Bain’s compensation quest

November 17th, 2011 at 10:06 am by David Farrar

The Press reports:

stands to receive nearly $2 million if the judge appointed to consider his compensation bid finds in his favour.

Justice Minister Simon Power yesterday announced the appointment of retired Canadian Supreme Court Judge Ian Binnie to assess Bain’s claim for compensation for wrongful conviction and imprisonment.

A very smart move. Normally it is a NZ QC but a foreign former Judge makes it very hard for people to attack the assessment, when it is made.

“The compensation framework requires claimants to prove their innocence, and at a minimum, under Cabinet guidelines, Mr Bain will need to establish his innocence on the balance of probabilities.

I eagerly await Judge Binnie’s assessment of who was the most likely killer on the balance of probabilities – David or Robin.

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178 Responses to “Bain’s compensation quest”

  1. Linda Reid (417 comments) says:

    Yes, it will be fascinating to see what the judge decides – there’s been so much emotion on both sides of the debate.

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  2. Andrei (2,668 comments) says:

    A very smart move. Normally it is a NZ QC but a foreign former Judge makes it very hard for people to attack the assessment, when it is made.

    Translation: When David Bain receives $2 million from the long suffering taxpayer and outrage follows the Government of the day can just shrug their shoulders and point to an individual in far off Canada, who having received his fee here will not suffer opprobrium there.

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  3. Scott Chris (6,177 comments) says:

    Heh, good job. Killer Bain doesn’t know when to quit when he’s ahead.

    Hope he gets the bill when his compensation claim is rejected. Prolly be paid for though by his deluded supporters.

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  4. polemic (460 comments) says:

    Ah Yes, this is the same David Bain that after he had been in prison and had every opportunity to give evidence to clear his name with nothing left to loose, still refused to take the stand and give evidence- I wonder why?

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  5. dime (10,136 comments) says:

    loss of pay is a factor… what does a paper boy earn nowadays? :P

    i think david is delusional. no way he gets a cent. he should have quit while hes ahead.

    that fist pumping tv idiot journalist will be devastated if he misses out..

    and yeah, good call having someone from overseas do it. its almost like we need the option of appealing to an overseas high court..

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  6. projectman (229 comments) says:

    The judge will be well-versed in cutting through the emotional bullshit that often accompanies jury trials. I expect the TAB will be offering very low odds for a finding of innocence on the balance of probabilities.

    Now if he could find in favour of guilt beyond reasonable doubt … (but that will be beyond his brief).

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  7. insider (1,028 comments) says:

    Compensation of a single bullet is probably most appropriate. He likes hunting apparantly so I;m sure he’d value it.

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  8. arkhad (70 comments) says:

    Hope ipredict runs this one.

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  9. mjwilknz (605 comments) says:

    Good post, DPF. So many people in NZ seem to entirely forget that there is a process that needs to be followed for such situations. I’m glad that you’re not one of them. And I also look forward to seeing what someone from a country other than NZ makes of the case. We should be very happy they appointed such a person.

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  10. Lindsay Addie (1,595 comments) says:

    I hope this doesn’t mean we are going to have to endure Karam pontificating all over again.

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  11. Put it away (2,880 comments) says:

    Bain could get a job as a photographer. He’s good at family shots.

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  12. mjwilknz (605 comments) says:

    Nice post, DPF. So many people in NZ seem to completely forget that, whatever anyone thinks, there’s a process to be followed in these situations. I’m glad you’re not one of them. I also look forward to seeing what an outsider makes of the case. We should all take comfort that such a person has been appointed.

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  13. Bob R (1,393 comments) says:

    Maybe Power could do something about the real travesty of justice – the Scott Watson conviction?

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  14. RRM (10,034 comments) says:

    and yeah, good call having someone from overseas do it. its almost like we need the option of appealing to an overseas high court..

    +1

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  15. OECD rank 22 kiwi (2,754 comments) says:

    The State never quits does it. It just can’t help but continue to abuse its citizenry through force of habit.

    Just pay the man and move on.

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  16. Linda Reid (417 comments) says:

    the Peter Ellis conviction is the bigger scandal – unbelievable he has not yet had his conviction quashed.

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  17. ross (1,437 comments) says:

    David, did you read the article you linked to?

    Binnie is a former Associate Deputy Minister of Justice. Does that make him impartial? I’m not sure. The article also quotes a police officer who had a key role in the investigation and prosecution of David Bain. That officer says he will be happy to assist the judge. Will the officer be impartial? I don’t think so.

