The Queen v Bain [2003] NZCA 294; [2004] 1 NZLR 638; (2003) 20 CRNZ 637 (15 December 2003)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/03THE QUEEN

v

DAVID CULLEN BAIN

Hearing: 1, 2, 3, 4 and 9 September 2003

Coram: Tipping J Anderson J Glazebrook J

Appearances: C S Withnall QC and K C Marks for Appellant
N M Crutchley, J C Pike and A Markham for Crown

Judgment: 15 December 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Table of Contents
	Paragraph Number
Introduction	[1]
The case in outline	[5]
Further evidence – legal considerations	[18]
Admission of new evidence	[28]
THE CROWN’S CASE	[31]
The trigger lock	[32]
The bloodied opera gloves	[35]
Bloodstained clothing worn by David	[37]
Bloodstained clothing associated with David	[41]
Palm print on washing machine	[45]
The bathroom/laundry area	[46]
Injuries to David	[50]
The glasses and lenses	[53]
The fingerprints on the rifle	[57]
The washing machine cycle	[69]
The scene in the lounge	[78]
Robin’s full bladder	[88]
Laniet’s gurgling	[91]
THE DEFENCE CASE	[94]
The computer turn on time	[95]
Laniet’s gurgling	[114]
The fingerprints on the rifle	[130]
The glasses and lenses	[136]
Robin Bain’s mental state	[141]
Robin Bain’s motive	[146]
Suicide – new evidence	[150]
New evidence said to implicate Robin Bain	[153]
Process issues	[158]
OVERALL ASSESSMENT	[163]
Conclusion	[174]

Introduction

[1] On 20 June 1994 five members of the Bain family were shot dead in their home at 65 Every Street, Dunedin. The sixth and surviving member, David Bain, was charged with their murders. On 29 May 1995 he was found guilty by a jury in the High Court at Dunedin following a trial which lasted about a month. He appealed against his convictions. In a judgment delivered on 19 December 1995, reported at [1996] 1 NZLR 129, his appeal was dismissed by this Court. His subsequent petition for leave to appeal to the Privy Council was dismissed on 29 April 1996. Hence the convictions stood and with them the life sentences which carried a minimum non parole period of 16 years.
[2] On 15 June 1998 David Bain applied for the exercise of the mercy of the Crown. On 18 December 2000 the Governor-General, acting pursuant to s406(b) of the Crimes Act 1961, referred to this Court for its opinion certain questions arising from the application for mercy. On 17 December 2002 this Court furnished the Governor-General with its opinion on those questions.
[3] On 24 February 2003 the Governor-General, acting pursuant to s406(a) of the Crimes Act, referred to this Court the question of the five convictions of David Bain for the murder of his family members. A reference under s406(a) has the effect of an appeal against the convictions so referred. Hence this Court must consider the matters arising as if David Bain was appealing against his convictions a second time. Thus the provisions of s385 of the Crimes Act apply and govern our task. For ease of reference we set out s385(1).

385 Determination of appeals in ordinary cases

(1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion—

(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) That on any ground there was a miscarriage of justice; or

(d) That the trial was a nullity—

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[4] David Bain’s defence at his trial was that he had not killed his father, mother, brother and two sisters. He contended that his father had killed the others and had then killed himself. The primary thrust of the present appeal is that further evidence has been obtained or become available which both diminishes the strength of the Crown case against David, and strengthens his defence that his father was responsible for the killings and then committed suicide. Accordingly David contends there was a miscarriage of justice in terms of s385(1)(c) and this Court should quash his convictions. The Crown’s stance in opposition to the appeal is first that the further evidence is neither fresh nor sufficiently cogent and second that, even if it does qualify in those terms, it cannot reasonably be regarded as affecting the safety of the convictions.

The case in outline

[5] We propose to set out the background circumstances in outline only at this point to enable the more detailed points to be understood in their overall context. It will be necessary to examine individual aspects of the case in greater or lesser detail as we proceed. The Bain family consisted of Robin, the father, who was the principal of a small two class primary school at Taieri Mouth. He spent most week days and nights at Taieri Mouth. When he was at 65 Every Street he occupied a caravan parked in the grounds. He was estranged from his wife, Margaret, who lived permanently in the house. Their daughter Arawa, and their two sons Stephen and David, also lived in the house. Their daughter Laniet happened to be staying there at the relevant time. Stephen was still at school and David was at university studying classics and music. Laniet had allegedly been working as an escort. Arawa was at Teachers College.
[6] David had a newspaper round which he did early each morning. On Monday 20 June 1994 he did his paper round and returned to 65 Every Street at about 6.40-6.45am. The exact time is the subject of one of the detailed issues to be discussed below. David told the police later that morning that, on returning home, he had put the washing on, as was his normal practice, and had then found his father and mother each fatally shot in the head. His father was in the lounge and his mother was in her bedroom. David said he had not been into the rooms occupied by his sisters and brother. Much later he said that with professional help he now recalled having done so. We note, however, that David told the emergency operator and the police on their arrival that his brother and sisters were dead as well as his father and mother.
[7] At 7.10am David rang the emergency services and before long ambulance and police officers arrived. Initially the police were inclined to the view that Robin had killed the others and then committed suicide, but as the inquiry developed they came to the view that David had shot the four family members who slept inside the house prior to going on his newspaper round, and having returned from it he had waited for his father to come in from the caravan. The police’s conclusion was that, knowing his father was likely to come into the lounge, David had concealed himself in a curtained-off computer alcove and, when his father did come in and knelt down to say his prayers, David shot him in the head and then so arranged the scene to make it look as though his father had committed suicide.
[8] When the police entered the house they discovered the body of Robin in the lounge. Nearby was a .22 calibre semi automatic rifle with which both he and the other family members had been shot. The rifle was fitted with a silencer and a magazine containing two live rounds. Adjacent to Robin’s outstretched right hand was another, larger magazine, containing three live rounds. It was resting on the carpet, upright, on the narrow edge of its long, convex side. The scene in the lounge had at least the superficial appearance of a suicide. Margaret had been shot in her bedroom and was lying dead in her bed. So too was Laniet. Arawa was found dead in her bedroom but in a position which was consistent with her having been kneeling on the floor when shot. Stephen was found dead on his bedroom floor in a near naked state. The scene in his bedroom indicated that he had put up a struggle before finally being shot in the head. The police found a lens from a pair of glasses on the floor in Stephen’s room. They also found a bloodied pair of opera gloves belonging to David in Stephen’s room. The frame from which the lens had come and the other lens were found in David’s room. The finding of the lens and its significance is one of the more detailed issues which we will be addressing later in this judgment. The police also found on the floor in David’s room a trigger lock which had been removed from the murder weapon.
[9] On searching the laundry, which was on a lower level than the other rooms, the police found various items of clothing. These and their significance will be described later, as will tests, which the police arranged on the washing machine. Off the lounge where Robin’s body was found was a curtained alcove in which there was a computer which had been switched on and was still operating. The screen displayed a typed message reading “Sorry, you are the only one who deserved to stay.” Tests were later performed on the computer in order to ascertain, with as much precision as possible, the time at which it had been switched on that morning. This is another of the matters upon which we will be focusing in some detail later in this judgment. David claims that the switch-on time of 6.44am upon which the case was based at trial can now be shown to be erroneous.
[10] David’s bloody fingerprints were found on the rifle. This, of course, constituted a substantial aspect of the case against him. He now contends that the blood was animal rather than human blood and his prints were not therefore connected with the murders.
[11] The Crown case against David at trial relied upon a combination of points, the cumulative effect of which was found by the jury to constitute proof beyond reasonable doubt that he was responsible for the deaths. The Crown likened its case to the three sides of a triangle. The first side comprised the evidence pointing specifically to David as the killer; the second side was represented by evidence excluding Robin from being the killer; and the third side constituted evidence showing that Robin had not committed suicide.
[12] The Crown’s contention was that David had become increasingly disturbed during the days leading up to the killings. David told the jury that after he had gone to sleep on the evening of Sunday 19 June he was woken by raised voices coming from the living room. He then heard his mother’s car drive away from the property and return later on. It is a reasonable inference that David overheard a heated argument between his parents which led to his mother leaving the house for a time. The Crown’s case was that he resolved to kill his mother, sisters and brother before going on his paper round and then to kill his father after returning, when his father came in from the caravan in which he slept. The Crown suggested that David had not expected the struggle with Stephen whose fingerprint was found on the rifle’s silencer and that the struggle caused David to sustain injuries which were observed by the police and by the doctor called by them to examine him.
[13] The Crown also relied on the presence of blood on garments which David was wearing when the police arrived and blood which was on clothing associated with David. The Crown contended that David had enough time to switch on the computer after returning from his paper round and that he, David, wrote a pseudo suicide note to make it look as though the murderer was his father.
[14] During the course of his evidence-in-chief David said he had heard Laniet gurgling when he entered her room. The Crown argued that Laniet must still have been alive at this point, and therefore David must have been the killer, as otherwise he could not have heard her gurgling. This is another point which has assumed prominence in David’s challenge to his convictions, as he contends that Laniet could already have been dead and yet have emitted gurgling noises. We will be examining this issue in more detail later.
[15] On the second side of its triangle the Crown contended that the most striking feature was that there was no evidence that Robin had been into any of the rooms. There was then and is now no evidence of his having had any of Stephen’s blood on him; and there was and is no reasonable basis for concluding that he had had the blood of any other victim on him. The Crown also pointed out that if Robin had been the killer and intended to commit suicide, there would have been no logical reason why he should have changed his clothing. That could be the only explanation for there not being any blood from any of the others on the clothing he was wearing at the time of his death. On the third side of the triangle the Crown relied primarily on the evidence of Dr Dempster, a pathologist, which was broadly to the effect that while the fatal injury which Robin sustained could possibly have been self inflicted, this appeared to be most unlikely.
[16] The defence case at trial was essentially that the Crown had not excluded the reasonable possibility that Robin had been responsible for the killings and had then killed himself. Counsel then representing David contended that the time at which he was supposed to have switched on the computer, ie. 6.44am, could not be reconciled with the time at which a witness, Ms Denise Laney, said she had seen him outside Every Street. That time was 6.45am. Defence counsel relied on the absence of any valid motive for the crimes, and made a number of submissions attempting to deflect the force of the points upon which the Crown relied. Defence counsel submitted that Robin did have a motive. He had been rejected by his wife and family and, being under increasing pressure, he had just snapped. There was of course reference on David’s behalf to the fact that suicide had not been ruled out by the pathologist and, overall, defence counsel invited the jury to take the view that the Crown had not discharged the onus of proof because there remained a reasonable possibility that Robin was the murderer. It was not, and is not now suggested that anyone other than David or Robin could have been responsible.
[17] The challenges which David has hitherto made to his convictions have already been referred to in outline. The only point we need add here is that on this reference under s406(a) of the Crimes Act the Court is engaged in a different exercise from that which the Court undertook on the s406(b) reference. On that reference the Court was answering specific questions which had been referred to it. In the present case the Court is assessing the overall effect of all the new evidence produced on either side when viewed against the evidence which was called at trial. The s406(b) reference involved a compartmentalised and selective approach to particular issues. The present s406(a) reference requires a much more wider-ranging appraisal of the effect of all the evidence, both new and old. It is only on that basis that a proper determination can be made of the overall effect of the new evidence adduced by David.

Further evidence – legal considerations

[18] Before coming to the detail of the various points raised on each side, it is appropriate to examine the rules and criteria which apply to appeals based on the contention that evidence beyond that called at the trial is now available. An authoritative statement of the key points can be found in the judgment of this Court delivered by Richardson J in R v Crime Appeal (CA60/88) (1988) 3 CRNZ 512 at 513:

The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice. This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice at the trial. The overriding test must be the interests of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at the trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer [1981] 1 NZLR 748, 753 and the cases referred to there).

[19] To similar effect is the unreported decision of this Court delivered by Hardie Boys J in R v Zachan, 11 August 1995, CA304/94:

The Court has jurisdiction to allow an appeal on the ground of the discovery of fresh evidence by virtue of s385(1)(c) of the Crimes Act 1961. This provides that an appeal against conviction is to be allowed if the Court is of the opinion that on any ground there has been a miscarriage of justice. The Court will normally require that the evidence be fresh in the sense that it was not available at the trial; and that it be credible and cogent in the sense that if given along with the other evidence in the case, the jury might reasonably have been led to return a different verdict. The overriding test however is the interests of justice. See R v Fryer [1981] 1 NZLR 748, R v Arnold [1985] 1 NZLR 193, R v Crime Appeal (CA 60/88) (1988) 3 CRNZ 512.

