The emergence of much new evidence after the trial led to the later appeals and the eventual overturn of Bain's convictions, pending a retrial. Nine of the most important items were reviewed in the Privy Council findings:

1. Robin Bain's mental state

The jury did not know that he was "quite seriously disturbed", had reportedly hit a student at the school where he was principal, and had published brutal and sadistic children's stories in the school's newsletter, one of which involved the serial murder of members of a family.

2. Motive

Laniet had apparently told a friend just before the killings that she was planning to confront her parents that weekend about an incestuous relationship between her and her father Robin, but the trial judge had ruled the friend's evidence inadmissable because he saw it as unreliable. The jury therefore never heard about this possible motive for Robin. (The exclusion of this evidence was the principal question in the first appeal.) Since then, two other people had come forward stating that Laniet had told them about the incest, and another two had given supporting statements.

3. Size of bloody sock prints

Prints from a right sock impregnated with blood were detected using luminol in Margaret's room, going in and out of Laniet's room, and in the hallway outside Margaret's room. They all seemed to be from the same foot, measured at 280 mm in length. These were in places where Robin would not have gone under the Crown's theory of events. It was accepted during the trial that the prints were David's, and the prosecutor summed up saying they were too big to be Robin's. The jury were not told Robin's feet were measured to be 270 mm in length. Later measurements showed David's feet to be 300 mm in length. According to the Privy Council report, the new evidence "throws real doubt" on the assumption during the trial that the prints could not have been Robin's.

4. Time the computer was switched on

The jury was told and later reminded by the judge that the computer was turned on at precisely 6:44 am, just after David had returned home. However the exact time was not precisely recorded. A computer advisor employed by Otago University determined the time that the computer was switched by identifying how long it had been going, and what the current time of day was. However he was not wearing a watch himself and relied on the watch of an accompanying constable, DC Anderson. The constable's watch had no seconds hand and only five minute interval divisions, and later upon examination appeared to be two minutes fast. During the Privy Council appeal both sides agreed that the computer could have been turned on as early as 6:39:49 am.

5. Time David returned home

Someone was seen by a passing motorist entering the gate at 65 Every St at 6:45 am. The reliability of this time was left more doubtful than necessary in the minds of the jury, because they were not told that the police had checked the car's clock. Nor were they (or the defence) told of a second statement made by the motorist, in which she mentioned that she saw the yellow paper bag over his left shoulder. After retiring, the jury asked to read the motorist's statement, regarding when David arrived home; the judge then re-read her (first) statement.

6. Ownership of glasses

The jury heard a statement from an optometrist that glasses found in David's room were David's, conflicting with David's testimony that they were his mother's. David was then cross-examined about this in a way that raised doubt over his credibility. The optometrist had in fact changed his mind shortly before testifying, and believed his statement had been changed to say they were the mother's, but this had not happened. The jury asked a question about this issue after retiring, and were reminded of the conflicting testimony by the judge. The Privy Council concluded that while the ownership of the glasses was not a vital matter in itself, the conflicting evidence may have detracted from David's credibility in the eyes of the jury.

7. Left-hand lens

The left-hand lens of these glasses was found in Stephen's room. During the trial, Detective Weir testified that it was found there in the open. This was more consistent with the Crown's case that it become dislodged during the struggle there than what is now accepted, that it was found under a skate boot under a jacket, and was covered in dust. This may have misled the jury.

8. David's bloody fingerprints on rifle

David's fingerprints were found on the rifle, impressed there by bloody fingers. During the trial it was assumed that this was human blood. (Other blood on the rifle was definitely human.) A test of the fingerprint blood afterwards did not test positive for human DNA, and the prints may have resulted from possum or rabbit shooting months beforehand.

9. Laniet's gurgling noise

The jury was told that only the murderer could have heard Laniet gurgling. The second Court of Appeal heard some contradictory evidence and concluded it was not so clear-cut. The third Court of Appeal decided that it was, but was criticised by the Privy Council for having stepped outside its reviewing role here.

Bail

Although the Privy Council said Bain should be kept in custody, he was released on bail on 15 May 2007 following a hearing at the Christchurch High Court. More than 100 people attended, with the gallery erupting in cheers following the judge's decision. It was ruled that Bain posed no threat of offending if released. He was bailed to live with one of his longest supporters, former All Black Joe Karam, but later moved to west Auckland.

Retrial

The retrial was announced on 21 June 2007 by Solicitor-General David Collins. The decision to conduct a retrial was based on a series of factors including the seriousness of the crimes, the time Bain had spent in prison and the availability of witnesses and exhibits. The Solicitor-General also declared that any further public discussion of the evidence or other matters that might influence a jury could be considered contempt of court. Various appeals and applications have since been made to the courts about the conduct of the retrial.

