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The case against the case against Robin Bain

By Steven | July 8, 2010

So, now that TVNZ has broadcast its special edition of Bryan Bruce’s The Investigator: The case against Robin Bain, compellingly arguing that Robin Bain couldn’t have committed the Bain family murders, can David Bain and his team do anything about it? They argue that it’s “unadulterated rubbish”, contains “mischievous misrepresentations of facts”, “perpetuates a fraud”, and unethically refused to include their side.

They seem particularly furious at Bruce’s conclusion that “in my view, there was no forensic evidence that Robin Bain killed himself or his family” (and later, in slightly watered down form, “the forensic evidence fails to support any such unlikely chain of events” as that required for Robin Bain to have committed the murders).

Team Bain is making noises about legal action, which could involve either a defamation lawsuit or a broadcasting standards complaint. What chance would they have? (I won’t deal with the question of whether anyone else might have remedies, such as the witness Bruce raised questions about, Daryl Young.)

Defamation

The first hurdle for Team Bain is defamatory meaning. Does this programme actually suggest that David did it? TVNZ might say that the documentary was all about Robin, not David. It never said that David must be guilty.

I don’t think that flies. A programme means what ordinary reasonable viewers would take it to mean, including the things that are between the lines. As Bruce pointed out, the defence team itself argued that Robin Bain committed the murders. That was essentially their whole strategy. As far as I know, no-one has suggested it could have been anyone but Robin or David. If you purport to demolish the case against Robin, everyone will quite reasonably take you to be saying that David did it. Round one to David.

Round two is the defences. The really interesting one is Truth. The onus would be on TVNZ/Bruce to prove the “sting” (which we’re supposing is that David is the murderer). They wouldn’t have to prove that beyond reasonable doubt, though. It’s only a civil standard that applies: balance of probabilities (though the level of proof must be commensurate with the gravity of the allegations, which would suggest a burden higher than more-likely-than-not when you’re calling someone a murderer). What’s more, a defamation jury could probably be shown all the evidence that was excluded by the criminal court, as well as anything that Bruce could turn up. It would potentially be a mammoth case, extremely long, complicated and expensive. I’m guessing David Bain can do without that – quite apart from the serious risk that the jury would find the allegation justified.

But even if TVNZ didn’t manage to convince the jury that David was the killer, it might manage to make out another defence: Honest opinion (which used to be called “fair comment”). The programme is very carefully structured as a presentation of Bruce’s “personal opinion”. At all the key places he uses language such as “in my view…”. There’s really no reason to doubt that his opinion is genuine. There’s a very solid argument that the opinion is based on facts set out or referred to in the programme. Those are the requirements of the defence. Unless Team Bain can show that the programme got some facts flat-out wrong, or perhaps omitted reference to some glaringly significant facts, this defence is a serious obstacle to a defamation lawsuit.

There’s another defence called Qualified privilege, currently in a state of development by the courts. Speaking broadly, it may be moving toward protecting speech that’s in the public interest (even if it turns out to be wrong), where the reporter has behaved responsibly. David can certainly ask whether it’s responsible journalism to exclude his views form a programme like this, but he couldn’t assume that this defence would fail here.

Broadcasting standards complaint

This might be a better prospect for Team Bain. The complaint would not need to be made in Bain’s name. I rather expect that some non-Team-Bain folk will lodge complaints with TVNZ, if they haven’t done so already. [Update: there’s a complaint already].

As for Team Bain themselves, they have questioned the accuracy of the documentary. Was there in fact significant forensic evidence linking Robin Bain to the killings that the documentary omitted? Even if there is, TVNZ can still argue that this was presented as opinion, not fact. Perhaps Team Bain will identify specific factual allegations that they think are wrong, or (more readily) create misleading impressions. The BSA in the past, however, has been ready to roll a lot of things up under the rubric “opinion”.

The fairness standard, and the Standard Formerly Known As Balance, are more promising for Team Bain. They overlap to some degree.

The fairness standard requires that people “referred to” in the broadcast be treated fairly. That certainly includes David.

Balance relates to broadcasters’ discussions of controversial issues of public importance. It would be a brave BSA that found that no such issue was involved here.

Balance requires the broadcaster to make reasonable efforts to include “significant viewpoints”. It strikes me as difficult to argue that David Bain’s viewpoint wasn’t significant in the context of a documentary about his case. Apparently he tried  to provide input into the documentary, but was turned down. The BSA has said the balance standard applies with particular force when serious criticisms are advanced against someone. The same goes for fairness. Looks like a slam dunk to Team Bain so far.

