Why didn’t the defence blame a 3rd party for the Bain murders?

I am firmly in the camp that David is guilty. I believe David Bain and David Bain alone murdered his entire family on June 20th 1994. My previous blog from 2010 “The Mountain vs The Molehill” outlines all the evidence David cannot account for, which also exculpates his father Robin from any involvement. Plus I doubt I would be posting here if I believed anything else. It must be noted his defense backed the correct horse in terms of theories I suppose, because in 2009 a retrial found David not guilty of the murders, though if it weren’t for Joe Karam becoming involved, it’s unlikely this would have ever transpired.

Many might feel it’s irrelevant questioning the original trial now that David is free. But in regards to the first trial, looking at it I find the idea of trying to convince that jury that Robin killed his family and then himself whilst David was on his paper run an almost impossible uphill battle. The retrial verdict is looked at in totally different isolation with all the spin and PR work up till that point, the 1995 trial was conducted in a much more pure way. Outlining the case, I find it much more plausible to try and introduce reasonable doubt to that jury and therefore attempt to negate or minimalize much of the prosecution evidence by trying to convince them a 3rd party or parties committed the crime, perhaps Robin involved at some level perhaps not, perhaps with an overall goal to frame David, perhaps not.

Putting myself in the position of a good neutral defense lawyer who took on Davids case, with no knowledge or perhaps interest in his guilt or innocence and with only the intention to get him a not guilty verdict, I will try and present the case for an outsider(s) and see if it is more convincing than the Robin Bain suicide scenario. I will base it off only evidence or occurrences and facts relevant to the time period up until 1995. Remembering that everyone is entitled to legal representation as a right and my goal is simply to introduce reasonable doubt about my client.

First of all, it would not be hard to suppose the idea of a 3rd party being involved is not impossible. Going against it is no sign of forced entry, knowledge of the scene (light switches), and the offender or offenders loitering around at the crime scene and washing up and possibly showering, showing that they at least had intimate knowledge of the families routines and that they weren’t likely to be disturbed. But all that really shows is that any such offender would just have to be someone close to the family or a member of the family, who had spent time in the home. Which would hardly be surprising, anyone with a motive would likely know the family or members of the family well. David claimed his home was “very un lockable” in his police interview, and the house hardly seemed a likely target for burglars, and the family who live in such disrepair hardly seem like the type that would vigilantly lock every door and window at night. Finally, of the six people associated with the scene that day, only two were definitely asleep when ambushed, and Arawa, Stephen and Robin were not asleep when they died. It could conceivably argued that in theory any of Arawa, Robin or David may have let an offender in, possibly Arawa downstairs through a window or door, or Robin or David through another door. It seems very unlikely, but if they trusted the person or they were a friend or even lover, it’s possible. Since Laniet will feature in the possible motive, maybe she let a killer in sometime during the night and they were in her bedroom for a time, maybe until she went to sleep. It is not an impossible theory. However unlikely those scenarios seem, the reality is we only really Have Davids testimony as to exactly what the situation was in that house that day/weekend, as best he knew it to be or claims to know it to be. The idea of 3rd parties being involved cannot be ruled out in theory. If I were the defense counsel I would have hammered this home as helpful to my client. The spare key evidence seems to preclude anyone else being involved, but the fact is it was not hidden in fort knox. There is no evidence of a search for it, but the killer could have replaced everything more or less where it was, and the house was so cluttered a search for anything would be hard to detect. It’s also possible duplicate keys could have been cut or the lock picked, at least in the past, for other people having been using that gun over time. The spare key was found in the trigger lock on the day, but it would be possible to negate the spare key evidence as less than a slam dunk.

The crux of this very hypothetical defense revolves around the Stephen/Arawa murder scene. Counsel Michael Guest in his closing address, as quoted in James Mcneish’s book, suggested a scenario to the jury that perhaps Robin only intended to kill his wife, and Stephen awoke and he faced the scenario where he had to kill them all. But this was totally unhelpful to his client, Laniet was asleep in her bed just down the hall when killed, she wouldn’t have slept through the Stephen struggle. She had to be killed before Stephen. Of course retroactively with the incest allegations and if Dean Cottles hearsay evidence had been allowed, he may have claimed he intended to kill only Laniet and Margaret. But at the end he couldn’t, and the jury would have seen right through this.

