Expert Witness (23 page)

T
he clock on the wall says 4.43 p.m. and it's all over. Or maybe it's just heading in a new direction.

The Bain case is kind of a Kiwi institution. It's never really gone away since 20 June 1994, when five members of the Bain family were found dead and one family member was stretchered from the family home. David Bain was tried and convicted in May 1995, then sentenced in June 1995 to life imprisonment with a minimum 16 years non-parole period. He appealed the conviction but before the appeal process was completed, the police had arranged for destruction of many samples that had been collected in relation to their investigation. The house itself was burnt to the ground by the fire service, under direction from the wider Bain family, in unexpectedly dramatic fashion 17 days after the deaths themselves, just over a week after David Bain had been charged. Destruction of the house made national news as footage of enormous flames and billowing smoke were filmed from a helicopter.

The Bain family lived at 65 Every Street, Dunedin, New Zealand, where they had been living since their return from Papua New Guinea a few years earlier. At the time of death, father Robin was aged 58, mother Margaret was aged 50, elder son David was 22, elder daughter Arawa was 19, younger daughter Laniet was 18 and younger son Stephen was 14 years of age. Robin was the principal of Taieri Mouth Primary School, a small two-teacher school approximately 50 kilometres south along the coast from Dunedin. Margaret didn't work. David was a Music and Classics student at the University of Otago, Arawa was in her second year of teacher training, Laniet had lived in Dunedin and Stephen
was attending Bayfield High School. Margaret and Robin were estranged, although this was not widely known at the time. Robin returned to the Every Street house at weekends, although he didn't sleep in the house itself, instead sleeping in a caravan in the back garden.

All of the events that relate to David Bain's arrest, convictions, imprisonment, appeals, hearings, retrial and subsequent release following five not guilty verdicts stem from the events of that now long ago morning. This chapter is not about what happened on that day or the events that occurred up until I became involved. It is also not about particular issues that formed any part of the case for either side. This is solely about what I experienced.

My decision to become involved with the case was very closely considered. Admittedly, that decision involved a degree of naivety because I had no appreciation of the depth of feeling about the case: I wasn't here at the time of the killings or the first trial so none of the milestones between 1994 and 2008 meant anything to me. When I was first contacted about the case by a colleague, I had never heard of either David Bain (who?) or Joe Karam (double who?) — what are the chances of that in a country the size of New Zealand?

My involvement with the David Bain case came completely by chance and totally out of the blue. I first met Joe Karam in the office of the Coffee Guy in Auckland, a company he founded but that is now owned by one of his sons, with a business partner. I was invited along to the meeting by a colleague because I hadn't long been back in the country
after a six-year absence, and I wanted to get back into forensic science as soon as I could.

As the meeting started, this man across the table was staring at us in much the same way as a hawk eyes up a rabbit. It was an all-piercing stare and, quite frankly, was bloody uncomfortable. A large book of photographs was thrust across the table at me and the man on the other side of the table started talking about blood smears, spatter patterns and gunshot wounds, flicking constantly between the 700-odd pages to point out things and compare them with others. There was a huge amount of information to try to absorb in a short space of time.

I felt as if I was lagging behind because these two men clearly had
far
more idea about this case than me. This isn't necessarily an unusual situation: by the time an independent forensic scientist is called in to work on a case, the lawyers who are calling have usually had weeks, if not months, to become familiar with the circumstances. It's not uncommon for them to forget how much they know, whereas the first the scientist heard about it was three minutes ago. So playing catch-up is normal and the best way for me to deal with it is to suggest that a copy of the relevant paper work and photographs be sent to me so I can peruse them, absorb what they mean and come up with a coherent plan of action based on what I've been given.

In this first meeting with Joe Karam, I felt like a sitting duck as I was sized up for my suitability to become involved with this case. He eventually decided my CV didn't indicate that I'd be of any use to him and the meeting was over.

I assumed that was it and chalked it up to experience, but then the phone rang a few days' later and it was Joe Karam asking if I knew any pathologists or blood spatter experts in
England who might be prepared to have a look at a case in New Zealand. As it happens, I know a fair few experts in England and they have exactly that kind of experience, as well as lots more. So I hung up the phone after saying I'd check with my colleagues and get back to him. A Skype phone call later and the answer from England was, yes, they'd be happy to look at the case to see what assistance they could offer.

First refusal for the pathology was going to Dr Chapman, the man who did the post mortems of Princess Diana and Dodi Al Fayed. Although I was slightly uncomfortable with the thought of having to see him again after I'd so rudely fainted in his mortuary on a previous occasion, it was an excellent opportunity to bring some world-class skills to New Zealand. That was the point when I made the decision about whether or not to get involved — if experts from the United Kingdom were going to be consulted then the defence team would need someone with scientific knowledge to be the liaison between England and New Zealand. And so it began.

