The Queen v Bain
[2003] NZCA 294
•15 December 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA98/03
THE QUEEN
v
DAVID CULLEN BAIN
Hearing:1, 2, 3, 4 and 9 September 2003
Coram:Tipping J
Anderson J
Glazebrook JAppearances: C S Withnall QC and K C Marks for Appellant
N M Crutchley, J C Pike and A Markham for Crown
Judgment:15 December 2003
JUDGMENT OF THE COURT DELIVERED BY TIPPING J
Table of Contents Paragraph
NumberIntroduction [1] The case in outline [5] Further evidence – legal considerations [18] Admission of new evidence [28] THE CROWN’S CASE [31] The trigger lock [32] The bloodied opera gloves [35] Bloodstained clothing worn by David [37] Bloodstained clothing associated with David [41] Palm print on washing machine [45] The bathroom/laundry area [46] Injuries to David [50] The glasses and lenses [53] The fingerprints on the rifle [57] The washing machine cycle [69] The scene in the lounge [78] Robin’s full bladder [88] Laniet’s gurgling [91] THE DEFENCE CASE [94] The computer turn on time [95] Laniet’s gurgling [114] The fingerprints on the rifle [130] The glasses and lenses [136] Robin Bain’s mental state [141] Robin Bain’s motive [146] Suicide – new evidence [150] New evidence said to implicate Robin Bain [153] Process issues [158] OVERALL ASSESSMENT [163] Conclusion [174]
Introduction
[1] On 20 June 1994 five members of the Bain family were shot dead in their home at 65 Every Street, Dunedin. The sixth and surviving member, David Bain, was charged with their murders. On 29 May 1995 he was found guilty by a jury in the High Court at Dunedin following a trial which lasted about a month. He appealed against his convictions. In a judgment delivered on 19 December 1995, reported at [1996] 1 NZLR 129, his appeal was dismissed by this Court. His subsequent petition for leave to appeal to the Privy Council was dismissed on 29 April 1996. Hence the convictions stood and with them the life sentences which carried a minimum non parole period of 16 years.
[2] On 15 June 1998 David Bain applied for the exercise of the mercy of the Crown. On 18 December 2000 the Governor-General, acting pursuant to s406(b) of the Crimes Act 1961, referred to this Court for its opinion certain questions arising from the application for mercy. On 17 December 2002 this Court furnished the Governor-General with its opinion on those questions.
[3] On 24 February 2003 the Governor-General, acting pursuant to s406(a) of the Crimes Act, referred to this Court the question of the five convictions of David Bain for the murder of his family members. A reference under s406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time. Thus the provisions of s385 of the Crimes Act apply and govern our task. For ease of reference we set out s385(1).
385 Determination of appeals in ordinary cases
(1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion—
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[4] David Bain’s defence at his trial was that he had not killed his father, mother, brother and two sisters. He contended that his father had killed the others and had then killed himself. The primary thrust of the present appeal is that further evidence has been obtained or become available which both diminishes the strength of the Crown case against David, and strengthens his defence that his father was responsible for the killings and then committed suicide. Accordingly David contends there was a miscarriage of justice in terms of s385(1)(c) and this Court should quash his convictions. The Crown’s stance in opposition to the appeal is first that the further evidence is neither fresh nor sufficiently cogent and second that, even if it does qualify in those terms, it cannot reasonably be regarded as affecting the safety of the convictions.
The case in outline
[5] We propose to set out the background circumstances in outline only at this point to enable the more detailed points to be understood in their overall context. It will be necessary to examine individual aspects of the case in greater or lesser detail as we proceed. The Bain family consisted of Robin, the father, who was the principal of a small two class primary school at Taieri Mouth. He spent most week days and nights at Taieri Mouth. When he was at 65 Every Street he occupied a caravan parked in the grounds. He was estranged from his wife, Margaret, who lived permanently in the house. Their daughter Arawa, and their two sons Stephen and David, also lived in the house. Their daughter Laniet happened to be staying there at the relevant time. Stephen was still at school and David was at university studying classics and music. Laniet had allegedly been working as an escort. Arawa was at Teachers College.
[6] David had a newspaper round which he did early each morning. On Monday 20 June 1994 he did his paper round and returned to 65 Every Street at about 6.40‑6.45am. The exact time is the subject of one of the detailed issues to be discussed below. David told the police later that morning that, on returning home, he had put the washing on, as was his normal practice, and had then found his father and mother each fatally shot in the head. His father was in the lounge and his mother was in her bedroom. David said he had not been into the rooms occupied by his sisters and brother. Much later he said that with professional help he now recalled having done so. We note, however, that David told the emergency operator and the police on their arrival that his brother and sisters were dead as well as his father and mother.
[7] At 7.10am David rang the emergency services and before long ambulance and police officers arrived. Initially the police were inclined to the view that Robin had killed the others and then committed suicide, but as the inquiry developed they came to the view that David had shot the four family members who slept inside the house prior to going on his newspaper round, and having returned from it he had waited for his father to come in from the caravan. The police’s conclusion was that, knowing his father was likely to come into the lounge, David had concealed himself in a curtained-off computer alcove and, when his father did come in and knelt down to say his prayers, David shot him in the head and then so arranged the scene to make it look as though his father had committed suicide.
[8] When the police entered the house they discovered the body of Robin in the lounge. Nearby was a .22 calibre semi automatic rifle with which both he and the other family members had been shot. The rifle was fitted with a silencer and a magazine containing two live rounds. Adjacent to Robin’s outstretched right hand was another, larger magazine, containing three live rounds. It was resting on the carpet, upright, on the narrow edge of its long, convex side. The scene in the lounge had at least the superficial appearance of a suicide. Margaret had been shot in her bedroom and was lying dead in her bed. So too was Laniet. Arawa was found dead in her bedroom but in a position which was consistent with her having been kneeling on the floor when shot. Stephen was found dead on his bedroom floor in a near naked state. The scene in his bedroom indicated that he had put up a struggle before finally being shot in the head. The police found a lens from a pair of glasses on the floor in Stephen’s room. They also found a bloodied pair of opera gloves belonging to David in Stephen’s room. The frame from which the lens had come and the other lens were found in David’s room. The finding of the lens and its significance is one of the more detailed issues which we will be addressing later in this judgment. The police also found on the floor in David’s room a trigger lock which had been removed from the murder weapon.
[9] On searching the laundry, which was on a lower level than the other rooms, the police found various items of clothing. These and their significance will be described later, as will tests, which the police arranged on the washing machine. Off the lounge where Robin’s body was found was a curtained alcove in which there was a computer which had been switched on and was still operating. The screen displayed a typed message reading “Sorry, you are the only one who deserved to stay.” Tests were later performed on the computer in order to ascertain, with as much precision as possible, the time at which it had been switched on that morning. This is another of the matters upon which we will be focusing in some detail later in this judgment. David claims that the switch-on time of 6.44am upon which the case was based at trial can now be shown to be erroneous.
