Transcript: 116. The Bain Family Murders (Part 2) | New Zealand

You are listening to: The Evidence Locker.

Our cases have been researched using open source and archive materials. It deals with true crimes and real people. Some parts are graphic in nature and listener discretion is advised. Each episode is produced with the utmost respect to the victims, their families and loved ones.

Please Note: Today’s episode is the second of a two-part case. We recommend you listen to our episode “The Bain Family Murders (Part 1)” before listening to Part 2.

David Bain was found guilty of murdering the five members of his family early one June morning in 1994. There was a mountain of evidence against him, but David maintained that he was innocent and that it was his father, Robin, who had killed everyone before turning the gun on himself.

One of the victims, David’s sister Arawa, had mentioned to a friend that she was scared of her brother and that he had threatened to shoot his family. In the weeks leading up to the shootings, his mother, Margaret, expressed concern about his strange behaviour and hallucinations to a friend. David himself had once mentioned to a friend of his that he could use his paper round as an alibi if he wanted to get away with committing a crime. Coincidentally, his family was killed while he was out delivering newspapers.

Loads of physical evidence pointed to David as being the sole perpetrator: a lens from his eyeglasses, as well as his blood-soaked opera gloves, were in his brother Stephen’s room. David said that he had heard gurgling sounds coming from his dying sister, Laniet, which the Prosecution stated could only have been heard straight after shooting her, proving that it was David, not his father who had pulled the trigger. The trigger of a rifle owned by David and kept in his room, and that, after the shootings had David’s fingerprints on it.

Despite all of the evidence against David, he had many supporters, helping him in his quest to be acquitted. It meant digging deeper into the Bain family’s past and exposing more secrets about the deeply disturbing world behind closed doors of 65 Every Street.

To prove David Bain’s innocence, his supporters had to prove that his dad, Robin, was the actual killer. They uncovered evidence that was not presented at David’s trial and managed to overturn his conviction. Today David Bain, once convicted of slaughtering his entire family, is a free man.

>>Intro Music

The Bains of 65 Every Street, Andersons Bay, Dunedin, was not quite the typical suburban New Zealand family. Most of the children were born in Papua New Guinea, where the family spent 15 years. Robin worked as a missionary, and a teacher and Margaret embraced local customs and practices. When they returned in 1988, their eldest son David was 16 years old. Although he was talented in performing arts, he struggled to conform to the academic structure of school in Dunedin. Although their parents were native to Dunedin, the kids were essentially foreigners, only ever knowing the life they had in Papua New Guinea.

Their home was a hoarder’s paradise, and chaos reigned. By June 1994, Margaret and Robin had become estranged. Robin was still a part of the family but was banished to live in a caravan in the garden. Some nights he stayed at the schoolhouse in Taieri where he was the principal. David was studying music and training to be an opera singer. Arawa was at college, working towards a qualification in teaching. Laniet was the only Bain child who did not live at home anymore, and besides working at a café, she sometimes made money as a sex worker – something she did not want her family to know. The youngest child, Stephen, was still at school.

On Monday morning, 20 June 1994, David came home after his paper round. Inside the silent house, he found his entire family had been killed. His rifle was next to his father’s body, and there was a one-line note on the computer, saying:

“Sorry, you are the only one who deserved to stay.”

At first glance, it looked like a typical family massacre, where, statistically speaking the father is usually the murderer. Especially if the father suffered from depression and was frustrated about his life, as Robin Bain was. He is a ticking time bomb, and all that is needed is a triggering event, like Laniet exposing his abuse of her.

However, David’s strange behaviour before and after the murders, as well as physical evidence from the family home, indicated that David was the killer. Despite that fact that Prosecution could never quite prove a motive for the murders, David was found guilty on five counts of murder and sentenced to life in prison.

As his trial neared an end, however, a shocking revelation came to light. Police learnt about a man called Dean Cottle, who was a friend of Laniet’s. In fact, Laniet’s phone was registered in his name, and the police felt that he was a significant person in her life, so they questioned him a couple of days after the murders.