    To be honest, the judge has been put in a very difficult position. David Bain has to prove is innocence which is an incredibly high threshold to meet. I can’t see how he will be able to achieve that, whether he’s innocent or not.

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  18. ross (1,437 comments) says:

    “this is the same David Bain that after he had been in prison and had every opportunity to give evidence to clear his name with nothing left to loose (sic).”

    Nothing left to lose? Well, actually he could have been found guilty and sentenced to life imprisonment. You’ll recall that Bain testified at his first trial and was convicted. So his reluctance to take the stand a second time was surely understandable. :)

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  19. mjwilknz (605 comments) says:

    Well said, ross… on both comments.

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  20. tristanb (1,127 comments) says:

    I worry that it’s going to be some pinko crim-loving soft-on-crime Canadian Judge, who is here because Canadians aren’t politically-correct enough, who is going to go easy on David Bain (who has had it tough losing his family) and will say that he is innocent.

    David Bain blatantly killed his whole family. I think it’s disgusting that with millions of dollars you can buy a trial like Karam did, and let someone who would do this off the hook – especially as he’s had no treatment. I doubt he’d kill again, but there’s obviously something not wired up correctly in his brain.

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  21. JamesS (352 comments) says:

    If Bain had any sense at all he would sit down with the Judge for a cup of tea and offer to split the money with him – “your Honour have you ever considered buying a house in an alpine village in the rockies? now is your chance!”

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  22. JamesP (77 comments) says:

    David Bain also stands to receive 5 million dollars if he picks this weekend’s powerball numbers…

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  23. mjwilknz (605 comments) says:

    Tristanb, I reckon you need to get over it, mate. The cops stuffed the case up and, whether or not he did it, our system of law means Bain deserves his claim considered. That’s all there is to it.

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  24. ross (1,437 comments) says:

    tristanb,

    I suggest you read the Privy Council’s decision to quash Bain’s conviction, which law lords called a substantial miscarriage of justice. This compares sharply with the Ministry of Justice’s (2000) assessment of Bain’s earlier application for a pardon:

    “We do not consider that any of the matters advanced in the petition when looked at individually point to a miscarriage of justice…[n]or do we consider that they have a collective significance which may cast doubt on the safety of the petitioner’s convictions…[w]e acknowledge that there were a number of errors in the Crown’s case. However we do not consider they indicate a likely miscarriage of justice, having regard to the overall weight of the Crown case…”

    It is that sort of nonsense from senior officials within the Justice Ministry that has caused this case to be prolonged. And it is why someone like Peter Ellis continues to fight for justice. The government continues to receive poor advice from the ministry.

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  25. ross (1,437 comments) says:

    mjwilknz,

    You are right that police did indeed make mistakes and even the Justice Ministry has admitted that. Bain does indeed deserve to have his claim considered but it is difficult to see how his claim can possibly succeed.

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  26. Mark (1,493 comments) says:

    A very good appointment by Power. I have no issue with Bain making the claim. The rules around compensation are fairly clear and if Justice Binnie finds in favour of Bain then I have little issue with it. I have never been sure either way on this. Clearly there may me some validity to the Theory that the father killed the Family and Bain killed his father. Equally he may just have done it. Who really knows, but it was a tragedy and hopefully this will see the end of the saga.

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  27. mjwilknz (605 comments) says:

    Thanks ross. I’m no legal expert, but completely agree that his claim should proceed. I also find it difficult to see it succeeding, but that’s beside the point, don’t you think?

    In terms of the police, my impression is that its more senior members, particularly the detectives, have learnt heaps from the Bain case. While I won’t claim that that impression is based on any thorough analysis, I think that it is the key issue in all this: have our cops learnt not to let things work out that way again. I can only hope that they have.

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  28. GPT1 (2,123 comments) says:

    I would have thought Bain might have let this slide as he faces the fundamental issue of having killed his entire family. In terms of proving innocence this can be a bit of a hurdle.

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  29. mjwilknz (605 comments) says:

    You seem to have missed this, GPT1, but Mr Bain was found not guilty beyond a reasonable doubt in a jury trial. At least in our judicial system, he no longer faces any “fundamental issue”. He may still face one in the court of public opinion, but that court long ago found him guilty so why would he worry about that?

