Expert Witness

  All of the events that relate to David Bain’s arrest, convictions, imprisonment, appeals, hearings, retrial and subsequent release following five not guilty verdicts stem from the events of that now long ago morning. This chapter is not about what happened on that day or the events that occurred up until I became involved. It is also not about particular issues that formed any part of the case for either side. This is solely about what I experienced.

  My decision to become involved with the case was very closely considered. Admittedly, that decision involved a degree of naivety because I had no appreciation of the depth of feeling about the case: I wasn’t here at the time of the killings or the first trial so none of the milestones between 1994 and 2008 meant anything to me. When I was first contacted about the case by a colleague, I had never heard of either David Bain (who?) or Joe Karam (double who?) — what are the chances of that in a country the size of New Zealand?

  My involvement with the David Bain case came completely by chance and totally out of the blue. I first met Joe Karam in the office of the Coffee Guy in Auckland, a company he founded but that is now owned by one of his sons, with a business partner. I was invited along to the meeting by a colleague because I hadn’t long been back in the country after a six-year absence, and I wanted to get back into forensic science as soon as I could.

  As the meeting started, this man across the table was staring at us in much the same way as a hawk eyes up a rabbit. It was an all-piercing stare and, quite frankly, was bloody uncomfortable. A large book of photographs was thrust across the table at me and the man on the other side of the table started talking about blood smears, spatter patterns and gunshot wounds, flicking constantly between the 700-odd pages to point out things and compare them with others. There was a huge amount of information to try to absorb in a short space of time.

  I felt as if I was lagging behind because these two men clearly had far more idea about this case than me. This isn’t necessarily an unusual situation: by the time an independent forensic scientist is called in to work on a case, the lawyers who are calling have usually had weeks, if not months, to become familiar with the circumstances. It’s not uncommon for them to forget how much they know, whereas the first the scientist heard about it was three minutes ago. So playing catch-up is normal and the best way for me to deal with it is to suggest that a copy of the relevant paper work and photographs be sent to me so I can peruse them, absorb what they mean and come up with a coherent plan of action based on what I’ve been given.

  In this first meeting with Joe Karam, I felt like a sitting duck as I was sized up for my suitability to become involved with this case. He eventually decided my CV didn’t indicate that I’d be of any use to him and the meeting was over.

  I assumed that was it and chalked it up to experience, but then the phone rang a few days’ later and it was Joe Karam asking if I knew any pathologists or blood spatter experts in England who might be prepared to have a look at a case in New Zealand. As it happens, I know a fair few experts in England and they have exactly that kind of experience, as well as lots more. So I hung up the phone after saying I’d check with my colleagues and get back to him. A Skype phone call later and the answer from England was, yes, they’d be happy to look at the case to see what assistance they could offer.

  First refusal for the pathology was going to Dr Chapman, the man who did the post mortems of Princess Diana and Dodi Al Fayed. Although I was slightly uncomfortable with the thought of having to see him again after I’d so rudely fainted in his mortuary on a previous occasion, it was an excellent opportunity to bring some world-class skills to New Zealand. That was the point when I made the decision about whether or not to get involved — if experts from the United Kingdom were going to be consulted then the defence team would need someone with scientific knowledge to be the liaison between England and New Zealand. And so it began.

  That first meeting at the Coffee Guy led to the involvement of the following defence experts from the United Kingdom:

  Dr Robert Chapman, Home Office pathologist who’d examined approximately 2000 cases of suspicious and homicidal death and approximately 18,000 sudden deaths (that’s a lot of dead bodies), renowned not only for his involvement with the Diana and Dodi case, but also as the supervising pathologist for the 2007 London Tube bombings.

  Dr John Manlove, having been a Crown expert in the United Kingdom with particular expertise in blood spatter, DNA, sample collection and storage, entomology (insects) and crime scene examination, now running his own consultancy and involved with many high-profile cases including crime scenes and deaths in Iraq and central Europe.

  Carl Lloyd, former police officer with over 25 years’ experience as a finger print examiner, including time spent in the USA and Abu Dhabi.

  Philip Boyce, firearms expert of 20-plus years with time spent in the Territorial Army in Northern Ireland during the Troubles of the 1970s and 1980s, with knowledge and expertise in terrorism and major incidents including time spent in Iraq and Afghanistan.

  It’s a pretty impressive skill base and yet they represent only a small selection of the skills available, which is why I feel justified in saying that if a case needs an expert with certain skills, I’m pretty sure I know someone.

  Once I’d made the decision to become involved with the Bain case, it was like opening a door and walking into the eye of a hurricane. Once the door was shut, there was no turning round and opening it again. I worked in the eye of the storm for six months, blissfully unaware of what was swirling around me. I had no idea of the strength of the hurricane until the retrial started, by which time it was too late to get out of the way. If you spend any time thinking about it, which I don’t usually, it can be a daunting task to be up against the might of the Crown. In this case, my strong impression was that there were 14 years of bad feeling running through the country, of which neither I nor the experts I involved were aware until we were actually in Christchurch. For me, a case should always be impersonal; this is work, we are professionals and I have been trained to expect all involved to deal with it the same way.