[10] David’s bloody fingerprints were found on the rifle. This, of course, constituted a substantial aspect of the case against him. He now contends that the blood was animal rather than human blood and his prints were not therefore connected with the murders.
[11] The Crown case against David at trial relied upon a combination of points, the cumulative effect of which was found by the jury to constitute proof beyond reasonable doubt that he was responsible for the deaths. The Crown likened its case to the three sides of a triangle. The first side comprised the evidence pointing specifically to David as the killer; the second side was represented by evidence excluding Robin from being the killer; and the third side constituted evidence showing that Robin had not committed suicide.
[12] The Crown’s contention was that David had become increasingly disturbed during the days leading up to the killings. David told the jury that after he had gone to sleep on the evening of Sunday 19 June he was woken by raised voices coming from the living room. He then heard his mother’s car drive away from the property and return later on. It is a reasonable inference that David overheard a heated argument between his parents which led to his mother leaving the house for a time. The Crown’s case was that he resolved to kill his mother, sisters and brother before going on his paper round and then to kill his father after returning, when his father came in from the caravan in which he slept. The Crown suggested that David had not expected the struggle with Stephen whose fingerprint was found on the rifle’s silencer and that the struggle caused David to sustain injuries which were observed by the police and by the doctor called by them to examine him.
[13] The Crown also relied on the presence of blood on garments which David was wearing when the police arrived and blood which was on clothing associated with David. The Crown contended that David had enough time to switch on the computer after returning from his paper round and that he, David, wrote a pseudo suicide note to make it look as though the murderer was his father.
[14] During the course of his evidence-in-chief David said he had heard Laniet gurgling when he entered her room. The Crown argued that Laniet must still have been alive at this point, and therefore David must have been the killer, as otherwise he could not have heard her gurgling. This is another point which has assumed prominence in David’s challenge to his convictions, as he contends that Laniet could already have been dead and yet have emitted gurgling noises. We will be examining this issue in more detail later.
[15] On the second side of its triangle the Crown contended that the most striking feature was that there was no evidence that Robin had been into any of the rooms. There was then and is now no evidence of his having had any of Stephen’s blood on him; and there was and is no reasonable basis for concluding that he had had the blood of any other victim on him. The Crown also pointed out that if Robin had been the killer and intended to commit suicide, there would have been no logical reason why he should have changed his clothing. That could be the only explanation for there not being any blood from any of the others on the clothing he was wearing at the time of his death. On the third side of the triangle the Crown relied primarily on the evidence of Dr Dempster, a pathologist, which was broadly to the effect that while the fatal injury which Robin sustained could possibly have been self inflicted, this appeared to be most unlikely.
[16] The defence case at trial was essentially that the Crown had not excluded the reasonable possibility that Robin had been responsible for the killings and had then killed himself. Counsel then representing David contended that the time at which he was supposed to have switched on the computer, ie. 6.44am, could not be reconciled with the time at which a witness, Ms Denise Laney, said she had seen him outside Every Street. That time was 6.45am. Defence counsel relied on the absence of any valid motive for the crimes, and made a number of submissions attempting to deflect the force of the points upon which the Crown relied. Defence counsel submitted that Robin did have a motive. He had been rejected by his wife and family and, being under increasing pressure, he had just snapped. There was of course reference on David’s behalf to the fact that suicide had not been ruled out by the pathologist and, overall, defence counsel invited the jury to take the view that the Crown had not discharged the onus of proof because there remained a reasonable possibility that Robin was the murderer. It was not, and is not now suggested that anyone other than David or Robin could have been responsible.
[17] The challenges which David has hitherto made to his convictions have already been referred to in outline. The only point we need add here is that on this reference under s406(a) of the Crimes Act the Court is engaged in a different exercise from that which the Court undertook on the s406(b) reference. On that reference the Court was answering specific questions which had been referred to it. In the present case the Court is assessing the overall effect of all the new evidence produced on either side when viewed against the evidence which was called at trial. The s406(b) reference involved a compartmentalised and selective approach to particular issues. The present s406(a) reference requires a much more wider-ranging appraisal of the effect of all the evidence, both new and old. It is only on that basis that a proper determination can be made of the overall effect of the new evidence adduced by David.
Further evidence – legal considerations
[18] Before coming to the detail of the various points raised on each side, it is appropriate to examine the rules and criteria which apply to appeals based on the contention that evidence beyond that called at the trial is now available. An authoritative statement of the key points can be found in the judgment of this Court delivered by Richardson J in R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 at 513:
The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice. This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice at the trial. The overriding test must be the interests of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at the trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer [1981] 1 NZLR 748, 753 and the cases referred to there).
[19] To similar effect is the unreported decision of this Court delivered by Hardie Boys J in R v Zachan, 11 August 1995, CA304/94:
The Court has jurisdiction to allow an appeal on the ground of the discovery of fresh evidence by virtue of s385(1)(c) of the Crimes Act 1961. This provides that an appeal against conviction is to be allowed if the Court is of the opinion that on any ground there has been a miscarriage of justice. The Court will normally require that the evidence be fresh in the sense that it was not available at the trial; and that it be credible and cogent in the sense that if given along with the other evidence in the case, the jury might reasonably have been led to return a different verdict. The overriding test however is the interests of justice. See R v Fryer [1981] 1 NZLR 748, R v Arnold [1985] 1 NZLR 193, R v Crime Appeal (CA 60/88) (1988) 3 CRNZ 512.
[20] The principles outlined have been applied in many other cases: see R v Baker [1976] 1 NZLR 419; R v Chapman (1991) 7 CRNZ 486 (CA); R v Cassidy [1995] 3 NZLR 184 (CA); R v Collier (1996) 14 CRNZ 439 (CA). Cases where the Court has approached the matter on the same basis, on a s406(a) reference, are R v Dick [1973] 2 NZLR 669, and R v Collie [1997] 3 NZLR 653, where a five Judge court referred to the earlier decision of the Court in R v Barr (Alistair) [1973] 2 NZLR 95.
[21] Mr Pike, who argued this aspect of the case for the Crown, did not suggest we should depart in any way from this settled line of authority. Slightly different verbal formulations have been adopted from time to time but the broad general effect has remained consistent. Mr Withnall QC for the appellant, ultimately took a similar stance, albeit at one point he was inclined to suggest an approach which focused more on how the further evidence affected the views of the Court rather than how it might have affected the conclusion of the jury. We are, however, of the view that we should follow the settled line of authority to which we have referred, the effect of which can be summarised in the following way.