    [DPF: To be clear he was not found “not guilty” beyond a reasonable doubt, just that he was not guilty beyond a reasonable doubt]

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  30. thedavincimode (6,879 comments) says:

    Should we do away with criminal trials?

    Why not get the media to print selected extracts of the evidence. Then the public can all just vote on “Stuff”.

    That way, the accused could go on-line and click “View Results”. If it was looking bad then the accused could change the plea and get a bit of time off and shorten the trial.

    Why waste all this time hearing witnesses, cross-examining, testing evidence … blah, blah, blah …?

    Better still, why don’t we just change the burden of proof so that the Crown doesn’t have to prove guilt beyond reasonable doubt? Instead, the accused should prove innocence beyond reasonable doubt.

    Far more cost effective IMO.

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  31. tvb (4,519 comments) says:

    A jury found Bain on his second trial not guilty because there was insufficient evidence to convict him beyond a reasonable doubt. That is not the same thing as a finding that Bain probably did it. This is quite possible. Presumably if the learned judge concludes bain probably did it there can be no compensation for civil damages even an ex grata payment. This could turn out to be an own goal for Bain.

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  32. Dave22 (15 comments) says:

    He will struggle to get compensation! As I understand it to get compensation he actually has to prove he is innocent rather than with the jury trial where the onus is on the prosecution prove beyond reasonable doubt that he is guilty.

    Unless they have some different evidence he will stuggle to prove he is absolutely 100% innocent.

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  33. Manolo (14,084 comments) says:

    I’m sick of hearing about David Bain over and over. When will this bugger go away?

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  34. Chuck Bird (4,929 comments) says:

    Dave he does not have to prove he is absolutely 100% innocent.

    If the retired judge is allowed the evidence the jury was not allowed like his fantasy about the female jogger before the murder I think he will have a very hard time proving he is innocent on the balance of probabilities.

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  35. Dave A (61 comments) says:

    The killer of the Bain family wiped the blood-drenched rifle clean at the very end of his rampage, to get rid of the fingerprints.

    However, he left his fingerprints in blood where he was holding the rifle to clean it.

    Robin could not have cleaned the rifle by the very fact that it was obviously cleaned after Robin died. That is the ultimate clincher proving Robin was not the killer, let alone that he committed suicide.

    Oh, and, the fingerprints left on the rifle were not Robin’s.

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  36. thedavincimode (6,879 comments) says:

    ” it was obviously cleaned after Robin died”

    There are far too many incidences of poorly maintained firearms in this country. The Bain’s may have been a troubled family, but at least they knew the value of sound firearm maintenance.

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  37. mjwilknz (605 comments) says:

    Good comment, tvb. I admit to being a little clumsy in my language. Indeed, it is quite possible Bain did do it. However, I don’t understand how it would be an own-goal if the judge finds Bain doesn’t deserve compensation. I don’t mean to be impolite, but you might need to be careful of your own language. If Bain doesn’t get compensation, it doesn’t prove that he did it. Isn’t it just the same as finding him not guilty doesn’t prove he didn’t do it (apologies for the double negative)?

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  38. Chuck Bird (4,929 comments) says:

    “Isn’t it just the same as finding him not guilty doesn’t prove he didn’t do it (apologies for the double negative)?”

    No, it means the judge thinks he more likely is guilty than innocent. I think his chances of getting compensation are slim as do many.

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  39. mjwilknz (605 comments) says:

    Ok, Chuck. Whatever it does or doesn’t prove, it won’t mean he’ll be put on trial again, will it?

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  40. Dave22 (15 comments) says:

    @Chuck Bird

    Thanks for clarifying, was just reading the criteria.

    No matter what the criteria is he has no chance in my view. Most of the successful compensation claims I have seen the claimant has had some irrefutable proof of innocence, new DNA testing or the like, with the notable exception of Arthur Alan Thomas of course.

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  41. hiphip (92 comments) says:

    Careful presentation of the evidence and cross-examination without the presence of minders may extract another confession bringing closure to a tragic mass murder case.

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  42. Chuck Bird (4,929 comments) says:

    There have been very few successful compensation claims – only two that I can remember.

    In the case of Thomas there we two witnesses to alibi for him on the night.

    I would be more careful about alleging he was guilty as the criteria for a civil suit is balance of probabilities. There are only a small group of people who believe he is guilty.