But it’s not so straightforward. TVNZ will argue that the focus of the documentary was Robin Bain’s guilt. That was the issue of public importance. And that didn’t require David Bain’s input. Yep, they’ll argue that. I think it’s unconvincing for the same reasons I set out above.

Next, TVNZ will argue that less balance is required for authorial documentaries. The guidelines say so explicitly. That’s a much better argument. This documentary is plainly authorial. It emphasises at every turn that it’s Bryan Bruce’s view. Reasonably early on, he tells us that that the documentary is his “personal opinion.”

The guidelines also talk about whether viewers can be expected to be aware of significant views from other coverage. That’s surely also the case here. Team Bain can hardly argue that they haven’t been given plenty of ink and airtime for their views on TVNZ and in every other media outlet in the country.

These are powerful arguments for TVNZ. Still, they may not be enough. The most comparable BSA case is the one about Keith Hunter’s documentary Murder on the Blade, arguing that Scott Watson was wrongly convicted. The BSA split over the question of balance. The majority said that the balance standard wasn’t breached. (Note that the guidelines were slightly different back then, though I’m not sure it would make a difference). They said:

  1. The fact that it was one person’s perspective was clear from the introduction
  2. It was made clear that the programme did not deal with all the evidence
  3. The documentary did present the key elements of the case of the side it criticised
  4. It didn’t misrepresent the case
  5. It sufficiently acknowledged other viewpoints
  6. There was extensive previous coverage of other viewpoints
  7. The Bill of Rights protected the speech

How does The Case against Robin Bain fare under these factors? It probably satisfies 1, 6 and 7. It may satisfy 2 and 4. According to Team Bain, it fell down badly on 3 and 5. TVNZ will say that the programme wasn’t about David Bain’s guilt or otherwise, and in fact, mentioned uncritically that the second jury felt that there wasn’t enough evidence to convict.

So here’s the question: was enough balance provided, even if the threshold is low because the documentary is authorial, and focused on Robin Bain’s guilt? Was there enough indication of the material supporting Team Bain’s view that the evidence pointed to Robin? Was there, as they allege, some degree of misrepresentation? Might some omitted information be so significant as to render the programme misleading (or at least unfair) without it? Might the BSA find that the need for balance here is greater than it was in the Murder on the Blade case since it’s effectively accusing someone of murder rather than suggesting someone didn’t do it? Or might they say the need for balance is less because the programme didn’t directly tackle David’s guilt, and there were plenty of other sources of information about the trial?

Whatever the case, TVNZ has dealt itself an extra trump by giving Team Bain some air time to rebut the documentary in its news and current affairs coverage afterwards. Smart move. The balance standard requires only that the range of “significant viewpoints” be broadcast within the “period of current interest”. So it will be able to draw on the rebuttal offered during Close Up last night, for example. (That may not insulate it from a fairness complaint, though. Fairness has been treated as separately required in each programme. On the other hand, a slight change in the wording of the fairness standard recently may have changed that…).

Upshot: this would be an interesting complaint if it’s properly argued. I’m inclined to think the outcome will depend to a large extent on whether Team Bain can point to material that was glaringly left out or misrepresented.

Topics: Broadcasting Standards Authority, Defamation, NZ Bill of Rights Act | 20 Comments »

20 Responses to “The case against the case against Robin Bain”

  1. ross Says:
    July 8th, 2010 at 11:07 pm

    Steven,

    For what it’s worth, my opinion of the “documentary” by Bruce is not high. He was selective in what material he used and there was an almost total lack of balance. His trump card, it seems, was that Daryl Young may not have sold Robin Bain a photocopier. The relevance of this completely eludes me.

    One issue that Bruce highlighted was the fingerprint evidence. He poured blood on a pair of gloves, then removed them and proceeded to handle a rifle. Later it was shown that his fingerprints had been left on the rifle. Bruce expressed his astonishment that Robin Bain – if he were the killer – left no fingerprints on the rifle. What Bruce didn’t say was that Dr Arie Geursen, who carried out tests on the gun in the late 90s, did not find David Bain’s fingerprints on the rifle. Indeed, he could find no human blood on the rifle at all; the only blood that Geursen found was animal blood. Secondly, the absence of Robin Bain’s fingerprints on the rifle does not mean that he could not have committed suicide. Apparently, research shows that fingerprints adhere to firearms in only a small number of cases where someone is shot and killed. The Justice Ministry concluded, when it ruled on David’s claim for the Royal prerogative of Mercy; “…the fact that Robin Bain’s fingerprints were not on the rifle cannot be used as proof either for or against the theory that Robin Bain committed suicide”. The Justice Ministry referreed to two research reports on the subject of fingerprint analysis that were provided by Bain’s lawyers. Said the Ministry: “The articles were completed in 1997, and show that a number of latent factors – including grease, perspiration, atmospheric conditions – mean that person firing a firearm only leaves fingerprints in between 2.3% and 9% of cases”.

