On 5 June 2009 a jury in the High Court at Christchurch found David Bain not guilty in his second trial of murdering five members of his family in Dunedin in 1994. But as he walked free it would be the turn of his champion, Joe Karam, to go on trial – in the court of public opinion. Hayley Locke reports
NO ONE CAN ARGUE that Joe Karam hasn’t been an ardent and committed advocate of David Bain’s innocence since he became involved in his case after Bain’s first trial saw him sentenced to life imprisonment in 1995. While Karam is admirable in his passion and tenacity, he can hardly claim to be unbiased after he has defended the cause so publicly.
It is for this reason that it seems unlikely that his latest book, Trial by Ambush, will be effective in altering any reader’s opinion on Bain’s innocence. Karam sings the same tune as he has in his previous book and media appearances, making it unreasonable to expect that anyone who believes Bain is guilty of the murders, even after his acquittal, would be willing to give Trial by Ambush a chance. But books make money. Especially books about famous murder cases where public opinion is so divided. Though Karam provides an engaging discussion of the forensic evidence, especially regarding the new technologies that have become available since the first trial, his arguments are polemic more than objective, and his obvious bias is painstakingly clear throughout all of the conclusions drawn.
Trial by Ambush would have served as a much more convincing text had it been written by an impartial party, which Karam could never be, considering how open he has been on his pro-Bain standpoint, and had the court findings been presented by commenting only on fact, avoiding unsubstantiated speculation which would there avoid the drawing of biased conclusions.
TRIAL BY AMBUSH GOES INTO MUCH DETAIL of the Bain family’s circumstances in the lead-up to the murders. While three of the six family members, Arawa, Stephen, and David, appeared to be functioning normally – attending school and university and generally succeeding in their ambitions, the other half of the family was in disarray. Margaret and Robin’s marriage had failed. No longer sharing a bedroom with his wife, Robin split his time between a decrepit caravan at the back of the Bain property (where he had slept the night before he died) and a house owned by Taieri Beach School, the primary school of which he was principal. Having had an enjoyable, challenging job working at a teachers’ refresher college in Papua New Guinea, where the family had lived for 15 years during the 1970s and 1980s, Robin struggled to find work that matched his qualifications and experience once he returned to New Zealand. Seemingly in reaction to her estranged marriage, Margaret had taken up New Age religious practices which were a departure from the traditional Christian values she had once held. Seventeen-year-old Laniet, the youngest daughter, had a past that was shrouded with mystery, with many witness making claims about her which can no longer be proven due her being dead. It is known that she was a prostitute, and there are claims that she had told friends that she had given birth to a baby while in Papua New Guinea. There are no legal or medical records of her ever being pregnant. Most relevantly, it is alleged she had revealed to friends an incestuous relationship between her and Robin. Karam suggests that the unravelling of Robin’s marriage and family, the degradation of his professional career, and his fear of the consequences of his relationship with Laniet (who, according to a witness, was planning to reveal the affair to her family on the weekend of the murders) is what ultimately led him to allegedly commit the murders.
‘Trial by Ambush would have served as a much more convincing text had it been written by an impartial party, which Karam could never be…’
Karam’s arguments rest on the idea that Robin’s alleged act of familicide, the act of killing one’s own family, was committed because he was suffering from mental illness and was depressed. He points out that while only about 1 per cent of familicides are committed by a child of the family, 95 percent are committed by the father. He makes a very strong point when he notes that if David was the murderer he would have to be the only recorded perpetrator of familicide who, as an adult son, was not abused, mentally deranged, psychopathic, and who did not commit suicide after the murders took place. Karam lists pages of references at the conclusion of the chapter on familicide. He has obviously done his homework, thus it’s reasonable to believe that if David was the murderer, he would be the first of his kind. Additionally, he says that the way he perceived Robin’s personality fits perfectly with one of two types of fathers who commit familicide. Rather than the controlling, destructive, ‘angry’ type of familicide-committing father, Robin is classified as being typical of the ‘despairing’ type. Such types usually attempt to conceal their misery, meaning they often have no history of violence or abuse, and from the outside may not be perceived as being mentally unwell. Karam explains that the reports from family and friends that Robin appeared to be as happy as he ever was consistent with many of those who commit familicide, because they internalise their personal sufferings in an attempt to maintain a front of successfulness.
IN ORDER TO GAIN A WELL-ROUNDED VIEW of the opinions surrounding the case, MASSIVE magazine interviewed Michael Bain, the brother of Robin, to understand his sibling as he knew him, rather than as the incestuous psychopath he has been portrayed as in the media.