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  43. David Garrett (7,565 comments) says:

    He hasnt got a snowball’s chance in hell of proving he is innocent, whatever the standard of proof is…Which is not to say for one moment either that his acquittal retrial was wrong (the state rightly has the onus of a very high burden of proof, and once they start playing fast and loose that is a very slippery slope); or that his case for compensation should not be considered.

    But he won’t get a cent.

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  44. david@tokyo (263 comments) says:

    His reaction to the ultimate decision may be revealing. If he doesn’t get compo, and he has an honest bone in his body, he’ll humbly accept that to many people it appears obvious that it was almost certainly him.

    To me, I can’t understand how David managed to get himself beat up worse than Richie McCaw playing a test match if it wasn’t him that killed his brother and all the rest of his family. But unfortunately, David’s inexplicable injuries don’t completely exclude the wacky theories that were dreamed up about how Robin could have been the killer beyond “reasonable doubt” in the minds of the jurors.

    If the trial proved anything it is IMO that a fair proportion of people aren’t capable of reason. (Which, when you think about it, isn’t all that hard to believe.)

    People should get compo only if they were innocent, not if they’ve possibly gotten away with murder (on multiple counts).

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  45. Scott Chris (6,177 comments) says:

    Just a reminder:

    1) Stephen Bain’s blood was found on David Bain’s clothing.
    2) A lense from Bain’s glasses was found in Stephen’s room while the frames and another lense were found in Bain’s room.
    3) The trigger lock and the key to the .22 calibre rifle were also found in David Bain’s room.
    4) Bain had also tried to wash blood out of some of his clothing, including a green jersey, in the laundry.
    5) A partial bloody palm print of David Bain was found on the washing machine.
    6) Bain was also seen to have scratches on his chest above his nipples.
    7) A policeman also noticed a bruise on Bain’s temple, about the size of a 50 cent piece.
    8] No finger-prints belonging to Robin Bain were found on the .22 calibre rifle.
    9) There was about 20 minutes of “lost time” between the time that the Crown believes he finished his paper round – 6.45am – and the 1,1,1 call made by Bain – 7.10am – from the family home.
    10) Alleged Bain had also displayed some “unusual behavior” in the days leading up to the murders.
    11) Alleged Bain told a friend that he had had a premonition and that he “sometimes knew what was going to happen”. He also “told her he had a feeling something horrible was going to happen”.
    12) “Woollen green fibres were taken from under Stephen’s finger nails which match the fibres from the green jersey,”

    Verdict? He shot that prick.

    http://www.kiwiblog.co.nz/2009/03/david_bain_coverage.html

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  46. mjwilknz (605 comments) says:

    Whatever, david@tokyo. If he’s so guilty why didn’t the cops succeed in proving it beyond a reasonable doubt? I agree that the trial proved that a fair proportion of people aren’t capable of reason, but the obvious suggestion is that you yourself are in that fair proportion. Scott Chris might be another. ;-)

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  47. tvb (4,519 comments) says:

    It is possible the learned judge may conclude there is no basis to award compensation without making any findings on whether Bain probably or even possibly doing it. I suspect there will be no such findings.

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  48. F E Smith (3,307 comments) says:

    Chuck,

    Don’t forget that A A Thomas was convicted of murder twice.  The jury obviously discounted any alibi evidence that Thomas might have presented.  

    The thing that interests me is that NZers still think that the Court of Appeal is impartial, when the events of the Thomas case, the Urewera pre-trials, and the Privy Council decision on Bain show that for the CA to overturn a conviction you have to almost be a miracle worker.  Or have the trial judge screw up in a big way!

    I agree with David G, however, that Bain has not a hope of getting any compensation.  That is not to say that he is guilty or innocent, but simply that in this case the bar is pretty much impossible to get to. 

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  49. RRM (10,034 comments) says:

    It’s threads like this one that remind me just how fascist a lot of you people on here really are.

    I worry that it’s going to be some pinko crim-loving soft-on-crime Judge

    Yes because those really do exist. they don’t run with facts or evidence. :-/

    When will this bugger go away?

    Yeah I reckon! Low-grade people should just accept any punishment the state dishes out without question, whether they did the crime or not…

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  50. Mark1 (92 comments) says:

    David Bain has been selected on the wing for the All Blacks in place of Cory Jane . He’s not very fast but he’ll leave the 1st 5 for dead.

    David Bain has a job lined up as a photographer, he’s going to specialise in family shots.