  There are three questions I am now often asked. I’ve already answered the first, Is your job like CSI? The second is, So go on then, you were there, is he guilty or not? When people ask me this question, it’s not because they want to know what I think. It’s because they want to tell me what they think, which they usually do whether I want to hear it or not. The third is, What was it like being part of the David Bain retrial? That is a question I can answer. Make your mind a blank canvas and draw a picture as we go along.

  My involvement with the pretrial aspect of the case was quite extensive. Once I’d convinced the British experts to have a look at this case, I then told them how much work would actually be involved and that there was so much documentation I’d have to ship most of it over in a large storage box. The rest would be delivered by hand. Some of it was taken by Joe Karam, who combined the trip with a Privy Council hearing and de-brief with the experts concerned. The items that were going to be examined in England were hand-delivered by a police officer at the insistence of the Crown, which is fair enough. I have no idea how they decided who got to go, but I imagine they wouldn’t have been short of volunteers.

  I spent many, many hours reading documents, photocopying, setting up files, deciding what was relevant for the experts and reviewing documents that were constantly being disclosed by the Crown, right up until the time the retrial started. I spent many other hours on Skype to the experts confirming to them that, yes, lots of exhibits really had been destroyed before the appeal process had been completed; yes, the crime scene really had been burnt to the ground two weeks after the killings without retaining the carpets on which the blood-stained sock prints had been located; no, there really aren’t any proper scale diagrams of some of the important things; no, certain items weren’t seized at the time; no, blood really hasn’t previously been identified on those items … the list goes on. From the point of view of highly experie
nced forensic scientists, these circumstances were, to put it bluntly, extraordinary. They were certainly highly unusual in such a serious case as a multiple murder.

  Because I was already involved with the logistics of getting the expert witnesses to New Zealand and arranging videolinks for others (both experts and lay), it was a logical step to take on the logistics of getting the rest of the witnesses to court as well. That might not sound too complicated because, after all, they’re grown-ups and know how to find their way around. The thing is that because the case was legally aided, all funding, including that for travel, accommodation and food, had to be approved before any tickets or hotel rooms could be booked. That meant estimating how much it would cost to get each and every witness from wherever they were in the world into Court room One of Christchurch High Court on the relevant date, whether it be physically or electronically. I tell you now, that is no mean feat. This was particularly so when the time estimate for the start of the defence case was a constantly moving feast, in large part dependent on the way the Crown conducted its case.

  There was also the need to source experts not needed in the first trial, because of changes in the way the Crown was presenting its case in the retrial, and some of those experts had to be sourced after the retrial had started. These included the police photographer who originally photographed the fingerprints on the rifle. The Crown was saying that the finger prints were in blood. The defence was suggesting that the fingerprints were not in blood and this was shown by the fingerprints being white-coloured against a dark background. The police photographer was required because we needed to know what sort of light had been used to enhance the finger prints. Blood is usually enhanced using a filter and a special light, the result of which would be a photograph in which dark finger prints appear against a lighter background. The photos of the finger prints on the rifle actually showed the opposite situation: white finger prints against a dark background. The police photographer confirmed he had used plain white light, which meant he hadn’t used the filter that would be used if he were enhancing blood.

  After many months of preparation, the retrial was finally ready to start and the media was in the starting blocks waiting for the starter’s pistol. I missed it, because there was no need for me to be there. Rest assured there were plenty of other people there from the kick-off who were determined to keep the nation informed of progress, so I just watched the news.

  When I finally did take a seat on the roller coaster ride that was the retrial, at the end of March, a good deal of my time was spent in court. Court room One of Christchurch High Court is fairly typical of your average court and is rectangular. Entry to the main court floor is in the corner of one short side. The jury sat on one long side, two tiered rows of six seats. The judge sat to the left of the jury in what is called the bench, which was raised above the level of the main court floor at the same height as the witness box and at the opposite side from the entry door. The dock was on the opposite side of the room from the jury, facing them. The media bench (which was normally used for public seating) was off to the right of the jury, just inside and to the left of the entrance door to the court. One desk was reserved for Joe Karam — as he wasn’t a lawyer and not a member of the court staff, he wasn’t allowed to sit within the actual court floor. Instead he was given permission to be in court, and seated relatively close to the defence team so he could advise.

