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Order refers Bain case to Court of Appeal

Hon Phil Goff
Minister of Justice
Media Statement

24 February 2003

Order refers Bain case to Court of Appeal

Justice Minister Phil Goff today announced the final step necessary in sending the David Bain case back to the Court of Appeal for a full reconsideration.

"The Executive Council today made an Order in Council, which now takes the matter back before the Court of Appeal," Mr Goff said.

“The terms of the Order in Council were settled after consultation with both the Crown Law Office and Mr Bain’s legal advisers. Its effect is to enjoin the Court to reconsider the case as if it was an appeal.

“As the matter is now sub judice it is not appropriate to discuss the issues further,” Mr Goff said.

Bain was convicted on 29 May 1995 on five counts of murder. Appeals to both the Court of Appeal and the Privy Council were dismissed and in June 1998 he petitioned the Governor General for the exercise of the royal prerogative of mercy.

Preliminary consideration of the petition by both the Ministry of Justice and Sir Thomas Thorp suggested that some aspects of the evidence given at the trial might have been inaccurate or misleading. There was also a concern about a submission made by the Crown Prosecutor in his closing address," Mr Goff said.

“Having regard to the possible concerns, on 19 December 2000, I advised His Excellency (the then Governor-General Sir Michael Hardie Boys) to seek an opinion from the Court of Appeal on the issues before finally determining Mr Bain’s application.

"The areas of concern related to the evidence about the time at which a computer in the Bain household was turned on; a spectacle lens found in Stephen Bain’s bedroom; fingerprints in blood on the rifle which was the murder weapon, and the closing submission by the Crown Prosecutor about the significance of David Bain’s comment that he had heard his sister Laniet making gurgling sounds.

"The Court of Appeal was invited to hear further evidence about those issues and, in light of its findings on them, to advise Her Excellency on whether there was a sufficient possibility of a miscarriage of justice to warrant a full reconsideration of the whole case by the Court of Appeal.

“The Court of Appeal delivered its opinion to the Governor-General on 17 December 2002.

"The Court concluded that, while there was other cogent and compelling evidence at the trial from which David Bain’s guilt might be inferred, the evidence it had heard, when viewed collectively, gave rise to a sufficient possibility of a miscarriage of justice to warrant a full reconsideration of the case by the Court of Appeal.

“Late last year I announced that in light of the Court of Appeal’s opinion, I had advised the Governor-General that the case should be referred back to the Court of Appeal for a full reconsideration.

"Today's Order in Council is the final step in that process,” Mr Goff said.

Attachment: Order in Council

Reference to the Court of Appeal of the Question of the Convictions of David Cullen Bain for Murder


Order in Council

At Wellington this day of 2003


in Council
Pursuant to section 406(a) of the Crimes Act 1961, Her Excellency the Governor-General,—
(a) acting on the advice and with the consent of the Executive Council; and
(b) in the light of the background, and for the reason, stated in the Schedule,—
hereby refers to the Court of Appeal the question of the 5 convictions of David Cullen Bain for murder entered in the High Court at Dunedin on 29 May 1995.


1 Interpretation
In this schedule the applicant means David Cullen Bain.


2 Convictions and appeals
(1) On 29 May 1995 the applicant was convicted in the High Court at Dunedin of 5 counts of murder.
(2) On 19 December 1995 the Court of Appeal dismissed appeals by the applicant against his convictions on those counts.
(3) On 29 April 1996 the Privy Council dismissed an application by the applicant for leave to appeal to it against those convictions.

3 Application for exercise of mercy
On 15 June 1998, the applicant made an application for the exercise of the mercy of the Crown having reference to the convictions referred to in clause 2.

4 Reference of certain points to Court of Appeal
(1) By an Order in Council made on 18 December 2000 under section 406(b) of the Crimes Act 1961, the Governor-General referred to the Court of Appeal for its opinion certain questions arising from the application referred to in clause 3.
(2) On 17 December 2002 the Court of Appeal furnished the Governor-General with its opinion on those questions.

Reason for reference

5 Reason
The reason for referring the question of the applicant’s convictions to the Court of Appeal is that there is a possibility, warranting the reference of the question of the applicant’s convictions to the Court of Appeal, that there may have been a miscarriage of justice.

Clerk of the Executive Council.

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