Defence counsel Michael Reed QC repeatedly suggested to former detective senior sergeant Jim Doyle that untested blood and skin samples from the hands of Robin Bain could have exonerated David Bain, the man convicted of five murders. And they could have shown, as initially considered, that Robin Bain killed his wife and children then committed suicide.
Mr Reed persistently questioned Mr Doyle, who was second in command of the investigation, about why the samples had not been tested, why they were not kept for future testing given the rate at which DNA testing was developing, and why they were destroyed before the appeal process had been completed.
David Cullen Bain (36) denies murdering his mother Margaret, sisters Arawa and Laniet, younger brother Stephen and father Robin at the family's Every St home on June 20, 1994.
He served 12 years of a 16-year non-parole term before the Privy Council overturned his convictions two years ago.
Yesterday was the second day of Crown evidence in the new trial before Justice Graham Panckhurst and a jury of seven women and five men. Mr Doyle will continue his evidence under cross-examination today.
Bain is represented by Mr Reed, Helen Cull QC, Paul Morten and Matthew Karam, while Crown counsel are Kieran Raftery, Cameron Mander and Robin Bates.
During Mr Reed's cross-examination, Mr Doyle agreed he wrote to the trustees of the Bain estate in December 1995, about releasing a container load of property to them. But that did not include any of the evidence from the trial. He agreed he had authorised the destruction of other items, including the blood and skin samples from Robin's hands.
They had not been exhibits in the trial and because they were bodily samples, it was not appropriate to keep them at the police station.
Mr Doyle disagreed with a suggestion from Mr Reed that if one of the samples from Robin Bain was tested and proved to be Stephen's blood, the police would have been forced to admit Robin was involved in the murders.
There could have been another explanation for the bloodstain on Robin Bain's hand, he said.
He agreed it was important evidence was not destroyed until the completion of any appeal process. And he said he knew the Privy Council ruling against an appeal was in April 1996.
"Yet in December 1995, you ordered these items to be destroyed in January 1996," Mr Reed said.
Mr Doyle said he was unaware the case was going any further as Bain's then lawyer, Michael Guest, had never mentioned the possibility of an appeal.
He agreed an explanation was clearly required as to where the blood on Robin's hands came from and that the position now was it could never be known if it had come from Stephen or Laniet.
"If it was Stephen or Laniet's blood on Robin, that would be totally incriminating," Mr Reed suggested.
But Justice Panckhurst told counsel he was putting the proposition to Mr Doyle as if it was known the blood was from one of the children.
Mr Reed then questioned Mr Doyle about the importance of crime scenes not being contaminated and about the number of people who went through the Bain crime scenes - as many as 20, according to Bain campaigner Joe Karam. While quite a few officers visited the house, he did not believe they all went to the various crime scenes, Mr Doyle told the court.
Several of the people who went in early were the officers responding to the 111 call. They had to check the victims, ensure the safety of the survivor and ensure he received medical attention. Ambulance officers were also among those people allowed into David Bain's room.
"I'd have been aghast if they hadn't been inside the house," Mr Doyle said.
He agreed Detective Sergeant Milton Weir had later complained about the number of people inside the house and that when he (Mr Doyle) arrived, about 9.45am, the scene was certainly not "original".
Mr Doyle also agreed it would have been helpful to have the time of death established in each case. While pathologist Alex Dempster was outside the house from soon after 10am, he was not allowed in for another two hours, when it was too late for him to provide the time of death.
But it was important that bodies at a homicide scene were not disturbed and the tests Dr Dempster would have had to carry out would have involved considerable disturbance to the bodies and to their clothing.
Asked why he had not ensured Robin Bain's hands and arms were covered to preserve gunshot residue, if the case was being viewed as possible murder-suicide at that time, Mr Doyle said he had not been at the house then, but he agreed it should have been done, that the best way of finding who fired a gun was to test for gunshot residue.
And as to why David Bain's hands were not tested for gunshot residue, Mr Doyle said Bain had told them he had washed his hands after returning from his paper run to remove the newsprint ink from the paper. It had not seemed appropriate to ask to test his hands because, as far as police were concerned then, he was a victim of coming home and finding the scene at Every St.
Mr Doyle was also questioned about the lack of a time base, the amount of evidence not collected such as clothing from the deceased, and why the skin around the wounds was not cut and kept. That was of particular importance where there was "a contest" about who inflicted the wound and, as in this case, whether it was a "contact" or "near-contact" wound.
And Mr Reed criticised the failure by police to cut the pieces of carpet which had been luminol tested and showed bloody sock prints. He asked why Robin's hands were not photographed to show the position of marks and injuries, why a hair with blood on it in Robin's Commer van was not tested and why matters which could have given Robin a motive were not followed up by police.
There had already been allegations by two people that Robin had been in an incestuous relationship with his daughter, Laniet, and that she was a prostitute, yet that was not investigated.
Mr Doyle said his senior officer had decided it was not appropriate at that time. They were investigating a case of multiple homicide, not an allegation of incest.