    All of this is useful and relevant information. Of course Bryan Bruce chose not to include it in his “documentary”. Does this mean he is not trustworthy? Maybe, maybe not. What is apparent is that Bruce has for some time held the view that David was the killer. In May 2005, Bruce produced a documentary on the Bain case. He made it clear that he thought David was the killer. Just days before that doco aired on TV1, Bruce told the Sunday Star Times that the Bain case “keeps going and going and going…at some point it has to stop” (May 8, 2005). Two years later and the Privy Council quashed Bain’s conviction and declared a “substantial miscarriages of justice”.

    Five years after Bryan Bruce called on the case to come to an end, he makes a doco about the case. He is entitled to do that of course, but if only he’d taken the time to present both sides of the story. You get the feeling that Bruce wants the last word.

    I suspect that even if Team Bain or someone else complains, the BSA will take the view that Bruce was entitled to express his opinion. It’s just a pity it wasn’t more informed.

  2. geoff Says:
    July 9th, 2010 at 9:48 am

    Daryl Young’s evidence is very relevant -why else would the defense use it? Clearly they wanted to imply to the jury Robin Bain’s mind set at the time of the killings i.e. a broken man who had no interest in his pupils welfare; an alcoholic who would prefer to stay in his camper van screwing a woman.

    As far as the lack of finger finger prints on the rifle are concerned, obviously Robin Bain couldn’t have wiped his own finger prints off the rifle, yet whoever shot him could have.

    Bryan Bruce has subsequently stated he would be more than happy to debate this documentary with David Bain, who instead consistently hides behind Joe Karam. For some one who has spent thirteen years in jail for a crime they didn’t commit, this seems odd.

  3. Peter Says:
    July 9th, 2010 at 12:43 pm

    Ah, but what if the complaint is about what was broadcast about Daryl Young ?

    It was, after all, Mr Young who was being vilified the next day on talkback and messageboards as a liar and perjurer. I suspect as a consequence of the broadcasting of the much-trumpeted “new evidence”.

    Would it have been more balanced to quote Mr Young’s trial testimony about when he sold the photocopier ?
    “At a guess this would have been around ’92 or ’93’ ” – from the second trial court transcript shown on TV3 and quoted here , tinyurl.com/26vx2pq

    Might that have lessened the impact of the statements from Ian Arthur and the school-teacher who said Mr Young was not there on the day when Mr Arthur sold a photocopier ?

    At least for viewers who thought of the possibility that Mr Young sold the school a copier in say 1991 and Mr Arthur sold them an upgraded model years later ?

    Would it have been more balanced for Mr Bruce to quote Mr Young’s trial testimony about meeting Robin Bain at his van ?

    The Christchurch Press summarised his testimony thus :

    ” When he ( Mr Young ) got to the van he knocked on the back door and heard voices. He moved away five or ten metres and thought he heard two different voices. He naturally assumed one was a female voice and the other voice was Robin’s. Robin came out and he was wearing a towel and “that was all’’.”

    tinyurl.com/o9o3os

    Had Mr Bruce chosen to give a more complete account of Mr Young’s testimony might viewers have realised that Mr Young’s knocking on the back door does not mean Mr Bain came out the back door ( thus making the photo of the van with the rear blocked by shelving irrelevant ) ?

    Might balance have been absent from Mr Bruce’s agenda ( which btw was NOT to present the case against Robin Bain) ?

  4. geoff Says:
    July 9th, 2010 at 5:03 pm

    Well, if you look at the documentary again Daryl Young clearly said on the stand that Robin Bain came out of the back of the van. And we know from the family movie that the shelving had been in place many years prior to that, and it was still in place on the day of the murders.

    The ‘lady in the office’ said she had never met Daryl Young.

    Bryan Bruce has been criticized by the Bain camp for not asking them for a response before going to air. Yet when he asks Mr Young for his response he gets the brush off.
    Apparently Mr Young though is happy to go public after the documentary is screened.

