If a person had good reason to believe that a violent crime was happening at his neighbour’s house then breaking in to the neighbour’s house would be justified. And even though they trespassed their testimony should be admissible in court.

If, on the other hand, a person broke in to their neighbour’s house without a good reason and discovered some crime their testimony should be admissible in court and they should receive the punishment for trespassing/breaking and entering.

That’s all pretty straight forward and I expect everyone agrees… now what if the person trespassing/breaking and entering is working for the government?

What happens is that government employees are not prosecuted and their discovery is not admissible in court (e.g the Tohoe spying). This accepted procedure enables two injustices.

All evidence should be allowed in Court and crimes committed by government employees should be prosecuted.

104. The Bain submission is that what appear to be a series of inexplicable killings are explained by the fact – unknown at the time to David – of a sexual relationship between his father and his younger sister Laniet. After working for a time as a prostitute, Laniet had decided to go home on the weekend of June 18-19 to disclose to the family her prostitution and the incest. Her intention was to make a clean break with the past and start afresh. This evidence of incest (strongly disputed by the prosecution) forms the essential background to the murders, the Bain Submission says, and provides “the trigger” referred to by the prosecutor in his closing jury address in 2009. Robin, it is clear, was more experienced in the use of firearms than David Bain.

105. David Bain says he knew nothing at the time of incest or Laniet’s plan. He has a clear recollection of the week-end, he says, up until the moment he discovered his dead mother on Monday morning. Thereafter his memory was largely obliterated by shock, then recovered partially under therapy while in prison, but is still patchy.

106. David Bain’s recollection is that he got up at his usual time of 5.30 am, put on his Laser running shoes, shorts, and a red sweatshirt, grabbed his yellow Otago Daily Times bag and set off on his newspaper round with his dog Casey at about 5.45 am. He ran much of the route, as was his custom (his sporting activities included distance running). He checked his watch at the foot of Every Street towards the end of his run. It showed 6.40 am (although the Police never checked his watch’s accuracy.) He then walked up the hill to his home, which he estimated to the Police would have taken two to three minutes but which he now says would have taken longer.

107. David Bain told the Police at the initial interview after the murders that when he got home Robin had already collected the newspaper. This meant Robin was already inside the house.

108. On entering the house he noticed that his mother’s light was on but turned left into his own room, which was dark and cold on a typical Dunedin winter morning. He did not switch on the light in his own room even though sunrise would not occur for a least another hour. The door to the lounge (where Robin’s body was later found) was closed.

109. David Bain says he put his newspaper bag in its place and, without noticing anything amiss in the dark, took off his shoes and Walkman and descended the stairs to the lower level to the washing machine area. In this part of the lower level the lighting is very poor (at a later point a Police officer entering the laundry area looked about to turn on the light only to find it was already on.) There David scrubbed his hands to clean off the ink stains from the newsprint.

110. One of David’s regular chores was to deal with the family laundry. Accordingly, after scrubbing his hands41 he proceeded, as was his usual morning routine, to organise the wash by sorting out the coloured clothes and jerseys (including his red sweatshirt just worn on the paper route) from the light coloured clothing, he put a load into the machine, that included the “green” rough knit jersey, a black skivvy… a couple of pairs of socks…”. He couldn’t remember whose socks they were but it seems to me they could have included the socks that made the than bloodied footprints. He then started the machine on a “full cycle”. He did not notice any blood stains on the clothing he put into the wash.

111. David Bain then returned upstairs to his room, put on the light for the first time and saw cartridges and the trigger lock on the floor. He went immediately to his mother’s room, and found her dead. He went into the adjoining bedroom where Stephen slept, touched him to determine if he was dead, crossed the hall into the room Laniet was sleeping in, and found her dead as well. He went downstairs and checked Arawa’s bedroom for signs of life. There were none. He went back upstairs and entered the lounge where he found his father’s body lying lifeless on the floor. Although when first talking to the Police, he had been at a loss to recall this entire sequence of events (he recalled seeing only the bodies of his mother and father), his memory later recovered in part while undergoing therapy to deal with what was diagnosed as post-traumatic stress disorder. It was after therapy that he recalled touching Stephen’s lifeless body. In Laniet’s room he heard her body make a gurgling noise. He does not recall how long this search around the house continued. He recalls only the sequence. Reduced to a state of shock and acute distress by the destruction of his entire family he called the emergency services.

95. The initial Police “reconstruction” of events was that David Bain had murdered his family in a trance-like killing spree between his return home from delivering newspapers around 6.43 am and calling the 111 operator at about 7.10 am. Subsequently the Police concluded that the logistics of the “frenzied 25 minutes theory” were not compatible with the evidence at the crime scene. The Police came to believe that only Robin had been killed after the paper route. The others had been murdered beforehand (the “four before one after” theory).