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (a) sufficiently fresh, and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
[25] The Court is therefore engaged in considering what effect the new evidence might reasonably have had on the jury. This focus on the effect of the new evidence on the jury is consistent with the jurisprudence relating to the proviso to s385(1): see R v McI [1998] 1 NZLR 696 (CA), and the recent decision of this Court in R v Howse, CA444/02, 17 August 2003. In that field the Court is concerned with whether the jury (not the Court: see McI at 711) would nevertheless have convicted had the posited miscarriage of justice not occurred. The need for the appellate court in a new evidence case to consider its effect on the jury is also consistent with the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.
[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.
[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control. We will therefore approach this case on the three-fold basis outlined above. The critical question which will emerge is whether, in the light of all the evidence now available (both that called at trial and the further evidence produced by the appellant and by the Crown) the jury might reasonably have reached not guilty verdicts.
Admission of new evidence
[28] We propose at this point to deal with the admission of new evidence in this case on a global basis. We will make discrete reference to the admissibility of particular pieces of new evidence subsequently, to the extent it is either necessary or desirable to do so. In short we consider it is in the overall interests of justice to admit all the new evidence tendered by David Bain and all the new evidence tendered by the Crown. Clearly, if all David’s new evidence is admitted, as in our view it should be, the Crown should, in this case, be entitled to similar treatment. Mr Withnall appropriately did not argue to the contrary. There is authority for saying that in second appeals pursuant to a reference under s406(a) this Court may find it appropriate in the interests of justice to adopt a somewhat more liberal approach to the admission of new evidence than in conventional first appeals. That said, we do not suggest that in such cases the ordinary principles should be abandoned. What is in the interests of justice can only ultimately be viewed against the circumstances of individual cases.
[29] Much of David’s new evidence qualifies comfortably within ordinary principles; for example the evidence concerning the nature of the blood in which David’s fingerprints were found on the rifle. In so far as some aspects of the new evidence might be thought a little debatable on either the freshness or the credibility criterion, we consider it appropriate in the interests of justice to admit it to enable the Court to have before it everything which David contends to be relevant. A conclusion reached excluding something in that category would not be in the overall interests of justice. If something is marginal in this context, the benefit of the doubt should go to David. We would not of course have been willing to admit anything which we considered clearly not to qualify but at worst, from David’s point of view, certain aspects of the new evidence might be thought marginal rather than clearly inadmissible.
[30] The rest of this judgment proceeds on the basis that all the new evidence tendered on both sides is admitted. Its effect is of course another matter. That will be the subject of individual discussion in places and general discussion after all the diverse topics which arise have been considered.
THE CROWN’S CASE
[31] It is appropriate now to examine in more detail the nature of the Crown’s case against David at trial, in conjunction with the new evidence which the Crown has produced. We will then examine David’s case at trial in more detail in conjunction with his further evidence. In discussing the Crown case we will focus on the main aspects which, in combination, the jury must have found to constitute proof beyond reasonable doubt of David’s guilt. Our ultimate purpose will be to consider, in accordance with the legal principles we have discussed, what effect the new evidence has in either weakening or strengthening the case which the Crown presented against David at trial and the case which David presented in his defence, remembering of course that the onus of proof rested throughout on the Crown.
The trigger lock
[32] The rifle with which the killings were effected belonged to David. It was stored in the wardrobe in his bedroom and was kept safe with a trigger locking mechanism which had to be unlocked and removed before the rifle could be fired. The mechanism was found by the police on the floor of David’s bedroom with what became known as the spare key still in it. This mechanism is a separate device which, once unlocked, is detached from the rifle itself. It is common ground that on 20 June 1994 it was the spare key which was used to unlock the mechanism. David’s usual key was found in a pocket in his anorak, which was inside the family’s Commer van parked near the property. David usually had it hanging round his neck but he had put it in his pocket before participating in Dunedin’s annual mid-winter polar plunge the day before and it was found in the van the following morning.
[33] In order therefore to be able to unlock the weapon the killer had to know of the existence and whereabouts of the spare key, which David kept in a pottery vessel on the desk in his room. There is no evidence of any search for the spare key. The lid was put back on the pottery vessel and a hacky sack was placed on top of the lid. The critical point is that David told the police and the jury that no-one else knew of the existence of the spare key, let alone its whereabouts. In his evidence-in-chief David said: “No-one else in the family knew there was 2 keys.” This must have been seen by the jury as a very significant point. Mr Withnall suggested that David may have been mistaken and that his father could have been aware of the fact that there was a spare key and where David kept it. Counsel submitted that if David was guilty he would hardly have made the statement he did about the spare key. Nevertheless David said the same thing, not only in the highly charged circumstances which existed immediately after the killings, but also when giving his evidence-in-chief to the jury about a year later. It seems most unlikely that David could have been mistaken on a matter of this kind.
[34] At least David must have believed no-one else knew of the spare key. He would hardly have been deliberately lying against his own interests. It is possible that Robin had come to learn of the existence of the spare key and where David kept it, but on the evidence that is no more than a speculative possibility. David said that the rifle had not been used since January or February 1994, and it seems reasonable to infer that when father and son went out shooting together, as David said they had done, David would have used the key which he usually kept hanging round his neck. David’s statement to the police, repeated at the trial, that only he knew of the existence, and hence the whereabouts of the spare key for the trigger lock, must be regarded as a very strong piece of evidence against him. Indeed if David’s evidence is taken at face value, and there seems no reason why it should not be, only he could have been the killer because Robin did not know of the existence, let alone the whereabouts, of the key which the killer used to unlock the murder weapon.
The bloodied opera gloves
[35] David owned a pair of white opera gloves which he had only recently purchased to attend a ball and which he kept in the chest of drawers in his bedroom. As earlier noted these gloves were found by the police, in a heavily bloodstained condition, in Stephen’s bedroom. Stephen had put up considerable resistance to the killer before finally succumbing. A shot went through his hand and grazed his scalp causing significant bleeding. A struggle ensued. Stephen was strangled and finally killed by a shot to his head. The present point is that the killer wore gloves until they somehow came off his hands in Stephen’s room. The Crown case was that the killer had probably removed the gloves deliberately in order to deal with a misfeed in the rifle, but whether that was so is of no great moment.
