R v Bain HC CHCH CRI 2007-412-000014

[2008] NZHC 2307

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN PARA [56] ) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-412-000014

REGINA

v

DAVID CULLEN BAIN

Hearing:         19 March 2008

Counsel:         K Raftery for Crown

M Reed QC and P A Morten for Defence

Judgment:      7 May 2008

DECISION OF PANCKHURST J (RE CHANGE OF VENUE)

The venue for trial

[1]      Mr Bain applies for a change of venue in relation to his retrial upon five counts of murder.  The essential basis of the application is that a trial in Dunedin would entail the real risk that jurors may be selected who believe themselves to possess information relating to the case, or that jurors may have contacts or information which predisposes them to feel sympathy for one or more of the victims. Although  the  relevant  events  occurred  in  June  1994,  counsel  for  Mr  Bain  also

contended   that   ongoing   local   media   coverage   in   Dunedin   had   been   more

R V DAVID CULLEN BAIN HC CHCH CRI 2007-412-000014  7 May 2008

pronounced, and more parochial, with the result that there was a heightened risk on account of predisposition or empathy in that community.

[2]      I shall first refer to the principles which necessarily inform a judgment concerning whether a change of venue is expedient, or not.   Then, after passing reference to the history of this case, I shall return to the rival contentions concerning what I have identified as the essential basis advanced in support of the present application.

Principles relevant to change of venue

[3]      Section  322  of  the  Crimes  Act  1961  governs  the  jurisdiction  to  order  a change of venue in relation to a criminal trial.  The test is whether “it is expedient for the ends of justice” that the accused should be tried at some place other than the court  of  committal:  s322(1).    This  section  requires  a  broad  interests  of  justice exercise of judgment.

[4]      That exercise of judgment is informed by indigenous case law, much of which is well-known.  I need not, therefore, make extended reference to authorities.

[5]      It is not appropriate to place a gloss upon the words of the section.  What is expedient in the interests of justice is to be judged according to the ordinary meaning of those words.   While pronouncements, or observations, contained in other cases might provide useful guidance in some circumstances, care must be taken not to elevate them to the status of principles limiting the broad scope of the statutory test. It follows that a case specific inquiry is necessary.

[6]      The starting-point is that other things being equal the ends of justice will be served if trials take place where the crime is alleged to have been committed.  This reflects both the convenience and savings which flow from a local trial, but also, and more importantly, the accepted perception that it is best if justice is done, and seen to be done, in the community where the crime occurred.

[7]      Accordingly, the party seeking a change of venue must show that there is a real risk that a fair and impartial trial may not be possible at the place where the events occurred.  In order to address this question a broad evaluatitive assessment is required extending to the nature of the crimes, the identities of the victims, the breadth  and  impact  of  the  police  investigation  and  the  size  of  the  community, amongst others.   Factors directly relevant to the attainment of a fair trial are also pertinent, including the size of the pool from which jurors will be drawn, the obligation of disclosure which ensures that persons involved in the investigation can be identified, the safeguards which attend jury selection and the ability of a trial judge to direct a jury in emphatic terms.

[8]      Given that the focus of the present application is upon a suggested risk of local prejudice, or local empathy, it is helpful to refer to two cases upon which particular reliance was placed.

[9]      The first is the seminal case of R v Davis [1964] NZLR 417, a decision of a Full Court. It concerned a second application for change of venue in relation to a murder trial at Nelson. The victim was a well-known member of the community. The arrest of the accused was preceded by an extensive police investigation in which of the order of 5,000 people were spoken to. At 421 the Court said:

It  is,  of  course,  obvious  that,  in  the  majority  of  cases,  the  persons interviewed would have no [more] information regarding the crime or the reasons for the accused’s being charged with committing it than any other member of the community, but there seemed to us to be a real possibility, in the nature of things, that information of that sort would have been conveyed to  some  at  least  of  those  persons  and  might  well  have  been  retailed, accurately or otherwise, to others who might be members of the panel.  All in all, we could not feel satisfied that if the trial were held in Nelson, the accused did not run a real risk of being tried by a jury which would include some one or more members who believed themselves to be possessed of information prejudicial to the accused.

The three member Court unanimously concluded that it was expedient for the ends of justice to transfer the trial to Wellington.