[20] The principles outlined have been applied in many other cases: see R v Baker [1976] 1 NZLR 419; R v Chapman (1991) 7 CRNZ 486 (CA); R v Cassidy [1995] 3 NZLR 184 (CA); R v Collier (1996) 14 CRNZ 439 (CA). Cases where the Court has approached the matter on the same basis, on a s406(a) reference, are R v Dick [1973] 2 NZLR 669, and R v Collie [1997] 3 NZLR 653, where a five Judge court referred to the earlier decision of the Court in R v Barr (Alistair) [1973] 2 NZLR 95.
[21] Mr Pike, who argued this aspect of the case for the Crown, did not suggest we should depart in any way from this settled line of authority. Slightly different verbal formulations have been adopted from time to time but the broad general effect has remained consistent. Mr Withnall QC for the appellant, ultimately took a similar stance, albeit at one point he was inclined to suggest an approach which focused more on how the further evidence affected the views of the Court rather than how it might have affected the conclusion of the jury. We are, however, of the view that we should follow the settled line of authority to which we have referred, the effect of which can be summarised in the following way.
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (a) sufficiently fresh, and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
[25] The Court is therefore engaged in considering what effect the new evidence might reasonably have had on the jury. This focus on the effect of the new evidence on the jury is consistent with the jurisprudence relating to the proviso to s385(1): see R v McI [1998] 1 NZLR 696 (CA), and the recent decision of this Court in R v Howse, CA444/02, 17 August 2003. In that field the Court is concerned with whether the jury (not the Court: see McI at 711) would nevertheless have convicted had the posited miscarriage of justice not occurred. The need for the appellate court in a new evidence case to consider its effect on the jury is also consistent with the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.
[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.
[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control. We will therefore approach this case on the three-fold basis outlined above. The critical question which will emerge is whether, in the light of all the evidence now available (both that called at trial and the further evidence produced by the appellant and by the Crown) the jury might reasonably have reached not guilty verdicts.

Admission of new evidence

[28] We propose at this point to deal with the admission of new evidence in this case on a global basis. We will make discrete reference to the admissibility of particular pieces of new evidence subsequently, to the extent it is either necessary or desirable to do so. In short we consider it is in the overall interests of justice to admit all the new evidence tendered by David Bain and all the new evidence tendered by the Crown. Clearly, if all David’s new evidence is admitted, as in our view it should be, the Crown should, in this case, be entitled to similar treatment. Mr Withnall appropriately did not argue to the contrary. There is authority for saying that in second appeals pursuant to a reference under s406(a) this Court may find it appropriate in the interests of justice to adopt a somewhat more liberal approach to the admission of new evidence than in conventional first appeals. That said, we do not suggest that in such cases the ordinary principles should be abandoned. What is in the interests of justice can only ultimately be viewed against the circumstances of individual cases.
[29] Much of David’s new evidence qualifies comfortably within ordinary principles; for example the evidence concerning the nature of the blood in which David’s fingerprints were found on the rifle. In so far as some aspects of the new evidence might be thought a little debatable on either the freshness or the credibility criterion, we consider it appropriate in the interests of justice to admit it to enable the Court to have before it everything which David contends to be relevant. A conclusion reached excluding something in that category would not be in the overall interests of justice. If something is marginal in this context, the benefit of the doubt should go to David. We would not of course have been willing to admit anything which we considered clearly not to qualify but at worst, from David’s point of view, certain aspects of the new evidence might be thought marginal rather than clearly inadmissible.
[30] The rest of this judgment proceeds on the basis that all the new evidence tendered on both sides is admitted. Its effect is of course another matter. That will be the subject of individual discussion in places and general discussion after all the diverse topics which arise have been considered.

THE CROWN’S CASE

[31] It is appropriate now to examine in more detail the nature of the Crown’s case against David at trial, in conjunction with the new evidence which the Crown has produced. We will then examine David’s case at trial in more detail in conjunction with his further evidence. In discussing the Crown case we will focus on the main aspects which, in combination, the jury must have found to constitute proof beyond reasonable doubt of David’s guilt. Our ultimate purpose will be to consider, in accordance with the legal principles we have discussed, what effect the new evidence has in either weakening or strengthening the case which the Crown presented against David at trial and the case which David presented in his defence, remembering of course that the onus of proof rested throughout on the Crown.

The trigger lock

[32] The rifle with which the killings were effected belonged to David. It was stored in the wardrobe in his bedroom and was kept safe with a trigger locking mechanism which had to be unlocked and removed before the rifle could be fired. The mechanism was found by the police on the floor of David’s bedroom with what became known as the spare key still in it. This mechanism is a separate device which, once unlocked, is detached from the rifle itself. It is common ground that on 20 June 1994 it was the spare key which was used to unlock the mechanism. David’s usual key was found in a pocket in his anorak, which was inside the family’s Commer van parked near the property. David usually had it hanging round his neck but he had put it in his pocket before participating in Dunedin’s annual mid-winter polar plunge the day before and it was found in the van the following morning.
[33] In order therefore to be able to unlock the weapon the killer had to know of the existence and whereabouts of the spare key, which David kept in a pottery vessel on the desk in his room. There is no evidence of any search for the spare key. The lid was put back on the pottery vessel and a hacky sack was placed on top of the lid. The critical point is that David told the police and the jury that no-one else knew of the existence of the spare key, let alone its whereabouts. In his evidence-in-chief David said: “No-one else in the family knew there was 2 keys.” This must have been seen by the jury as a very significant point. Mr Withnall suggested that David may have been mistaken and that his father could have been aware of the fact that there was a spare key and where David kept it. Counsel submitted that if David was guilty he would hardly have made the statement he did about the spare key. Nevertheless David said the same thing, not only in the highly charged circumstances which existed immediately after the killings, but also when giving his evidence-in-chief to the jury about a year later. It seems most unlikely that David could have been mistaken on a matter of this kind.
[34] At least David must have believed no-one else knew of the spare key. He would hardly have been deliberately lying against his own interests. It is possible that Robin had come to learn of the existence of the spare key and where David kept it, but on the evidence that is no more than a speculative possibility. David said that the rifle had not been used since January or February 1994, and it seems reasonable to infer that when father and son went out shooting together, as David said they had done, David would have used the key which he usually kept hanging round his neck. David’s statement to the police, repeated at the trial, that only he knew of the existence, and hence the whereabouts of the spare key for the trigger lock, must be regarded as a very strong piece of evidence against him. Indeed if David’s evidence is taken at face value, and there seems no reason why it should not be, only he could have been the killer because Robin did not know of the existence, let alone the whereabouts, of the key which the killer used to unlock the murder weapon.

The bloodied opera gloves

[35] David owned a pair of white opera gloves which he had only recently purchased to attend a ball and which he kept in the chest of drawers in his bedroom. As earlier noted these gloves were found by the police, in a heavily bloodstained condition, in Stephen’s bedroom. Stephen had put up considerable resistance to the killer before finally succumbing. A shot went through his hand and grazed his scalp causing significant bleeding. A struggle ensued. Stephen was strangled and finally killed by a shot to his head. The present point is that the killer wore gloves until they somehow came off his hands in Stephen’s room. The Crown case was that the killer had probably removed the gloves deliberately in order to deal with a misfeed in the rifle, but whether that was so is of no great moment.
[36] The fact that the killer wore David’s gloves has a dual significance. First, the killer must have been intending not to leave fingerprints on the weapon or elsewhere. If Robin Bain were the killer it seems most unusual for him to have worn gloves, if he was intending to commit suicide. His leaving fingerprints would then be of no moment. Mr Withnall suggested that he decided to kill himself only at the last minute. That possibility must be borne in mind, although it seems rather unlikely. Secondly, if Robin was the murderer and had not intended to kill himself, it seems paradoxical that he would be of a mind to spare David and yet at the same time, seek to implicate him in the killings by using David’s rifle and ensuring, by wearing gloves, that his own fingerprints were not on it. Plainly the killer envisaged both that the rifle would be connected with the murders and that it should not bear any recent fingerprints associated with its murderous use. All in all the use by the killer of David’s gloves is not easy to reconcile with anyone other than David being the killer.

Bloodstained clothing worn by David

[37] The police entered 65 Every Street at 7.28am. They found David wearing items of clothing which had bloodstains on them. There were no bloodstains from any of the others on any item of clothing which Robin was wearing at the time of his death. In view of the substantial struggle which took place in Stephen’s room, the only credible explanation, as we noted earlier, for there being no such blood on Robin’s clothes, if he was the killer, is that he must have changed his clothes between killing the others and shooting himself. It was suggested on David’s behalf that Robin might have done this in order not to meet his maker with the blood of his wife and children upon him. That is a speculative possibility, but the more natural explanation is that Robin was not responsible for the killings. Furthermore the fact that Robin was wearing a beanie on his head and a hooded sweatshirt seems more consistent with coming in from the caravan on a cold winter’s morning than with dressing to meet his maker. David himself indicated that his father was usually more smartly dressed for school than he was that morning.
[38] David had blood on his socks, white T-shirt and black shorts. Some of the bloodstains on the socks are explicable on the basis of his merely walking through the house into the various rooms; but the two drops of blood on the underside of the socks, which came from either Laniet or Stephen, are not readily explicable by walking on a bloody surface. The evidence of the Crown’s witness, Dr Cropp, was that they dropped onto the underside of the sock from above. They are therefore more consistent with having got onto the socks during the fight with Stephen.
[39] At trial the bloodstain on the T-shirt was said by Dr Cropp to be an old one. In later tests performed by the ESR in 1997 it was ascertained that the blood could have come from Stephen. This evidence, while consistent with David being the killer, does not, however, advance the Crown’s case because it could only have an evidential value if relevantly recent.
[40] The bloodstain on the black shorts was on a seam in the crotch area. Not excluded by ageing, it was said at trial to be consistent with that of either Stephen, Arawa, Laniet or Margaret. But as a result of the 1997 tests it was established as being Stephen’s blood. The stain was small and visible to the naked eye, albeit not easily seen without good lighting. The fact that David had Stephen’s blood in a place on his shorts which was hardly consistent with accidental contact must be regarded as a significant piece of circumstantial evidence against him. It was certainly open to the jury to infer that the blood got onto his shorts during the course of a struggle with Stephen. We recognise that David says he got down beside Stephen’s body and touched his shoulder; but neither this nor David’s putting the clothes in the wash provides a likely basis for where Stephen’s blood was deposited. We note that David was wearing the black shorts over bicycle pants which did not have blood on them. His trackpants had, however, been through the wash and may well have been worn over the black shorts allowing only a small amount of blood to seep through.

Bloodstained clothing associated with David

[41] The references we are about to make are to clothing which can be linked to David but which he was not actually wearing when the police arrived. First there were the opera gloves already discussed. The next item is a sweatshirt which the police located in a washing basket in the laundry in a condition which suggested it had not been through the wash. This was a sweatshirt belonging to David with the words “Opera Otago Gondoliers” written on it. There was what may have been a diluted bloodstain on the right shoulder of this garment consistent with the stain having been sponged. Its age was not, however, firmly established. David had been wearing the Gondoliers sweatshirt the day before and could offer no explanation for the stain.
[42] The police discovered bloodstains on a number of door jambs above waist height. They were consistent with having been transferred to the jambs by a person wearing a loose weave garment such as the green jersey, which we will mention next. The suggested bloodstain on David’s Gondoliers sweatshirt was consistent with the killer wearing this sweatshirt under the green jersey and with blood from the right shoulder having been transferred from the outer garment to the inner, possibly when the jersey was being removed. There is no doubt that the Gondoliers sweatshirt belonged to and was worn by David. There is no evidence that it was ever worn by Robin. The unexplained stain on it is another strand in the case against David, albeit not one of major force in all the circumstances.
[43] The green jersey mentioned above and which for reasons to be discussed, must have been worn by the killer, was found by the police in the laundry. It had no bloodstaining on it having just been through the wash. The link between the jersey and the killer is provided by the fact that fibres taken from under Stephen’s fingernails matched those out of which the green jersey was made. It is a compelling and uncontested inference that the killer wore this green jersey. David initially told the police the jersey belonged to Arawa. He confirmed that to be the case in his second statement. But at trial, and for the first time, David said the jersey belonged to Robin, although Arawa wore it on occasions around the house. At trial David claimed, again for the first time, that Robin had been wearing the jersey over the weekend. There was no evidence, other than David’s assertions, linking the jersey to either Robin or Arawa. Equally, we accept there was no direct evidence linking the jersey to David.
[44] In evidence David said that the jersey was too small for him. He was asked during cross-examination to put it on in the presence of the jury, it having been produced as an exhibit. It appears from the record that 11 months later at trial David was able to put it on, and whether it was too small in his view or not, it seems entirely possible that he could have been wearing it while committing the murders and then have put it immediately into the wash. We will be making further reference to the washing machine and certain timing issues connected with it below.

