Book review: Trial by Ambush: The Prosecutions of David Bain

By Peter Graham In Books

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David Bain and Joe Karam, photo Janna Dixon/HoS

As everybody knows, Joe Karam – the well-known ex-All Black – is David Bain’s champion, friend, spokesman and minder. He has journeyed many miles and fought a long hard fight for Bain. Perseverance and devotion to a crusade could hardly go further. For years, Karam has been the driving force behind the Friends of David Bain, who doggedly pursued the cause of Bain after his conviction in June 1995 for the murders of his parents, Robin and Margaret, brother Stephen and sisters Arawa and Laniet.

After trips to the Court of Appeal in Wellington and the Privy Council in London, Bain was eventually granted a retrial in 2009 and, to the understandable jubilation of his supporters, acquitted. His photograph as the conquering hero is on the cover of Karam’s Trial by Ambush: The Prosecutions of David Bain.

Therein is the problem with this book. Karam cannot pretend to be an impartial commentator on the issues in question. His book is a polemic, dedicated to the proposition that Bain is not guilty. The book, plainly written and mercifully free of literary pretensions, is a work of advocacy, an attempt to persuade. The thematic approach means the reader frequently has to go backwards and forwards to work out the sequence of events.

As an advocate in court, you are not allowed to lie or wilfully misrepresent or misquote the evidence, but you are free to emphasise heavily, even at length, those parts of the evidence that support your case and skate over, skirt around or ignore altogether – if you can get away with it – items of evidence that weaken it. As a defence lawyer, that is what you are paid to do. And it is what, it seems to me, Karam is doing in this book.

The title Trial by Ambush is a strange choice, suggesting that the main focus is the defence being taken by surprise at the first trial. In my view, that complaint is pretty much unsustainable, for reasons I could easily explain if space permitted. The main problem with the first trial was that Justice Williamson, normally the fairest-minded of men, ruled inadmissible evidence in written form from a character called Dean Cottle, who suggested that Laniet Bain, aged 17, had been a prostitute and had told him her father had been having sex with her since she was 11 or 12. He said she had told him she was going home the very weekend before the murders to tell her mother everything. It was held inadmissible because Cottle had not turned up at court to be cross-examined about it.

What usually happens in these situations is that the evidence goes in with a stern warning to the jury that it may be unreliable. It was plainly relevant to the defence’s claim that Robin Bain had murdered all the family except David, then turned the gun on himself. A retrial should have been granted on that ground alone.

Karam certainly raises doubts about the value of some evidence relied on by the prosecution, such as the luminol bloody footprint, but some readers may feel there is still a strong case against David. Karam’s insistence that David could not have been at home when the computer was turned on in my view remains questionable. David was supposedly the only one who knew where the keys to the trigger guard were kept. He put the green jersey undoubtedly worn by the killer into the washing machine and washed it. I had to turn to paragraph 9 of Appendix B to learn David tried it on in court. It was tight fitting. Karam does not discuss the possibility it may have shrunk in the wash.

A thing I would very much like to know is why a young man who owns a .22 rifle used for shooting possums and rabbits, and perhaps occasional target shooting, possesses a silencer. How common is that?

Karam has certainly convinced me of one matter. This relates to the “Robin Bain had a full bladder at the time of his death and could not have walked around killing all these people without first relieving himself” thesis. Karam tears into this notion, calling it “arrant nonsense”. He reports that there are people, “many of whom are in the legal profession”, who find this the strongest evidence that Robin Bain was not the murderer. I confess I was among their number. Now I learn that Dr Grant Russell, a consultant urologist, demolished this argument with evidence that nothing can be concluded from the fact there was 400ml of urine in Robin Bain’s bladder. I stand disabused on that point.

Nonetheless, although someone some­day might persuade me David Bain is innocent, I don’t think Karam was the man for the job.

TRIAL BY AMBUSH: THE PROSECUTIONS OF DAVID BAIN, by Joe Karam (HarperCollins, $44.99).

Peter Graham is a former barrister whose books include, most recently, So Brilliantly Clever: Parker, Hulme and the Murder That Shocked the World. Click here for Rebecca Macfie’s interview with Graham.

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2 Responses to “Book review: Trial by Ambush: The Prosecutions of David Bain”

  1. Gavin James Mar 10 2012, 9:09am

    My final paragraph should have read: Finally, I believe that, in particular in light of this case, and in many other cases, if a defendant doesn't wish to be cross-examined in court that it should be noted that they may have something to hide, as in UK and it should be pointed out to the jury by the Judge.
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  2. Gavin James Mar 10 2012, 9:07am

    Firstly, using a silencer on a .22 rifle is very useful and I would suggest common place when hunting rabbits. If you fire an unmuffled rifle, you scare the rabbits away every time you fire. With a silencer, you can kill a lot more rabbits without disturbing the remaining rabbits, or indeed in this case, the family members.

    Secondly, Dean Cottle's evidence was and still is highly unreliable. He didn't appear again at the retrial, despite having been given more than adequate time to do so. It is also irrelevant as according to people who know the family, Robin already knew that Laniet was a prostitute, so this was not a revelation to him.

    To the end of your sentence beginning "As an advocate in court," I would have added, "even if you think the defendant is guilty"

    Regarding the luminol footprint, the prosecution witness was at pains to point out that the footprint was not necessarily the complete length of the foot that made the impression. He stated that it was from the point of highest pressure. Also, it wasn't made by dipping someone's foot in a bucket of blood, it was made by someone who had stepped in some blood at some point. Thus the foot could have been somewhat longer than the measurement made in the 30 seconds or so that a technician or police investigator has to measure it, following the application of luminol.

    I would suggest that there are several reasons that Robin isn't the killer, but the main ones are to do with the timing of David's arrival home. The whole point is that Denise Laney's (the woman who saw him entering the family home) car clock was wrong, and yet she still arrived in time for work. As well, the timing of the computer was done if a very inaccurate manner. Knowing the computer clock was wrong, the technician simply crashed the computer and then took a reading from a file that is created at startup of an XT computer. The police officer who witnessed this stated that his watch was not correctly set either. In conclusion, David could have been at home up to 5 minutes earlier than stated. Another point with regard to timing is that David states in one of his statements that he put the washing machine on a full cycle which took over an hour, according to two tests performed by a washing machine repairman, and yet the washing cycle was finished before the police arrived that morning, less than a full hour before David arrived home, according to his own and witness testimony. Lots of holes in and lots of changes in David's testimony. Many more than alluded to here.

    Finally, I believe that, in particular in light of this case, and in many other cases, that it should be noted that they have obviously got something to hide, as in UK and it should be noted by the Judge.
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