Appeals and court applications

Following an application to the High Court, Justice Panckhurst decided the retrial would be held in Christchurch instead of Dunedin. In February 2009, Justice Panckhurst and Chief High Court Judge Tony Randerson heard four days of arguments over whether to stay the retrial, but dismissed the application for a stay on 2 March 2009.

An earlier application for a stay was made to the Privy Council in 2008 on the grounds that several witnesses have died since the 1994 trial, many of the exhibits have been lost or destroyed, and new evidence had arisen. The Privy Council referred the application back to the New Zealand courts, after the Solicitor-General assured them that the New Zealand courts would consider the points raised before them. Details of the New Zealand hearings have been suppressed by the Solicitor-General.

Both sides appealed to the Court of Appeal against High Court decisions on the admissibility of various pieces of evidence. The Court of Appeal decided that some items should not be presented to the jury, and suppressed any mention of these until after the verdict. This included statements from two high school friends that David told them in 1989 how he could commit a sexual offence against a woman jogger and use his paper round as an alibi, by arriving at the usual time at some houses where he was often seen, but delivering to other houses much earlier. Evidence was also suppressed from a friend of Arawa Bain that David Bain had been intimidating the family with his gun, later to be used in the murders.

Bain's lawyers also appealed to the Supreme Court against a High Court decision about new evidence being presented at the retrial. They won their appeal, so the disputed evidence was excluded from the retrial, and was under a suppression order until the week after the verdict, when the evidence and the reasons for its suppression were released. The disputed evidence was about a portion of the recording of David's 111 call in which he was audibly breathing heavily at the time; a detective reviewing it in 2007 in preparation for the retrial believed he heard the words "I shot the prick". Expert witnesses agreed that it was unclear whether the sounds were in fact speech, and if so what Bain may have said. For instance, one expert suggested he might have said "I can't breathe", and another expert gave the analogy of an image glimpsed in the clouds. Given the uncertainty, and the experts' cautions about presenting it to a jury, the Supreme Court decided allowing it as evidence would be unfairly prejudicial.

Opening statements

The jury for the retrial was sworn in on 6 March 2009. David Bain pleaded not guilty to the five murder charges, and the prosecution and defence made their opening statements.

Crown prosecutor Robin Bates told the jury that all the evidence showed David Bain killed his family, describing the evidence as circumstantial but strong. He said the Crown case would show that the father, Robin Bain, was not the killer. He laid out the case against David, describing graphically what the Police found at the scene and how this was consistent with David killing each of his family members in turn. David had called 111 at about 7:10 am. When the police arrived at 7:30 am, they found him hysterical in his room, wailing "they are all dead". His brother Stephen had clearly put up a struggle, while bleeding profusely from an initial glancing scalp wound. Stephen was strangled with a t-shirt, then killed by another gunshot. Bates said David had injuries consistent with this struggle, and had Stephen's blood on his clothes. A lens from glasses David was wearing was found on the floor of Stephen's room, Bates said, and the frame and other lens were found in David's room. David's bloody gloves were found in Stephen's room, and Bates said he must have had to remove them to deal with the rifle misfeeding or jamming on a bullet. According to Bates, Robin would have had no reason to wear gloves if he intended to commit suicide.

David had told police he heard his sister Laniet gurgling, which Bates said meant he was present between her second gunshot wound and the final shot to her head which killed her. His other sister, Arawa, and his mother were both killed by a shot to the head. Robin was found in the lounge, lying on his side between a coffee table and a bean bag, dead from a single shot to the head. Next to him was the .22 calibre rifle, but his fingerprints were not found on it. Both the rifle's trigger lock and its key were found in David's room. Bates said the state of the laundry was consistent with David trying to destroy evidence, especially the green jersey he wore during the killings. Doing his paper round was meant to provide David with an alibi, Bates argued, and he had been sure to be seen along his route. Evidence would also be presented of a conversation David had with a friend six days before the murders, when he told her he had a feeling "something horrible" would happen. After the killings, he told her they were what he had told her about before.