That first meeting at the Coffee Guy led to the involvement of the following defence experts from the United Kingdom:

• Dr Robert Chapman, Home Office pathologist who'd examined approximately 2000 cases of suspicious and homicidal death and approximately 18,000 sudden deaths (that's a lot of dead bodies), renowned not only for his involvement with the Diana and Dodi case, but also as the supervising pathologist for the 2007 London Tube bombings.
  
• Dr John Manlove, having been a Crown expert in the United Kingdom with particular expertise in
  blood spatter, DNA, sample collection and storage, entomology (insects) and crime scene examination, now running his own consultancy and involved with many high-profile cases including crime scenes and deaths in Iraq and central Europe.
  
• Carl Lloyd, former police officer with over 25 years' experience as a finger print examiner, including time spent in the USA and Abu Dhabi.
  
• Philip Boyce, firearms expert of 20-plus years with time spent in the Territorial Army in Northern Ireland during the Troubles of the 1970s and 1980s, with knowledge and expertise in terrorism and major incidents including time spent in Iraq and Afghanistan.
  

It's a pretty impressive skill base and yet they represent only a small selection of the skills available, which is why I feel justified in saying that if a case needs an expert with certain skills, I'm pretty sure I know someone.

Once I'd made the decision to become involved with the Bain case, it was like opening a door and walking into the eye of a hurricane. Once the door was shut, there was no turning round and opening it again. I worked in the eye of the storm for six months, blissfully unaware of what was swirling around me. I had no idea of the strength of the hurricane until the retrial started, by which time it was too late to get out of the way. If you spend any time thinking about it, which I don't usually, it can be a daunting task to be up against the might of the Crown. In this case, my strong impression was that there were 14 years of bad feeling running through the country, of which neither I nor the experts I involved were aware until we
were actually in Christchurch. For me, a case should always be impersonal; this is work, we are professionals and I have been trained to expect all involved to deal with it the same way.

There are three questions I am now often asked. I've already answered the first,
Is your job like CSI?
The second is,
So go on then, you were there, is he guilty or not?
When people ask me this question, it's not because they want to know what
I
think. It's because they want to tell me what they think, which they usually do whether I want to hear it or not. The third is,
What was it like being part of the David Bain retrial?
That is a question I
can
answer. Make your mind a blank canvas and draw a picture as we go along.

My involvement with the pretrial aspect of the case was quite extensive. Once I'd convinced the British experts to have a look at this case, I then told them how much work would actually be involved and that there was so much documentation I'd have to ship most of it over in a large storage box. The rest would be delivered by hand. Some of it was taken by Joe Karam, who combined the trip with a Privy Council hearing and de-brief with the experts concerned. The items that were going to be examined in England were hand-delivered by a police officer at the insistence of the Crown, which is fair enough. I have no idea how they decided who got to go, but I imagine they wouldn't have been short of volunteers.

I spent many,
many
hours reading documents, photocopying, setting up files, deciding what was relevant for the experts and reviewing documents that were constantly being disclosed by the Crown, right up until the time the retrial started. I spent
many other hours on Skype to the experts confirming to them that, yes, lots of exhibits really had been destroyed before the appeal process had been completed; yes, the crime scene really had been burnt to the ground two weeks after the killings without retaining the carpets on which the blood-stained sock prints had been located; no, there really aren't any proper scale diagrams of some of the important things; no, certain items weren't seized at the time; no, blood really hasn't previously been identified on those items … the list goes on. From the point of view of highly experienced forensic scientists, these circumstances were, to put it bluntly, extraordinary. They were certainly highly unusual in such a serious case as a multiple murder.

Because I was already involved with the logistics of getting the expert witnesses to New Zealand and arranging videolinks for others (both experts and lay), it was a logical step to take on the logistics of getting the rest of the witnesses to court as well. That might not sound too complicated because, after all, they're grown-ups and know how to find their way around. The thing is that because the case was legally aided, all funding, including that for travel, accommodation and food, had to be approved before any tickets or hotel rooms could be booked. That meant estimating how much it would cost to get each and every witness from wherever they were in the world into Court room One of Christchurch High Court on the relevant date, whether it be physically or electronically. I tell you now, that is no mean feat. This was particularly so when the time estimate for the start of the defence case was a constantly moving feast, in large part dependent on the way the Crown conducted its case.

There was also the need to source experts not needed in the first trial, because of changes in the way the Crown was presenting its case in the retrial, and some of those experts had to be sourced after the retrial had started. These included the police photographer who originally photographed the fingerprints on the rifle. The Crown was saying that the finger prints were in blood. The defence was suggesting that the fingerprints were not in blood and this was shown by the fingerprints being white-coloured against a dark background. The police photographer was required because we needed to know what sort of light had been used to enhance the finger prints. Blood is usually enhanced using a filter and a special light, the result of which would be a photograph in which dark finger prints appear against a lighter background. The photos of the finger prints on the rifle actually showed the opposite situation: white finger prints against a dark background. The police photographer confirmed he had used plain white light, which meant he hadn't used the filter that would be used if he were enhancing blood.