Dean and Laniet had a complicated connection, with many people saying flat-out that he was her pimp. Others said he was more like a friend who paid for her phone and some other things in exchange for sex. Either way, Dean was close to Laniet, and she confided in him. He told investigators that when Laniet left her family home after high school, she worked as a sex worker. She had told Dean that her father had frequent sexual intercourse with her, starting when the family lived in Papua New Guinea. Laniet was only 13 when the family moved back to New Zealand, so this claim was very serious, especially considering her father was a teacher at the time. Not long before her death, she found the job at a café, hoping to make a new start. She told Dean that she was done with her family.

This evidence wasn’t heard at court during David’s trial. The judge pointed out that Dean ignored his subpoena, which made his testimony unreliable. Dean’s evidence was considered to be hearsay and thrown out of the case.

A month after the trial, with David in prison, Dean Cottle gave an affidavit, in which he provided information that could potentially have changed the outcome of the case. He said that, on Friday, 17 June, Laniet Bain told Dean that she was going home for the weekend to tell the family everything about her father’s abuse. She had had enough and wanted to put a stop to it.

Like the rest of Dean’s information, the jury at David’s trial never heard this information. It could have been the most damning evidence in pin-pointing a motive for Robin Bain to have killed his family.

After Dean’s post-trial evidence, more people came forward, corroborating his story. Laniet did not only confide in close friends, however, but poured her heart out to strangers. A local dairy owner, near Laniet’s Russel Street flat, said she off-loaded to him and confessed that she had been having an affair with her father.

In the week before her death, Laniet told a friend that she had given up being a sex worker and decided to only work at the café. She said she was going home to tell her family about working as a sex worker and that she was having an incestuous relationship with her father.

Dean Cottle understood Laniet was abused by her father, but the others clearly remembered her implying an incestuous affair. The question begs: why would Laniet occasionally live with her dad in Taieri if he was abusing her? Was she manipulated by him to such a degree that she felt a sense of duty towards him? Also, why did she always defend her dad when the rest of the family turned against him? David recalled that Robin paid Laniet’s rent when she moved out and that they often spoke to each other. He didn’t think much of it at the time, but in hindsight he had to wonder… It was indeed a shocking revelation, but with both parties dead, there was no way of confirming what was going on.

Three unrelated witnesses came forward: a friend of Laniet’s from Russel Street, a friend from Taieri as well as the Bain’s aunt, saying that it was David who had called the family meeting on that Sunday night, not Laniet.

A former teacher of Laniet’s bumped into her on that Sunday and remembered that she was agitated and nervous. She said that she was going home for a meeting and that she was scared of David. In another conversation, months before the murders, Arawa also told a friend that she was afraid of her brother.

Many people believed that justice was served that David Bain was the one who killed his family that day. Former All Black rugby player turned lawyer, Joe Karam, took an interest in Bain’s case and started a campaign to have his conviction overturned. He felt that David Bain’s case was one of the greatest miscarriages of justice ever in New Zealand.

In David Bain’s first appeal, his defence team demanded to know why Dean Cottle’s testimony was thrown out. The appellant judge ruled that the initial judge acted correctly and that the evidence was ‘clearly inadmissible’.

In New Zealand, the last resort for appeals is currently the Supreme Court. But because the crime and sentencing occurred before 2004, David could still appeal to the Privy Council in Britain. This is the highest court of appeal in certain British territories, like New Zealand, was before 2004. David Bain’s was the last New Zealand case ever heard by the Privy Council.

The Privy Council considered the Bain case in May 2007. David’s defence team, including Joe Karam, presented nine points of contention, showing – at the very least – reasonable doubt. The nine points were all pieces of vital evidence that were never raised during David’s trial back in 1995.

The first point the Defence raised, was the fact that Robin Bain’s mental state in the time leading up to the murders was never explored and presented to the jury. In fact, he was said to be a dedicated teacher, a devout Christian and a hands-on parent. However, president of the Taieri Principal’s Association, Kevin Mackenzie, had a different impression of Robin. He said that he had visited Robin’s school in Taieri after the murders. He was shocked when he discovered the disorderly state of Robin’s office. It was messy and dirty, and there were heaps of unopened letters and everywhere.

The most disturbing thing he found in the office was the most recent newsletter, sent out to all the families in the school. It included stories written by Robin’s students, all of which were brutally violent. The theme was serial murders of family members. Kevin felt that the kids were instructed to write these stories, is it was unlikely for them to have conceptualised it on their own. This, of course, is only speculation. Another psychologist felt that the theme could have been inspired by watching a film in class together. Either way, The fact that Robin published the graphic tales in the newsletter, was shocking – to say the least. In Kevin Mackenzie’s words, these stories serve as…

“…the clearest possible evidence that Robin Bain had lost touch with reality due to his mental state.”

