MICHAEL HARDIE BOYS, Governor-General
ORDER IN COUNCIL
At Wellington this 18th day of December 2000
Present:
HIS EXCELLENCY THE GOVERNOR-GENERAL IN COUNCIL
WHEREAS-
A. On 29 May 1995 David Cullen Bain was convicted in the High Court at Dunedin on 5 counts of murder and was, on 21 June 1995, sentenced to life imprisonment with a minimum non-parole period of 16 years; and
B. On 19 December 1995 the Court of Appeal dismissed David Cullen Bain's appeal against his convictions and sentence and the Privy Council subsequently dismissed his application for special leave to appeal; and
C. An application has been made, dated 15 June 1998, for the exercise of the mercy of the Crown in respect of those convictions and sentence on the grounds that, among others,-
(1) a series of errors and omissions occurred in the course of the investigations conducted by the police and in the course of scientific and forensic testing and analyses undertaken by the Institute of Environmental Science and Research Limited, and that these errors led to incorrect and misleading evidence being presented to the jury; and
(2) a range of fresh or otherwise undisclosed evidence is now available that bears on the "alibi" defence advanced by David Cullen Bain at trial; and
(3) a range of fresh or otherwise undisclosed evidence is now available that tends to establish that Robin Bain murdered 4 members of his family and then committed suicide; and
(4) both the Crown and the defence made errors in the conduct of the trial; and
D. His Excellency the Governor-General, with a view to the determination of the application, desires the assistance of the Court of Appeal on the points arising from the application that are set out in the Schedule of this order (which points are framed in the form of questions and appear in that schedule together with a list of documents that the Court is requested to consider in relation to each question):
Now, therefore, pursuant to section 406 (b) of the Crimes Act 1961, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, refers each of the points set out in the Schedule to the Court of Appeal for its opinion and requests the Court, in considering those points-
(a) to have regard to-
(i) the evidence given at the applicant's trial (as defined in the Schedule); and
(ii) such of the evidence given in any of the other proceedings (as defined in the Schedule) as the Court considers relevant; and
(b) to consider, in such manner and to such extent as the Court thinks just, any further or other material to be put before the Court (including evidence on oath and evidence resulting from cross-examination); and
(c) to hear such submissions on behalf of the applicant and such submissions on behalf of the Crown as the Court thinks just.
Schedule
Points Referred to the Court of Appeal
1. Interpretation-In this schedule,-
applicant means David Cullen Bain
applicant's trial means the trial that was conducted in the High Court at Dunedin in the period beginning on 8 May 1995 and ending on 29 May 1995 and resulted in the applicant being convicted on 5 counts of murder
computer means the personal computer found by the police at 65 Every Street, Dunedin on 20 June 1994
other proceedings means-
(a) the proceedings in the District Court at Dunedin at which the depositions leading to the applicant's trial were taken; and
(b) the proceedings (for defamation) brought in
the High Court at Auckland relating to the conduct of police officers during the investigations leading to the applicant's trial (Weir and Anderson v. Karam and Reed Publishing (NZ) Limited, CP139/98).
2. Questions for opinion of Court of Appeal-The questions for the opinion of the Court of Appeal are-
Question 1:
Was the computer turned on at a time earlier than 6.44 a.m. on 20 June 1994 or, at the very least, is there a reasonable possibility that the computer could have been turned on at a time earlier than 6.44 a.m. on that date?
The following documents are or may be relevant to this question:
(a) a report entitled "Bain Homicide Computer Examination" compiled by M. J. Kleintjes, Chief Technical Investigator, Police Electronic Crime Laboratory:
(b) a job sheet from Detective K. W. Anderson, dated 21 June 1994:
(c) an undated and unsigned note stated by the applicant to be a notebook entry made by Detective
K. W. Anderson on 21 June 1994:
(d) a statement by M. J. Cox, Computing Adviser, University of Otago, dated 22 June 1994:
(e) an unsigned job sheet stated by the applicant to be from Detective C. J. Robinson, dated 25 June 1994:
(f) a signed deposition statement by M. J. Cox, Computing Adviser, University of Otago, dated
11 October 1994:
(g) a job sheet from Detective Constable T. Thomson, dated 11 October 1994.