Palm print on washing machine

[45] David’s partial palm print was found on the left-hand side of the top edge of the washing machine. It tested positive for blood with the use of a Sangur stick. That form of test is not definitive for blood because other substances can react positively to it such as washing machine powder, so it was suggested. There was no evidence of blood on David’s hands when the police arrived. He told them he had washed his hands (to remove newsprint residue) before he handled the clothes in the laundry. If, as he asserts, David put on the washing before finding the bodies, there is no possibility that he could at that time have had blood on his palm innocently from touching any of the bodies as he walked round the house. He could of course have got blood on his palm from touching the bloodied green jersey, albeit he said he did not notice any blood on it. There is therefore doubt whether David did have blood on his palm and further doubt as to whether, if he did, that constitutes evidence against him. This evidence does not take the Crown case much further.

The bathroom/laundry area

[46] David told the police, and confirmed in his evidence at trial, that after he returned home from his paper round that morning he went to his room, took off his shoes, and hung up the newspaper bag. That evidence is relevant to the computer switch-on timing issue to be mentioned below. He then went straight to the laundry, which was on a lower level, in order to wash newsprint off his hands and tend to the washing, as he usually did each morning. He dried his hands on a towel to the left of the washing machine and then sorted the clothes for washing. He placed the green jersey from the basket into the machine. It seems likely that the green jersey (whether worn by David or worn by Robin, and deposited there after the killings) would have been heavily stained with blood, having been worn by the killer who was engaged in the substantial struggle with Stephen. As noted above, David said he had not seen any blood on the green jersey. We recognise, however, that the lighting in the laundry was not particularly good.
[47] There was a washing powder container in the laundry which had fresh watery blood smeared across its top. David did not claim that anyone else had used the washing machine that morning and there was no evidence that anyone else had done so. On David’s case only he could therefore have deposited the fresh diluted blood on the washing powder box in the course of putting powder into the machine. But, as with the palm print, this feature of the evidence, although relevant to the Crown case, does not take it very far.
[48] One other aspect of the scene in the laundry deserves mention. It derives from evidence obtained by the Crown after the trial. The evidence is that Robin’s partial DNA profile could be identified from a dilute bloodstain found on a green towel which was hanging in the bathroom/laundry area. Obviously Robin cannot have deposited this bloodstain on the towel after having shot himself.
[49] That leaves only two rational possibilities; either the bloodstain was deposited there by Robin prior to his death, or David deposited Robin’s blood on the towel after he had killed Robin. There is some evidence as to how Robin could have deposited his own blood on the towel. He had minor injuries to his hands which could possibly have caused his own diluted blood to be left on the towel. The age of these injuries, according to Dr Dempster, was such as probably to exclude them from having been caused by any involvement in the murders. Mr Withnall argued that these injuries, visible in the photographs, could have been the cause of the blood on the towel. We accept that this could have been so. There is therefore some basis for inferring that Robin had his own blood on his hands independently of the events in question. On the other hand, this evidence is also consistent with David having got Robin’s blood on his hands, either at the time of shooting him or immediately afterwards when arranging the scene of Robin’s killing to resemble a suicide. A jury could reasonably infer that this was the more likely explanation, and hence that it was another strand in the case against David.

Injuries to David

[50] When he was examined by Dr Pryde at 11.20am on the morning of Monday 20 June 1994, David was found to have three separate bruises on his head; one on the right temple, one above the right eye, and one on the right cheek. He also had a small abrasion to his right knee. Dr Pryde asked David if he had received a “whack” (the doctor’s word). David said he had, but did not know how. These injuries were consistent with David having recently been in some form of fight or struggle, such as the struggle which the Crown contended had occurred in Stephen’s room. During the course of his first interview with Detective Sergeant Dunne on the Monday morning, and prior to the medical examination, David was asked by the Detective Sergeant whether he knew how he got “that lump on your head”. David replied that he could not remember anything that could have done it, except when he blacked out. That was a reference to his collapsing earlier in the morning in the presence of Constable Andrew who gave evidence that he had not seen David strike his head and, if he had struck it, it would have been the back of the head that took the force of the blow. Of course on the blackout hypothesis asserted by David he could not affirmatively say what happened at that time.
[51] When Dr Pryde was asked to age the injuries which he found on David’s head, he said that the range was between 7 and 13-14 hours old. He ruled out the suggestion that the injuries were 4 hours old and said 5 hours was most unlikely. Dr Pryde’s evidence put the timing of David’s injuries between 9.20pm on the Sunday evening, and 4.20am on the Monday morning. David’s account was that he went to bed about 8.50pm and did not get up until being woken by his alarm at 5.30am. There was no independent verification that David had remained in bed until 5.30am. If David went to bed as he said at 8.50pm, and got up earlier than 5.30am so as to have time to commit the murders before going on his paper round, Dr Pryde’s timing of the injuries to his face coincides quite closely with when he must have been struggling with Stephen. We recognise in saying this that in spite of his nakedness Stephen’s body was not markedly colder than those of the other members of his family. There is evidence that this might be explained by his violent struggle to survive.
[52] David has offered no other tenable explanation for how he got the injuries to his head. The suggestion that he received them when he was being pulled over carpet after having collapsed does not seem at all likely both in itself and in the light of the ageing evidence. Furthermore the age of the injuries, as assessed by Dr Pryde, cannot be reconciled with David’s general explanation of events, which would have him asleep in bed throughout the period within which they were incurred. Dr Pryde’s ageing of the injuries, albeit we recognise that such an exercise cannot be precise, tends to suggest that David was up and about that morning at least an hour before the time at which he claims to have awoken.

The glasses and lenses

[53] The left lens of a pair of glasses was found in Stephen’s bedroom under a skating boot and green jacket and perhaps under the bunks. David’s ordinary glasses were at the optometrist for repair. The frame from which the left lens came, and the right lens, which was also detached from the frame, were found together in David’s room. These glasses were normally kept in Margaret Bain’s room. If worn by David, they would have given him about 90% vision, he being short-sighted. David was unable to explain how the frame and right lens came to be in his room, or how the left lens came to be in Stephen’s room or indeed how the two lenses came to be detached from the frame. The Crown’s case was that, in the absence of his regular pair, David had been wearing this substitute pair of glasses at the time of the killings. It was suggested that the left lens had somehow become detached from the frame during the course of David’s struggle with Stephen and had been kicked under or otherwise found its way under the clothing. It had been left behind in Stephen’s room, whereas the frame and other lens, similarly detached, had been taken by David to his room. The Crown’s suggestion was that, as it was covered by clothing, David had either overlooked the left lens or perhaps, more likely, could not immediately find it at the time when he took the other lens and the frame to his room.
[54] Detective Sergeant Weir noted that he had found the left lens beneath clothing in Stephen’s room. This tends to support the thesis that it had become covered, presumably during the course of the struggle. We must also, however, bear in mind, as Mr Withnall pointed out, that the left lens was completely free of any forensic evidence such as bloodstains and was quite dusty. We note the fact that the frames did not fit David comfortably and that, according to Mr Sanderson, the optician, they had the appearance of not having been used for some time. We also mention Mr Sanderson’s evidence that the injuries to David’s face could not have been caused while glasses were being worn and that if they had been on, there would certainly have been other injuries.
[55] On the whole, balancing the evidence on this topic, we are left with the unexplained presence of the frame and right lens in David’s room, whereas the left lens was found separately in Stephen’s room. It must be a reasonable inference that the items found in David’s room were there because David considered the glasses to be of some use to him. The presence of the left lens in Stephen’s room, in conjunction with the remainder of the glasses being in David’s room, is consistent with the Crown’s contention and provides some support for it, particularly as David’s regular pair of glasses were away for repair. He might therefore be expected to have used the glasses in question and was unable to explain how the left lens had become separated from the frame and how the right lens had also become detached from the frame and how both came to be in his bedroom.
[56] We conclude this discussion by noting that the glasses were of no use to Robin. He would not therefore have been wearing them. If they did have something to do with Stephen’s murder they were either planted there by Robin (and that is inconsistent with his sparing David) or they were worn by David. The new evidence raises the level of possibility that the glasses had nothing to do with the murder, on the basis that the lens had been in Stephen’s room for some time; but that tends to increase the difficulty for David of his inability to explain the presence of the frame and other lens in his room.