A better way to introduce doubt in my opinion would have been to focus on the often overlooked Arawa scene. The inference of the case seems almost certain that she awoke during the killers struggle with Stephen in the upstairs bedroom. It is clear from the commencement of Stephen grabbing the gun and probably shouting out, to the misfeed being cleared and Stephen being dispatched with a shot to the head, this scene certainly took seconds and probably minutes. Arawa was some distance away downstairs, but I understand it was curtains covering the doorways not doors, so noise is not so suppressed. What point she woke up and whether she would have heard the gunshot and been able to identify it as a gunshot are unclear, but there are questions here a good lawyer could exploit. Waking up to a violent struggle and probably yelling and screaming from her brother upstairs at 4-5am in the morning would be terrifying for anyone. Why didn’t she try and escape out the backdoor or a window and raise the alarm at that point? Given she was shot in her bedroom and retreated back there it seems unlikely she went upstairs. It is here you could introduce a theory of another killer or accomplice keeping her in that room by force or gunpoint. However unlikely that may sound, there is another prong to this defense that’s a little more plausible. We know the gun jammed in that room, the killer missing with the first shot. He would have had to clear the misfeed and reload, another chance for her to escape. Or grab the gun and try to struggle for her life like Stephen did. Now granted she would probably have been no match physically for a dis oriented David (or Robin), but that Arawa seemed to accept her fate meekly in that room could be used as evidence of more than one killer. Especially given the theory she died on her knees. If she was at gunpoint or at least restraint by more than one person it would explain why she stayed on her knees and didn’t try and escape when the killer reloaded.
The lawyer could also argue it possible another killer killed her whilst David or anyone else was fighting Stephen upstairs. Now we know 19 bullets were found, all whisper ammo. Fired from a .22 rifle. But were they all proven to have been fired by firing pin by the same gun, and it is here even if they were a lawyer could challenge this. Not convincing, but it is about introducing reasonable doubt, and with this scene it is possible.
Along with this scene as referenced earlier Awawa could also at any stage have unwittingly admitted a killer entry to the house given she was awake, if it was someone she knew or was friends with. Sounds unlikely but friends or boyfriends often go over to other friends homes in the middle of the night and sneak in, or at least drop something off or something like that. Usually teenagers, but it is plausible the killer could have talked their way in or at least got her to open the door. That would explain no forced entry. If I were his lawyer I would exploit this.

The basic scenario is far from perfect, but it does one thing. It alleviates the jury of having to embrace the Robin Bain suicide scenario. Put bluntly, the defense were never going to buy that scene. It is not even remotely plausible for reasons traversed over and over by all of us. The left temple shot from right handed man, the magazine on it’s edge, the changing clothes, Robins dirty hands showing he hadn’t cleaned up, and no forensic evidence linking Robin to any scene and the laborious suicide procedure makes the uphill task of convincing the jury almost impossible.

The 3rd party framing scenario, whilst almost equally unlikely and little to no supporting evidence, could have actually had the effect of potentially neutralizing or at least minimalizing some of the crowns case. Regardless if the Arawa scene is utilized or not. To surmise;

A major reason the original jury also would never have bought the Robin case was because he was at the same time framing his son, and it made no sense. But a 3rd party attempting to frame David does make a little more sense for the defense. David would be spared the embarrassment of explaining the spare magazine on it’s narrowest edge, the framer planting it there to implicate a false suicide set up. He would also be spared having to explain why the killer wore gloves, his gloves, if he intended to kill himself, he could argue the framer wore them deliberately to set him up, and probably planned to leave them in one of the scenes even if Stephen didn’t wake up, would also explain why David never removed them or tried to dispose of them on the paper run. He would also be spared having to possibly explain why Robin chose to wear his clothes and jersey, and spared having to lie about who owned it, by saying the killer did this deliberately to frame him. It would also wouldn’t require the jury to believe that Robin somehow hid his clothes where they were never found, as the killer either wore davids, or took the rest of his/hers with them when they left the scene. It would also make the suicide note on the computer look less incriminating, and the mistakes could be attributed to someone else staging his suicide but not David. The grammer mistakes could be attributed to being deliberate.

