the trial. Each night he would emerge with his big red lunch box to go home to the house of Carolyn Davies and her husband, Roger. Their daughter Liz, a primary school teacher, like Bain’s parents, would in 2014 marry Bain and have his child.
After Bain 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 Bain’s guilt and Karam asked him if he wanted to apologise. Cooke smiled and shook his head.
The Press reporter John Hartevelt watched Bain crying, repeatedly pushing the base of his palm across his forehead.
‘‘Crying’s fine. There is nothing wrong with crying,’’ Karam told Bain.
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 Bain 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.’’
At last they emerged. The media waited for David Bain to speak but he was so overcome that his famous voice, the deep tenor, 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 Bain 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 1997 book David and Goliath 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 the 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 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 that the investigation in 1994 was thorough and impartial.
But the news was all about Bain and no-one was very interested in the police.
Bain 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 group 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 Bain and given him a hug.
A male juror, who seemed to have become good friends with the hugging juror during the trial, shook Bain’s hand.
Both jurors later turned up at the party, although they did not stay long.
After the reports were written, The Press editor Andrew Holden, a genial, ambitious Australian, took a bunch of us out to dinner.
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 apartment window and shouted down to offer us a drink.
Bain was well gone, as was Michael 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. As we left, Karam took me by surprise by grabbing me in what I thought at the time was an affectionate headlock.
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.