[36] The fact that the killer wore David’s gloves has a dual significance. First, the killer must have been intending not to leave fingerprints on the weapon or elsewhere. If Robin Bain were the killer it seems most unusual for him to have worn gloves, if he was intending to commit suicide. His leaving fingerprints would then be of no moment. Mr Withnall suggested that he decided to kill himself only at the last minute. That possibility must be borne in mind, although it seems rather unlikely.Secondly, if Robin was the murderer and had not intended to kill himself, it seems paradoxical that he would be of a mind to spare David and yet at the same time, seek to implicate him in the killings by using David’s rifle and ensuring, by wearing gloves, that his own fingerprints were not on it. Plainly the killer envisaged both that the rifle would be connected with the murders and that it should not bear any recent fingerprints associated with its murderous use. All in all the use by the killer of David’s gloves is not easy to reconcile with anyone other than David being the killer.
Bloodstained clothing worn by David
[37] The police entered 65 Every Street at 7.28am. They found David wearing items of clothing which had bloodstains on them. There were no bloodstains from any of the others on any item of clothing which Robin was wearing at the time of his death. In view of the substantial struggle which took place in Stephen’s room, the only credible explanation, as we noted earlier, for there being no such blood on Robin’s clothes, if he was the killer, is that he must have changed his clothes between killing the others and shooting himself. It was suggested on David’s behalf that Robin might have done this in order not to meet his maker with the blood of his wife and children upon him. That is a speculative possibility, but the more natural explanation is that Robin was not responsible for the killings. Furthermore the fact that Robin was wearing a beanie on his head and a hooded sweatshirt seems more consistent with coming in from the caravan on a cold winter’s morning than with dressing to meet his maker. David himself indicated that his father was usually more smartly dressed for school than he was that morning.
[38] David had blood on his socks, white T-shirt and black shorts. Some of the bloodstains on the socks are explicable on the basis of his merely walking through the house into the various rooms; but the two drops of blood on the underside of the socks, which came from either Laniet or Stephen, are not readily explicable by walking on a bloody surface. The evidence of the Crown’s witness, Dr Cropp, was that they dropped onto the underside of the sock from above. They are therefore more consistent with having got onto the socks during the fight with Stephen.
[39] At trial the bloodstain on the T‑shirt was said by Dr Cropp to be an old one. In later tests performed by the ESR in 1997 it was ascertained that the blood could have come from Stephen. This evidence, while consistent with David being the killer, does not, however, advance the Crown’s case because it could only have an evidential value if relevantly recent.
[40] The bloodstain on the black shorts was on a seam in the crotch area. Not excluded by ageing, it was said at trial to be consistent with that of either Stephen, Arawa, Laniet or Margaret. But as a result of the 1997 tests it was established as being Stephen’s blood. The stain was small and visible to the naked eye, albeit not easily seen without good lighting. The fact that David had Stephen’s blood in a place on his shorts which was hardly consistent with accidental contact must be regarded as a significant piece of circumstantial evidence against him. It was certainly open to the jury to infer that the blood got onto his shorts during the course of a struggle with Stephen. We recognise that David says he got down beside Stephen’s body and touched his shoulder; but neither this nor David’s putting the clothes in the wash provides a likely basis for where Stephen’s blood was deposited. We note that David was wearing the black shorts over bicycle pants which did not have blood on them. His trackpants had, however, been through the wash and may well have been worn over the black shorts allowing only a small amount of blood to seep through.
Bloodstained clothing associated with David
[41] The references we are about to make are to clothing which can be linked to David but which he was not actually wearing when the police arrived. First there were the opera gloves already discussed. The next item is a sweatshirt which the police located in a washing basket in the laundry in a condition which suggested it had not been through the wash. This was a sweatshirt belonging to David with the words “Opera Otago Gondoliers” written on it. There was what may have been a diluted bloodstain on the right shoulder of this garment consistent with the stain having been sponged. Its age was not, however, firmly established. David had been wearing the Gondoliers sweatshirt the day before and could offer no explanation for the stain.
[42] The police discovered bloodstains on a number of door jambs above waist height. They were consistent with having been transferred to the jambs by a person wearing a loose weave garment such as the green jersey, which we will mention next. The suggested bloodstain on David’s Gondoliers sweatshirt was consistent with the killer wearing this sweatshirt under the green jersey and with blood from the right shoulder having been transferred from the outer garment to the inner, possibly when the jersey was being removed. There is no doubt that the Gondoliers sweatshirt belonged to and was worn by David. There is no evidence that it was ever worn by Robin. The unexplained stain on it is another strand in the case against David, albeit not one of major force in all the circumstances.
[43] The green jersey mentioned above and which for reasons to be discussed, must have been worn by the killer, was found by the police in the laundry. It had no bloodstaining on it having just been through the wash. The link between the jersey and the killer is provided by the fact that fibres taken from under Stephen’s fingernails matched those out of which the green jersey was made. It is a compelling and uncontested inference that the killer wore this green jersey. David initially told the police the jersey belonged to Arawa. He confirmed that to be the case in his second statement. But at trial, and for the first time, David said the jersey belonged to Robin, although Arawa wore it on occasions around the house. At trial David claimed, again for the first time, that Robin had been wearing the jersey over the weekend. There was no evidence, other than David’s assertions, linking the jersey to either Robin or Arawa. Equally, we accept there was no direct evidence linking the jersey to David.
[44] In evidence David said that the jersey was too small for him. He was asked during cross-examination to put it on in the presence of the jury, it having been produced as an exhibit. It appears from the record that 11 months later at trial David was able to put it on, and whether it was too small in his view or not, it seems entirely possible that he could have been wearing it while committing the murders and then have put it immediately into the wash. We will be making further reference to the washing machine and certain timing issues connected with it below.
Palm print on washing machine
[45] David’s partial palm print was found on the left-hand side of the top edge of the washing machine. It tested positive for blood with the use of a Sangur stick. That form of test is not definitive for blood because other substances can react positively to it such as washing machine powder, so it was suggested. There was no evidence of blood on David’s hands when the police arrived. He told them he had washed his hands (to remove newsprint residue) before he handled the clothes in the laundry. If, as he asserts, David put on the washing before finding the bodies, there is no possibility that he could at that time have had blood on his palm innocently from touching any of the bodies as he walked round the house. He could of course have got blood on his palm from touching the bloodied green jersey, albeit he said he did not notice any blood on it. There is therefore doubt whether David did have blood on his palm and further doubt as to whether, if he did, that constitutes evidence against him. This evidence does not take the Crown case much further.
The bathroom/laundry area
[46] David told the police, and confirmed in his evidence at trial, that after he returned home from his paper round that morning he went to his room, took off his shoes, and hung up the newspaper bag. That evidence is relevant to the computer switch-on timing issue to be mentioned below. He then went straight to the laundry, which was on a lower level, in order to wash newsprint off his hands and tend to the washing, as he usually did each morning. He dried his hands on a towel to the left of the washing machine and then sorted the clothes for washing. He placed the green jersey from the basket into the machine. It seems likely that the green jersey (whether worn by David or worn by Robin, and deposited there after the killings) would have been heavily stained with blood, having been worn by the killer who was engaged in the substantial struggle with Stephen. As noted above, David said he had not seen any blood on the green jersey. We recognise, however, that the lighting in the laundry was not particularly good.