  David Bain didn’t sit in the dock during the trial; he was only there for the purposes of his pleas and for the verdicts. The rest of the time he sat within a few feet of the jury, facing the judge’s bench but behind all counsel. Based on my many experiences in Crown and High Courts, it was slightly unusual that the court proceedings didn’t seem to revolve around the defendant. Half the time you forgot he was even there, such was the performance going on around him. One media person even commented that the jury didn’t seem to be in the presence of evil.

  Witnesses gave evidence from the witness box, an elevated position with stairs leading up to a small, enclosed desk, with a microphone and a video screen plus a wheelie chair. The witness box faced across the main court floor to the jury so that counsel was below the level of the witness.

  The witness box is a lonely and exposed position — you can almost feel the prairie winds blowing over your face, the tumbleweed rolling by and the chink of spurs as Clint Eastwood walks by, particularly during that retrial because the TV and stills camera were opposite and the black lenses were a constant reminder that everyone, literally everyone, was watching. The witness box can also be a hot and scary place, not only for people who have never given evidence before but also for experts and police officers. There were several occasions when I suspect sweaty palms were being rubbed surreptitiously on their owners’ trousers or skirts.

  The footage from the TV camera was beamed upstairs to the additional seating area. The footage shown up there was far more detailed than could be seen when one was actually in the main court arena. The camera randomly zoomed in on people in the court: media people texting and their facial expressions as someone sent back some thing amusing, views of the jury’s footwear, socks and trouser bottoms as they entered and left their seats, expressions on people’s faces they probably didn’t think anyone could see. Some people should probably have brushed their hair a bit better. Lines on faces were far more emphasised on the TV footage than they were in real life. People tell you that being on screen adds 10 pounds to your weight; no one’s ever told me it adds 10 years to your age as well.

  I sat in the upstairs seating area towards the end of the defence case, after I’d given evidence, to check on how the other experts were getting on — there’s no better way to learn how to improve the way you give evidence than watching other people do it. Had I known how much time the cameraman spent panning around the room, lingering on people seemingly at random, I’d probably have felt much more pressured — ignorance is bliss.

  Prior to the retrial, there was much comment in the media about how the proceedings would be covered. Initially, the judge ruled that the entire proceedings could be streamed on the Internet, albeit with a 10-minute delay. I under stand this was OK until it was realised that the camera wasn’t turned off during a closed chambers meeting, which was held in court. As only one film camera and one stills camera were allowed in court, I assume the networks shared the footage. The whole of the chambers discussion was apparently streamed on the Internet, even though it was supposed to be private. After that, restrictions were placed on filming.

  At some time during the Crown case, the instruction to the media was that they were only allowed to film David Bain for the first 15 minutes of each day. When the news was shown later that day, it some times showed a clip of David Bain that appeared to be contemporaneous with some piece of evidence that had just been given when, in fact, the evidence had been given at a time when the media wasn’t actually filming him. Some times, the continuity on the news was such that people appeared to have changed their ties part way through the day’s proceedings. I under stand that observant trial-watchers noted these things and the question may have been discussed in the public gallery as to whether such broadcasting was an accurate record of events.

  The defence team was based in an apartment hotel, which basically meant self-catering with the benefit of maid service. The accommodation was a bit of an 80s throwback and my overriding impression is one of burgundy and cold floors. Having said that, the bed was always comfy and the staff friendly, which cannot be underrated when you spend your days in the hostile environment of a criminal court room.

  Everyone else had a ‘permanent’ room because they were there practically all the time, while I was moved from room to room. The main problem with that was two-fold: waking up in the morning completely disorientated because I couldn’t work out where I was or where the bedroom door was — each room had a slightly different layout, and remembering which room I was in from day to day, particularly when most of my time was spent thinking about thr
ee things at once, none of which related to my room number.

  The defence team also had the use of a hotel room as its war room, which was a standard hotel room swept clean of any comforts. Just inside the door was the kitchen area, which was usually festooned with abandoned coffee plungers, half-drunk cups of tea and coffee and various newspapers. The main area of the room would have contained the comfy settees, chairs and tables but they had been replaced with entirely functional albeit depressingly school-like tables pushed together to make a large work surface. There was also a copier/fax/scanner and assorted office-type requirements, including storage for the folders of the trial transcript that grew by hundreds of pages every day. Leading off the main room was what would have been the bedroom but was kitted out with shelves and dozens of large A4 folders, piles of papers, a desk and a couple of chairs. This was my refuge area when discussions at the main table became intense and I couldn’t escape out of the main door.

  I was up and down to Christchurch throughout the trial, usually coming home at weekends. When I was down in Christchurch the hours were long and seemingly unending. The team in which I had been temporarily seconded was an interesting mixture of morning people (Joe Karam, Helen Cull), evening people (Matt Karam, me), all-the-time people (Paul Morten), and Michael Reed, who did either or both ends of the day, depending on circumstances. The thing is that although each person had a preference for the time of day they would have liked to work, the trial did not allow for that choice, so everyone worked all the time.