Cyril Wilden, a teacher and psychologist, visited the small school from time to time and became aware of Robin’s troubles. He noticed that Taieri’s principal was becoming more and more disorganised, so much so, that Cyril concluded Robin was clinically depressed.

The second point raised to the Privy Council was the lack of motive in the case against David Bain. It was pointed out that evidence of Laniet’s alleged abuse was never heard by the court. Multiple witnesses corroborated the story that she was in an incestuous, abusive relationship with her father, Robin. One version of the story was that Laniet was pregnant after her father raped her and that she had had an abortion. This incident is said to have happened in Papua New Guinea, which meant Laniet was thirteen or younger. A witness claimed that Laniet had said:

“I can’t stand what he’s doing to me any longer.”

Laniet knew the whole family would be together on that Sunday night, whether it was David who arranged it or Laniet herself does not change the fact that Laniet saw an opportunity to speak up about the abuse. She had told Dean Cottle that she was ‘going to put a stop to everything.’

In response to the first two points, the Privy Council stated that:

“If the jury found Robin to be already in a state of deep depression and now, a school principal and ex-missionary, facing the public revelations of very serious sex offences against his teenage daughter, they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence… The jury might, not extravagantly, have felt that this evidence put a new complexion on the case.”

The third issue presented to the Privy Council was the footprint evidence. Bloody footprints, made by the right foot of someone wearing socks, started in Margaret’s room and went into Laniet’s room. The print was always considered to be David’s, as he was wearing socks that morning. The footprint measured 280mm. This is where the problem came in… Robin’s feet measured 270mm and David’s 300mm.

The evidence of the footprints became a much-contested aspect. If the Defense could prove that it was Robin’s, they could prove that he had changed his clothing before ending his own life. Which would explain the lack of blood on him when he was found in the living room. That would mean that he most likely placed the bloodied clothes in the laundry basket and that David inadvertently put it into the washing machine when he came home, dirtying his hand and causing the smudge on the box of laundry detergent.

Tests showed that, typically, a bloodied sock would make a print slightly larger than the foot, which means that if David had made the prints, it would have been larger than 300mm, there is no way it could have been smaller.

However, because police did not preserve the actual carpet, this vital piece of evidence was lost when the house was burnt down and could not be re-examined. The Privy council ruled that it was an assumption the print was made by David and that they could not exclude Robin as the person who walked between the rooms.

Another point of contention was the time the computer in the living room was turned on. In the Prosecution’s case against David, they argued that David had killed four members of his family BEFORE he left on his paper round at a quarter to six. He returned almost an hour later, at 6:42am. The computer was switched on at 6:44. This was considered to be the correct time during the first trial. However, on further investigation, experts agreed that it could have been turned on as early as 6:39 – when David wasn’t home yet.

This meant that it could reasonably have been Robin who had turned the computer on. On the other hand, the switch-on time could also have been later than 6:44, which meant it could only have been David. Either way, because of the contentious nature of the evidence, the Privy Council concluded that it should not have been used in proving David’s guilt.

The fifth point raised to the Privy Council was the exact time David arrived home. Having a definitive time stamp would have carried great relevance with regards to the computer switch-on evidence. A Denise Laney saw someone resembling David entering the front gate at 65 Every Street at 6:45am. She gave a second statement too, saying that the person had a yellow bag over his shoulder, like David’s delivery bag. She said she looked at the clock in her car, and it showed 6:50, but she knew it was set ahead of actual time. Police did a time check and concluded that it must have been 6:45. Denise Laney said that seeing David at the gate was further along the route than when she usually saw him, so she thought she was running late. But because the clock in her car was ahead, she was actually right on time.

Again, in a case where minutes could change the outcome, it is a pity that police officers did not time check David’s watch. The computer was switched on sometime between 6:39 and 6:40. David said he was home at 6:42, yet he was seen arriving home at 6:45. During the first trial, Denise Laney’s evidence was seen as an estimate and jurors were not informed that police conducted a time check on the clock in her car. The Privy Council felt that:

“The reliability of her time estimate was a matter for the jury, who never heard the full evidence and never heard Mrs Laney cross-examined because the defence did not know her clock had been checked by the police and did not know she had made a second statement. The fresh evidence might lead a reasonable jury to infer that her identification was not in doubt and her estimate of time reliable.”