Defence lawyer Michael Reed described the Crown's case as absurd, saying they glossed over the killer's motive and merely pointed to an argument between Robin and David over a chainsaw. He said the defence case would be that Robin killed the other family members, before killing himself. He told the jury that Robin did this because his incestuous relationship with Laniet had come to light, that she was "going around telling everybody" that he molested her, and had come home to tell her mother about the abuse that night. Reed said that Robin, a missionary and school teacher, was depressed, and his life would be ruined by the incest allegations. He said that for three years Robin had been living in a van behind the school and was banished to a caravan behind the house when he came home for the weekend. Laniet had stayed with him in the caravan, Reed said. The defence would call "startling evidence" showing Robin was the killer, including forensic evidence. Reed was scathing about the police investigation. It soon developed a one-track focus on David, he said, and other leads that did not fit this picture were dropped. Reed said some of the evidence was lost, destroyed, or never collected, including blood samples from under Robin's fingernails. He said that despite a neighbour telling Police about the incest allegations, "Laniet's diaries and letters written to her mother were destroyed" although they might have contained allegations of incest from Laniet.

Testimony

A teacher at Laniet's school testified that Laniet had been very open in conversations with him, in which she said that she gave birth to a black child in Papua New Guinea after being raped. He said she had later changed her story, saying that she had an abortion.

Verdict

The retrial lasted three months, with 130 witnesses being called by the Crown and 54 by the defence. The last evidence was presented on 27 May 2009. The jury retired for several hours the following week to consider their verdict after hearing closing statements from the prosecution and defence, and the judge's summing up. They had two questions for the judge the following morning: "What are the rules of reasonable doubt?" and "Can you please clarify your statement 'It must be David to the exclusion of Robin'?" The judge replied, in part, that they must be sure the accused was guilty, after careful consideration of all the evidence, and that the Crown case had excluded Robin as killer. He said that reasonable doubt was an honest and reasonable uncertainty about guilt.

At 4:45pm on the afternoon of 5 June 2009, the jury gave their verdict: they found David Bain not guilty on all five charges.

Jurors' conduct and concerns

After the verdict, one of the jurors was hugged by David Bain outside the court building, and another juror shook Bain's hand. That evening these two jurors briefly joined a party being held by Bain supporters, to which they had been invited by Joe Karam. Reports vary on why and when they left, this being either "after only a few moments" because they then felt it might be inappropriate, or minutes later because they were asked to leave.

These actions have been seen as questionable, and have prompted calls for a review of how jurors are prepared for such cases. Opposition justice spokesperson Lianne Dalziel said the jury should have been debriefed together after giving their verdict.

Journalist Martin Van Beynen noted that the two jurors spent the last three weeks of the trial giggling and writing messages to each other. One juror said that each of the jurors had been approached during the retrial by people who believed David Bain was guilty.

Possible compensation

Bain's lawyer said Bain should receive compensation for spending 13 years in prison. Justice Minister Simon Power said no application for compensation had been received as of 5 June 2009, but any application would be considered on its merits. Otago University's Dean of Law Mark Henaghan said that Bain did not meet one of the four current criteria for compensation, namely that the convictions be quashed with no retrial ordered. While it was possible that the rules could be changed, Henaghan pointed out that Bain would also have to show it was more likely he was innocent than not. It is not enough to be found not guilty, as this does not mean that the accused person is necessarily innocent—it is not the same as the exoneration that DNA evidence may provide, for instance, A 'Justice For Robin Bain group has been founded to work against the David Bain lobby.

A group of Robin Bain supporters has launched a petition, advertised in newspapers nationwide, calling for David Bain to be denied compensation for the years he spent in prison after being convicted of murdering his family.

Bain has asked that his belongings used as evidence at trial, including the rifle that was used to kill his family, be returned to him.

Aftermath

In the aftermath of the final appeal, Michael Bain, brother of Robin Bain, gave an interview to the Listener. He was prompted by troubled feelings about the hearsay evidence brought against Robin and the rest of the murdered family while attention focused on David. He said the wider Bain and Cullen families have also been saddened by the allegations against Robin and believe the police "did a magnificent job."

Joe Karam has responded by claiming Michael was in "denial" and questioning how well he knew Robin. Rosemary McLeod has described the "most salient" point rebutting that claim is the three weeks the Bain brothers spent repainting their mothers house in January 1994, followed by a stay by Robin at Michael's house on the way back to Dunedin. Four months later, Robin was dead.

Coroner's inquests

In 1994, the Dunedin Coroner decided no inquest was needed, as he was satisfied that the evidence shown in court had established the cause of the deaths. After the retrial, New Zealand's Chief Coroner consulted with the local coroner and others to decide whether to conduct inquests into the deaths, as the verdict implied the death certificates may not be accurate. He then announced that an inquest would only be held if one was requested and the High Court or solicitor-general granted the request. A Law Society spokesman said that even if the coroner's findings disagreed with the retrial verdict, this could not lead to any further legal action against David Bain.

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