Michael welcomed MASSIVE’s editor, Matt Shand, and me into his home – the same home that he and Robin grew up in as children. The house is very much a family home. It is impeccably tidy and comfortable. There is old, sturdy, and practical furniture and the wall space is carefully adorned with pictures of grandchildren.
‘Karam’s arguments rest on the idea that Robin’s alleged act of familicide, the act of killing one’s own family, was committed because he was suffering from mental illness and was depressed.’
The interview began with Michael giving us an outline of the person he knew Robin to be, an account which was in stark contrast with the one given in Trial by Ambush. Micheal described Robin as “a very kind, caring, generous person who loved his family very much”. While he notes that he was unaware of any personal family troubles Robin may have been experiencing, he says that in all of their interactions he found Robin to be “a steady, responsible, caring, kind person and unchanged in all that he’d ever been”. They had been on a family holiday together just six months before the murders. Michael described that as being “a lovely, happy time”. He had kept in contact while Robin and the family lived in Papua New Guinea, with Robin flying back to New Zealand regularly to visit his family.
When asked if he had spoken to Karam about the contents of Trial by Ambush or the case in general, Michael replied: “No, not at all. No point. He’s on a crusade, and I’m sure he won’t be persuaded from it.”
As the interview progressed it became clear that Michael’s argument for Robin’s innocence had evolved into something much more substantial than it being simply a case of a man who didn’t like to think that his brother may have murdered his family. Of chief concern to Michael is the addition of hearsay evidence being permitted at David’s second trial. A major part of his concern comes from an affidavit written by Dean Cottle, which was read by the judge to the jury during David’s second trial in 2009, at the end of which he was acquitted of the murders. Cottle, an associate of David’s sister Laniet, presented an affidavit to the court alleging an incestuous relationship Laniet allegedly told him she and Robin were perpetrating. In Cottle’s statement he claimed that Laniet was allegedly planning to come clean to the rest of the family during the weekend of the killings, and he assumed that it was in relationship to the allegation of incest (though that is unable to be proven). Though he was summoned to testify as a witness for the defence for the second trial, Cottle failed to appear in court, having been in Australia at the time, and therefore couldn’t be cross-examined. It was on the basis of him being out of the country that the judge decided to read his statement. Michael takes issue both with the actualaffidavit , he doesn’t believe Robin and Laniet’s relationship was ever more than what would be normal between a father and daughter, but also with the fact that it was even allowed in court at all. As the evidence was hearsay and speculation, and was unable to be proven one way or the other given Laniet and Robin were both dead and were not able to explain, clarify or rebut the affidavit or to defend themselves, Michael feels it should have been treated as inadmissible to the court. During our interview, Michael described his views by saying “I feel, and my family agrees, that it’s unfair that hearsay evidence can be allowed when it cannot be substantiated, explained or rebutted because the persons against whom it submitted are deceased.”
‘When asked if he had spoken to Karam about the contents of Trial by Ambush or the case in general, Michael replied: “No, not at all. No point. He’s on a crusade, and I’m sure he won’t be persuaded from it.”’
The first trial, in 1995, did not allow Cottle’s evidence to be presented due to its speculative nature. However, the Evidence Act 2006 allowed hearsay evidence, provided it was deemed relevant, to be put before the jury in time for David’s second trial. Iin the intervening period, books and newspaper and magazine articles were published, and television programmes aired, leading to intense speculation, and giving nearly every New Zealander the chance to form an opinion. There is little doubt that this amounted to nothing short of an unfortunate ‘trial by media’ that would help add fuel to the calls for David’s eventual retrial. Additionally, the defence introduced witnesses in the form of colleagues and friends of Robin’s, all of whom felt they had noticed a change in his psychological state.
TRIAL BY AMBUSH EXTRAPOLATES ON THESE witness statements, painting a picture of Robin being a depressed, forlorn man who had been pushed out of his family home. Karam then goes on to explain how the impression that he formed of Robin’s character fits with the stereotypical model of men who commit familicide.
Though Karam’s insights into familicide are thoroughly researched, it must be noted that he has picked and chosen witnesses accounts where they have suited his theory, rather than basing his views on the overall findings of the witnesses who commented on Robin’s psychological state at trial. Many of those witnesses said they had found Robin to be every bit the “wise, gentle, kind, generous, steady person” Michael knew him to be. Karam acknowledges this, and also mentions that these witnesses felt that what the defence witnesses had observed in Robin’s behaviour was merely his personal mannerisms and idiosyncrasies, and nothing to be alarmed about. Karam summarises these witness views together, rather than individually referencing them as he did the many witnesses who felt Robin had been experiencing mental distress. To make Trial by Ambush a balanced text, Karam needed to treat these positive witness statements with the same seriousness as he did the negative statements, in order to prove he wasn’t trying to fit the evidence with his own beliefs and theories.