[47] There was a washing powder container in the laundry which had fresh watery blood smeared across its top. David did not claim that anyone else had used the washing machine that morning and there was no evidence that anyone else had done so. On David’s case only he could therefore have deposited the fresh diluted blood on the washing powder box in the course of putting powder into the machine. But, as with the palm print, this feature of the evidence, although relevant to the Crown case, does not take it very far.
[48] One other aspect of the scene in the laundry deserves mention. It derives from evidence obtained by the Crown after the trial. The evidence is that Robin’s partial DNA profile could be identified from a dilute bloodstain found on a green towel which was hanging in the bathroom/laundry area. Obviously Robin cannot have deposited this bloodstain on the towel after having shot himself.
[49] That leaves only two rational possibilities; either the bloodstain was deposited there by Robin prior to his death, or David deposited Robin’s blood on the towel after he had killed Robin. There is some evidence as to how Robin could have deposited his own blood on the towel. He had minor injuries to his hands which could possibly have caused his own diluted blood to be left on the towel. The age of these injuries, according to Dr Dempster, was such as probably to exclude them from having been caused by any involvement in the murders. Mr Withnall argued that these injuries, visible in the photographs, could have been the cause of the blood on the towel. We accept that this could have been so. There is therefore some basis for inferring that Robin had his own blood on his hands independently of the events in question. On the other hand, this evidence is also consistent with David having got Robin’s blood on his hands, either at the time of shooting him or immediately afterwards when arranging the scene of Robin’s killing to resemble a suicide. A jury could reasonably infer that this was the more likely explanation, and hence that it was another strand in the case against David.
Injuries to David
[50] When he was examined by Dr Pryde at 11.20am on the morning of Monday 20 June 1994, David was found to have three separate bruises on his head; one on the right temple, one above the right eye, and one on the right cheek. He also had a small abrasion to his right knee. Dr Pryde asked David if he had received a “whack” (the doctor’s word). David said he had, but did not know how. These injuries were consistent with David having recently been in some form of fight or struggle, such as the struggle which the Crown contended had occurred in Stephen’s room. During the course of his first interview with Detective Sergeant Dunne on the Monday morning, and prior to the medical examination, David was asked by the Detective Sergeant whether he knew how he got “that lump on your head”. David replied that he could not remember anything that could have done it, except when he blacked out. That was a reference to his collapsing earlier in the morning in the presence of Constable Andrew who gave evidence that he had not seen David strike his head and, if he had struck it, it would have been the back of the head that took the force of the blow. Of course on the blackout hypothesis asserted by David he could not affirmatively say what happened at that time.
[51] When Dr Pryde was asked to age the injuries which he found on David’s head, he said that the range was between 7 and 13-14 hours old. He ruled out the suggestion that the injuries were 4 hours old and said 5 hours was most unlikely. Dr Pryde’s evidence put the timing of David’s injuries between 9.20pm on the Sunday evening, and 4.20am on the Monday morning. David’s account was that he went to bed about 8.50pm and did not get up until being woken by his alarm at 5.30am. There was no independent verification that David had remained in bed until 5.30am. If David went to bed as he said at 8.50pm, and got up earlier than 5.30am so as to have time to commit the murders before going on his paper round, Dr Pryde’s timing of the injuries to his face coincides quite closely with when he must have been struggling with Stephen. We recognise in saying this that in spite of his nakedness Stephen’s body was not markedly colder than those of the other members of his family. There is evidence that this might be explained by his violent struggle to survive.
[52] David has offered no other tenable explanation for how he got the injuries to his head. The suggestion that he received them when he was being pulled over carpet after having collapsed does not seem at all likely both in itself and in the light of the ageing evidence. Furthermore the age of the injuries, as assessed by Dr Pryde, cannot be reconciled with David’s general explanation of events, which would have him asleep in bed throughout the period within which they were incurred. Dr Pryde’s ageing of the injuries, albeit we recognise that such an exercise cannot be precise, tends to suggest that David was up and about that morning at least an hour before the time at which he claims to have awoken.
The glasses and lenses
[53] The left lens of a pair of glasses was found in Stephen’s bedroom under a skating boot and green jacket and perhaps under the bunks. David’s ordinary glasses were at the optometrist for repair. The frame from which the left lens came, and the right lens, which was also detached from the frame, were found together in David’s room. These glasses were normally kept in Margaret Bain’s room. If worn by David, they would have given him about 90% vision, he being short-sighted. David was unable to explain how the frame and right lens came to be in his room, or how the left lens came to be in Stephen’s room or indeed how the two lenses came to be detached from the frame. The Crown’s case was that, in the absence of his regular pair, David had been wearing this substitute pair of glasses at the time of the killings. It was suggested that the left lens had somehow become detached from the frame during the course of David’s struggle with Stephen and had been kicked under or otherwise found its way under the clothing. It had been left behind in Stephen’s room, whereas the frame and other lens, similarly detached, had been taken by David to his room. The Crown’s suggestion was that, as it was covered by clothing, David had either overlooked the left lens or perhaps, more likely, could not immediately find it at the time when he took the other lens and the frame to his room.
[54] Detective Sergeant Weir noted that he had found the left lens beneath clothing in Stephen’s room. This tends to support the thesis that it had become covered, presumably during the course of the struggle. We must also, however, bear in mind, as Mr Withnall pointed out, that the left lens was completely free of any forensic evidence such as bloodstains and was quite dusty. We note the fact that the frames did not fit David comfortably and that, according to Mr Sanderson, the optician, they had the appearance of not having been used for some time. We also mention Mr Sanderson’s evidence that the injuries to David’s face could not have been caused while glasses were being worn and that if they had been on, there would certainly have been other injuries.
[55] On the whole, balancing the evidence on this topic, we are left with the unexplained presence of the frame and right lens in David’s room, whereas the left lens was found separately in Stephen’s room. It must be a reasonable inference that the items found in David’s room were there because David considered the glasses to be of some use to him. The presence of the left lens in Stephen’s room, in conjunction with the remainder of the glasses being in David’s room, is consistent with the Crown’s contention and provides some support for it, particularly as David’s regular pair of glasses were away for repair. He might therefore be expected to have used the glasses in question and was unable to explain how the left lens had become separated from the frame and how the right lens had also become detached from the frame and how both came to be in his bedroom.