The fingerprints on the rifle

[57] David’s left fingerprints were found in blood on the fore end of the stock of the rifle. They were located in a position entirely inconsistent with an ordinary firing position. The hand was on top of the fore-end not beneath it. The immediate area where the prints were found was otherwise uncontaminated with blood. The rest of the rifle and the silencer were liberally covered with blood. At trial it was taken for granted that the blood in which David’s fingerprints were found was human blood. In fact the precise fingerprint blood was not analysed but immediately adjacent blood was analysed and found to be of human origin. David’s approach to this evidence at trial was that, although he could not remember touching the rifle, he must have done so innocently on seeing it in the lounge. That proposition is no longer pursued as it would be wholly inconsistent with the case which David now advances which is that the blood in which his fingerprints were found was or might have been of animal origin and deposited there months earlier. There is considerable controversy in the further evidence on this topic, which we will consider more fully below.
[58] The suggested consequence of the new evidence from David’s point of view is that it can no longer be inferred that he deposited the fingerprints on the rifle at the time of the killings. If the blood is not human, David’s case is that he must have had blood from a rabbit or an opossum on his fingers during an earlier shooting trip and deposited it on the rifle. In spite of all the other bloodstaining on the rifle, which was identified as human, including Stephen’s, the “animal” blood that David suggests was the source of his fingerprints has remained intact and unaffected by the events in Stephen’s room and elsewhere that morning. It will be recalled that the rifle had not been used since January or February, some four months prior to the murders. We will, at this point, look at the evidence on this issue without prejudice to whether the blood in question was human or animal, and see what conclusions may emerge on that basis.
[59] The first point that should be noted is that the Crown scientist, Mr Hentschel, has deposed that the blood he analysed as being from the fingerprints was taken from a point some 5-10mm away from the fingerprints themselves. The proximity of the sample to the fingerprints and its appearance suggested to him that the blood he took for analysis was from the same source as the fingerprints. That is why everyone at the trial treated it as being from the same source. Mr Hentschel took the adjacent sample so as not to disturb the fingerprints. His evidence of proximity does not of course conclusively prove that the two sources were the same but it is understandable in the circumstances that they were thought to be the same in the absence of anything to suggest they were not.
[60] At trial the fingerprint expert, Mr Jones, matched the prints to David. This is not in contention. They are undoubtedly his prints. Mr Jones also described them as “well defined”. He said that the fingerprints were positive, meaning that the blood was on the fingers and was thereby transferred to the rifle rather than already being on the rifle before the fingers made contact with it. Mr Jones confirmed that the fingerprints were found on an area of the rifle “otherwise uncontaminated” by blood. He then went on to say that apart from the area where the fingerprints were found, the rest of the rifle was “completely covered in its entirety” with blood. We note that when the rifle was examined by the Victorian Institute of Forensic Science it had much less blood on it; but that was years later and after a considerable amount of testing and other handling had occurred.
[61] The uncontaminated area was approximately the width of four fingers. These circumstances make it very difficult to accept that the very area where the suggested pre-existing fingerprints in animal blood were found, was the only area of the rifle which was spared from what was otherwise a complete coverage of the rifle in its entirety with blood which must have come from one or more of the victims. To accept such an illogical coincidence would be to stretch credulity beyond breaking point. It matters not for this purpose whether the total coverage of the rifle with blood occurred as a result of the struggle with Stephen or, which seems more likely, as a result of the rifle being wiped with some form of material.
[62] It is a powerful inference that the existence of David’s fingerprints in the small area on the rifle which was otherwise uncontaminated with blood, establishes that the fingers which deposited the prints were in position at the time when all the other blood came onto or was spread throughout the rifle. The fingers thereby shielded (Mr Hentschel’s word) that area, resulting in it being the only area not otherwise contaminated. We do not consider a point made by Mr Withnall about the sling attachment weakens the force of this evidence. It is extremely unlikely that it constituted a shield exactly coincident with the uncontaminated area. Had the area (four fingers wide be it noted) not been shielded by the fingers which lodged the prints it defies belief that this area could have escaped the total coverage of the rifle with blood. This aspect of the evidence, on its own, comes close to being conclusive of David’s guilt. It is an almost irresistible inference that his prints must have been placed on the murder weapon contemporaneously with the murders.
[63] There is a further point deriving from Mr Jones’ evidence which should be noted at this stage. He also identified a fingerprint made by Stephen’s right middle finger on the underside of the silencer. Although not expressly saying so, the tenor of his evidence at trial was that the fingerprints made by David and that made by Stephen were of the same degree of recency. The answers which Mr Jones gave to questions in cross-examination about David’s fingerprints suggest he was of the view that they were fresh in the sense of being placed on the rifle in the recent past. In that context he acknowledged the possibility that they could have been put there by reason of David having innocently picked up the rifle on coming upon the suicide of his father. That suggestion cannot of course be reconciled with the animal blood argument which is what David now seeks to pursue on this appeal.
[64] In subsequent affidavit evidence, upon which Mr Jones was not called for cross-examination before us, he dealt more specifically with the age of the fingerprints deposited by David on the rifle. He first noted that he had not been cross-examined on this issue at the trial. Rather he had been cross-examined as to whether David could have left the fingerprints in the position they were in if he had picked up the rifle in the lounge and dropped it onto the carpet.
[65] Mr Jones then explained the composition of blood, saying that over time, influenced by temperature and humidity, the moisture content of blood is rapidly reduced. It becomes quite dry and flaky. In his experience Mr Jones had found prints in blood to be very fragile when they become dry and flaky. They are then easily damaged with handling and contact with other surfaces. When he examined David’s prints under magnification Mr Jones found them well defined with no damage and no discernible contamination. There was no background contamination either, and no evidence of repetitious handling in the immediate area.
[66] Mr Jones accepted that it was not possible to age fingerprints with scientific accuracy. He could not definitely say from that point of view whether the prints were placed on the rifle at the time of the murders or on some prior occasion. He referred to relevant variables such as conditions of storage, temperature and humidity and said that it was nevertheless his opinion that David’s fingerprints were “of recent origin”. In the context of age he described David’s prints on the firearm as similar in appearance to Stephen’s print on the silencer, thereby expressly confirming the impression given by his trial evidence. He said that if the prints had been deposited by David in January or February, he would have expected as a minimum (Mr Jones’ emphasis) some degradation of detail, certainly along the edge of the ridges. He did not observe any such degradation or flaking. He added that by the time of the murders any such prints would have become dry and very fragile. If the prints were already there when the rifle was removed from the cupboard and used for the purpose of committing several murders, one of which involved a violent struggle, Mr Jones would have expected to see at least some visible damage to the prints. He found no such evidence. It was accordingly his opinion that it was highly unlikely the prints were 4-6 months old, given their condition when he examined them.
[67] We are of the view that the fact that David’s fingerprints were preserved in such pristine condition in an uncontaminated area on a rifle otherwise totally covered with blood, and Mr Jones’ evidence as to their recency, constitute in combination a very powerful case that they were deposited at the time of the killings. Thus, any contrary evidence raising the possibility they were deposited there at the beginning of the year, and in animal blood, would have to demonstrate that fact in a cogent manner to be able to raise the reasonable possibility they were not put on the rifle contemporaneously with the murders. We interpolate here that we accept that the fact that Robin’s fingerprints were not found on the rifle does not, of itself, detract significantly from the suicide thesis. The evidence is that in suicide cases the victim’s fingerprints are quite often not found on the firearm.
[68] Before leaving this topic we note that David had been given some training in gun management by his father and to put the rifle away with animal blood on it would not be good gun management. It seems unlikely he would have done so. Furthermore, to be consistent with the case for which David now contends, all four of his fingers would have needed rabbit or opossum blood on them in order to deposit the fingerprints found. That presupposes considerable coverage with blood and handling the rifle without removing it. There is also evidence that the fingers were gripping the rifle tightly when the prints were deposited. All this makes the thesis that the prints were deposited on the rifle months before the murders and in animal blood even more unlikely.

The washing machine cycle

[69] The primary issue on this aspect of the case is whether there was enough time for the washing machine to have been switched on after David returned from his paper round so as to enable its cycle to have finished before the police entered the laundry at about 7.30am, at which time it was not still operating. On the Saturday and Sunday following the murders a washing machine expert, Mr Preston, tested the machine at 65 Every Street. He noted it took approximately one hour to complete its normal cycle. The expression “normal cycle”, which he used in his evidence, appears to have been used by Mr Preston in contradistinction to what is called the superwash cycle. His reference in evidence to “both” cycles gives that impression. Mr Preston did, however, say that he had set the machine going at a point between the start of the superwash cycle and the normal wash cycle. What he said in cross-examination was that it was “very marginally just past the superwash point”. That is consistent with his observation that he activated the machine between 12 o’clock and 1 o’clock on the dial. The two test runs were taken from the same starting point with the possibility of only a marginal difference. The precise times noted by Constable Lodge for the two test runs were 61 minutes and 11 seconds, and 59 minutes and 54 seconds.
[70] Mr Preston noted that the machine took a very long time to fill because the water pressure was low even for Every Street. He said “In my experience, the normal time for a cycle to take with these types of machines [is] 30 to 35 minutes excluding filling time which can vary from house to house”. It is not entirely clear from this evidence whether the 30 to 35 minutes relates to variability from a fixed starting point or whether it relates to the variability that could arise depending on where between the superwash and the normal wash start points the machine was set.
[71] The machine was said to be in good working order, having been given a complete overhaul, coincidentally by Mr Preston himself, some three to four years earlier. Mr Preston acknowledged the obvious point that the time of the cycle would be shorter if the machine was started part-way into the normal cycle. He accepted that in general the amount of time it took to fill the machine would differ according to the water pressure at the time; the lower the pressure the slower the filling. But he added that in his experience differences in the level of water pressure would make “very little” difference in particular homes.
[72] Mr Preston also accepted that the amount of clothing in the machine would affect the filling time because the greater the volume of clothing the smaller the volume of water needed to fill the machine. The impression he gave, however, on this point is that the difference would not be substantial; and he said that the volume of the clothing did not affect the length of the rest of the cycle, when filling time is excluded.
[73] In the light of this evidence the probabilities are that when the washing machine was activated by David on the crucial Monday morning, it would have taken in the vicinity of one hour to complete its whole cycle. David himself told the police that the wash normally took between 45 minutes and an hour. The police entered the laundry at about 7.30am. They heard no noise from the washing machine. It must therefore already have finished its whole cycle. This evidence, in combination with that of Mr Preston, casts a considerable doubt over whether David did in fact put on the washing machine after he got back from his paper round.
[74] While there can be no precision in the analysis, the timing evidence suggests that the washing machine was activated prior to his leaving on the paper round. If it was activated on his return, the time at which the filling commenced cannot reasonably be regarded as much earlier than 6.45am. That would leave only about 45 minutes for the whole operation to be finished before the police arrived. That amount of time is inconsistent with the test runs. If a start time of about 6.45am is adopted, that in itself suggests that David must have arrived home somewhat earlier than that time. On the premise it was not much earlier the point is relevant to the evidence of Ms Laney who said that she saw David outside 65 Every Street at 6.45am. It is also relevant to the issue concerning the computer switch-on time.
[75] We observe that if the filling operation commenced as late as about 6.45am, as David’s evidence would suggest, the water pressure must have been considerably higher than when the machine was later tested, after installation of new taps. Yet even in that event Mr Preston indicated that in his experience the water pressure made little difference. It is possible of course that David started the machine at a point well into the normal wash cycle but there is nothing in his evidence from which it would be reasonable to draw that conclusion nor is it inherently probable. Indeed David told the jury that he had started the machine very close to the start of the superwash cycle. Hence the total cycle would have been at nearly its maximum length.
[76] We have considered the relevance of the red sweatshirt which David contends he was wearing on his paper round on the morning of the murders. That sweatshirt had been through the wash and was found in the washing machine by the police. If David had indeed worn it on the Monday morning that suggests the washing machine was put in motion after he had returned from his paper round. But David’s assertion he was wearing the sweatshirt that morning was in conflict with the independent evidence of two witnesses who saw him on his paper round. They both described David as wearing an anorak or a sweatshirt with a hood. David’s red sweatshirt did not have a hood. Neither did any of the clothing that David claims he was wearing that morning. The jury would therefore have been perfectly entitled to reject David’s evidence of wearing the red sweatshirt on the Monday paper round.
[77] All in all the evidence pertaining to this topic suggests that the washing machine was set in motion prior to David’s departure on his paper round. If that were the case David mis-represented the position in his evidence and there must have been a reason for someone to put the washing on at that unusually early time of the morning. We say unusually early in the light of David’s evidence of his normal routine which was to put the washing on after returning from his paper run. The person doing so must have put the green jersey into the wash and must therefore almost certainly have been the killer. There is no evidence to support the view that Robin Bain set the machine in motion at that earlier time. Indeed David’s own evidence, if it is to be believed to this extent, suggests that it was he, David, and not Robin who set the machine in motion that morning. If he did, and at the earlier time, he must have been the killer.