[10]     R v Mayer-Hare [1990] 2 NZLR 561 (CA) concerned what I have termed the risk of local empathy. The accused was charged with offences of dishonesty, involving approximately $1.5m, at Tauranga. There were about 40 victims, who

were elderly and some of whom had lost their life savings.  In the District Court a change of venue was refused.  In delivering the judgment of the Court of Appeal by which a change of venue was granted Casey J said at 563:

…  in the relatively small Tauranga jury area, it would be certain that the plight of [the] complainants would have been widely discussed, and details of their losses and the affects on them and other circumstances adverse to the accused  would  filter  down  from their  immediate  circle  to  many  others. There would be a real risk of several jurors being affected to the stage of “knowing all about” one or more of the complainants from friends of friends and feeling in some way personally involved, and although such a juror could honestly persuade himself or herself of an impartial mind, he or she could not help starting from a position of sympathy for a known innocent victim.

On the preceding page the Court said this:

We have no doubt that responsible jurors would invariably feel that they approach their task in this  way [in  an  objective  and  calm fashion],  but nevertheless it must be acknowledged that even the most sincere can be affected – not always consciously – by the social environment in which they live, and by events which may bring them in some way closer than ordinary members of the public to the problems and feelings of those who may have been affected by an accused’s conduct.

Some background to the circumstances of this case

[11]     The background to, and circumstances of, this case are so well-known that reference to them is probably redundant.  However, certain features are particularly relevant, and I shall mention these in order to elevate them above the other information which is in the public domain.

[12]     Five members of the accused’s family died on 20 June 1994.  The accused is charged with their murder.  The accused’s father, Robin Bain, was aged 58 years. He was the principal of Taieri Mouth Primary School and had resided in Dunedin for several years prior to his death.  From 1973 to 1988 he undertook missionary work in Papua, New Guinea.   After return to Dunedin Mr  Bain was involved in the community, including his participation in a male choir.

[13]     Margaret Bain was aged 50 years when she died.  The evidence indicates that she was a woman committed to the welfare of her children.   The Privy Council

judgment (Bain v R (2007) 23 CRNZ 71) refers at para [2] to her having “inclined towards the occult” following the family’s return from Papua, New Guinea.

[14]     Arawa was aged 19 years and studying at the Dunedin College of Education at the time of her death.  Previously she had attended Bayfield High School where she was a capable and popular student.

[15]     Laniet was aged 18 years.  She too had attended Bayfield High School.  Her interests included water polo and photography.  After leaving school she undertook a nannying course and had subsequently worked in childcare.  Evidence to be given at the trial will suggest that she was involved in an incestuous relationship with her father.

[16]     Stephen, aged 14 at the date of his death was also a student at Bayfield.  He played cricket and played trumpet in an orchestra and in a jazz band.

[17]     David Bain was aged 22 in 1994 and a student at Otago University studying music at stage 1 level.  He was involved in operatic productions in Dunedin, as well as being a member of the same male choir as his father.

[18]     The funeral of the five family members occurred at First Church on 25 June. The Otago Daily Times published a large article concerning the funeral.   Sixty members of the Royal Dunedin male choir sang at the service.  The musical tributes chosen for each family member were detailed.   There was also reference to the tributes paid to each of the deceased.

[19]     A preliminary hearing began in the District Court at Dunedin on 26 October

1994.  It occupied three days in that month and a further single day in December, when certain expert evidence was completed, and David Bain was committed for trial.

[20]     The trial lasted from 8-29 May 1995.   About  80  witnesses  were called. Towards the end of the trial Williamson J gave a ruling concerning the admissibility of evidence which the defence wished to call from Dean Cottle.   The proposed

evidence was to the effect that about 10 months prior to the killings Laniet had told Mr Cottle that her father was having sex with her.   Although this evidence was hearsay, the Judge considered it relevant to motive (“a primary issue in the case”), but declined to let it in because of concerns as to Mr Cottle’s reliability.  The trial Judge was required to give a second ruling on 26 May, after the prosecutor had completed his closing address, and at a time when Mr Cottle had surrendered in answer to a warrant of arrest, he having previously failed to answer a subpoena.  At that late point in the trial, Williamson J adhered to the earlier ruling.  Accordingly, evidence said to indicate a possible motive to Robin Bain was not heard by the jury.

[21] The refusal to admit Mr Cottle’s evidence was the principal ground of appeal at the first Court of Appeal hearing in December 1995. The appeal was dismissed ([1996] 1 NZLR 129 (CA)).

[22]     In April 1996 a petition for leave to appeal to the Privy Council primarily based upon the same evidential ground was heard, but also dismissed.