[56] We conclude this discussion by noting that the glasses were of no use to Robin. He would not therefore have been wearing them. If they did have something to do with Stephen’s murder they were either planted there by Robin (and that is inconsistent with his sparing David) or they were worn by David. The new evidence raises the level of possibility that the glasses had nothing to do with the murder, on the basis that the lens had been in Stephen’s room for some time; but that tends to increase the difficulty for David of his inability to explain the presence of the frame and other lens in his room.
The fingerprints on the rifle
[57] David’s left fingerprints were found in blood on the fore end of the stock of the rifle. They were located in a position entirely inconsistent with an ordinary firing position. The hand was on top of the fore-end not beneath it. The immediate area where the prints were found was otherwise uncontaminated with blood. The rest of the rifle and the silencer were liberally covered with blood. At trial it was taken for granted that the blood in which David’s fingerprints were found was human blood. In fact the precise fingerprint blood was not analysed but immediately adjacent blood was analysed and found to be of human origin. David’s approach to this evidence at trial was that, although he could not remember touching the rifle, he must have done so innocently on seeing it in the lounge. That proposition is no longer pursued as it would be wholly inconsistent with the case which David now advances which is that the blood in which his fingerprints were found was or might have been of animal origin and deposited there months earlier. There is considerable controversy in the further evidence on this topic, which we will consider more fully below.
[58] The suggested consequence of the new evidence from David’s point of view is that it can no longer be inferred that he deposited the fingerprints on the rifle at the time of the killings. If the blood is not human, David’s case is that he must have had blood from a rabbit or an opossum on his fingers during an earlier shooting trip and deposited it on the rifle. In spite of all the other bloodstaining on the rifle, which was identified as human, including Stephen’s, the “animal” blood that David suggests was the source of his fingerprints has remained intact and unaffected by the events in Stephen’s room and elsewhere that morning. It will be recalled that the rifle had not been used since January or February, some four months prior to the murders. We will, at this point, look at the evidence on this issue without prejudice to whether the blood in question was human or animal, and see what conclusions may emerge on that basis.
[59] The first point that should be noted is that the Crown scientist, Mr Hentschel, has deposed that the blood he analysed as being from the fingerprints was taken from a point some 5-10mm away from the fingerprints themselves. The proximity of the sample to the fingerprints and its appearance suggested to him that the blood he took for analysis was from the same source as the fingerprints. That is why everyone at the trial treated it as being from the same source. Mr Hentschel took the adjacent sample so as not to disturb the fingerprints. His evidence of proximity does not of course conclusively prove that the two sources were the same but it is understandable in the circumstances that they were thought to be the same in the absence of anything to suggest they were not.
[60] At trial the fingerprint expert, Mr Jones, matched the prints to David. This is not in contention. They are undoubtedly his prints. Mr Jones also described them as “well defined”. He said that the fingerprints were positive, meaning that the blood was on the fingers and was thereby transferred to the rifle rather than already being on the rifle before the fingers made contact with it. Mr Jones confirmed that the fingerprints were found on an area of the rifle “otherwise uncontaminated” by blood. He then went on to say that apart from the area where the fingerprints were found, the rest of the rifle was “completely covered in its entirety” with blood. We note that when the rifle was examined by the Victorian Institute of Forensic Science it had much less blood on it; but that was years later and after a considerable amount of testing and other handling had occurred.
[61] The uncontaminated area was approximately the width of four fingers. These circumstances make it very difficult to accept that the very area where the suggested pre‑existing fingerprints in animal blood were found, was the only area of the rifle which was spared from what was otherwise a complete coverage of the rifle in its entirety with blood which must have come from one or more of the victims. To accept such an illogical coincidence would be to stretch credulity beyond breaking point. It matters not for this purpose whether the total coverage of the rifle with blood occurred as a result of the struggle with Stephen or, which seems more likely, as a result of the rifle being wiped with some form of material.
[62] It is a powerful inference that the existence of David’s fingerprints in the small area on the rifle which was otherwise uncontaminated with blood, establishes that the fingers which deposited the prints were in position at the time when all the other blood came onto or was spread throughout the rifle. The fingers thereby shielded (Mr Hentschel’s word) that area, resulting in it being the only area not otherwise contaminated. We do not consider a point made by Mr Withnall about the sling attachment weakens the force of this evidence. It is extremely unlikely that it constituted a shield exactly coincident with the uncontaminated area. Had the area (four fingers wide be it noted) not been shielded by the fingers which lodged the prints it defies belief that this area could have escaped the total coverage of the rifle with blood. This aspect of the evidence, on its own, comes close to being conclusive of David’s guilt. It is an almost irresistible inference that his prints must have been placed on the murder weapon contemporaneously with the murders.
[63] There is a further point deriving from Mr Jones’ evidence which should be noted at this stage. He also identified a fingerprint made by Stephen’s right middle finger on the underside of the silencer. Although not expressly saying so, the tenor of his evidence at trial was that the fingerprints made by David and that made by Stephen were of the same degree of recency. The answers which Mr Jones gave to questions in cross-examination about David’s fingerprints suggest he was of the view that they were fresh in the sense of being placed on the rifle in the recent past. In that context he acknowledged the possibility that they could have been put there by reason of David having innocently picked up the rifle on coming upon the suicide of his father. That suggestion cannot of course be reconciled with the animal blood argument which is what David now seeks to pursue on this appeal.
[64] In subsequent affidavit evidence, upon which Mr Jones was not called for cross-examination before us, he dealt more specifically with the age of the fingerprints deposited by David on the rifle. He first noted that he had not been cross-examined on this issue at the trial. Rather he had been cross-examined as to whether David could have left the fingerprints in the position they were in if he had picked up the rifle in the lounge and dropped it onto the carpet.
[65] Mr Jones then explained the composition of blood, saying that over time, influenced by temperature and humidity, the moisture content of blood is rapidly reduced. It becomes quite dry and flaky. In his experience Mr Jones had found prints in blood to be very fragile when they become dry and flaky. They are then easily damaged with handling and contact with other surfaces. When he examined David’s prints under magnification Mr Jones found them well defined with no damage and no discernible contamination. There was no background contamination either, and no evidence of repetitious handling in the immediate area.
[66] Mr Jones accepted that it was not possible to age fingerprints with scientific accuracy. He could not definitely say from that point of view whether the prints were placed on the rifle at the time of the murders or on some prior occasion. He referred to relevant variables such as conditions of storage, temperature and humidity and said that it was nevertheless his opinion that David’s fingerprints were “of recent origin”. In the context of age he described David’s prints on the firearm as similar in appearance to Stephen’s print on the silencer, thereby expressly confirming the impression given by his trial evidence. He said that if the prints had been deposited by David in January or February, he would have expected as a minimum (Mr Jones’ emphasis) some degradation of detail, certainly along the edge of the ridges. He did not observe any such degradation or flaking. He added that by the time of the murders any such prints would have become dry and very fragile. If the prints were already there when the rifle was removed from the cupboard and used for the purpose of committing several murders, one of which involved a violent struggle, Mr Jones would have expected to see at least some visible damage to the prints. He found no such evidence. It was accordingly his opinion that it was highly unlikely the prints were 4-6 months old, given their condition when he examined them.