The timing of David’s arrival at home was vital evidence. If he had arrived five minutes later, he could not have switched on the computer, it could only have been Robin. It would also make the long window of time between his arrival and the triple-one call shorter, fitting the story of his movements: he went to his room, kicked off his shoes and hung up the delivery bag. Then he went downstairs to wash his hands and start the washing machine cycle. From there, he went upstairs and only then did he check on his mother, found her body in her bed, then fled to the living room where he found his father.

Because of the layout of the house, he would not have walked past any of the bedrooms from his room to the laundry, so it was not strange that he hadn’t noticed the carnage as soon as he entered the house.

Point number six that was presented to the Privy Council was about the lens found in Stephen’s room. David Bain was short-sighted and always wore eyeglasses. In his bedroom was a frame and lens for the right side. The left lens was found in Stephen’s room. The main argument was that the lens had fallen out during David’s violent struggle with his younger brother.

David said that the glasses belonged to his mother. The family optometrist noted that the lenses were similar to a prescription he gave David two years before the crime. The optometrist did say it wasn’t identical, but the implication was made that it could have been David’s glasses. However, when the optometrist saw a photo of Margaret Bain wearing the exact pair, he said that he had made a mistake and that Margaret had a similar prescription to David. The optometrist read the transcript of his court testimony during the first trial and realised that the jury was not informed about the fact that he had corrected his initial statement.

The next point brought to the attention of the Privy Council was also related to the eyeglasses. Testimony by detective Weir regarding the lens in Stephen’s room was misleading. He said that the lens was lying on the floor, out in the open. In actual fact, it was under an ice-skating boot, under a jacket and covered with dust. David’s supporters believed the lens was planted in Stephen’s room by detective Weir. In the end, it was concluded that although Weir’s testimony was misleading, it was not done intentionally.

The frame and both lenses were tested, and no ‘blood, hair, human tissue or fingerprints were found on either’. So, it is irrelevant whom the glasses belonged to and where the lens was found, as it was not considered to be a piece of evidence in the murder case.

The eighth point discussed by the Privy Council was arguably the most damning evidence against David Bain: his bloodied fingerprints on the murder weapon. Five prints were on the forearm of the rifle. At the time of the first trial, it was assumed that the blood on the gun was human, however, when it was tested three years later, results indicated that the blood was not necessarily human – in fact, no human DNA could be detected. The defence argued that the fingerprint was more than likely an old one. David had hunted rabbits and possums a couple of months before the murders and could not recall cleaning his gun after that.

The last issue of the nine-points raised to the Privy Council was The Crown’s closing statement during the 1995 trial that only the killer could have heard Laniet’s gurgling sounds was misleading too. They said:

“Only one person could have heard Laniet gurgling. That person is the murderer.”

But this is not true. It could have occurred later. The defence showed expert testimony, saying that post mortem gurgling is a proven phenomenon.

After considering the entire case, the Privy Council reached a final conclusion, stating that:

“In the opinion of the board, the fresh evidence adduced in relation to the nine points … taken together, compels the conclusion that a substantial miscarriage of justice has actually occurred in this case.”

The Privy Council sent the case back to New Zealand courts, suggesting a jury – not an appellate court – consider ALL evidence in this case, including the Nine Points. They raised some arguments, stating that there was still a chance that David was guilty. Firstly, the spare key was used to unlock the rifle. Was there evidence that Robin Bain knew where David kept the spare key? Also, David’s blood on his opera gloves, which were found in Stephen’s room and needed to be explained. The timing of the washing machine cycle was contentious, as officers did not make a note if the machine was still going when they arrived. Also, David’s head injuries could not be explained. At the time of his death, Robin Bain had a full bladder – would he have committed these heinous murders without going to the toilet first? For these reasons, the Privy Council felt that a retrial was necessary and that David Bain had to remain in prison until the end of the retrial.

Despite this recommendation, the New Zealand High Court in Christchurch released David on parole on the 15th May 2007, into the care of Joe Karam. He had served 13 years of his life sentence.