[23]     In April 1997 Joe Karam launched his book “David and Goliath” in which he concluded that David Bain had been wrongly convicted.   In June, James McNeish published “Mask of Sanity”, in which he reached an opposite conclusion.

[24]     On account of criticisms which surfaced concerning the investigation of the case, the Commissioner of Police directed an inquiry be conducted by an assistant commissioner into the police handling of the murder investigation.   In November

1997 the results of a joint police and Police Complaints Authority inquiry were released.  No major flaws in the police investigation were found and criticisms of police incompetence were found to be unjustified.

[25]     In June 1998 a petition was presented to the Governor General seeking an exercise of the prerogative of mercy and a pardon for David Bain.

[26]     In June 2000 a defamation claim brought by two Dunedin detectives, one since retired,  against  Mr Karam  was  heard  before a jury in  the  High  Court  in Auckland.  Damages were not awarded.

[27]     In December 2000, following consideration of the petition seeking a pardon, the Governor General referred six questions to the Court of Appeal for its consideration.  These concerned four factual issues arising from the conduct of the first trial, and general questions concerning whether the factual issues, individually or collectively, could reasonably have led a jury to return a different verdict and whether there was a possibility of a miscarriage of justice such as to warrant a second appeal to the Court of Appeal.

[28]     In October 2002 during a hearing over several days the Court considered the evidential issues (with 13 of 42 deponents being orally questioned).   It concluded that in light of the conclusions reached as to the four factual questions, there was a possibility of a miscarriage of justice.

[29]     Accordingly,  the  case  was  referred  back  to  the  Court  of  Appeal  by  the Governor General in February 2003.  The second general appeal was heard by the Court  over  five  days  in  September  of  that  year.    In  a  judgment  delivered  in December 2003 the Court concluded that any reasonable jury considering the new evidence then advanced, along with the old, would still find David Bain guilty.  Thus the Court was not persuaded that there had been a miscarriage of justice: [2004] 1

NZLR 638 (CA).

[30]     Subsequently a second leave application to the Privy Council was filed.  In June 2006 leave to appeal was granted.  The appeal itself was heard in March 2007 over a period of five days.  On 10 May the Privy Council delivered its judgment, finding that the appeal should be allowed, the convictions quashed and a retrial ordered.  However, their Lordships observed that it remained the duty of the Crown to decide whether a retrial was in the public interest.   In June 2007 the Solicitor General determined that it was, and preparation for a second trial began.

[31]     These events (and many others which I have not mentioned) received close media attention.  The coverage was nationwide.  With reference to the coverage in Dunedin, articles published in the Otago Daily Times from June 1994 to February

2008 were produced for use in this hearing, by consent.

[32]     An affidavit sworn by Mr Karam said that 395 articles appeared in the Otago Daily Times over this period.   Comparative figures were also supplied as to the number of articles published in the Christchurch Press, the New Zealand Herald and the Dominion Post, but unfortunately these did not cover the exact same time period. For example there were 224 articles published in the Christchurch Press between July 1996 and February 2008.  Nonetheless, I think the trend is clear, namely that newspaper coverage at least has been more intense in Dunedin.  Also, in my view, the Otago Daily Times’ articles include an element of local flavour not to be found in articles appearing in the other metropolitan dailies.

The rival contentions as to change of venue

[33]     I have already referred to the gist of the defence argument.  Mr Morten, who made submissions concerning the more factual elements of the issue, submitted that the local newspaper coverage exhibited a “defensiveness about the case”.  Although the  style  of  writing  was  not  criticised,  the  subject-matter  displayed  a  local perspective which reflected concern for members of the extended Bain family, concern and implied support for local police officers (whose actions were the subject of criticism) and studied interest in the retrial itself, evidenced by articles containing opinions of a law professor, a barrister and others concerning the correct interpretation of the Privy Council decision.

[34]     In essence, Mr Morten contended that the print media coverage of the case in Dunedin exhibited a sensitiveness about, and local interest in, the case considerably beyond that in other main centres.  The detail of the newspaper articles was said to provide confirmation for the contentions that a jury trial in Dunedin would entail a real  risk  of  the  presence  of  jurors  who  believed  that  they  possessed  “local knowledge” or a risk of empathy for the Bain family compromising the minds of jurors, despite jurors’ best efforts to the contrary.