  5. ross Says:
    July 9th, 2010 at 9:30 pm

    Geoff, I think you missed my point. Whether Daryl Young sold Robin a photocopier is neither here nor there. But Bruce trumpeted the possibility that Young had lied by saying that he had sold the photocopier. Bruce has over-reached himself.

    If indeed Mr Young did lie, what was his motivation? Bryan Bruce did not offer a motive. So we are left to conclude that Mr Young potentially perjured himself for no apparent benefit. Hmmm.

    Why do you find it odd that David Bain won’t debate the issues with Bruce? Why should he? Bain testified at his first trial, a transcript of which Bruce already holds. What questions would Bruce ask Bain that haven’t already been asked of him? And if you had spent 13 years in prison for a crime you didn’t commit, would you want to be interviewed by someone who was adamant that you were guilty? I seriously doubt I would.

  6. ross Says:
    July 9th, 2010 at 10:52 pm

    Furthermore, when you look at what other witnesses said about Robin’s mental state and appearance, you soon realise how little Daryl Young’s evidence really added to the defence case.

    http://www.stuff.co.nz/national/crime/2400962/Robin-Bain-said-he-d-had-enough-witness

  7. Peter Says:
    July 9th, 2010 at 11:34 pm

    Geoff at 5:03 pm,

    Being on dial-up looking at it on TV-on-demand is difficult for me.

    Maybe you could quote the exact words Mr Young is shown saying ?

    The issue is not whether or not Mr Young said Mr Bain came out of the back of the van. It is , did he or did he not say Mr Bain came out via the back door.

    ( It is possible to come out of the back of many vans via the side door.)

  8. Steven Says:
    July 10th, 2010 at 9:47 am

    “What questions would Bruce ask Bain that haven’t already been asked of him?”

    Are you kidding, Ross? Any journalist worth his or her salt could come up with a list of questions as long as your arm. I bet David will never willingly expose himself to anything but the most patsy questioning.

  9. geoff Says:
    July 10th, 2010 at 12:11 pm

    Peter,

    “I knocked on the back door, and the door opened…”

    The point is that if Mr Young had been a bit more cooperative with Bryan Bruce, then no doubt Bruce would have checked to see how many photocopiers had in fact been sold to the school.

  10. Peter Says:
    July 10th, 2010 at 4:51 pm

    Geoff,

    Thanks for the quote.

    I agree that “I knocked on the back door, and the door opened…” gives the impression that the door that opened was the back door.

    But its clear from the report in the Christchurch Press that Mr Young gave evidence of a number of things happening between him knocking on the back door and the door opening:

    ” When he got to the van he knocked on the back door and heard voices. He moved away five or ten metres and thought he heard two different voices. He naturally assumed one was a female voice and the other voice was Robin’s. Robin came out and he was wearing a towel and “that was all’’.”

    Perhaps we can agree that it would be unwise to cast stones at Mr Young without reading or viewing his unedited evidence in context ?

  11. ross Says:
    July 11th, 2010 at 9:23 am

    Steven, I’m sure that a journalist could come up with a long list of questions. Are you suggesting that David is answerable to journalists, including those that want to hang, draw, and quote him? David was extensively examined and cross-examined during the first trial. A transcript of his testimony was read at the second trial. I agree that he doesn’t seem to want to expose himself to further questioning unless it’s on his terms. But he could legitimately ask: what’s in it for him? Those who have decided his guilt or innocence are unlikely to be swayed by whatever he has to say now about the case. It’s worth remembering that the events in question took place in 1994. There will be many things he simply doesn’t remember, though you’d like to think he could still recall murdering his family (if he’s the killer).

    Incidentally, in the show the other night Bruce rang Daryl Young and, in effect, taped their conversation for the public to hear. There was no indication that Bruce had asked Young for his permission to record their conversation. Doesn’t that raise issues under the Privacy Act?

  12. ross Says:
    July 11th, 2010 at 12:09 pm

    Meanwhile, a juror from the re-trial has complained of being harrassed by a journalist.

    http://www.nzherald.co.nz/david-bain-case/news/article.cfm?c_id=1500919&objectid=10657827

  13. Steven Says:
    July 11th, 2010 at 2:08 pm

    Ross: I’m suggesting that the public has a legitimate interest in Bain, given that there’s a fair chance that he’s multiple murderer.

    I’m suggesting that there are questions that have never been put to him, or that have been put and that he hasn’t satisfactorily answered.

    I’m suggesting that as long as he lets his surrogates make self-serving and sometimes misleading comments on his behalf, it’s fair to criticise him for failing to front up himself.