    David Bain was pleased with the outcome of his trial, but was pissed off at the lack of family support.

    What would it take for a Bain family reunion? ………………… Just one bullet..

    There’s a great new drinking game it’s called The Bain Game. First you run around the block as fast as you can carrying a bundle of newspapers… Then you run back inside your house and have a shot in each room.

    After playing golf together last Sunday, Joe Karam asked David “How many did you shoot David?”.
    He replied, “5”. Joe Karam said, “5? I thought you shot par?”
    “No,” said David, “he shot himself.”

    Why was David Bain considered a great guy to go flatting with? Because he was always keen to do all the bloody cleaning up before an inspection.

    Joe Karam is a very nervous person in NZ at the moment, David revealed last night that ‘Joe’ is like a father to him. Joe Karam said that David Bain could live with him…so long as he didn’t treat him as one of the family…

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  51. Short Shriveled and Slightly to the Left (786 comments) says:

    Why don’t you try rebutting Scott’s evidence then mjwilknz?
    if you think David is innocent you are either:
    1/ someone who has someting to gain from clearing him
    or
    2/ someone who hasn’t looked at the evidence
    or
    3/ an idiot

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  52. thedavincimode (6,879 comments) says:

    BTW, let’s not lose sight of the fact that this debate is likely only occurring because of the monumental fuckup that the coppers responsible for this case made of it. Who knows how much that carried into the re-trial?

    Lance Link and Mata Hairy would have done a better job.

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  53. F E Smith (3,307 comments) says:

    Short shriveled,

    are you suggesting that Bain’s QCs are idiots?

    EDIT: davinci,

    I am not sure I agree with you on that. Yes, the first trial was a monumental miscarriage, and anyone who relies on that as proof that Bain is guilty is simply blind, but I don’t think the Crown screwed up the second trial as much as people might think. The acquittal is, I feel, proof of what happens when you give the Defence even a moderate portion of the funding that the Crown gets in order to present its case.

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  54. Short Shriveled and Slightly to the Left (786 comments) says:

    See number 1

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  55. F E Smith (3,307 comments) says:

    shriveled,

    But Bain’s QCs had nothing to gain from clearing him.  They got paid regardless of whether he was acquitted or convicted.  Moreover, the Law Society’s code of conduct prohibits us putting our own personal opinion forward in a trial, so you cannot really say that their arguments were based on having something to gain from Bain being acquitted.

    So you must be calling Bain’s QCs idiots.

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  56. mjwilknz (605 comments) says:

    DPF, thanks for the correcting me. It is jolly hard to keep the language tight in all this.

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  57. Dexter (312 comments) says:

    “The acquittal is, I feel, proof of what happens when you give the Defence even a moderate portion of the funding that the Crown gets in order to present its case.”

    Not really I think it’s more indicative of the particulars of the case, inexperienced cops, forensic techniques, time lapsed and trying to prove an offence beyond reasonable doubt some 15+ years down the track….It pretty much opened up a smorgasboard of options to sneak in doubt across the board.

    Today with the way things have progressed it and the sheer wealth of evidence it would have been open and shut, one way or the other.

    Afaik all Bain has to do is prove that he is more likely to be innocent than guilty, meeting the same threshold normally applied in civil cases.

    Of course he does have the difficulty in that the last time the case was impartially reviewed by a brilliant legal mind in Sir Thorpe he had no doubt that David was guilty.

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  58. Short Shriveled and Slightly to the Left (786 comments) says:

    “They got paid regardless of whether he was acquitted or convicted. ”
    Right, but they were still paid to attempt to clear him.

    “the Law Society’s code of conduct prohibits us putting our own personal opinion forward in a trial,”
    therefore they might think he is guilty

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  59. Dave22 (15 comments) says:

    shriveled,

    are you saying the jury had an interested in finding him innocent, the jury didn’t look at the evidence, and that the entire jury were idiots?

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  60. mjwilknz (605 comments) says:

    Shrivelled, I don’t believe I fall it to the first two, which leaves just the third. On that one, I guess it’s only ever for others to judge. Be aware that, just as you may judge someone else idiotic, others also have the right to judge you so, too! ;-)

    Furthermore, I don’t feel any need to rebut of otherwise respond to Scott’s evidence. It was only for a jury to reach a view on that evidence and I think we’ll agree that they clearly did, on two occasions. Unless we are concerned with a court’s process (as the Privy Council obviously were on the first of those occasions), I really don’t think it matters what anyone else makes of the evidence.