The scene in the lounge

[78] It will be recalled that the competing theories of the case are these. The Crown contends that David, knowing Robin’s normal routine, had hidden himself in the curtained off computer alcove and that Robin came into the lounge and knelt to say his prayers at or near a chair adjacent to the curtains. David then shot him from a position consistent with the bullet entering Robin’s head on his left side and exiting on the right on a track nearly parallel with the floor, ie. on a horizontal plane for someone kneeling in a conventional way.
[79] On the other hand the defence contention is that after killing the other members of his family, Robin came into the lounge and shot himself. He rested the butt end of the rifle on the chair and activated the trigger, with his head in such a position as to be consistent with the path of the bullet. We accept that such a suggested mechanism of suicide is reasonably possible, although we must say it does seem an unlikely mechanism in the circumstances. There is, however, a feature of the scene in the lounge which we consider to be very difficult to reconcile with the suicide theory.
[80] The photographs demonstrate that when Robin’s body came to rest, there was a rifle magazine standing on its narrow edge very close to the index finger and thumb of Robin’s outstretched right hand. The position of the magazine is such that the only explanation consistent with suicide is that for some reason Robin had the magazine in his right hand at the time he shot himself. It is not immediately obvious why Robin should have been holding a spare magazine in his right hand at the time. There was another magazine in the rifle and it obviously contained the fatal bullet. Two more live rounds were left in that magazine.
[81] The defence suggests that Robin may have had the other magazine in his right hand in order to help him push the trigger, it being necessary to push it away from him, as the rifle was positioned, with the butt on the chair and the end of the silencer close to or touching his left temple. That explanation for Robin’s holding the magazine in his right hand is possible but hardly likely. On Mr Withnall’s demonstration of how the suicide was effected and Dr Dempster’s evidence, the natural means of activating the trigger would have been Robin’s left thumb or fingers.
[82] His right hand, on this basis, would necessarily have been engaged in steadying the rifle at the silencer end. There would therefore be no easy way in which the right hand could have been holding the magazine and no sensible reason for it to be doing so. When cross-examined Dr Dempster said that a left hand trigger squeeze, with the right hand holding the rifle was the only way in which he believed the suicide could have been achieved with the rifle in question and by a person of Robin’s stature. He described the idea of the right hand holding the magazine to achieve extra length and thereby press the trigger as a most difficult thing to do. He was actually cross-examined to suggest that the task would not have been particularly difficult using the left hand as opposed to the right hand to activate the trigger, and with no use of the magazine. Furthermore the experts called by David did not specifically address which hand was the one which was likely to have been used; by implication, if anything, they seem to have supported Dr Dempster’s view.
[83] Making, for present purposes, the assumption, most unlikely as it is, that the magazine was in Robin’s right hand at the moment he pushed the trigger with his left thumb or fingers, the position where the magazine ended up suggests that it must have remained in his right hand until either that hand hit the floor, or shortly before that moment, as Robin fell backwards fatally injured. The matter should therefore be approached on the basis that after shooting himself, and while falling backwards into the position his body was found, Robin retained sufficient motor power to keep hold of the magazine until his hand hit the floor or was very close to doing so.
[84] The magazine is broadly rectangular in shape. Its longer sides are gently curved, the leading side being convex and the opposing side being concave. The magazine’s average length is about 77mm and its average height about 28mm. Its width is just a little over 8mm. The narrow width of the magazine makes the fact that it ended up on its edge very strange, the more so because of the convex nature of the edge on which it came to rest. Its convex shape results in the edge’s bearing surface being significantly reduced.
[85] The position of the magazine relative to Robin’s outstretched right hand is again very strange, given the matters discussed in para [83]. The photographs show Robin’s right hand resting palm up with the fingers partially closed. The thumb is touching or very close to the middle third of the index finger. The finger and thumb together constitute something of a barrier to anything which was in the hand leaving it in the direction necessary to accommodate where the magazine was found, ie. on the side of the hand on which the thumb and index finger are situated. Furthermore, for it to have left or been expelled from the hand on that side and ended up in the position it was found, the magazine would have had to rotate some 90 degrees, a process which seems most unnatural and unlikely. The photographs must be carefully interpreted because of the varying angles at which they show Robin’s hand and the closely adjacent magazine. We have borne that very much in mind.
[86] We are, however, left with the strong view that even if Robin was holding the magazine in his right hand, which is itself extremely unlikely, the position in which it ended up, and the fact that, remarkably, it ended up on its narrow edge rather than lying flat, is extremely difficult to reconcile with the defence thesis. While it is just possible to reconcile this evidence with the suicide theory, we consider any such possibility can hardly be described as a reasonable one. The point is not in itself absolutely conclusive of David’s guilt by total exclusion of the suicide theory but the inference that the magazine was placed how and where it was, after the event, to make it look like a suicide is, in our view, a strong one.
[87] Again, on that view, this feature of the case, by reason of its strong tendency to rebut suicide and suggest that David arranged the scene to look like suicide, constitutes a very significant strand in the case against him. In coming to this conclusion we have not thought it appropriate to place any weight on the fact that Stephen’s blood was found on the alcove curtains, or on the position in which the rifle was found.

Robin’s full bladder

[88] At the post mortem Dr Dempster found that Robin’s bladder contained about 400ml of dark, relatively concentrated urine. He regarded that as a normal overnight collection, saying that it was “the amount an individual would pass on getting up in the morning”. A curious feature of the case is that Robin had not passed this urine on getting up in the morning.
[89] The defence case has Robin, who was aged 58, getting up after David left on his paper round, committing four murders, one involving a violent struggle, changing his clothing and then shooting himself in the head, all without having taken the likely step of emptying his bladder. The Crown case also involves his not having done so but on the more likely basis of his having come in from the caravan to the lounge to say his prayers, after which he would presumably have gone downstairs to empty his bladder.
[90] The state of Robin’s bladder at the time of his death must be regarded as distinctly more consistent with the Crown’s case than that of David, in spite of Dr Gwynne’s evidence that stress can inhibit the desire to urinate. Obviously the point cannot be regarded as conclusive because there was no evidence suggesting Robin could not have committed the murders and shot himself on a full bladder. Nevertheless the point must be regarded as significantly supporting the Crown’s contention that David was the killer.

Laniet’s gurgling

[91] In his evidence at trial David said: “The next thing I remember is being in Laniet’s room and I could hear her gurgling.” This was regarded as a very significant statement by the Crown which presented its closing submissions to the jury on the basis that only the murderer could have heard Laniet gurgling and, as David had admitted doing so, he must have been the murderer. The Crown’s submission was a reasonable one based on the evidence of Dr Dempster, the pathologist called by the Crown. He, of course, gave his evidence before David. No other pathologist was called on either side. Dr Dempster’s evidence suggested implicitly, rather than expressly, that Laniet could not or would not have been gurgling after death and hence, if David heard her gurgling, she must have been alive at the time, and it was therefore he, rather than Robin, who must have fired the fatal shots into her head.
[92] Laniet suffered three gunshot wounds to her head. Dr Dempster said that each of the shots had been fired from a position to the left of the body. Two of them would have been immediately fatal, whereas the other, which was to the cheek, would probably not. Dr Dempster regarded the cheek wound as the first in time. He considered Laniet had survived “for some time” after it was inflicted. In his opinion the two other shots were fired subsequently. On this basis Dr Dempster said:

The ingestion of blood into the lungs is partly ingestion of blood into the lungs and partly due to fluid being formed in the lungs but I would have anticipated that Laniet would have been making audible gurgling or similar noises as this material accumulated in the airways. I have been in Laniet’s bedroom at Every St. This audible sound would be quite an audible sound and would in quiet circumstances be readily heard.

[93] Laniet also appeared to have swallowed some blood from the larynx. Dr Dempster’s thesis was not addressed in any significant way in cross-examination. The position at trial was therefore that David had acknowledged hearing Laniet gurgling. Dr Dempster had said that, as a result of blood and fluid in her lungs, it was to be anticipated she would have been making gurgling noises. This was based on her still being alive at that time following the first of the shots. If all this was correct then David, as the Crown submitted to the jury, must have been the murderer. David and the Crown have each produced new evidence on this whole issue which we will examine below. It is sufficient to say at this point that, subject to the force and effect of the new evidence, the gurgling evidence was another substantial strand in the case against David.

THE DEFENCE CASE

[94] We turn now to examine the defence case at trial, in conjunction with the new evidence which we have admitted for this purpose. As with the case for the Crown, we will first examine the various matters advanced by David on an individual basis. We will then address to what extent their cumulative effect impinges on the Crown’s case. Specifically we will consider, in terms of the legal principles earlier identified, whether cumulatively the new evidence might reasonably have led the jury to return not guilty verdicts. Only if that is so can David’s appeal succeed on the basis of the further evidence he has produced.

The computer turn on time

[95] When the police examined the computer in the alcove to the lounge they ascertained, as noted earlier, that somebody had written on it the message “Sorry, you are the only one who deserved to stay”. It is not possible to ascertain the time at which this message was typed, but the time the computer was switched on can be calculated, although not with exactitude.
[96] At trial the Crown contended that whoever had switched on the computer that morning was the person who typed the message and committed the murders. Thus, although it is possible that the person who switched the computer on was not the person who typed the message, the case was not run on that basis. David did not and does not take issue with the Crown’s contention. It was thus important to identify with as much precision as possible the time at which the computer had been switched on, so as to compare that time with the time at which David returned from his paper round.
[97] At trial the turn on time was said to be 6.44am. That time was worked out by a computer technician, Martin Cox. When he began an examination of the computer on the day following the murders the computer was running, not having been switched off in the meantime. He was accompanied by Detective Anderson who noted the steps taken by him.
[98] In order to follow the method employed by Mr Cox it is necessary to understand relevant characteristics of the computer. Typically, it had a battery powered clock, commonly referred to as the hardware clock. This had no direct display but, as long as it was supplied with power from the battery, it would maintain incremental date and time registers. When the computer is started by switching on, it reads the hardware clock status and transfers the date and time information to another clock, run by the computer’s operating system and known as the system clock. The system clock starts running 13 seconds (plus or minus one second) after the computer is started. Information in the system clock is lost when the computer is shut down. New chronological data is transferred to the system clock from the hardware clock on a subsequent start up. Computer events are “date stamped” by the computer in the sense that the date and time of their occurrence, in terms of the system clock, is automatically recorded.
[99] The word processing program installed in the computer was Microsoft Word. That program loaded and opened 44 seconds (plus or minus one second), after start up and upon such initialisation a temporary file, relevant to the program and having the extension .TMP, is created. The time of creation is date stamped in terms of the system clock. Being a temporary file, it would be deleted automatically if the Word program were exited; but it will be preserved if the computer is “crashed”, that is, simply switched off without exiting the running programs including, in this case, Word.
[100] Mr Cox attempted to ascertain the date stamp of the .TMP file by crashing the computer, restarting it and noting the saved record. Before crashing the computer he saved the “sorry” message as “message.doc” which file was itself date stamped in terms of the system clock. The detective kept a note of the key strokes made by Mr Cox during his examination. He also noted the time, according to his watch, that the process began, 1416 hours, and the time the computer was crashed, 1422 hours. But the finish time of the saving process was not contemporaneously ascertained by Mr Cox or by Detective Anderson, either according to a watch or in terms of New Zealand Standard Time (NZST).
[101] On the assumption that the system clock exactly coincided with NZST it would not have been necessary to note NZST upon the saving of message.doc in order to ascertain when the creation of the .TMP file and hence, when the opening of the Word program, occurred. But as it happened, the system clock was far from coincident with NZST, a fact which could not have been discovered before crashing the computer except by exiting Word and thereby deleting the very file it was necessary to save.
[102] At some time prior to Mr Cox’s work the battery for the hardware clock had become exhausted. This caused the system clock to default, after start up of the computer, to a time and date of 12:00:00 am on 01-01-1980. Therefore, the date stamp given to the .TMP file was referable to that time and date rather than NZST. In terms of the system clock, the time the .TMP file was created was 12:00:30 which for present purposes is close enough to the 44 seconds after start up previously mentioned. The only way that information could be related to NZST would have been, if before the computer had been crashed, the time of the occurrence of some other event date stamped by the computer were accurately noted in terms of NZST. That would identify the correlation between the system clock time and NZST. The saving of message.doc was an appropriate event, the utility of which was dependent upon an exact ascertainment of NZST when it occurred.
[103] According to Mr Cox’s evidence at trial, message.doc was saved at 1416 hours on 21 June 1994. On that basis Mr Cox deduced that message.doc was saved 31 hours and 32 minutes after the Word program was started, the timing of which was then calculated as 0644 hours on 20 June 1994.
[104] The integrity of the method we have described is vulnerable to inaccuracies in any of the component temporal references. Detective Anderson made a note of the time on his watch at which the examination of the computer began (14.11) and, as we have already mentioned, the start of the save process (14.16) as well as the time the computer was crashed (14.22). A number of operations were performed during the six minute period between 14.16 and 14.22, apart from the saving operation. The timing of the various operations within that six minute period was not, however, recorded. In fairness to Detective Anderson, we acknowledge that he did not appreciate and was not told the crucial need to note the exact time of saving the message. Also, his watch was unsuitable for such a purpose. It had no second hand and no minute divisions between each five minute marker. These characteristics increase the potential for parallax error when attempting to read time from the watch.
[105] The new evidence is to the effect that Detective Anderson’s watch had been some two minutes fast when checked seven days later and therefore, in simple terms for the moment, the switch-on time should become 6.42am rather than the 6.44am time upon which the jury would have worked. David contends that the jury were misled on an important point and this in itself created a miscarriage of justice which should lead to his convictions being quashed. The Crown’s argument that this new evidence was not fresh relied on the fact that it had been recorded, in a job-sheet available to the defence, that Detective Anderson’s watch had later been found to be two minutes fast. The defence could therefore, so the Crown submitted, have brought this out at the trial.
[106] We do not consider it lies in the Crown’s mouth in these circumstances to claim this evidence should not be admitted on appeal. The Crown was just as responsible for the failure to bring out the point at trial as was the defence. Indeed it can be said that the Crown should have ensured the correct position was brought to the jury’s attention.
[107] David points to a number of features of the evidence which he suggests, on a more exact examination of the timing issue, would tend to make the start up time earlier rather than later. The Crown does the reverse. Each side advanced outside times for start up from their perspective. The Bain earliest time of start up, if all the variables went that way, was submitted to be 6.40.07am. The Crown’s corresponding time was 6.39.49am. The Bain latest time of start up was 6.42.05am, whereas the Crown’s latest time was 6.49.11am. Mr Withnall was prepared to accept in his oral argument that the latest time which would apply if all variables went in favour of the Crown, was 6.45.11am. The complexities of all the various calculations and variables and the challenges to them do not need to be set out or discussed in detail. We note that the Crown’s most likely switch-on time was 6.44.30am, thirty seconds later than that given to the jury. Taking into account (but not accepting) some defence criticisms of methodology the Crown expert recalculated the most likely time as 6.43.30, thirty seconds earlier than that given at trial. The defence most likely time was 6.41.45.
[108] The discrepancy between the Crown and defence figures is largely related to the different estimates of the time that would have elapsed from the start to the finish of the save process, the defence alleging 30 seconds at the most and the Crown, based on the estimate of Mr Cox and Detective Anderson, two minutes as most likely. There is a further complication. It appears that three days before Detective Anderson’s watch was checked and found to be two minutes fast he had synchronised watches with another detective. Detective Anderson cannot, however, remember the time difference or whether it was he who altered his watch or the other detective.
[109] We mention again here the fact that Ms Denise Laney claimed to have seen David outside the gate to 65 Every Street at 6.45am. The circumstances in which she came to that view are such that her suggested time cannot be regarded as anywhere near precise. The greater detail in her second statement which was not disclosed to the defence does not, in our view, lead to any materially greater precision. Ms Laney fixed the time on the basis that her digital car clock was five minutes fast. The clock’s digital nature immediately involves a potential imprecision of up to 59 seconds. Ms Laney took the view that her clock was five minutes fast by reason of the fact that it “usually” read five minutes past the hour when the news came on. She did not correlate her calculation with any objectively verifiable time signal – simply with the commencement of the news on a station or stations which were not identified.
[110] When she saw David outside the gate Ms Laney looked at her car clock. It was reading 6.50am. She therefore reckoned the true time was 6.45am. She was in the habit of seeing David at an earlier point on his paper run most mornings as she was supposed to start work at 6.45am in premises nearby. On this occasion she thought she was running a little late. An alternative explanation is that David was running early.
[111] We are bound to say that when all the relevant evidence is assessed, including the evidence about the various sightings on the paper run, and times and distances from those sightings to 65 Every Street, we find ourselves unable to conclude, with any confidence or precision, exactly when the computer was switched on, or when David returned home or the time he could have switched the computer on, taking account of the fact that he would have undertaken other time consuming activities before doing so – see para [46] above.
[112] It is not appropriate in a case such as the present to ask whether individual pieces of new evidence, viewed in isolation, might reasonably have led the jury to return a different verdict. The necessary assessment should be done globally, ie. by assessing the force and effect of all the new evidence admitted on both sides when considered alongside the evidence called at the trial. The most that can be said about the new evidence relating to the computer switch-on time, when viewed in isolation, is that it cannot be regarded as excluding David in the sense of showing it was physically impossible for him to have committed the murders. Mr Withnall appropriately did not put his case that high. There is too much imprecision involved.
[113] We end this topic by noting that on Ms Laney’s 6.45am evidence, and the 6.44am switch-on time adopted, seemingly without challenge, at the trial, David cannot have fitted the Crown’s thesis that it was the murderer who switched on the computer. Yet the jury found David guilty. The new evidence widens the potential time gap but it cannot be regarded as clinching the matter in David’s favour by reason of physical impossibility. The times involved do not have nearly enough precision or reliability to produce that consequence. The timing evidence is such that a reasonable jury could conclude that it was physically possible for David to have committed the murders; whether the Crown had proved he had done so would then be a matter for assessment on all the other evidence.

