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 a terribly flawed police forensic investigation at the outset which impacted hugely on Bain's ability to defend himself at trial - and is just one factor which backs up Bain's well justified claim for compensation. Justice Binnie's deals with this aspect of the case in a section of his report headed "Remaining issues concerning the physical evidence relating to Robin." I have reprinted this section below following a section from the Wikipedia page on David Bain, which I have included for context.
Harold Levy: Publisher. The Charles Smith Blog.
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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:
http://en.wikipedia.org/wiki/David_Bain
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450. The Police were initially of the view based on the scene investigation that this was a case of murder/suicide by Robin. As Det. Sgt Doyle stated: “Our initial assessment looking at the situation was that Robin was the killer, so it was on that premise that we looked at Robin”.266
451. However, the Police seem not to have looked very hard at Robin. They overlooked sampling, or if sampled failed to test, and if tested then failed to preserve, relevant material from the crime scene.
i. Failure to record properly the injuries to Robin’s hands. David Bain alleges such injuries were consistent with Robin getting into a fight with Stephen. A defence dental expert said marks on Robin’s fist were compatible with being made by Stephen’s teeth (although this evidence, based on photographs, is necessarily speculative);
ii. Blood stains on Robin’s hands were either not sampled at all, or were sampled but not tested, and the samples then wrongly destroyed on the instructions of Det. Sr Sgt Doyle;
iii Finger nail scrapings from Robin which might if tested have yielded evidence that Robin had been in a fight with Stephen were never analysed, even though they were still in the possession of the Police at the time of the 1995 trial;
452. The Bain team suggests that Robin’s guilt can be inferred from physical evidence at the scene that was not tested. I agree with the Crown Law Office that none of this evidence was probative of Robin’s guilt. On the other hand, it underlines the ineptitude of aspects of the 1994 Police investigation.
453. The failure of the Police to even attempt to identify the source of the blood on Robin’s
hands, at least to the extent of submitting the evidence to the Victoria Forensic Science Centre, in 1995 is particularly puzzling in light of the importance of this information acknowledged by Det. Sr Sgt Doyle:
Q. Come back to the blood samples on Robin Bain’s hands. You do agree with me don’t you that clearly an explanation was required somehow as to where that blood came from ?
A. Correct.
Q. Pardon?
A. Correct.
Q. The position today is that we will never know and can never know whether that was Stephen’s blood or Laniet’s blood can we, we can never know?
A. Correct.267
454. The Crown Law Office says, appropriately enough, that is impossible to know whether “lost evidence” would have favoured the prosecution or the defence. It suggests the bruises and markings had more to do with Sunday gardening than a fight with Stephen (para 265.) The point is that in many instances the evidence that was not tested ought to have been tested, and the evidence that was wrongly ordered destroyed by Det. Sgt Doyle on 26 January 1995, or burned in the fire of 7 July 1994, ought not to have been destroyed. The Police, having made serious errors of judgment in this regard, are in no position to speculate that the evidence thus destroyed would have been of no consequence, or been of no help to exculpate David Bain.
455. It is apparent that there were serious limitations on the capacity of ESR in 1994 to
perform sophisticated blood tests. Det. Senior Sgt Doyle said that in cases where tests were
not done perhaps the lack of expertise of ESR (and not a more sinister interpretation) might be the explanation. However prior to the 1995 trial, Chief Inspector Robinson (the officer in charge of the entire investigation) took a number of samples for testing to the forensic laboratory in Melbourne. In particular he took two samples which were thought might provide evidence useful for the prosecution. Chief Inspector Robinson did not take other items of evidence which ESR had apparently found not to be capable of being tested in New Zealand, but which might have produced a result in Melbourne, and might in that case have helped exonerate David Bain. We will never know. These examples include a blood sample taken from Robin Bain’s hand (Exhibit 97) and scrapings taken from under his finger nails (Exhibit 51) which if properly analysed might have implicated Robin Bain in the murders.
456. If for example (and it is a big “if”) the stains on Robin’s hands were shown to be in Stephen’s blood, then it was conceded by the Crown Pathologist Dr Alex Dempster that this would clearly point to Robin’s guilt. Equally, if Robin’s nail scrapings could be traced to any of the victims, it would point to Robin’s guilt.
457. The Crown Law Office submits that the Bain team’s “what might have been” submission is all conjecture and speculation. This is true. The point is however that speculation and conjecture would not be necessary if the Police had done their job properly. The potentially exculpatory samples once seized by the Police ought to have been properly tested either by the ESR in New Zealand, where possible, or in the alternative at some larger facility in Australia, such as the Melbourne Police Forensic Science Centre. Further, if the crime scene samples had not been prematurely and improperly destroyed on the instructions of Det. Sr. Sgt Doyle on 26 January 1996, they would have been available for the much more sophisticated DNA testing available before the 2009 retrial.
Justice Binnie's full report can be found through the following link:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10853771
PUBLISHER'S NOTE
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.
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:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.
Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com
Harold Levy: Publisher; The Charles Smith Blog.