Two years later, in June 2009, David Bain’s retrial commenced at the High Court in Christchurch. Again, the case garnered national attention. Spectators wore T-shirts printed in the same style as David’s colourful sweaters worn during his first trial. It became a much-discussed topic in bars, at BBQs and dinner tables across New Zealand. David Bain pleaded not guilty.

The Prosecution stuck to the original theory that David shot each member of his family in the pre-dawn hours of June 20th 1994. They also tried to prove that Robin Bain was NOT the killer. They questioned how the downtrodden Robin, who had been described by a friend as a walking cadaver, could have possibly killed his whole family.

The Prosecution also brought up the issue regarding David’s blood-stained opera gloves found in Stephen’s room. They questioned defence’s claim that Robin was the one who wore it. Why would he bother wearing gloves if he was planning on ending his own life anyway? It was also pointed out that the fingerprints on the rifle were not covered with blood. That indicated that David was holding the weapon, fired and blood splatter went over his hand to parts of the gun, but not where he was holding it. The prosecution stood firm in the opinion that the fingerprints were not made previously, but ON the day of the murders.

Something that came out during the autopsy was the fact that Robin Bain’s bladder was full when his body was found. His urine was dark, consistent with overnight build-up. The Prosecution did not think it was plausible that Robin went through the house, killing his whole family without relieving himself first. The argument was that Robin more than likely woke up, went into the place where he knelt down for his morning prayer in the living room before starting his day. A day that he would never get to live.

The defence felt that the urine-evidence was non-sensical. They argued that:

“There is medical evidence that people overlook any urge to urinate in a stress situation.”

Robin also had a slightly enlarged prostate, which is not uncommon for someone his age. The defence team consulted an expert urologist who claimed that the amount in Robin’s bladder, about a cup and a half, could likely have been leftover AFTER urination. This issue is one of the contentious points that many people will never agree on with regards to this case.

As for the fight with Stephen… Robin Bain did have injuries on his hand, yes, but they had begun to heal already. He had most likely sustained the injuries while doing repairs to the property on the Saturday morning. However, Australian pathologists were also asked to look at the wounds and came to a different conclusion. Joe Karam listed the findings in an interview with the New Zealand Herald on Sunday. He pointed out that both of Robin’s hands showed severe injuries.

“On his right hand: abrasion to the knuckle of the middle finger, back of ring finger and a large bruise to the area on the back of the hand to the rear of the middle finger. On the left hand: a big abrasion to the knuckle of the thumb, two abrasions to the left index finger, one at knuckle region and one at the top joint area.”

David Bain’s defence team firmly argued that Robin Bain was the one who killed his family before committing suicide. They pointed out that investigators only considered David as a suspect and did not collect and save evidence properly. It is not even clear if samples were ever taken of Robin’s fingernails. Blood evidence was found on his shoes and clothes, but this was never presented in court. Instead, the photo of his body was shown, and no blood evidence can be seen. However, forensic testing showed something interesting.

Robin also had two marks on his palm, consistent with reloading a magazine, which proved that he had handled the rifle. And although he was right-handed and the bullet-wound was to his left temple, it was not impossible – suicide could not merely be excluded because of statistics.

The defence brought in forensic firearms expert, Philip Boyce, who, in a dramatic demonstration proved to the court that Robin Bain could ‘quite easily’ have shot himself in the left temple with the rifle. He showed various positions: standing up with the gun on the floor, another time with the weapon on the chair and third option with the gun on the floor, and his knee on the chair to steady himself.

David’s defence team also conducted footprint tests with David Bain wearing socks, dipped in cow’s blood. He walked, and his prints averaged at 306mm, going as big as 312, but never under 300mm. The prints found at the scene were 280mm, much closer in measurement to Robin’s right foot, that was 270mm long.

On 27 May 2009, David Bain was acquitted of all charges after spending 13 years in prison. His was the most expensive trial in New Zealand’s history, totaling 1.2 Million New Zealand Dollars.

In 2012, Ian Binnie, a retired justice of the Supreme Court of Canada, reviewed the Bain case. He advised the New Zealand government that Dunedin police’s investigation was riddled with ‘egregious errors’ and that ‘extraordinary circumstances’ in the case, warranted a settlement to David Bain.