Laniet’s gurgling

[114] The background to this point has already been outlined. The new evidence adduced by David focuses on two aspects of the topic. The first concerns the order in which the gunshot wounds to Laniet’s head were inflicted; the second concerns whether gurgling is a reasonable possibility after death. The evidence at trial from Dr Dempster in relation to the first point was that the cheek wound was the first in time. This is what, in his opinion, gave rise to the gurgling which David said he heard. Dr Dempster did not directly address the second point because on his thesis it did not arise.
[115] For David’s version of events to be reconciled with his having heard Laniet gurgling, it is necessary for him to lay a sufficient foundation for the proposition that Laniet could have been emitting gurgling noises some time after her death. If Laniet was killed by Robin while David was out on his paper round, she must have been dead for at least a few minutes before David entered her room and heard her gurgling. As we noted earlier, and was emphasised by Mr Withnall, Dr Dempster did not expressly say that the gurgling noises could not have been emitted after death. His whole premise seems, however, to have been based on Laniet remaining alive after the first non fatal shot.
[116] The new evidence on this topic comes from a number of people. We have carefully considered all the intricate details of the evidence but will not traverse it all in this judgment. As a result of the work of Mr Ross of the Victorian Institute of Forensic Science, it is now known that the bullet which entered the top of Laniet’s head (one of the two immediately fatal shots) had first passed through a piece of white cotton cloth causing the bullet to expand and fragment. It therefore appears that whoever shot Laniet placed a cloth between the gun and her head. It is not immediately obvious why this should have been done. The most likely explanation is that the murderer wanted to conceal her head while firing this shot. Neither the shot to the cheek nor the other head shot were administered through cloth.
[117] If Dr Dempster’s proposition that the cheek shot was the first in time and not immediately fatal is correct, the murderer must have realised that this first shot had not killed Laniet and, when firing the shot to the top of her head, he chose to use the cloth for whatever reason. The blood on Laniet’s hands is consistent with her having put them up to her face at or after the time of the shot to the cheek. She could not have been able to do this following either the shot to the top of the head or the shot to the temple which probably followed. On the evidence, we consider that the cheek shot was the first in time and the fact of blood on Laniet’s hands shows that she survived that shot, lifting her hands to her face after it struck. Indeed Mr Withnall could provide no explanation for the blood on Laniet’s hands if the cheek shot was not the first. He described it as one of the imponderables in the case.
[118] We interpolate here that it is of some moment that the white cloth was never found, in spite of a thorough search by the police of the premises at 65 Every Street. There is no evidence of Robin leaving the property after the killings. David did of course leave to do his paper round, and if the killing of Laniet had already taken place he could easily have disposed of the cloth while doing so.
[119] Professor Cordner, also of the Victorian Institute, did his analysis in the knowledge of Mr Ross’ evidence about the white cloth. Both he and Mr Ross considered that the top of the head shot was the first in time. But on the gurgling issue Professor Cordner says that he could not explain it “occurring as a passive phenomenon in a dead body that is not being moved”. To that extent he appears to confirm the inference available from Dr Dempster’s evidence. Professor Cordner did qualify his view with the comment that, as a Forensic Pathologist, he does not have experience of the first hour or so after death. He recommended that persons who had that experience should be consulted.
[120] The evidence of Mr Pritchard, an experienced mortuary assistant, was obtained and he deposed that gurgling noises do emanate spontaneously from dead bodies, especially when, as here, blood is present in the lungs or there are other conditions conducive to the formation of gases. The distension of Laniet’s lungs suggests that gases were present. He also indicated that gurgling is more likely when the body is being moved.
[121] Mr Walsh from the ESR in Auckland was unable to reconstruct what happened in Laniet’s room from the photographs and reports made available to him. He was of the view that there had been some movement of Laniet’s body between the first shot and the last, and that not all the three shots were fired when she was in the position in which she was found. Overall we do not consider much can be drawn from the evidence of Mr Walsh on this issue.
[122] The evidence of Dr Gwynne, a retired forensic pathologist, adduced by David states that “the post mortem revealed that Laniet lived long enough after she was shot to develop severe pulmonary oedema”. That suggests that pulmonary oedema does not develop after death and therefore that the cheek shot must logically have been the first. If either of the other two shots preceded it, death would have been instantaneous and the processes leading to pulmonary oedema and ingestion of fluid into the lungs and stomach could hardly then have occurred. Dr Gwynne also said that gurgling can occur after death through movement of fluids. This is more clearly heard if the body is moved or the chest compressed. We note that David could not recall whether he touched Laniet’s body.
[123] Up to this point we do not consider the new evidence provides any sufficient basis for doubting the force of the proposition that, as David heard Laniet gurgling, he must have been the murderer. We are fully alive to the controversy about how Laniet was positioned as each of the shots were fired and their sequence and all associated issues. We accept Laniet could not have been shot in the top of the head when in the position in which she was ultimately found. We are, however, of the view that David’s new evidence is insufficient to displace the strong probability that the first shot was to the cheek and Laniet then made gurgling noises which David heard. The inference that he fired both the first shot and the subsequent ones is then overwhelming. The circumstances and evidence generally leave us with the view that it is extremely unlikely that David heard Laniet gurgling if and when he went into her bedroom following his return from the paper round. The occasion when he heard her gurgling is therefore most likely to have been when he was in the course of committing the murders.
[124] The Crown’s rejoinder on this topic reinforces the view we have just expressed. Dr Thompson, an experienced Wellington pathologist, testified for the Crown that there would undoubtedly have been considerable blood and mucus in Laniet’s airway from the cheek wound. This would have caused noisy breathing while breathing continued. He also said that blood and mucus would certainly continue to trickle down the airway after respiration and heartbeat had ceased but, in his substantial experience of head injuries, he had never seen a case where the airways beyond the larynx have filled with blood after death. Blood in that location has almost always been inhaled. In Dr Thompson’s view significant gurgling such as David heard “must denote some respiratory effort”. Hence, on the basis of this evidence, Laniet must have still been alive when David heard her gurgling. The consequences of that being the case are self evident.
[125] The evidence of Dr Ferris, a consultant forensic pathologist from Auckland, is basically to the same effect as that of Dr Thompson. He considered the cheek wound was the first and was the primary source of the blood in the main air passages as identified by Dr Dempster at the post mortem. Dr Ferris’ opinion is that Laniet survived the first non fatal gun shot wound “for some time” before she sustained the subsequent two fatal wounds to the brain. He added that her inhalation of blood deeply into the lung tissues indicated that she was actively breathing, albeit unconscious, and inhaling blood into her lungs for some time before she died. Dr Ferris expressed his agreement with Dr Dempster and Dr Thompson that the presence of the blood observed in the air passages would cause a gurgling noise if attempts at breathing took place.
[126] Dr Ferris agreed with Dr Thompson that passive post mortem drainage of blood from the mouth into the peripheral lung tissue does not occur; nor similarly does pulmonary oedema occur after cessation of the body’s vital functions. Dr Ferris did have experience of recently dead people.
[127] We also regard as significant the following passage in Dr Ferris’ evidence referring to statements made by David about hearing Laniet gurgling:

It is my opinion that the statement of David Bain that he “could hear her gurgling” and the written comments attributed to David Bain “when I went into her room, I heard groaning type sounds muffled by what sounded like water”, so accurately reflect the expected observations of an individual inhaling blood, they give great credibility to these observations and their accuracy.

[128] It would be a strange coincidence if there were two episodes of gurgling and David happened to have heard the post mortem and therefore innocent episode. The pathological evidence demonstrates the strong probability of gurgling between the first non fatal shot and the later shots. Our overall conclusion is that the gurgling which David heard is far more likely to have been that gurgling rather than any post mortem gurgling there may possibly have been. Indeed if there was any post mortem gurgling, the overall effect of the evidence of David’s witnesses suggests that it is most likely to have occurred in conjunction with movement of Laniet’s body; but David does not claim to have done so.
[129] All this simply confirms the view we reached on an appraisal of David’s new evidence. Any uncertainty there may have been at that point is substantially dispelled by the Crown’s further evidence on this issue. Overall we consider that the new evidence does not undermine the way the jury were invited to look at this topic; certainly not to the point of our being concerned that any miscarriage of justice has occurred on this account. This point can indeed properly be viewed as strongly indicative of David’s guilt.