Question 2:
Did the lens that was found in Stephen Bain's bedroom get there at a time or in a way that was unrelated to the murders or, at the very least, is there a reasonable possibility that this could have been so?
The following documents are or may be relevant to this question:
(a) a typewritten extract of a document stated by the applicant to be page 17 of the deposition statement of Detective Sergeant M. C. Weir:
(b) photocopies of photographs numbered 61, 62, and 99 produced at the applicant's trial:
(c) a job sheet from Detective Sergeant M. C. Weir, dated 23 June 1994:
(d) an undated and unsigned note stated by the applicant to be a notebook entry made by Detective Sergeant M. C. Weir on 23 June 1994:
(e) a report compiled by Brian Donovan, Audio Visual Centre/Photographic Section, The University of Auckland, dated 20 November 1996:
(f) the affidavit of Gordon Frank Sanderson, optometrist, dated 8 May 1997:
(g) a report compiled by Peter J. Durrant, scientific photographer, dated February 1998.
Question 3:
Were the applicant's positive fingerprint marks, made in blood, that were found on the rifle used to commit the murders, put there at some time before the murders or, at the very least, is there a reasonable possibility that this could have been so?
The following documents are or may be relevant to this question:
(a) case notes from P. R. Hentschel, Institute of Environmental Science and Research Limited:
(b) case notes from Dr P. Cropp, Institute of Environmental Science and Research Limited:
(c) a table labelled "Test I: Quantitation and Amplification Record" from the Institute of Environmental Science and Research Limited, dated 7 August 1997:
(d) a table labelled "Test II: Quantitation and Amplification Record" from the Institute of Environmental Science and Research Limited, dated 19 August 1997:
(e) a diagram prepared by Dr Sally Ann Harbison, Institute of Environmental Science and Research Limited, dated 3 September 1997:
(f) a letter (and attached table) from Dr Sally Ann Harbison, Institute of Environmental Science and Research Limited, dated 5 March 1998:
(g) a report compiled by Dr John Maxwell Robertson, General Manager, Accreditation Services, International Accreditation New Zealand, dated
2 April 1998:
(h) a report compiled by Dr Arie Geursen, Director of Resources, Genesis Research and Development Corporation Limited, dated 12 June 1998:
(i) a letter from Dr Arie Geursen, Director of Resources, Genesis Research and Development Corporation Limited, dated 25 March 1999:
(j) a letter from Kim Jones, Senior Fingerprint Officer, Crime Print Section, Christchurch Police, dated
28 April 2000.
Question 4:
Was the submission made by the Crown Solicitor in the Crown's closing address to the jury at the applicant's trial that "Only one person could have heard Laniet gurgling. That person is the murderer" wrong or misleading?
The following documents are or may be relevant to this question:
(a) page 101 of the summary of the briefs of evidence for the applicant's trial prepared by defence counsel, Michael Guest, containing the applicant's handwritten notations:
(b) a report compiled by Dr K. J. Thomson, forensic pathologist, dated 21 August 1997:
(c) a supplementary report and opinion compiled by Professor Stephen M. Cordner, Professor of Forensic Medicine, Monash University, dated 9 February 1998:
(d) a report compiled by Dr James Gwynne, retired anatomical and forensic pathologist, dated 23 July 1998:
(e) the affidavit of Ray Pritchard, retired laboratory technician, dated 12 November 1998.
Question 5:
Does the Court of Appeal's opinion on questions 1, 2, 3, and 4 (whether taken individually or collectively) indicate that there is credible and cogent evidence available that might, if it had been placed before the jury, along with the other evidence given at the applicant's trial, have reasonably led the jury to return a different verdict?
Question 6:
Having regard to the Court of Appeal's opinion on question 5, is there a possibility that there has been a miscarriage of justice that would warrant the question of the applicant's convictions being referred to the Court of Appeal under section 406 (a) of the Crimes Act 1961?
MARIE SHROFF, Clerk of the Executive Council.