David Cullen Bain v The Queen

[Delivered by Lord Bingham of Cornhill]

On 29 May 1995, following a trial before Williamson J and a jury, the appellant David Cullen Bain was convicted on each of five counts of murder. As more fully narrated below, his appeals against those convictions have failed. He now appeals to the Board against the convictions under section 385(1)(c) of the Crimes Act 1961. He contends, in the light of fresh evidence which was not before the trial jury, that if that jury had had the opportunity to consider the case with the benefit of that fresh evidence they might reasonably have reached different conclusions. The convictions should accordingly be quashed and a retrial ordered. The Crown strongly resists that contention.

On 20 June 1994, when these five killings occurred, David was a 22-year old student studying music and classics at the University of Otago. Each of the counts related to a member of David's immediate family: his father Robin; his mother Margaret; his sisters Arawa and Laniet; and his younger brother Stephen. Robin, aged 58, was the principal of Taieri Mouth Primary School, a two-teacher school about 50 kilometres down the coast from Dunedin. Margaret, 50, did not work; she had (with Robin) been a missionary in Papua New Guinea, but her beliefs appeared latterly to have inclined towards the occult. Arawa, 19, attended a teachers' training college. Laniet, 18, had lived away from home for a period but had returned to the family home for the weekend. Stephen, 14, was still at school.

Robin spent three nights a week at Taieri, initially sleeping in the back of his van but more recently in the schoolhouse. He and Margaret were estranged, and on returning to the family home at the weekend and on Monday nights he lived in a caravan in the garden. Laniet had lived for a time in a flat in Dunedin and then with her father in the Taieri schoolhouse.

The family home was at 65 Every Street, Dunedin. It was an old, semi-derelict, wooden house, which was deliberately burned down shortly after the deaths. Internally, as is clear from the evidence at the trial and contemporary photographs, most of the rooms were dirty, squalid and very disorderly. They, and the caravan, contained large quantities of the family's belongings in disordered heaps.

The house faced south on to Every Street. It was on two levels, and was well set back from the road. The front door was in the middle of the front of the house at ground level. On entering the house through the front door, the visitor would enter a hallway. To his immediate right was the lounge, which had some chairs and occasional tables. To one side of this room was a curtained alcove. It was in this living room that Robin was shot. Opposite this room, across the hallway, was David's room, to the visitor's left on entering the house. Immediately next to David's room, on the left of the hallway, were steps down to the lower level of the house. Continuing down the hallway past the stairs, the visitor would come, on the right, to Margaret's bedroom, from which Stephen's room led off. On the left the visitor would come to the room where Laniet was sleeping at the time of the deaths, and beyond that to a living room which plays no part in the story. If the visitor were to go down the stairs to the lower level he would find three rooms: Arawa's bedroom; a kitchen; and a bathroom/lavatory in which the washing machine and a dirty clothes basket were kept. A door on the western side gave access to the house at this level.

The competing cases at trial

The Crown case against David, as developed at trial, was in very bare outline to this effect. At about 5.0 am or earlier on the morning of Monday 20 June 1994 David got up and dressed. He took from his wardrobe his .22 calibre Winchester semi-automatic rifle and unlocked the trigger lock with a spare key which he kept in a jar on his desk. He usually used a key tied on a string round his neck, but he had taken this off on Sunday 19 June when he took part in a polar plunge and had left it in the pocket of an anorak in Robin's van. He took ammunition from the wardrobe. He then shot and killed, in an unknown order, his mother, his two sisters and his brother. There was a violent struggle with Stephen, who was part strangled as well as shot, and during the struggle a lens of the glasses which David was wearing fell out in Stephen's room. These killings, particularly those of Laniet and Stephen, were very sanguinary, and as a result David's person and clothing became stained with blood. He therefore washed and changed his clothing, leaving marks in the bathroom/laundryroom, and put his blood-stained clothing in the washing-machine, which he started. Then, as was his normal practice, he set off at about 5.45 am to deliver newspapers. He did this rather more quickly than usual, returning home at about 6.42 am. He then went upstairs to the lounge and switched on the computer at 6.44 am, either then or at some later time typing in a message "SORRY, YOU ARE THE ONLY ONE WHO DESERVED TO STAY". David knew that it was his father's practice, some time before or after 7.0 am, to come in from the caravan and go to the lounge to pray. So he waited with the loaded rifle in the alcove off the lounge and, when his father entered the room and knelt to pray, shot him from very close range in the head. He then arranged the scene to make it look like suicide, and after a pause, rang the emergency services to report the killings, pretending to be in a state of great distress.

David's account was that he got up at the usual time, put on running shoes and shorts, took his yellow newspaper bag and set off on his newspaper round with his dog at about 5.45 am. He ran much of the route, as he usually did, and he took an interest in how long he took. He arrived home at about 6.42 — 6.43 am, entered by the front door, noticed that his mother's light was on and went to his own room. There he took off the paper bag and hung it up. He took off his shoes, took off his walkman and put it on the bed. He then went downstairs and into the bathroom. There he washed his hands to get off the black newsprint, sorted out some coloured clothes and jerseys (including a red sweatshirt he had worn on his paper run for the past week) and started the machine. He then went upstairs to his room, put on the light and noticed bullets and the trigger lock on the floor. He went to his mother's room, and found her dead. He visited the other rooms, heard Laniet gurgling and found his father dead in the lounge. He was devastated, and rang the emergency services in a state of acute distress. His case inevitably involved the proposition that Robin, having killed the other family members, had switched on the computer, typed in the message and committed suicide.

It has never been suggested that anyone other than either Robin or David was responsible for these killings or that the culprit, whoever it was, was not responsible for all of them. Thus, leaving the burden of proof aside, the question has always been, as the judge put it in the opening line of his summing-up, "Who did it? David Bain? Robin Bain?".

The trial

The trial before Williamson J and the jury lasted from 8-29 May 1995. During the trial over 60 witnesses were called to give oral evidence, some of them the same witnesses giving evidence on different aspects of the case, and over 20 written statements were read by consent. It will be appreciated that both the Crown case and the defence case were very much more complex than the simplified summary given above might suggest.

During the trial the judge was called upon to give a number of rulings. Two of these are relevant for present purposes. Both relate to evidence which the defence wished to call from a witness named Dean Cottle. Laniet had a cellphone registered in the name of Mr Cottle, and this led the police to interview him on 23 June 1994, three days after the killings. He made a statement, saying he had met Laniet about ten months earlier in a Dunedin bar, and they had become friends. According to Mr Cottle, Laniet had told him that she had been a prostitute and that her father Robin had been having sex with her for about a year and was still doing so. This was one of her reasons for leaving home. Later she said she was going to make a fresh start, her parents had been questioning her and she was going to tell them everything. In an affidavit dated 26 June 1995 (after the trial), Mr Cottle stated that on Friday 17 June, just before the killings, Laniet had said to him that she was going home that weekend to tell the family about everything that had been occurring, she was going to put a stop to everything, she was sick of "everyone getting up her". The incestuous relationship with her father had, she said, begun when the family were in Papua New Guinea.

The judge's first ruling was given on 24 May. In the course of his reasons the judge acknowledged that Mr Cottle's evidence was hearsay, but he did not rule out admission of the evidence on that ground:

"The present crimes were horrific and the jury, like every other person, will be considering why they occurred. Any evidence that might shed light on this must, in my view, be relevant. A motive for Robin Bain is certainly relevant to the primary issue in the case. If sufficient relevance were the only test then I would be inclined to admit the evidence despite its remoteness in time and questionable probative value."

But the judge regarded the reliability of the evidence as the real stumbling block. He was unable to conclude that it...