The fingerprints on the rifle

[130] David’s case in short is that his new evidence raises at least the reasonable possibility that his fingerprints on the rifle were in animal rather than human blood. We find ourselves unable to accept that proposition when all aspects of the subject are borne in mind.
[131] As explained earlier, the results of the pre-trial testing, confirming the blood taken from the fingerprints to be human, are open to challenge as the sample was in fact taken from blood adjacent to the prints, not from the prints themselves. For this reason a series of post-trial tests was conducted, both by the defence and as part of a Police Complaints Authority review.
[132] There is no need for us to traverse all the testing processes or all the criticisms and explanations of them put forward by both the Crown and David. It is sufficient to say that although, on the basis of his tests, Dr Guersen, who gave evidence for David, initially deduced that the blood was mammalian but not of human origin, subsequent evidence has raised doubts as to the provenance of the sample Dr Guersen tested and has also raised the possibility that the sample was contaminated. Dr Guersen himself described the situation as “an unspeakable mess” and said that, as a result, the interpretation of the tests was not susceptible to scientific deduction.
[133] We have borne in mind the submissions made for David that Dr Guersen’s testing could nevertheless have some evidential value as there remained a possibility that the sample he tested was both from the fingerprints and not contaminated. We are, however, of the view that any such evidential value would be negligible, given that the results cannot be seen as having scientific validity.
[134] We also recognise that there remains one valid test, the first quantitation by Dr Harbison in 1997 of the sample from the fingerprints. This found no human DNA. As to this, Dr Guersen’s evidence was that because the result was negative, it was not possible scientifically, on the basis of that test alone, to take the matter beyond saying that this raised four possibilities, only one of which was that DNA was present but it was not human. The other possibilities were (i) the test failed in relation to that particular sample; (ii) there was insufficient or no DNA present; and (iii) the DNA was too degraded.
[135] In these circumstances we are of the view that nothing of moment has been raised to cast doubt on our earlier discussion of this topic which demonstrated, for the reasons there set out, that from a practical rather than a scientific point of view, David’s fingerprints were almost certainly deposited on the fore-end of the rifle contemporaneously with the murders.

The glasses and lenses

[136] We do not regard the evidence on this aspect of the case as assisting the Crown’s case to any appreciable degree. Its relevance lies in its consistency with the Crown’s theory of the case. It does not, of itself, carry more than relatively minor probative force. We approach David’s new evidence on the topic in this light. The new evidence relates first to where the left lens was found in Stephen’s bedroom. At trial Detective Sergeant Weir professed to be able to see the lens in a photograph and pointed it out to the jury. In fact what the Detective Sergeant pointed out, although looking like a lens, was not. It was a specular phenomenon consistent with the transparency, shape and size of the lens.
[137] The jury were led to believe that the lens was discovered out in the open, whereas in fact Detective Sergeant Weir had recorded in contemporaneous notes that he had found it “beneath” clothing. It was more consistent with the Crown’s theory for the lens to be found in the open rather than under clothing, albeit it could have got covered up during the struggle. The jury were undoubtedly misled by the Detective Sergeant’s evidence. We will bear that in mind when we come to our overall conclusion. It is fair, however, to record that nothing we have seen, read or heard leads us to the view that the jury were deliberately misled. We do not consider it necessary or appropriate to address that issue any further, save to record that when presenting his oral submissions Mr Withnall responsibly did not invite us to take any such view.
[138] There is a second aspect to this topic. At trial Dr Sanderson, the optometrist, gave evidence that the glasses in issue were consistent with having been an earlier prescription of David’s. Both David and his mother were short-sighted. In his evidence David stated that the glasses were not an old pair of his; they belonged to his mother and he had not worn them. He was cross-examined in a way which could have suggested that he was not correct in this evidence. The ownership of the glasses was thus apparently put in issue. The jury seems to have thought so because they asked a question: “The glasses found in the accused/Stephen’s rooms – whose were they according to the optometrist?”
[139] In April 1997 Dr Sanderson contacted David’s counsel and subsequently swore two affidavits. He stated that initially he believed the glasses to be an earlier but inaccurate prescription for David, probably originating in New Guinea. About a week before the trial he became aware of the existence of a photograph held by the police showing Margaret Bain wearing the glasses in question. That photograph had apparently been taken some years earlier. This, in his view, confirmed that the glasses were in fact Margaret’s, not David’s. This information was not disclosed to the defence prior to the trial. In addition, Mr Sanderson said Detective Sergeant Weir had told him that, when he found the lens in Stephen’s room, it was covered in dust but that this fact would be ignored. The Detective Sergeant denies this.
[140] The force of the ownership point is that David now contends that although the Crown knew that the glasses belonged to his mother, his evidence to that effect at trial was nevertheless challenged. The Crown suggests that this was not so but we are of the view that the jury could have seen the Crown as challenging David’s evidence in this respect and thus as impugning his credibility. This point and the point concerning the evidence about the lens might in other circumstances have given rise to concern from a process point of view. In the particular circumstances of this case, however, we do not consider that these matters raise any risk of a miscarriage of justice. The real point was that the glasses were of no use to Robin but could have been used by David: see the discussion in paras [55] and [56]. For reasons which are essentially the same as those pertaining to the further evidence issue as a whole, we do not consider that the Crown’s approach to this aspect of the case has caused any miscarriage of justice.

Robin Bain’s mental state

[141] In view of David’s defence that it was his father who killed the other family members and then himself, evidence as to the likelihood of this occurring must be regarded as relevant and admissible. It is not caught by the collateral evidence rule, as the Crown was ultimately minded to accept. There was not much evidence of any consequence before the jury to show that Robin’s mental state, at the time of the relevant events, supported the view that he might have behaved as David contended he had. The jury did, however, hear of the dysfunctional nature of the family and that Robin had difficulty accepting the marriage was over. They would have known also of the unusual sleeping arrangements and that Margaret was behaving strangely and the state of the house was, at least in some of the rooms, very disordered and untidy. It was a long way from any normal household and the jury would have been fully aware of that.
[142] In circumstances which need not be traversed, evidence relevant to the issue of Robin’s mental state became available in 2001 from four people. Each of them is arguably sufficiently qualified to express the views they put forward. In essence this new evidence portrays the following picture. Robin’s mental state had been deteriorating in the months prior to the murders. He was suffering from depression. His workplace was disorganised and he seemed to one witness to have lost touch with reality. His decision to publish, in a school newsletter, certain children’s stories was regarded by professional colleagues as highly inappropriate. There is, however, no evidence that Robin encouraged or otherwise induced the children to write these stories which could well have been prompted by movie watching. One of the new witnesses who has formal psychological qualifications, knowing of Robin’s mental state, assumed Robin was responsible when he learned of the killings. He viewed Robin as having lost his ability to cope with life and expressed the opinion that he was probably no longer functioning in a rational manner.
[143] This evidence of Robin’s mental state gives some balance against the evidence led at trial which tended to suggest that David himself was not coping well with the family situation. That is an evidentiary advance from David’s point of view. But it is important to recognise that this further evidence neither diminishes the force of the individual strands in the Crown’s case against David already identified, nor does it of itself provide any evidence that Robin actually did kill the others and then himself. While his mental state, as now known, makes suicide a more tenable thesis from the point of view of the state of Robin’s mind, that circumstance does nothing affirmatively to establish that in physical terms Robin did kill the others and then commit suicide. The overall force of this fresh evidence must therefore be viewed in that light.
[144] The evidence concerning David’s state of mind around the time of the murders came largely from David himself. He spoke with a friend the week before the murders of having had what he called déjà vu experiences for quite a long time. He also said to her that he had this feeling that something really horrible was going to happen and he thought it was something to do with another friend. His friend asked how do you mean and David replied “I don’t know until it happens”. David confirmed to the friend after the murders that his feeling of something horrible happening related to the murders. But when he gave evidence David explained that he was simply referring to a premonition of general loss.
[145] David also told the police and confirmed in his evidence at trial that after finding his father in the lounge he had experienced the sensation of what he called black hands. He said this made him very afraid:

It was like the whole world was closing in in front of me and the image that I had was of my family set in the centre and these, what I described as black hands coming in from all sides and covering them and taking them away.

Although David’s new evidence about Robin’s mental state represents an advance in that respect from the evidence at trial, a reasonable jury could well still consider that David’s own mental state was at least as relevant as that of Robin.

Robin Bain’s motive

[146] At trial David wished to call the evidence of one Dean Cottle to the effect that, on the Friday before the murders, Laniet had told him that she was going to return to the family home and expose her father for committing incest with her. This evidence was of course hearsay and excluded as such by the trial Judge. His decision was upheld by this Court. The Privy Council declined leave for a further appeal. Williamson J’s decision to exclude the evidence was based essentially on his perception that Dean Cottle’s evidence was not sufficiently reliable to justify admission in spite of its hearsay nature. That was an entirely appropriate decision in the circumstances as they presented themselves to the Judge.
[147] The leading authority on admission of hearsay evidence is now R v Manase [2001] 2 NZLR 197. In terms of that case the crucial point for present purposes is that the hearsay evidence must have sufficient apparent reliability to go to the jury.
[148] David has produced four further witnesses on the subject of Laniet’s relationship with her father. In short, two of them directly state that Laniet had told them that she was in an incestuous relationship with her father. Another gives evidence of statements by Laniet which at least implicitly support that view of the matter. A shopkeeper tells of Robin’s paying Laniet’s account at his shop which was not overdue and was for a small amount. This was done the day before the murders. One of the witnesses also deposes to Laniet having told him that she wanted to go home to her mother and make a fresh start. The week prior to the murders she had got a job and was excited at that.
[149] This evidence, when viewed as a whole, is clearly of sufficient apparent reliability to be admitted before a jury. It demonstrates at least the reasonable possibility that Laniet did have an incestuous relationship with her father, was proposing to break it off and was going to make disclosure. It thereby arguably provides some evidence that Robin may have been in a state of mind consistent with doing what David contends he did. This too represents some advance for David on this point from his position at trial, albeit it could perhaps be seen as giving David a motive or reason as well, in wishing to destroy those in his family he considered should not survive. But, as with the evidence of Robin’s mental state, this new evidence does not provide any basis for concluding that Robin did actually commit the murders. David has now produced evidence as to why Robin might have had reason to do so, but the evidence does not of itself establish that he might actually have done so. While we must and do certainly bear the new evidence on this and the previous head firmly in mind, its proper compass must be appreciated.

Suicide – new evidence

[150] In his summing up Williamson J referred to the overwhelming evidence that Robin Bain did not commit suicide. David has produced further evidence on this topic from Professor Cordner and Dr Gwynne. We accept that this evidence demonstrates a case for saying that it would not have been as physically difficult for Robin to have committed suicide as the evidence at trial might have suggested. Indeed Dr Gwynne considers the case was one of suicide. We are not, however, persuaded on an appraisal of all the relevant evidence, which of course goes far beyond matters of pathology, that the jury could reasonably have found it was suicide. Nor are we persuaded that the jury could have found there was a reasonable possibility that it was suicide. We do not think it necessary to go into the physical intricacies of how the suicide could or might have been performed in a manner which was consistent with the known features of the case. The most important of these are the location and state of the entry and exit wounds on Robin’s head and the angle and plane of the path of the bullet.
[151] It is sufficient to say that we are satisfied that Robin could physically have inflicted the gunshot wound to his own head, albeit the wound inflicted was by no means the most straightforward way for a person intending to shoot themselves in the head with the rifle in question to do so. David can legitimately claim to have diminished to some extent the degree of physical unlikelihood that Robin shot himself. He has not, however, been able to dispel the view that, as Mr Withnall’s in Court demonstration tended to show, the way it must have been done would still have been an unusual way for Robin to have achieved his purpose. Nor has he been able to persuade us that the position of Robin’s body and the blood patterns provide any support for the suicide theory as against the Crown’s contention that Robin was shot by David.