[67] We are of the view that the fact that David’s fingerprints were preserved in such pristine condition in an uncontaminated area on a rifle otherwise totally covered with blood, and Mr Jones’ evidence as to their recency, constitute in combination a very powerful case that they were deposited at the time of the killings. Thus, any contrary evidence raising the possibility they were deposited there at the beginning of the year, and in animal blood, would have to demonstrate that fact in a cogent manner to be able to raise the reasonable possibility they were not put on the rifle contemporaneously with the murders. We interpolate here that we accept that the fact that Robin’s fingerprints were not found on the rifle does not, of itself, detract significantly from the suicide thesis. The evidence is that in suicide cases the victim’s fingerprints are quite often not found on the firearm.
[68] Before leaving this topic we note that David had been given some training in gun management by his father and to put the rifle away with animal blood on it would not be good gun management. It seems unlikely he would have done so. Furthermore, to be consistent with the case for which David now contends, all four of his fingers would have needed rabbit or opossum blood on them in order to deposit the fingerprints found. That presupposes considerable coverage with blood and handling the rifle without removing it. There is also evidence that the fingers were gripping the rifle tightly when the prints were deposited. All this makes the thesis that the prints were deposited on the rifle months before the murders and in animal blood even more unlikely.
[155] At trial the Crown called evidence to the effect that five bloody footprints made by a stockinged foot were found in the hall. They became visible by the use of luminol. Mr Hentschel gave evidence that the best print of the five measured 280mm. He also said that Robin’s socks were 240mm long and David’s socks measured 270mm. Hence the Crown’s submission was that the footprints were those of David not Robin. It is now pointed out that Robin’s feet (not socks) were measured in the mortuary at 275mm. Mr Karam deposed that he had measured David’s feet at 300mm.
[156] The defence strategy at trial was to attack the science of luminol testing. The much more obvious strategy of drawing attention to actual foot lengths was not adopted. In post trial evidence the forensic scientist, Mr Walsh, has said that a 300mm stockinged foot could make a print of about 280mm. He has given quite detailed reasons for that conclusion which we do not need to traverse as Mr Walsh was not called for cross-examination, either on his reasons or on his conclusion. The end result is that on the evidence David could well have made the footprints in question. The matters now raised by him come nowhere near excluding him from responsibility for the footprints. Nor do they establish that the prints must have been made by Robin.
[157] Finally, we have noted the submission concerning the possible presence of blood under Robin’s fingernails and the absence of Robin’s fingerprints on the rifle. We have to say that neither individually nor collectively do these various points give more than a speculative basis for saying that there is now further evidence affirmatively implicating Robin. We do not consider these points have the character ascribed to them on David’s behalf.
Process issues
[158] We collect under this heading a number of issues which go more to police and trial procedures than the substantive cases either way. We bear in mind here that procedures and expectations in areas such as pre-trial discovery have developed since the events with which we are concerned. Nevertheless, in all respects our focus must and will be on whether any lack of fairness to David which might be inherent in any of the matters to be addressed, amounts to a miscarriage of justice warranting, in all the circumstances, the quashing of the convictions.
[159] The first heading is non disclosure by the prosecution of various documents. The first is Ms Laney’s second statement. Ms Laney was influenced by the thought she was late because David was further on in his paper round than usual. She may not of course have been late if David was doing his paper round faster than usual. The second statement should have been disclosed but, as already noted, we do not consider the failure to do so can reasonably be regarded as ultimately prejudicial in a material way. The same can be said of the luminol photographs and the photograph showing Margaret wearing the glasses. David also raised the issue of disclosure of forensic notes and other papers. Again the counsel of perfection, at least through today’s eyes, might be that these should have been disclosed even though it seems clear that those representing David at the time did not consider it necessary to call for them. We are, however, far from persuaded that any miscarriage of justice has been occasioned. Nor do we consider the suggested risk of Dr Dempster being misled by the armourer’s mistake as to the length of the rifle has led to any miscarriage of justice.
[160] The next matter involves non disclosure of fact that what could have been blood was found under Robin’s fingernails. This alleged non disclosure cannot in our view have led to a miscarriage of justice when the point is viewed against the force of the Crown case as a whole. It would be wholly speculative to try to assess what effect this feature may have had if there has been evidence about it. Finally there is the non disclosure of Dr Dempster’s working notes which showed he was of the view that a small piece of skin found in Stephen’s room might have come from Stephen’s hand wound. Mr Hentschel said that it matched the abrasion on David’s knee. Obviously Dr Dempster’s note would have been helpful to David but we consider the point cannot be regarded as giving rise to any miscarriage of justice when viewed in the context of the case as a whole. The skin point was simply a very peripheral aspect of the Crown’s case which pales into insignificance against the force of the case against David overall.
[161] The second heading is counsel incompetence. As no waiver of privilege was given, we indicated at the hearing that it would be difficult for David to advance this point as a point in its own right. Mr Withnall indicated that it was being raised solely for the purpose of supporting the admission of the new evidence. It therefore needs no further consideration here.
[162] The third heading concerns Mr Sanderson, the optician, whose evidence has already been discussed. For the reasons given then we are not persuaded that any miscarriage of justice has been shown in this respect.
OVERALL ASSESSSMENT
[163] Having established that no miscarriage of justice arises out of any of the process issues, either individually or collectively, it is now time to bring together all the manifold pieces of new evidence which have been individually discussed. The ultimate and determining issue is whether the new evidence, viewed in its entirety and alongside the evidence given at the trial, might reasonably have led the jury to return verdicts of not guilty. That question implies that the jury would analyse and appreciate the true force and effect of the new evidence, both in itself and as part of a total composite pool of evidence comprising both old and new. The assessment concerns what the jury might reasonably have made of the new evidence on that basis. That assessment must necessarily be done by the Court. The issue is not whether the new evidence might possibly have led the jury to return not guilty verdicts; it is whether it might reasonably have done so. That objective criterion is the key to the present case.
[164] There are three points in the evidence of such cogency that taken together, in the context of all the evidence, any reasonable jury must in our view have seen the case against David as proved beyond reasonable doubt, notwithstanding all the new evidence which he has produced in this Court. There is so much other evidence which supports the effect of the three key points that any hesitation a reasonable jury might possibly have had on the basis of the three points alone, would reasonably be completely dispelled by the other evidence.