[35]     Mr Raftery stressed that this case is unique for the fact that it has received perhaps unprecedented coverage from the print media, in books and on television, including in documentary programmes.  The case was not, he submitted, one where local media attention marked Dunedin apart from the rest of the country since “the

average New Zealander is as well-informed or ill-informed as the average resident of Dunedin”.   Therefore, Mr Raftery contended, there was no basis upon which to apprehend a risk that jurors drawn from the pool available in Dunedin would come to the task believing that they were in possession of local knowledge.

[36]     With reference to the contention of local empathy counsel contended that this was not a case where the victims were members of a well-known or prominent family in the Dunedin community.   Rather, the evidence suggested they were relatively private.   If the deceased were little known in the greater Dunedin community in 1994, then it was to be expected that any risk of local empathy was diminished, if not gone, in 2008.  Accordingly, the normal approach, that the trial of crimes should occur in the community where they occurred, applied equally in this case.

A risk of “local knowledge”?

[37]     It must be said that this case will involve an unusual level of difficulty in ensuring that an impartial jury is chosen.   The case has excited an unusual, if not unique, level of   interest.   Views are markedly divided.   But, that said, I do not suggest that it will not be possible to empanel an impartial jury.   The question at present is whether there is a real risk that a jury comprised of Dunedin citizens may not be impartial?

[38]     Mr Karam’s affidavit contained the estimation that up to 1,000 people must have been interviewed by the police in relation to this case, being mainly residents of Dunedin.  He also noted that up to 50 police officers were involved in the original investigation, and that media reports indicated a team of 25 detectives were involved in preparation for the retrial.

[39]     Detective Inspector Ross Pinkham, the officer in charge of the retrial, made an affidavit, but its focus is upon the costs likely to arise from a change of venue.  He did not comment upon the number of people interviewed in 1994, or subsequently.

[40]     More witnesses are to be called at the retrial than was the case at the original trial.  At present there are 136 Crown witnesses.  Of these 52 are civilian witnesses, and 24 are police witnesses, from Dunedin.   There are also five witnesses from Invercargill and seven from Central Otago.  The remaining 48 witnesses come from throughout New Zealand, or from overseas.  Detective Inspector Pinkham refers to the population of Dunedin city as in the region of 120,000 people.

[41]     For convenience the Crown witnesses have been grouped under headings. These include: paper round sightings, optometry, background sightings, neighbours, Robin – school background, choir background, David Bain background and post event – family.  These headings convey something of the spread of witnesses drawn from the local community.  In addition there are any number of police officers and ambulance officers who will give evidence of the investigation generally, and of the events on 20 June 1994, respectively.   The witnesses from the extended family supply evidence of both family history and  concerning occurrences  in  the  days immediately after the tragedy until David Bain was arrested on 24 June.  During this interval David Bain resided with his maternal aunt, step uncle and two cousins. Three members of this family are to give evidence concerning his conduct and conversation over this period.

[42]     It is evident from the Privy Council judgment that four or more witnesses (other than Dean Cottle) are likely to give evidence concerning the allegation that Robin Bain entered into an incestuous relationship with his daughter Laniet.  These too are local people, being a shop-keeper, a woman who ran an escort agency, a university student and Laniet’s prospective employer.

[43]     Inevitably, and obviously, much of the evidence in this case has a distinctive Dunedin flavour to it.   What is more, elements of this local evidence are highly contentious, and featured in the Privy Council decision that new evidence (obtained since the first trial) required that the convictions be quashed and a retrial ordered.  In these circumstances I am concerned that it will be a considerable challenge to find a jury of Dunedin citizens who can sit in judgment uninfluenced by some element of prior knowledge  about the  case,  or  about  witnesses  in  the  case,  particularly by comparison to a jury drawn from the citizens of one of the other metropolitan areas.

[44]     Ordinarily  the  circumstance  that  almost  14  years  has  elapsed  since  the relevant events occurred would provide considerable (perhaps complete) assurance that an impartial jury could be empanelled.   But this case is not in that category. Indeed, my appreciation is that prospective jurors are much more likely to have knowledge of particularly the contentious aspects of the evidence today, as opposed to in 1995 at the time of the first trial.  The process of appeals, publication of books, petitions and most recently the Privy Council decision, has ensured as much.  There has been no opportunity for collective memory to fade.  The reverse is the case.  The Otago Daily Times’ articles, I think, confirm this to be the case.