Binnie was right in calling out police mistakes. For instance, they did not test Robin OR David’s hands for gunshot residue on the morning of the killings. Scrapings from Robin’s fingernails were never analysed and destroyed. There could have been tissue from the fight with Stephen, proving that Robin was the killer.

The fact that Dunedin police agreed to have the crime scene burnt down so soon after the murders proved to be a dire mistake. The most crucial evidence that went up in flames was the carpet with the footprints. This contentious argument could never be conclusively settled because they could not re-test the original 280mm footprint. Also lost in the fire were Laniet’s diaries and letters to her mother. When police started to investigate the incest allegations, this could have been invaluable.

A police photographer and videographer said that the lens from the eyeglasses was in the bedroom before Stephen’s body was moved. He was convinced it had not been planted there after the fact. But the photos and videos had no timestamps, so there was no way to prove when they were taken.

Both Justice Binnie’s investigation and his interview with David Bain have been discussed widely. His recommendation has been criticised for being biased towards David Bain and described as an incomplete report that did not consider all the evidence. In fact, his advice was turned down by the New Zealand government.

A new report was ordered, this time from a retired Australian judge, Ian Callinan. This report contradicted Binnie’s findings and concluded that David Bain’s innocence had NOT been proven at the retrial. In the end, Bain received an ex gratia payment of $925,000, with the condition that he promised to never take any further legal action again. This payment was NOT made as compensation for a wrongful conviction, which means that the government were still skeptical about David’s innocence.

Shortly after David Bain’s retrial, controversy sparked yet again. The full recording of David’s triple-one phone call was released to the public. He is hysterical, and out of breath, and most of his statement is audible. But there was a small section where his speech became muffled. Experts tried to decipher what he was saying under his breath. One version was that David said:

“I shot the prick”.

…while another concluded that he said:

“I cannot breathe.”

Here is the full clip. What do you hear?

>>Insert audio

And this is the part where he either said “I shot the prick” or “I cannot breathe.”

>>Insert audio

One more time…

>>Insert audio

It is hard to interpret, and perhaps a matter of hearing what one WANTS to hear. This evidence was not strong enough to prove, without a doubt, that David was the killer. The court decided that it was inadmissible. Forensic consultants in New Zealand as well as in the UK concluded that it was merely the “meaningless exhalation of breath.”

After his acquittal, David Bain took a three-month trip to Europe, paid for by his supporters.

When he returned, he struggled to find a job, but finally landed a job at an engineering firm in Auckland in March 2012. In January 2014 he married a Christchurch school teacher, Liz Davies – the daughter of one of his supporters. One year later, they had a son. David Bain changed his name to William David Cullen Davies, taking his wife’s last name, and including his mother’s last name.

Despite his acquittal, David Bain’s case still divides the country. Many books have been written, all studying the same evidence, and coming to different conclusions. Joe Karam, Bain’s fiercest defender, has written four books himself.

Robin Bain’s brother Michael has come out in his brother’s defence. He felt that the allegations against Robin were hearsay and felt the police did a proper job by arresting David after the murders. Well-known New Zealand investigator, Brian Bruce launched a special investigation into the Bain Murders and concluded that Robin was innocent. Bruce went so far as to make tribute videos for Robin and Laniet, saying that he believed their reputations had been tarnished after their deaths and he wanted to restore their dignity.

Over the years, some people’s opinions about the Bain Murders have changed, others remained steadfast. All that we can say for certain is that the members of the Bain family did not deserve to die. If Robin was the killer, it was a cruel gesture to leave his son alive to face the music. But if he was in such a state of depression that he had killed everyone else, who is to say that he had any logical thoughts.

If David was the killer, he made many mistakes, pointing the investigation straight to him. Despite his strange behaviour before and after the murders, more than one psychologist have found no signs of mental or personality disorders in David, other than post-traumatic stress after the shootings. That was in keeping with someone who had discovered his entire family slaughtered, not of a sociopathic killer.

In a case that is every bit as messy and cluttered as the Bain family home on 65 Every Street, Andersons Bay, there will always be a question mark over the outcome. If only those walls could talk before they were burnt to cinders. The secrets of the family home went up in smoke, up to the heavens, along with its residents.

If you’d like to read more about this case, have a look at the resources used for this episode in the show notes.

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