[165] The three key points are those concerning the trigger lock, David’s fingerprints on the rifle, and the scene in the lounge. In summary their essence is:
[a]According to David only he knew of the existence, let alone the whereabouts, of the spare key for the trigger lock. The spare key was used by the killer to unlock the weapon. There is no evidence that Robin knew either of the existence of the key or its whereabouts. It is therefore a powerful inference that David was the killer.
[b]The bloodstained condition of the rifle was such that the uncontaminated area associated with the fingerprints on the forearm leads to the almost inescapable conclusion that the hand that made the prints was in position contemporaneously with the murders. That hand was David’s.
[c]The spare magazine was found standing upright on its narrow edge, almost touching Robin’s outstretched right hand. Its position is most unnatural in terms of the suicide theory. In view of its dimensions, the prospect of its having landed or ended up accidentally on its edge can only be described as extremely unlikely. Indeed as a matter of common-sense and simple deduction, the prospect that it accidentally came to rest on its edge in the position it was found is so unlikely as to come close to defying belief. The conclusion that must be drawn in all the circumstances is that the magazine was deliberately placed as and where it was found in order to make the scene in the lounge look like a suicide. Only one person could have done that and that person is David.
[166] These then are the three points, individually powerful and cumulatively overwhelming, to which must be added the following supporting points in particular: the use of David’s gloves, the presence of Stephen’s blood on David’s black shorts, the unconvincingly explained injuries to David’s head, his having heard Laniet gurgling, Robin’s full bladder and the timing of the washing machine cycle. There are yet further points mentioned in this judgment which we will not repeat here which also support David’s guilt, albeit to a lesser extent. Cumulatively the case could only be seen by a reasonable jury as clearly and cogently establishing David’s guilt beyond reasonable doubt.
[167] The further evidence which David has produced cannot affect that conclusion. The computer switch-on issue cannot be regarded as doing so. It does not prove physical impossibility. Indeed the jury found David guilty when, according to Ms Laney’s evidence, if taken literally, he could not have been the killer. The further evidence is certainly not of a nature and quality as to preclude the same view reasonably being taken. It may make it a little more difficult to do so; but no reasonable jury could find this point to raise a reasonable doubt against the cumulative force of all the evidence indicating David was the killer.
[168] The confused and uncertain science concerning the nature of the blood in which the fingerprints on the rifle were deposited does not detract from the force of the physical evidence on this topic. No reasonable jury could be left with a reasonable doubt on that account. The glasses and lens issue has not featured significantly in our analysis of the strength of the case against David. It does not in any way tend to exculpate David. The new evidence concerning Laniet’s gurgling could not lead a reasonable jury to have a reasonable doubt either. Even if it were found to neutralise that aspect of the Crown’s case, the force of the case would be largely undiminished. The same point can be made about the suggested neutralising of other aspects of the Crown’s case. A great deal of it would have to be neutralised before it ceased to have, overall, sufficient force to carry the weight of proof beyond reasonable doubt and that has not been done. There is no evidence positively implicating Robin Bain on any tenable basis. Motive and the state of his mind must been seen in that light. Those matters could not possibly be seen by a reasonable jury as producing a reasonable doubt about David’s guilt which is so clearly proved by the combination of the affirmative points to which we have drawn attention.
[169] We accept that the evidence does not exclude the physical possibility of Robin having committed suicide. We are, however, of the view that the evidence as a whole shows suicide to be most unlikely. Indeed, in the light of the evidence as a whole, we are left with the clear view that no reasonable jury could find there was a reasonable possibility that Robin committed suicide after killing the other family members.
[170] Robin appears to have gone to bed the night before with a book and a hot water bottle. His alarm was set for 6.30am. In order to have committed the crimes Robin, wearing shoes, would have had to go into David’s room while he was away on his paper round; take David’s white opera gloves from his chest of drawers; know of the existence and whereabouts of the spare key for the trigger lock; remove the rifle from the cupboard without damaging David’s pre-existing prints on the forearm; find the magazines and probably load them; take off his shoes; use the rifle to effect the killings, again without damaging David’s pre-existing prints in spite of the fierce struggle with Stephen; dispose of the white cloth used in the shooting of Laniet in a manner or in a place which resulted in its not being discovered despite a thorough search; put his bloodstained clothes in the laundry for David to put into the machine; change his clothes to those in which he was dressed when he was found dead including putting the same shoes back on; go to the lounge, switch-on the computer and type the message; and then, while for no apparent reason holding a magazine in his right hand, shoot himself in a manner which somehow allowed that magazine to end up on its narrow edge and in a most unlikely position; and all this without having emptied his bladder of its normal nightly collection of urine.
[171] That extraordinarily strained scenario must be compared with the case against David which includes the presence of his recent fingerprints on the rifle; his having heard Laniet gurgling at a time when she was very likely still alive; his statement that only he knew of the existence and whereabouts of the key which unlocked the trigger; the near impossibility of the magazine having ended up accidentally on its narrow edge in the position it was found; the essentially unexplained injuries to David’s head; the presence of Stephen’s blood on his black shorts; and the various other points which have been mentioned during the course of this judgment.
[172] In short then for these reasons, which we have traversed here only in summary form, but the detail of which has been addressed earlier, we conclude that the crucial question whether the new evidence considered alongside the evidence given at the trial might reasonably have led the jury to find David not guilty must be answered in the negative. Putting the matter to the same effect but in more direct terms we have no doubt that any reasonable jury considering the new evidence along with the old would find David guilty. The new evidence simply does not have the force and effect necessary to raise a reasonable doubt against the cumulative force of the case against David.
[173] We came to this case mindful of the need to consider and weigh each and every point raised on David’s behalf with care and close attention to the submissions made. We have done our best to do so. A complex and detailed case like this requires both attention to detail and an appraisal of the case as a whole. In that respect it is a classic circumstantial case. Individual points matter a lot, but what matters most and ultimately is the effect of all the various pieces of evidence viewed as a whole. We have endeavoured to capture both the individual points and their combined effect in the way we have compiled this judgment.
Conclusion
[174] By way of conclusion we return to s385 of the Crimes Act which is the foundation of the Court’s jurisdiction. For the reasons given in this judgment, to which the other members of the Court have made a substantial contribution, we have not been persuaded that there has been a miscarriage of justice on the ground of further evidence or any other ground. Accordingly we dismiss the appeal.
[175] Before parting with the case, we wish to express our appreciation of the skill and diligence with which David’s contentions were presented and argued by his counsel. We could not have been more fortunate than we were in that respect.
Solicitors:
O’Driscoll & Marks, Dunedin for Appellant
Crown Law Office, Wellington
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