David Bain will face a retrial for the murder of the five members of his family in Dunedin in 1994 and it is likely to be held in Dunedin early next year.
The Solicitor-General David Collins QC says he has determined that it is appropriate that the retrial of Bain continues as ordered by the Privy Council.
The Privy Council last month quashed Bain's convictions saying there had been a substantial miscarriage of justice in the trial that put him in jail.
Collins says the Privy Council did not acquit Bain and what it did was order a retrial.
"The Privy Council had the option of allowing Mr Bain's appeal
and causing a verdict of acquittal to be recorded," he says.
"The Privy Council said his guilty or innocence in the light of the new evidence he has advanced can only be decided by a jury," Collins says.
The Solicitor-General says among the many factors he has taken into account are:
- The seriousness of the crimes. "By any analysis, the murder which took place in the Bain household were extremely serious. It is one of the most horrific cases in New Zealand's history."
- The time Bain has spent in prison - about three-quarters of the minimum parole period.
- The availability of witnesses.
- The availability of exhibits.
- The length of time that has elapsed since the murders occurred.
- The ability of Bain to obtain a fair trial.
- The strengths and weaknesses of the prosecution case.
The Solicitor-General says he has consulted senior and experienced lawyers outside of Crown Law about the process he has followed and the factors he has taken into account in reaching the decision.
He says he has also paid "very careful attention" to detailed points made by Bain's lawyers who consider there should be no retrial.
The Solicitor-General also warned against further public debate about the evidence or any public comment "that is calculated or likely to influence a future jury", saying those who attempt to usurp or otherwise influence the trial process risk facing a charge of contempt of court.
Background to the case
Following the Privy Council decision last month, the High Court in Christchurch released Bain on bail amid euphoria from his supporters after he had served 12 years of a minimum 16-year sentence for the murders of his parents, two sisters and brother.
The Privy Council cited nine points of new evidence that helped it decide the convictions should be quashed.
The Crown had made much of David Bain's disturbed mental state, but the jury did not hear about his father Robin Bain's depressed behaviour.
They didn't hear a psychologist's view that Robin, a school principal, had deteriorated to the point where he could no longer cope. And the jury was also not allowed to hear Robin Bain was facing the public revelation of serious sex offences against his teenage daughter, Laniet.
Had they done so "they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence," the Law Lords said in their judgement.
The Privy Council also said fresh evidence throws "real doubt" on the assumption that a heel print found outside Bain's mother Margaret's room was too big to be Robin's.
And it found new evidence about the time David came home from his paper round, and just when the family computer was turned on that morning, may have helped his case.
The trial jury was encouraged to regard David's evidence of hearing Laniet gurgle as pointing to his guilt, but was not told the sound could have come some time after she died.
The Law Lords said all the fresh evidence, when taken together compelled their belief a substantial miscarriage of justice had occurred. They also made it clear New Zealand's Court of Appeal overstepped the mark when emphasising facts pointing towards David's guilt.
"The issue of guilt is one for a properly informed and directed jury and not for an appellate court," they said.
Five days after the Law Lords quashed his convictions a judge at the High Court in Christchurch granted David Bain bail.
The judge had to consider a number of issues, including the seriousness of the offence Bain is charged with, in making the bail decision. He was freed under strict conditions which prevented him from travelling to the South Island, Hamilton or Wellington where extended family members live.
He was bailed to the home of his chief supporter Joe Karam and has been allowed no access to firearms. He has also been prevented from travelling to the South Island, Hamilton or Wellington where extended family members live
The Crown sought a 24 hour curfew but the judge said there was no risk of Bain reoffending and therefore he was no risk to public safety.
Bain said the bail decision was a huge relief.
At the time his lawyer, Michael Reed QC, said a new trial would be both ridiculous and a shambles. He said the defence's star witness is dead and another is too old, a new trial would cost the country millions of dollars and David Bain has already been in prison for almost 13 years.