    As for Daryl Young, the media in their news gathering activities are not subject to the Privacy Act. He may, however, have an interesting broadcasting standards complaint, based on fairness and privacy, though TVNZ would look to invoke a public interest defence.

  14. Lindsay R. Kennard Says:
    July 12th, 2010 at 2:09 am

    There is an important precedent to this in Donald Anderson and Television New Zealand 2004 /224 This was the about the complaint of Donald Anderson against the TV1 authorial documentary by Keith Hunter’s Award Winning documentary “Murder on The Blade” which would appear to open the gate for opinion docos as long as it is main clear it is the view of the presenter.
    Anderson complained on Standards 1,4,5,6 and no complaints were upheld.
    There would appear the Standards the Mr Karam would rely on but it the BSA uses the 2004 complaint as a precedent I am not sure he would succeed and Television New Zealand having had its previous decision upheld I am sure would use that as the base line to work from.
    http://www.bsa.govt.nz/decisions/2004/2004-224.htm

  15. Steven Says:
    July 12th, 2010 at 10:17 am

    Lindsay: Well, who would have thought that BSA decision would be relevant? Oh…I know. Anyone who’d read my post and seen my analysis of it.

  16. Lindsay R. Kennard Says:
    July 12th, 2010 at 2:51 pm

    I’ll admit to only reading the first half down to the intro the The BSA I’ll slink away into my embarrassment corner again 😐

  17. Mirkenmaker Says:
    July 24th, 2010 at 1:12 pm

    1) Just a point isn’t it Michael Read not Reid? I could be wrong.
    2)Steve you say “he (Bain inferred) tried to provide input into the programme but was turned down”. I am pretty sure that there is no evidence that David Bain personally did this. Knowing the “Investigator” series, I am pretty sure Bryan Bruce would have grabbed any chance to interview Bain, but probably he didn’t want to giive the incredibly vain and boorish Joe Karam another chance to shoot from the lip.
    3) Ross, I think you should check the retrial. Keiran Rafferty pretty much damaged ‘the animal blood theory” by pointing out that the Bain team had held three different positions on this during the history of the two trials.
    4) If Daryl’s account was of an event in 93 or even as early as 92, it is hardly of any relevance to Bain’s state of mind etc at a time immediately prior to the murders and therefore why was the Bain team using it? In any way, so what if there was another person and so what if Daryl “assumed” that this was a woman, what the heck does that prove, except that the Bain team seemed prepared to stoop to no limits to try to discredit Robin. There are some rules of Professional Conduct for Barristers engaged in litigation, which in their “Chap on the Clapham Omnibus” type of interpretation, could have been stretched to the limit here. These resembled the “contortionist” demonstrations we saw in court which showed how it was “remotely possible” although “most unlikely” for a man to shoot himself with a rifle with a silencer still attached, which could have been easily removed and if it had would have made the rifle shorter and all the contortionism unnecessary. I have never boughtthat drivel and I never will. it is “unmitigated rubbish”.

  18. Mike Says:
    July 24th, 2010 at 2:15 pm

    I would like to comment on the very first post by ross.
    There has never been any question that David Bain’s fingerprints were found on the rifle.The only question was were they in human blood or perhaps mammalian blood[ie rabbits blood].
    Five samples of blood were taken from the rifle ON THE DAY OF THE KILLINGS,and,when tested ,were all found to be human blood.Four of these samples had the Gc type1S1F,which meant the blood in those samples could have come from Laniet,Stephen or David,but not Robin,Margaret or Arawa.It was accepted that the blood would have been Stephen’s.
    One sample had been taken from virtually next to where David Bain’s fingerprints were,but not from BENEATH his fingerprints.So the defence were able to say that perhaps the blood from BENEATH his fingerprints might have been mammalian.
    When Dr Harbison tested that blood some years later she found it did not yield a positive result for human DNA,but there were a number of reasons for this.
    The DNA could have been so degraded that a test would not work.Etc.,etc.
    However,it would not be unreasonable to presume that,as all the other samples taken tested positive for Stephen’s blood,then,had a sample been taken of the blood BENEATH David Bain’s fingerprints been taken on the same day,it would also have tested positive for Stephen’s blood.

  19. Steven Says:
    July 24th, 2010 at 8:01 pm

    Mirkenmaker:
    1) We’re both wrong. It’s Reed. I’ll fix it.
    2) Yes, for “he” in that sentence, read “Team Bain”. I didn’t suggest that the input was in the form of an interview, and the articles I linked to explain what went on.

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