[45]     For these reasons I am of the view that there is a real risk that a jury drawn from Dunedin will be afflicted with members who consciously, or unconsciously, are influenced by local knowledge of one sort or another.  I am also concerned that real scope could exist for jurors to be selected who it would prove, perhaps some distance into the trial, have a connection with a witness which renders it inappropriate for them to serve.  Although of course steps will be taken to avoid this risk, I consider that the necessity for evidence to be given from so many local sources will provide the opportunity for mishap, regardless of the safeguards adopted at the commencement of the trial.

Is there a real risk of local empathy?

[46]     The submissions concerning this aspect represented opposite sides of the same coin.  The defence contended that there was real scope for victim empathy to intrude.  The Crown contended not.  Here, it seems to me, the fact of delay is much more significant.  It can hardly be said that, as with local perception concerning the evidence, empathy is likely to have heightened.  The opposite will more probably be the case.

[47]     There is also cause to pause given that this case proceeded to trial in 1995 in Dunedin and without (so far as I am aware) an application for change of venue even being considered.   If there was a major concern, one might have expected an application at that time.  But, that absence does not relieve me of the responsibility of considering this aspect.

[48]     It does seem to me that particularly in 1995 there must have been a risk of victim empathy intruding in the minds of jurors.   Even  accepting Mr Raftery’s submission that the Bain family was not well-known or prominent in the community, the fact remains that five people died, three of whom were 19 years of age or less. The Otago Daily Times’ article concerning the funeral gives some sense of the impact which this tragedy had on the community at the time.

[49]     But, of course, time has moved on.  Students of Bayfield High School, the College of Education and the University of Otago will now be men and women a distance removed from previous associations.  Many will have left the Dunedin area.

[50]     It also seems to me that empathy may be less intrusive than prior knowledge relating to some aspect of the evidence or some knowledge of a witness.  But for all that  I consider that  there  is  some  risk,  although  probably not  a  real  risk,  with reference to securing an impartial jury in Dunedin on account of empathy.   This aspect, therefore, is most relevant in the sense that it adds to the concern I have already discussed arising from the real risk of jurors being selected who perceive they have knowledge concerning the facts of the case.

[51]     Given my conclusion (para [45]) that there is a real risk that a jury drawn from the Dunedin area would not be impartial in the necessary sense, it is expedient in the interests of justice for a change of venue to be ordered.

What is the appropriate substitute venue?

[52]     The fall-back position of the Crown was that if  a change of  venue  was ordered, Christchurch was the preferred option.  The Dunedin police have the benefit of a comparatively recent example of a change of venue to Christchurch.  Detective Inspector Pinkham’s affidavit assessed the added cost of a retrial in Christchurch as compared to Dunedin.  Mainly on account of the expense involved in transporting and accommodating witnesses from the Otago - Southland area and the  cost in establishing a police presence away from Dunedin, a figure of about $400,000 was assessed.  However, the calculation took no account of savings which may accrue in

relation to other witnesses, for whom travel to Christchurch may be more convenient and less expensive.

[53]     Mr Reed QC in making submissions with reference to this aspect urged upon me the view that Auckland was the most appropriate place of trial.  He contended that Auckland would better suit the convenience of expert witnesses, that Christchurch was too close to Dunedin (producing the risk of a “flow-on” effect) and that the larger jury pool in Auckland represented an advantage.   As to that the eligible pool in Dunedin is about 85,000 of whom 10,000 are randomly selected each month for the jury pool.  The comparable figures in Christchurch are 283,000, from which a monthly pool of 15,000 is selected.  The eligible pools in Wellington and Auckland appear to be about 230,000 and 756,000, respectively.

[54]     I reject the flow-on effect submission.  Dunedin and Christchurch are distinct and separate communities.  With reference to expert witnesses I doubt that either of the three main metropolitan areas commands a particular advantage.   There are a number of New Zealand experts from each of Auckland, Wellington and Christchurch; and other places as well.  There are also a number of Crown experts from Australia (and possibly from further afield), but it seems to me that provided the venue chosen has an international airport, whichever of the three cities is chosen will be of little consequence to overseas witnesses.

[55]   In my view the balance of convenience is significantly in favour of Christchurch.  Most of the witnesses are Dunedin, or lower South Island, based.  It will be an easier logistical exercise to secure their attendance in Christchurch than elsewhere.  I am satisfied that the pool of eligible jurors in Christchurch is ample. Special care will still be required in relation to jury selection.  But, absent the risks which a trial in Dunedin would entail, I am confident that an impartial jury can be empanelled.

Result

[56]     A change of venue is expedient for the ends of justice.  I direct that the trial venue shall be Christchurch.