Thursday, December 20, 2012

(6 0f 7). David Bain. NZ. Publisher's view; Time to take a closer look at content of Justice Binnie's report. The "amateurish" behaviour of police in checking out David Bain's alibi; An "egregious" instance of the failure to properly investigate the possibility of innocence.

PUBLISHER'S VIEW:  Much of the reporting following the release of Justice Ian Binnie's report recommending compensation for David Bain has focussed on the political implications of the report - as opposed to its content. The content is, however,  of prime interest to this Blog because Justice Binnie details the "amateurish behavior of the police in checking out David Bain's alibi" and labels it an egregious instance of “failure to take proper steps to investigate the possibility of innocence” within the terms of the Minister’s letter."  This disturbing finding,  considered with all too many others,  illustrates the crying need for New Zealand to compensate David Bain  - as Justice Binnie recommends - for his lengthy  ordeal.

Harold Levy:  Publisher. The Charles Smith Blog.


CONTEXT: Wikipedia: "Killings and first trial: " By 1994 Robin and Margaret were estranged and Robin was sleeping in the back of his van at Taieri or in the schoolhouse. David Bain and the rest of the family lived at 65 Every Street, Andersons Bay, Dunedin. Robin returned to the family home at the weekends and slept in a caravan in the back garden. Robin was said to be in an incestuous relationship with his daughter Laniet that began when the family were in Papua New Guinea, and was still going on. Fellow teachers later described him as "deeply depressed, to the point of impairing his ability to do his job of teaching children".  On the morning of 20 June 1994, David Bain called 111 at 7:09 am in an apparently distressed state and told the operator: "They're all dead, they're all dead." When the police arrived at Every Street they found five members of the Bain family had been shot – Robin Bain (the father aged 58), his wife Margaret, their daughters Arawa (19), Laniet (18) and son Stephen (14). Four days later, David Bain, then aged 22, was charged with the murder of all five members of his family. On 5 July 1994, the house was burnt down by the New Zealand Fire Service, at the request of the trustees of the Bain family trust. At his trial the prosecution claimed that David killed his entire family after completing his early morning paper round– though no motive or explanation as to why David might want to kill them was provided. The lack of motive confused the presiding judge who in his summing up said the Crown had told the jury "... that these events were so bizarre and abnormal that it was impossible for the human mind to conceive of any logical  or reasonable explanation". One piece of evidence was a message found typed on the family computer that read: "sorry, you are the only one who deserved to stay". The defence used this to put forward the proposition that David’s father, Robin Bain, had killed the others while David was out on his paper run – and then committed suicide. After a three week trial David Bain was convicted by the jury on five counts of murder and sentenced by Justice Williamson to life imprisonment with a 16 year non-parole period.

The entire Wikipedia page can be found at:


(i) Failure to take proper steps to ascertain the “timing” relevant to the alibi defence

560. A central clock was maintained at the Dunedin CIB and regularly checked for accuracy against Telecom time.304 The detectives had the resources ready at hand to get the time correct.

561. It was apparent once the Police had interviewed David Bain on the morning of 20 June, and heard that he had been out on his paper route from 5.45 am until about 6.45 am, that there was an alibi issue to deal with. The precise timing of his return would be a critical issue.

562. Yet various different lines of Police inquiry aimed at establishing or debunking David Bain’s “window of opportunity” were carried out by different Policemen using different watches which were not synchronised either to Telecom or to each other. This confusion has hindered all subsequent efforts to tie down the precise sequence of events.305

563. In my interview with Det. Sr Sgt Doyle in Dunedin he acknowledged that this aspect of the Police investigation was “amateurish”. Extracts from my interview with him are as follows, (although reference should be made to the transcript found at Tab E of the Book of Documents for the full context of his answers.)

Q. David Bain says that, “He looked at his watch at the corner of Heath Street and Every Street and it was 6.40,” and then at some other point he says, “it was exactly 6.40.” And so far as I can determine on the record, I can’t find that his watch was ever tested for accuracy.
A. That’s correct. (p. 23)
Q. Although it is treated as a fact. Then there’s this issue with Denise Laney and as you would remember she is the lady who was, thought she was late for her job at the rest home and her clock said 6.50 and she knew it was five minutes fast. Now that clock was tested but according to the PCA report they didn’t bother to look at the accuracy of the watch that was being used to test it?306
A. Sure. (pp. 23‐24)

564. At this point Det. Sr Sgt Doyle made reference to the fact the Police didn’t hear the washing machine running when they were searching the house:

Q. So on the computer aspect, leaving aside the washing machine for the moment, we have Detective Anderson who is assigned to deal with Mr Cox and doesn’t really seem to have much of an idea of what Cox is up to or why he is doing it ‐
A. Sure. (p. 26)
Q. … I would have thought one would set out to identify a Policeman who had some understanding of what was being examined that, given the object of the exercise was to identify time, that a person would have been picked to have a watch that, if it didn’t have a second hand, would at least demarcate itself in minutes – [This was in reference to the evidence that Det. Sgt Anderson’s watch did not have a hand to indicate seconds, and nor did it have marks for individual minutes beyond the standard five minute intervals.307]
A. Oh, I totally agree with you on that and I can’t disagree.
Q. Yes, and ‐
A. It surprised me and disappointed me that that did not occur. I would have thought that a trained detective would have had enough savvy to have taken that on board. (p. 26)

565. Det. Sr Sgt Doyle emphasized that in 1994 computers were much less common than today and that the Police work had to be viewed in that light.

Q. … you’ve got a very serious murder investigation, five dead people, and you’ve got some evidence that is either going to put David Bain in the [Every Street] house at that time, the relevant time, or possibly exclude him and the thing is conducted with what seems, on the surface to be a pretty amateurish approach.
A. Oh, I think, looking back in hindsight, that it was amateurish. I can’t disagree with that. I, I would like to think that, well I’m sure that would have been done better now if the same thing occurred today, I’d expect it to be.
Q. But don’t you think by the standards of the day that this was a pretty poor performance?
A. It would be very easy to say yes but I don’t think this is as simple as that because I think that we were dealing with a totally new arena. The fact that the initiative was even used to go and try to determine that what time the computer was turned on and that probably, I certainly know of my own knowledge of computers at that stage, it wouldn’t have even crossed my mind. Someone had, had brought that up and said, “Let’s try it.”
Q. But if somebody had the sense to undertake the job why wasn’t it done properly in terms of accuracy of timing? (p. 27)
A. I can’t answer that Sir. I, I agree that it should have been done better and that’s about all I can say about it. (p. 28)

566. The Joint Police/Police Complaints Authority report expressed the same concern but, as was its style, looked more to the future than to judge the past. We conclude this section by commenting that the timing of the paper round, the time the computer was turned on, and the duration of the washing
matching cycle were all very important aspects of the case. We emphasise the necessity for accurate time measurements to be kept and made in criminal investigations. (para. 132)

Comment: The amateurish behaviour of the Police in checking out the alibi seems to me an egregious instance of “failure to take proper steps to investigate the possibility of
innocence” within the terms of the Minister’s letter.

Justice Binnie's full report can be found through the following link:


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The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:

Please send any comments or information on other cases and issues of interest to the readers of this blog to:

Harold Levy: Publisher; The Charles Smith Blog.