New evidence said to implicate Robin Bain

[152] David contends he has produced new evidence positively implicating his father. There is first the evidence which suggests that Robin had considerable fascination and familiarity with computers. Hence his “suicide note” was naturally left on the computer. Then there is the identification by Mr Durrant of Robin’s shoeprints in the computer alcove. That of itself is of no significance but David points to Mr Durrant’s inability to find his shoe or footprints in the alcove.
[153] Reference was also made to Robin’s shoe prints in David’s room, allegedly in places at least consistent with his having been in there to collect the rifle and ammunition. We note, however, that Robin kept some clothes in David’s room, albeit David described them as his father’s 70’s stuff. It may therefore be seen as unsurprising that Robin’s shoe prints were found. We do not consider that this point is inconsistent with the Crown’s contention at trial that there was no evidence that Robin had been into any of the rooms. The Crown obviously meant and would have been understood by the jury to mean that there was no evidence he had been into any of the rooms in circumstances which suggested a connection with the murders. We also note the Crown’s submission that the evidence of the shoe prints lacks cogency as the analysis was conducted by way of photographs of the footprints, and the circumstances under which the photographs were taken were not ideal for the work in question.
[154] Another reason why we do not consider that the presence of Robin’s shoe prints in David’s room carries the significance contended for concerns the sequence of events that must have occurred to justify the inference that the presence of Robin’s shoe prints was connected with the murders. For Robin to be the killer, he would have had to enter David’s room with his shoes on so as to leave the prints. Before embarking on the killings he must have taken his shoes off, as no traces of blood were found on them. He could hardly have committed the murders, in particular that of Stephen, without getting any trace of blood on his shoes. Robin must then have put his shoes back on before killing himself as he was found dead with the shoes which made the prints on his feet. The posited sequence of events seems most unlikely.
[155] At trial the Crown called evidence to the effect that five bloody footprints made by a stockinged foot were found in the hall. They became visible by the use of luminol. Mr Hentschel gave evidence that the best print of the five measured 280mm. He also said that Robin’s socks were 240mm long and David’s socks measured 270mm. Hence the Crown’s submission was that the footprints were those of David not Robin. It is now pointed out that Robin’s feet (not socks) were measured in the mortuary at 275mm. Mr Karam deposed that he had measured David’s feet at 300mm.
[156] The defence strategy at trial was to attack the science of luminol testing. The much more obvious strategy of drawing attention to actual foot lengths was not adopted. In post trial evidence the forensic scientist, Mr Walsh, has said that a 300mm stockinged foot could make a print of about 280mm. He has given quite detailed reasons for that conclusion which we do not need to traverse as Mr Walsh was not called for cross-examination, either on his reasons or on his conclusion. The end result is that on the evidence David could well have made the footprints in question. The matters now raised by him come nowhere near excluding him from responsibility for the footprints. Nor do they establish that the prints must have been made by Robin.
[157] Finally, we have noted the submission concerning the possible presence of blood under Robin’s fingernails and the absence of Robin’s fingerprints on the rifle. We have to say that neither individually nor collectively do these various points give more than a speculative basis for saying that there is now further evidence affirmatively implicating Robin. We do not consider these points have the character ascribed to them on David’s behalf.

Process issues

[158] We collect under this heading a number of issues which go more to police and trial procedures than the substantive cases either way. We bear in mind here that procedures and expectations in areas such as pre-trial discovery have developed since the events with which we are concerned. Nevertheless, in all respects our focus must and will be on whether any lack of fairness to David which might be inherent in any of the matters to be addressed, amounts to a miscarriage of justice warranting, in all the circumstances, the quashing of the convictions.
[159] The first heading is non disclosure by the prosecution of various documents. The first is Ms Laney’s second statement. Ms Laney was influenced by the thought she was late because David was further on in his paper round than usual. She may not of course have been late if David was doing his paper round faster than usual. The second statement should have been disclosed but, as already noted, we do not consider the failure to do so can reasonably be regarded as ultimately prejudicial in a material way. The same can be said of the luminol photographs and the photograph showing Margaret wearing the glasses. David also raised the issue of disclosure of forensic notes and other papers. Again the counsel of perfection, at least through today’s eyes, might be that these should have been disclosed even though it seems clear that those representing David at the time did not consider it necessary to call for them. We are, however, far from persuaded that any miscarriage of justice has been occasioned. Nor do we consider the suggested risk of Dr Dempster being misled by the armourer’s mistake as to the length of the rifle has led to any miscarriage of justice.
[160] The next matter involves non disclosure of fact that what could have been blood was found under Robin’s fingernails. This alleged non disclosure cannot in our view have led to a miscarriage of justice when the point is viewed against the force of the Crown case as a whole. It would be wholly speculative to try to assess what effect this feature may have had if there has been evidence about it. Finally there is the non disclosure of Dr Dempster’s working notes which showed he was of the view that a small piece of skin found in Stephen’s room might have come from Stephen’s hand wound. Mr Hentschel said that it matched the abrasion on David’s knee. Obviously Dr Dempster’s note would have been helpful to David but we consider the point cannot be regarded as giving rise to any miscarriage of justice when viewed in the context of the case as a whole. The skin point was simply a very peripheral aspect of the Crown’s case which pales into insignificance against the force of the case against David overall.
[161] The second heading is counsel incompetence. As no waiver of privilege was given, we indicated at the hearing that it would be difficult for David to advance this point as a point in its own right. Mr Withnall indicated that it was being raised solely for the purpose of supporting the admission of the new evidence. It therefore needs no further consideration here.
[162] The third heading concerns Mr Sanderson, the optician, whose evidence has already been discussed. For the reasons given then we are not persuaded that any miscarriage of justice has been shown in this respect.

OVERALL ASSESSSMENT

[163] Having established that no miscarriage of justice arises out of any of the process issues, either individually or collectively, it is now time to bring together all the manifold pieces of new evidence which have been individually discussed. The ultimate and determining issue is whether the new evidence, viewed in its entirety and alongside the evidence given at the trial, might reasonably have led the jury to return verdicts of not guilty. That question implies that the jury would analyse and appreciate the true force and effect of the new evidence, both in itself and as part of a total composite pool of evidence comprising both old and new. The assessment concerns what the jury might reasonably have made of the new evidence on that basis. That assessment must necessarily be done by the Court. The issue is not whether the new evidence might possibly have led the jury to return not guilty verdicts; it is whether it might reasonably have done so. That objective criterion is the key to the present case.
[164] There are three points in the evidence of such cogency that taken together, in the context of all the evidence, any reasonable jury must in our view have seen the case against David as proved beyond reasonable doubt, notwithstanding all the new evidence which he has produced in this Court. There is so much other evidence which supports the effect of the three key points that any hesitation a reasonable jury might possibly have had on the basis of the three points alone, would reasonably be completely dispelled by the other evidence.
[165] The three key points are those concerning the trigger lock, David’s fingerprints on the rifle, and the scene in the lounge. In summary their essence is:

[a] According to David only he knew of the existence, let alone the whereabouts, of the spare key for the trigger lock. The spare key was used by the killer to unlock the weapon. There is no evidence that Robin knew either of the existence of the key or its whereabouts. It is therefore a powerful inference that David was the killer.

[b] The bloodstained condition of the rifle was such that the uncontaminated area associated with the fingerprints on the forearm leads to the almost inescapable conclusion that the hand that made the prints was in position contemporaneously with the murders. That hand was David’s.

[c] The spare magazine was found standing upright on its narrow edge, almost touching Robin’s outstretched right hand. Its position is most unnatural in terms of the suicide theory. In view of its dimensions, the prospect of its having landed or ended up accidentally on its edge can only be described as extremely unlikely. Indeed as a matter of common-sense and simple deduction, the prospect that it accidentally came to rest on its edge in the position it was found is so unlikely as to come close to defying belief. The conclusion that must be drawn in all the circumstances is that the magazine was deliberately placed as and where it was found in order to make the scene in the lounge look like a suicide. Only one person could have done that and that person is David.

[166] These then are the three points, individually powerful and cumulatively overwhelming, to which must be added the following supporting points in particular: the use of David’s gloves, the presence of Stephen’s blood on David’s black shorts, the unconvincingly explained injuries to David’s head, his having heard Laniet gurgling, Robin’s full bladder and the timing of the washing machine cycle. There are yet further points mentioned in this judgment which we will not repeat here which also support David’s guilt, albeit to a lesser extent. Cumulatively the case could only be seen by a reasonable jury as clearly and cogently establishing David’s guilt beyond reasonable doubt.
[167] The further evidence which David has produced cannot affect that conclusion. The computer switch-on issue cannot be regarded as doing so. It does not prove physical impossibility. Indeed the jury found David guilty when, according to Ms Laney’s evidence, if taken literally, he could not have been the killer. The further evidence is certainly not of a nature and quality as to preclude the same view reasonably being taken. It may make it a little more difficult to do so; but no reasonable jury could find this point to raise a reasonable doubt against the cumulative force of all the evidence indicating David was the killer.
[168] The confused and uncertain science concerning the nature of the blood in which the fingerprints on the rifle were deposited does not detract from the force of the physical evidence on this topic. No reasonable jury could be left with a reasonable doubt on that account. The glasses and lens issue has not featured significantly in our analysis of the strength of the case against David. It does not in any way tend to exculpate David. The new evidence concerning Laniet’s gurgling could not lead a reasonable jury to have a reasonable doubt either. Even if it were found to neutralise that aspect of the Crown’s case, the force of the case would be largely undiminished. The same point can be made about the suggested neutralising of other aspects of the Crown’s case. A great deal of it would have to be neutralised before it ceased to have, overall, sufficient force to carry the weight of proof beyond reasonable doubt and that has not been done. There is no evidence positively implicating Robin Bain on any tenable basis. Motive and the state of his mind must been seen in that light. Those matters could not possibly be seen by a reasonable jury as producing a reasonable doubt about David’s guilt which is so clearly proved by the combination of the affirmative points to which we have drawn attention.
[169] We accept that the evidence does not exclude the physical possibility of Robin having committed suicide. We are, however, of the view that the evidence as a whole shows suicide to be most unlikely. Indeed, in the light of the evidence as a whole, we are left with the clear view that no reasonable jury could find there was a reasonable possibility that Robin committed suicide after killing the other family members.
[170] Robin appears to have gone to bed the night before with a book and a hot water bottle. His alarm was set for 6.30am. In order to have committed the crimes Robin, wearing shoes, would have had to go into David’s room while he was away on his paper round; take David’s white opera gloves from his chest of drawers; know of the existence and whereabouts of the spare key for the trigger lock; remove the rifle from the cupboard without damaging David’s pre-existing prints on the forearm; find the magazines and probably load them; take off his shoes; use the rifle to effect the killings, again without damaging David’s pre-existing prints in spite of the fierce struggle with Stephen; dispose of the white cloth used in the shooting of Laniet in a manner or in a place which resulted in its not being discovered despite a thorough search; put his bloodstained clothes in the laundry for David to put into the machine; change his clothes to those in which he was dressed when he was found dead including putting the same shoes back on; go to the lounge, switch-on the computer and type the message; and then, while for no apparent reason holding a magazine in his right hand, shoot himself in a manner which somehow allowed that magazine to end up on its narrow edge and in a most unlikely position; and all this without having emptied his bladder of its normal nightly collection of urine.
[171] That extraordinarily strained scenario must be compared with the case against David which includes the presence of his recent fingerprints on the rifle; his having heard Laniet gurgling at a time when she was very likely still alive; his statement that only he knew of the existence and whereabouts of the key which unlocked the trigger; the near impossibility of the magazine having ended up accidentally on its narrow edge in the position it was found; the essentially unexplained injuries to David’s head; the presence of Stephen’s blood on his black shorts; and the various other points which have been mentioned during the course of this judgment.
[172] In short then for these reasons, which we have traversed here only in summary form, but the detail of which has been addressed earlier, we conclude that the crucial question whether the new evidence considered alongside the evidence given at the trial might reasonably have led the jury to find David not guilty must be answered in the negative. Putting the matter to the same effect but in more direct terms we have no doubt that any reasonable jury considering the new evidence along with the old would find David guilty. The new evidence simply does not have the force and effect necessary to raise a reasonable doubt against the cumulative force of the case against David.
[173] We came to this case mindful of the need to consider and weigh each and every point raised on David’s behalf with care and close attention to the submissions made. We have done our best to do so. A complex and detailed case like this requires both attention to detail and an appraisal of the case as a whole. In that respect it is a classic circumstantial case. Individual points matter a lot, but what matters most and ultimately is the effect of all the various pieces of evidence viewed as a whole. We have endeavoured to capture both the individual points and their combined effect in the way we have compiled this judgment.

Conclusion

[174] By way of conclusion we return to s385 of the Crimes Act which is the foundation of the Court’s jurisdiction. For the reasons given in this judgment, to which the other members of the Court have made a substantial contribution, we have not been persuaded that there has been a miscarriage of justice on the ground of further evidence or any other ground. Accordingly we dismiss the appeal.
[175] Before parting with the case, we wish to express our appreciation of the skill and diligence with which David’s contentions were presented and argued by his counsel. We could not have been more fortunate than we were in that respect.

Solicitors:
O’Driscoll & Marks, Dunedin for Appellant
Crown Law Office, Wellington