Advocacy Masterclass - Retrial of David Bain

Abstract

Early on the morning of Monday 20 June 1994, five members of the Bain family: Robin (58), Margaret (50) and their teenage children Arawa (19), Laniet (18) and Stephen (14) were slaughtered in the family home at 65 Every St, Dunedin, New Zealand. There was one survivor, the eldest son, David Bain (22), a student of music and classics at Otago University, who reported the scene of carnage after his morning paper round. Next year, on 29 May 1995, David Bain was himself convicted on all five counts of murder and sentenced to life imprisonment, without parole for the first 16 years.

Fourteen years later, on 6 March 2009, and after two references from the New Zealand Governor General, three hearings by the New Zealand Court of Appeal and a final, quashing review by the Privy Council, the stage was set for one of most notorious criminal cases in New Zealand and Commonwealth history, the retrial of David Bain.

Using the retrial as a demonstration stage and archive courtroom video footage, together with new transcripts and analysis, this paper presents an advocacy masterclass from the retrial advocates themselves: Kieran Raftery and Robin Bates for the Crown; Michael Reed Q.C. and Helen Cull Q.C. for the Defence, with c.30 real examples over 2 hours, covering the core skills of: opening and closing speeches, interventions, examination-in-chief and cross-examination. How did the two sides fight the case? Who won the advocacy battle and what techniques, explicit and implicit, did they use? What was the verdict, indeed, what could or should it have been?

Keywords: David Bain, Robin Bain, Margaret Bain, Laniet Bain, Stephen Bain, Arawa Bain, 65 Every St, O J Simpson, Bamber, Menendez, murder, advocacy, examination in chief, cross examination, opening speech, closing speech, Helen Cull, Michael Reed, Kieran Raftery, Panckhurst, New Zealand, Dunedin, Joe Karam

JEL Classification: K41, K42, K14