96. The revised theory was that at about 5.00 am or earlier on the morning of Monday, 20 June 1994, David Bain got up and dressed in a T-shirt and black shorts, over which he wore track pants and the green loose weave V-necked sweater and possibly a black skivvy. He took from the wardrobe in his room his .22 calibre Winchester self-loading rifle and released the trigger lock with the spare key. He took a supply of ammunition from the same wardrobe. Only David Bain knew where these things were kept.

97. David Bain is near sighted. His regular glasses were broken and had been left in a shop for repair a few days earlier. On the morning of June 20, he wore an old pair of his mother’s glasses, which gave him 90% of normal vision (as compared with 75% normal vision without glasses.) In the struggle with Stephen, the frames were knocked off his head and the lenses were dislodged. The left lens was later found by Det. Sgt Weir in Stephen’s bedroom. The Police found the broken frames and the right lens in David Bain’s bedroom.

98. According to the prosecution, Robin slept through the murders out of earshot in the caravan elsewhere on the property.

99. In the course of the initial batch of four killings, the Police say David Bain’s person and clothing became heavily stained with blood. Prior to leaving the house to do his paper route, he washed his hands – possibly showered – changed his outer clothes, leaving unintended blood stains in the bathroom/laundry room. He put his blood-soiled clothing in the washing machine with other family laundry, and started it on a full cycle.

100. David Bain then took steps to contrive an alibi to exculpate himself and shift the blame to his father. At about 5.45 am he left the house and completed his paper route more quickly than usual, making sure that he was seen by various people so that they would later be available to corroborate his physical absence from the house in the early hours of Monday morning. His departure left the bloody crime scene open for an hour or so. He told the Police his father generally surfaced “between twenty to and ten past seven. He thus risked (on the Crown’s theory) the chance that Robin would come into the house a bit early by the downstairs door, discover the bodies and raise an emergency alarm with the Police prior to David’s return. In fact, the Crown Law Office accepts that Robin had collected the newspaper from the letterbox and brought it “inside the house” (para 208), indicating Robin had entered the house before David got home, but not raised any alarm.

101. According to the prosecution, as David entered the house, he made a right turn into the lounge on the main floor and switched on the family computer at about 6.44 am. Either then or at some later time he typed in the self-serving “suicide” message “SORRY, YOU ARE THE ONLY ONE WHO DESERVED TO STAY”. Its purpose was to give the false appearance of a murder/suicide. The Police considered use of the past tense (“deserved”) rather than the present tense (“deserves”) shows it is unlikely the message was typed by Robin.

102. David Bain then took advantage of his father’s morning “ritual” which was to leave the caravan around 7.00 am to come into the lounge to pray. David, it was alleged, waited with his .22 rifle in the computer alcove adjacent the lounge and, as his father was on his knees deep in prayer, shot him in the head at close range. He then rearranged the scene to make it look like a suicide, and after an unexplained interval, eventually rang the emergency services at about 7.10 am to report the killings, pretending to be in a state of great distress.

103. Initially he was treated as a victim of the family murder/suicide. Only later, after further Police investigation, did the Police conclude that he should be charged as the killer.

89. The killer–whether it was David or Robin–arose early in the morning of Monday, 20 June 1994. He put on a green loose weave V-necked sweater. He took from the wardrobe in David’s room a .22 calibre Winchester semi-automatic rifle fitted with a silencer. He released the trigger lock with a spare key that was usually kept in a jar on the desk. He took a supply of ammunition from the same wardrobe.

90. It is common ground that David Bain, who was the sole survivor, did his regular paper route for the Otago Daily Times in the early morning of June 20. He left the house at about 5.45 am and returned about an hour later within a few minutes (before or after is very much in issue) of the computer being turned on.

91. For reasons unknown, but which in the view of the prosecution were in any event irrelevant, the killer fatally shot in an unknown order, Margaret, the two daughters and Stephen. There was a violent struggle with Stephen, who was in part strangled with a T-shirt. Stephen died from three bullets to his head fired at close quarters.

92. The killer’s person and clothing (particularly the green V-necked sweater) became heavily stained with blood. Whoever he was, the killer washed up to some extent, leaving marks in the bathroom (which included the washing machine). Blood stained clothing together with other family laundry was put in a laundry hamper, was emptied into the washing machine, and started on a wash cycle. The load included the green V-neck sweater, trousers and some socks. Sometime between roughly 6.40 and 6.46 am (the timing is controversial), the killer went to the lounge on the main floor and switched on the family computer located in an alcove partially concealed by a curtain. Either then or at some later time he typed in the message ‘SORRY, YOU ARE THE ONLY ONE WHO DESERVED TO STAY’.

93. Sometime after the initial murders of four family members, Robin was killed in the lounge by a shot to the head with the murder weapon in contact or near contact with his left temple.

94. At about 7.10 am, David called the emergency services to report that his family was dead. When the Police and ambulance personnel arrived shortly after 7.20 am, Robin’s body was still warm to the touch. The other bodies were also somewhat warm, but less warm than Robin’s.