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  61. GPT1 (2,123 comments) says:

    mjwilknz (597) Says:
    You seem to have missed this, GPT1, but Mr Bain was found not guilty beyond a reasonable doubt in a jury trial. At least in our judicial system, he no longer faces any “fundamental issue”. He may still face one in the court of public opinion, but that court long ago found him guilty so why would he worry about that?

    No, you’ve got that wrong.

    The Crown have an onus of proving that the accused person is guilty to beyond a reasonable doubt.

    In this case the Jury (through gross incompetence) did not believe that the Crown had discharged that onus. In otherwords the Jury (somehow) found that there was a reasonable doubt that David Bain was guilty and therefore acquitted him.

    That does not mean he did not do it. In order to get compensation he has to prove that he was innocent on the balance of probabilities. Or in otherwords that it was more likely than not that it was not him (therefore it was Robin). Given the strength of the evidence that the Jury, incomprensibly, seem to have overlooked he is going to struggle to discharge the onus of proving his innocence even on balance of probabilities.

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  62. GPT1 (2,123 comments) says:

    Oh FES I am happy to call Reid QC a number of names none of them nice but I think calling him stupid would be wrong.

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  63. david@tokyo (263 comments) says:

    mjwilknz,

    > If he’s so guilty why didn’t the cops succeed in proving it beyond a reasonable doubt?

    Like I said, the evidence didn’t completely disprove the wacky theory that Robin could possibly have been responsible.

    I’m > 95% sure David did it, and I give Robin a I agree that the trial proved that a fair proportion of people aren’t capable of reason, but the obvious suggestion is that you yourself are in that fair proportion.

    Indeed – one of the two camps is wrong, only the killer knows. Oh sorry, I mean, only David knows. Oh gee that’s me!

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  64. Chuck Bird (4,929 comments) says:

    “Don’t forget that A A Thomas was convicted of murder twice. The jury obviously discounted any alibi evidence that Thomas might have presented. ”

    That is because of planted police evidence – and not just the bullet.

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  65. F E Smith (3,307 comments) says:

    shriveled,

    they were paid to represent him, and his instructions to them were obviously to defend the charges. But none of his lawyers had any personal interest in Bain being acquitted. Therefore the assertion that they are covered by your point 1 must be wrong.

    And, yes, one or more of them may well think he is guilty. I have myself defended people that I thought, in the absence of a confession, were guilty. Sometimes I have been more convinced of my client’s guilt than the prosecutor, even. I would point out, again, the maxim set out by Dr Mathias, in which he said that

    People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue

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  66. mjwilknz (605 comments) says:

    Yes, GPT1. As DPF confirmed for me, my language wasn’t tight enough. Still, that doesn’t change the fact that he got off. Yes, it might be hard for him to get compensation, but such are the workings of our legal system. If you were in Bain’s position (and it really worth your time trying to argye you wouldn’t be?), I would call for your right to seek compensation, just as he is now.

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  67. david@tokyo (263 comments) says:

    sorry about that, looks like my angled brackets mangled my comment

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  68. mjwilknz (605 comments) says:

    Nice one, david@tokyo, nice one. ;-)

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  69. Dave22 (15 comments) says:

    Whether the Jury got it right the first time or whether the jury got it right the second time only David Bain and his dead family will know.

    But there is no chance in hell David Bain can prove on the balance of probabilities that he is innocent. In order to win the retrial he just had to plant a seed of doubt that it could have been Robin, now to get compensation he has to pretty much prove it was.

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  70. F E Smith (3,307 comments) says:

    chuck,

    exactly. Now extrapolate from that to get my point.

    GPT,

    agree with your 3.45pm comment but not some of your 3.44pm!

    EDIT: Dave22,

    regardless of whether Bain is guilty or not, the first jury must have got it wrong simply because the trial was so unfair. If Bain is in fact guilty then the first trial verdict is simply a coincidence.

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  71. Short Shriveled and Slightly to the Left (786 comments) says:

    I think I need to point out that I clearly said “if you think David is innocent”

    Dave22
    the juries verdict does not tell us if they think he is innocent
    have you been on a jury? its a real eye opener. with the experience I had I wouldnt be suprised if David’s jury had elements of all three

    F E Smith
    why do you think the lawyers doing their job properly is not of personal interest to them?