Michael argues that Karam’s exploration of Robin’s psychological state is bordering on defamation, saying “I think that the fact that a deceased person can be defamed without the opportunity to defend themselves is totally unfair. A dead person should have the same rights as a living person to have their names and reputation protected. We feel very sad for Robin’s reputation that it continues to be unfairly impugned based on hearsay and supposition”. Therein lies the problem of Trial by Ambush, which uses its discussion of Robin’s alleged mental state as a major draw-card for readers. While what Karam has to say is very interesting to read, he appears to be pushing his point too far. Robin has not been proven as the killer, as the trials have focussed on David’s guilt or innocence instead. This makes Karam’s claims about Robin’s psychological state appear to be a personal attack on Robin, which seems especially unfair given Karam never met him. Trial by Ambush’s psychological evidence is based on hearsay and speculation which, even though it was permissible in a court of law, still undermines Karam’s credibility. If Robin were alive Karam would not be making this claim, or if he did he would very quickly be the subject a law suit – unless he had proof. He does himself no favours by pointing his finger elsewhere. Instead, it points to the weakness in his argument.
“I think that the fact that a deceased person can be defamed is totally unfair. I believe a deceased person should have the same rights as a living person to have their names and reputation protected.”
– Micheal Bain
Though we have stated the clear bias that Karam has exhibited after all he has invested into David’s case, it is also obvious that Michael has a natural vested interest in Robin To balance this, MASSIVE spoke to Bryan Bruce, the award-winning journalist and documentary-maker who created a documentary on the murders, A Question of Justice for TV One’s The Investigator. Bruce began his investigations in a neutral state, as a journalist working on an assignment. However, as time progressed he began to feel more and more that Robin was not the killer.
In our interview, he shared his dissatisfaction with Karam’s interpretation of both psychological and forensic evidence that Karam feels proves Robin to be guilty. One of his key arguments is that he feels it is unfair to speculate on Robin’s possible motive for murdering his family before forensic evidence has been able to prove that he definitely was the killer. Doing so is unfair speculation that is unable to be proven, and, as stated above, defamation. This obvious attempt to redirect attention merely highlights the weakness in his case. Michael echoes this view, saying “At the first trial, the judgment of the jury was based on forensic evidence that had been presented by the prosecution and had not been adequately countered by the defence, leading them to arrive at a guilty verdict”. But when it came to the second trial, Michael feels “there was lots of hearsay evidence that was allowed to be considered [at the second trial]. And it was on that hearsay evidence that I believe the jury found David to be not guilty”.
He also believes that “The first trial was based on the proven facts: the forensic evidence. The second trial was based on a lot of unsubstantiated forensic evidence and I don’t, we don’t, believe the hearsay evidence at all.”
KARAM EXPLORES FORENSICS HEAVILY IN Trial by Ambush, but both Bryan Bruce and Michael Bain are critical of the way he has interpreted certain findings and placed emphasis on some forensic evidence while downplaying other parts of it. An example of this is the fact that though Stephen’s fingerprints were found on the barrel of the gun – supposedly left there during an altercation with the killer – and David’s fingerprints were found on the stock, no fingerprints of Robin’s were found anywhere on the gun. Karam points out that the fingerprints of killers often do not appear on the gun, but Michael and Bruce both feel that Robin would have had to have held the gun quite firmly in order to position it so he could commit suicide.
Bryan Bruce also spoke about the documentary he created about the murders. He attempted to reconstruct the killings in a way that would allow an actor, playing the role of Robin, to murder four of his family members, dispose of his bloodied clothing, and then kill himself within the amount of time it would have taken David to do his paper run. But he was unable to recreate the scene in a way that was consistent with all of the forensic evidence, and within the time period. This further cemented his view that Robin could not have been the killer.
MASSIVE MAGAZINE TRIED REPEATEDLY to secure an interview with Karam. The publishers were very accommodating and even sent an advance copy of the book for this article, but in the end MASSIVE’s editor was told that Karam was interested only in interviews that were positive in nature. At the time of our request the article had not been written, so it we had no way of knowing if it was going to be positive or not. We would have preferred to have included Karam’s reaction to Bryan Bruce and Michael Bain’s comments in this article.
In the end, no amount of dispute can alter the facts of the case. Either Robin or David was the murderer, and, though David was originally convicted, he has now been acquitted by the courts. In that respect, it seems odd that Karam feels the need to argue his point further. David has been freed from prison, and the New Zealand public have long since made up their minds on who they think is guilty. While Karam, through his book, makes the court proceedings more accessible to the public, his bias is blatant enough to deter any reader from taking his interpretations as fact.