We know from an interview with a juror that perhaps the clincher for the first jury was they believed the older Robin would not have been able to overpower the younger Stephen. Again they are spared having to comprehend this, though the forensics clearly link David to the room. Still, reasonable doubt it introduced.

The other evidence about bladder quantity also becomes irrelevant.

The washing machine cycle timing evidence also is negated a bit, David can claim the killers put on the washing while he was out, though he would probably return home to it and have to explain why he didn’t find that odd, though he could claim he never went down to the laundry too.

The evidence about the glasses, he could also change without sounding like such a liar. In order for the cops to plant the lens like Karam claims, they would need advanced knowledge David worse glasses and know which ones were useful to him. But an insider or close family friend could have planted that evidence and if they knew Davids prescription, they could say they were planted by the killer. Highly unlikely, but not as unlikely as the police planting the glasses evidence.

The defense could also cite that David took a big risk making it look like suicide because 2 of the 5 victims, and 2 of the 4 up till that point needed more than one bullet to kill them, and if one shot didn’t kill Robin, the suicide theory goes out the window, so he has to dispatch him with 2 bullets or hope he dies from the first. They could do this either way but it has more weighting if you claim that the 3rd party wouldn’t care as much about this. He can still pin it on David either way.

They also would have a better chance of discounting the gloves evidence, because the prosecution argue why would Robin wear the gloves if he intended to kill himself, and the defense could claim why would David wear them when his prints would already be on his rifle he owned. But a 3rd party trying to frame him by wearing his gloves might have piqued the jury’s attention on that matter. It’s impossible to say though. The missing Laniet 3rd shot bloodstained pillowcase or cloth that the prosecution alleges David disposed of on the paper run could also be referenced here as to why wouldn’t David also dispose of the gloves and make a defense based around that.

The arguably inconclusive footprint evidence could have been put down as proof of the third person theory by the defense.

The defense would not be required to introduce a motive to get an upper hand either as the Crown made no clear attempt to do so. But they could have centered it around Laniets prostitution, perhaps a disgruntled client who may have contracted or believed he contracted HIV from her. The family spent much time in Papua New Guinea, where incest, occult activity and crime was high. The Bain murders resembled executions, the defense could have introduced some theory here or a cult ritualistic killing, similar kind of case was ongoing in NSW Australia at the time with the then unsolved backpacker murders. They could also cite the missing electronic diary from the home that contained contact details of Laniets clients as proof of an outsider or outsiders collecting that after or during/before the murders. A motive around Laniet would make sense if they decided to go that way. The defense could also a long with the Arawa scene, use the fact that despite 19 gunshots being let off and a violent struggle, and another execution of Laniet, both which likely would have involved yelling or screaming, neither Robin in the Caravan nor any neighbours/paper boys or people walking the street were awoken, any only one person heard a noise. That could be consistent with a 3rd party of another offender muzzling some of the victims, possibly by gunpoint. There was no evidence of any restraints or ligature marks on victims, but it remains a distant possibility.

Of course, no matter what, David still is in the very unenviable position of having to explain a lot of evidence that puts him at the murder scenes. His bloody fingerprints on the rifle cannot be accounted for, nor the blood on the clothing he is wearing. Blood stains on the door jambs indicate it was he who at least went into Arawas room, and probably the disorientation from the struggle caused him to miss a shot aimed at her, into the wall.
The washing machine palm print would take on more significance for the prosecution, though the defense could try claim it wasn’t blood but another dairy product the luminol reacted to, they could also stick with the killer dumping the clothes in the basket theory. He will also have to account for his 20 minutes lost time, the ambulance offers testimony about his tacked on histerics, and the blood on his socks proving he went into the rooms, as well as the 111 call discrepancy. But all in all, it at least doesn’t stretch credibility as far as the Robin scenario, and the defence and prosecution stance of whoever killed one, killed all, is also brought into question with the outsider defense, which could in time at least offer a plea bargain for the guilty plea of killing Stephen for David, though unclear if he would take it. No other offenders DNA was found in the home.