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  72. F E Smith (3,307 comments) says:

    Shriveled,

    doing one’s job properly is always of personal interest to a lawyer. The outcome of a criminal trial should not be of personal interest to the law, merely of professional interest. Our opinion on the guilt or innocence of our client is irrelevant as to how we do our job.

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  73. ross (1,437 comments) says:

    FE Smith, I’m not sure why you approvingly quoted the following:

    “People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue.”

    That is the sort of logic used by the Justice Ministry. It is rubbish.

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  74. Longknives (4,889 comments) says:

    http://davidbain.counterspin.co.nz/the-confession-of-robin-bain

    How anyone could read this and NOT think David Bain is as guilty as a ‘Puppy sitting next to a pile of poo’ is beyond me…

    But deluded David Bain supporters tend cover their eyes and ears in respect of such things…

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  75. hiphip (92 comments) says:

    all lawyers should hang their heads in shame at the outcome of the bain retrial. perhaps they can blame the jury? the concept of reasonable doubt is no puzzle to most people, but appeared to confuse those jurors. perhaps lsa was irresponsible for extraordinary funding? any result can be achieved with enough money. in any event, a huge injustice has been done to robin bain, so a fresh look may restore confidence in the system and provide justice for the victims.

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  76. F E Smith (3,307 comments) says:

    Ross,

    please don’t say things like that, they are only indicative of your lack of understanding of the law.  In actual fact, Dr Mathias is completely correct, and your assertion is rubbish.

     Dr Don Mathias is one of NZs most respected intellectual lawyers, specialising in evidence but with the intellectual ability and the experience to comment on criminal law in general, which he does from his blog.  Your comment is akin to saying that Jeremy Coney doesn’t know anything about cricket.

    You might like to read the full post that he made on the issue, but, apart from the quote I put in my comment, I also like the following

    The case has almost left the law behind. It is now a form of entertainment, as is the expression of all ill-informed opinion. My own views are just as likely to be silly as those of anyone else who was not at the trial. I can argue either side, and in fact do, depending on who I wish to irritate. The tragedy has become a farce.

     I assure you that the MoJ will have been bitterly disappointed to see Bain acquitted, so Dr Mathias’ comment is in fact not something that the MoJ would have said.

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  77. hiphip (92 comments) says:

    This is quite an interesting piece by an award winning journalist who was present throughout the trial: http://www.stuff.co.nz/the-press/opinion/2518912/Plenty-of-doubt-in-Bain-jurys-verdict

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  78. F E Smith (3,307 comments) says:

    hiphip,

    your comment is just absurd. Especially attributing the acquittal to being a cause of shame for all lawyers. That, in fact, is just dumb.

    And reasonable doubt is explained in criminal trials as meaning that the finder of fact (in this case the jury) must be ‘sure’ that the accused person is guilty. In the Bain case that means that the jurors were not ‘sure’ that he was guilty.

    Your comment re the LSA being irresponsible for giving extraordinary funding shows a lack of appreciation for the idea of the rule of law. Are you seriously suggesting that criminal defendants should actually be intentionally deprived of the funds with which to make a proper defence so that the Crown has a better chance of winning? Because that is the logical outcome of your comment.

    And with regards the comment re Robin Bain, the acquittal does not say that Robin Bain did anything. There has been no injustice committed against Robin Bain whatsoever and anyone who says there has been is just plain ignorant. The acquittal of David Bain simply says that the jury were not sure he committed the offences. Nothing more.

    EDIT: go and read the post by Dr Mathias, then come back to me. One man’s opinion, whether he sat through the trial or not, is in no way proof of anything other than his opinion. I am sure others sat through it who disagree with him. Which is the point Dr Mathias makes.

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  79. thedavincimode (6,879 comments) says:

    FES

    I was thinking of the first trial and my recollection of the failures identified by the PC and not the particularly flattering light in which some of the original investigators were caste. As dexter suggested, the passage of time can’t have helped.

    That said, I can’t say that I’ve followed it all with the passion of the other contributors, nor was I present throughout the trial or able to conduct a first-hand review of the evidence. Others however, feel comfortable with their analysis of the selected snippets from the press who appear to be flexible on shaping news of criminal activity according to their interests as recent events demonstrate once again.