His post murder behavior and stage managing of the funerals would still be relevant, however I am not sure how much of this constituted why the first jury convicted him.

It is unclear how the computer turn on evidence would impact this defense theory, it is too inconclusive. It would count against it though in terms of denise laneys statement, but if you go with the 6.39 turn on time, its possible the message can be typed and the killer or killers out of the home by the time David gets back.

At the end of the day, I guess had the defense gone with this theory it’s unlikely the privy council would ever have quashed the conviction, and unlikely a retrial would have set him free. But would he have had slightly more chance of fooling that first Jury, and maybe saving 13 years of his freedom? It is my view the 3rd party killer introduces slightly more reasonable doubt than the Robin did it and then shot himself theory, and I wonder if the defense every considered going with it, though granted it would have required much collusion between David and his lawyer, and David insisted he didn’t kill anyone, so the forensic evidence against him is impossible to explain, but it is anyway under the Robin theory. But if you introduced the 3rd person theory, would it dent a few more of those strands of the prosecution rope, and maybe tip just over into that reasonable doubt? We will never know. It is my opinion a more feasable defense could have been built based on it, but I doubt David is too unhappy he didn’t go this route now with his freedom secured.

It is obvious to us why the 3rd person theory is extremely far fetched, and impossible unless David or Robin colluded with it, but I am surprised why so many Laymen who know little about the case, and Joe Karam were so quick to reject the idea. I think a more tangible defence could theoretically have been built based around it, and at the same time dent some strands of prosecution rope. Sure, the forensic evidence such as the prints, the blood etc he still can’t account for, but he cannot account for them either which way, and at least under this scenario the jury don’t have to strain their credibility to believing the Robin Bain shooting himself on the chair with the silencer on through his left temple wearing his beanie whilst carrying around the magazine absent mindedly which he doesn’t need, all after changing his clothes and putting his shoes on, and probably his watch, and managing to shower himself and remove all blood without removing the dirt in the crevices of his hands and fingernails, and have the magazine land perfectly on its narrow edge. That’s too much for almost anyone to swallow.

Comments

Chin up just give us some

Chin up just give us some evidence a 3rd party was involved in the Bain murders as far as I am concered there is not a shred of evidence there was, so its a preety hard boat to float.So I don't think it would ever have helped the defense.

Thats not entirely true. The

Thats not entirely true. For example the PCA report mentions on page 76 an unidentified fingerprint right next to the computer switch which does not belong to any member of the family. I agree it's a hard sell at the least but there are a few facts that could be molded around it, unlike the Robin suicide theory.

A third party scenario is

A third party scenario is simply bizarre.   Judge Williamson said in his summing up: "Well, who did it - David or Robin - no one seriously suggests another person was involved" (or words to that effect).

Had Michael Guest mounted a third party defence, the Jury would have taken an hour to convict rather than 9 hours.  The Jury would have assumed they were clutching at straws.

Michael Guest's gravest error was to allow David to take the stand. David shot himself in the foot by mentioning Laniet gurgling, not wearing the glasses and the ownership of the green jersey.

 

I have given further thought

I have given further thought to your detailed third party defence ideas.

I am firmly of the opinion that it was either David or Robin. Introducing another person makes no sense at any level. It may have served to confuse and confound the Jury but that is the gamesmanship lawyers engage in to win the contest and does not help us to arrive at the truth of the matter.

There are two questions we need to ask (ignoring motive as both had motive - real or imagined!)

1. Did David murder his family?  ---  The circumstantial evidence against him is overwhelming. Yes is the only reasonable, rational answer to this question.

2. Did Robin murder his family? --- No is the only reasonable, rational answer. In my opinion, there is no evidence that he killed his wife and children and suicide is an impossibility.

It is as simple as that really. 

  • Joe Karam: David is not Innocent

    From the Herald in 2000, Karam said:

    I'm not anti-police. I'm quite a redneck on matters of crime and punishment. I have absolutely no problem with cops in general. I didn't think David was innocent but I did think that his conviction was extraordinarily unsafe. And when I got the bum's rush from them on it, I thought something was up.