    I can’t help feeling that Bain was embarassed into filing his claim. As someone else suggested, there is no silver bullet to prove innocence, even on the balance of probabilities. Presumably we get to pay for the application.

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  80. F E Smith (3,307 comments) says:

    davinci,

    my apologies, I thought you were referring to the second trial. Agree with you re the first trial and police mistakes. To which you must add Crown mistakes and a number of judicial errors.

    I have some sympathy re your point on the claim- he must know that he won’t succeed, so there really isn’t much point in applying. There is no way that he can ever prove one way or the other, even on the balance of probabilities. That said, nor can the Crown, notwithstanding the comments in this thread!!!

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  81. hiphip (92 comments) says:

    f e smith, if that is your real name. you miss my points entirely. duuuh. one person committed the crime – it is common ground either robin or david did it. police do not believe robin bain did it, as there is no evidence he did, and would not have even charged him had he survived. ask them if you don’t understand.

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  82. ross (1,437 comments) says:

    FE Smith

    “In actual fact, Dr Mathias is completely correct, and your assertion is rubbish.”

    No, Dr Mathias is wrong and I’m surprised you cannot understand why. Think it about the quote for a minute:

    “People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue.”

    The implication is that the Court of Appeal and the Supreme Court cannot possibly have worthwhile opinions because they have not seen or heard ANY witnesses! The Privy Council likewise.

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  83. ross (1,437 comments) says:

    “I assure you that the MoJ will have been bitterly disappointed to see Bain acquitted, so Dr Mathias’ comment is in fact not something that the MoJ would have said.”

    You don’t seem to know much about how the MoJ operates. They have repeatedly used Dr Mathias’ comment themselves! Of course, they have done so when anyone has had the temerity to question the validity of a conviction.The Peter Ellis case is a classic example of the MoJ saying that the jury were in a unique position, etc, and that their verdicts should therefore be respected. By that logic, no misacrriage of justice would ever be corrected.

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  84. RightNow (7,013 comments) says:

    {gets popcorn and beer}

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  85. F E Smith (3,307 comments) says:

    ross,

    get your ignorance out from public display- a part of the Appeal case that goes to the CA, SC or PC is a full, bound copy of the trial transcript. Every word of evidence is right there for them to read.  While they do not have the advantage of actually seeing the witnesses, they have the next best thing, and, even better, they have the benefit of counsel assisting them with the matter.  Which neither you nor any other lay person has.

    If you have a copy of the transcript of the second trial then you will be exempt from what Dr Mathias said.  Otherwise, you are, again, wrong.

    You don’t seem to know much about how the MoJ operates. They have repeatedly used Dr Mathias’ comment themselves

    Oh, I hadn’t picked up on that.  When did they say that?  Link, please.

    The Peter Ellis case is a classic example of the MoJ saying that the jury were in a unique position, etc, and that their verdicts should therefore be respected.

    Read what Dr Mathias says, then think about what you have written.  Two different things.  Dr Mathias isn’t saying that the jury was right or wrong, nor am I, but that the opinion of those who were not there for the entire trial is pretty much worthless.  Which is correct.  If the MoJ says that a jury’s opinion should be respected in a case in which the Crown has an interest, then that is a completely different matter. 

    hiphip,

    no, F E Smith is not my real name, it was the name of one of the great trial lawyers of the late 19th/early 20th century.  Have a read about him here.  I use that name as an homage to him.  It also gives you a clue about my profession…

    And just because the Police don’t think Robin Bain didn’t do it makes not one jot of difference.  After all, they also think that Peter Ellis is guilty and that A A Thomas should never have been released.  Rex Haig is another good example of someone the Police think is guilty but whose conviction for murder was quashed.  Although the official line is now that it was both Haig and Hogan, not Haig alone, so I am sure that you accept that as being gospel truth…

    EDIT: oh, and if Robin Bain had survived unharmed then he would probably have been the lead suspect.

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  86. Dave A (61 comments) says:

    if Robin Bain had survived unharmed then he would probably have been the lead suspect

    Er, no. The killer had been in a huge fight with Stephen and got covered in blood. Stephen’s blood was even on the inside back of the killer’s undies. The gun was covered in blood. In the fight with Stephen, the killer lost one of the gloves he was using to prevent his fingerprints going on the gun.

    The killer wiped down the gun before laying it beside Robin’s dead body. By the time of the wiping down, Robin of course was dead and could not have cleaned the gun.

    The only blood on Robin was from the head wound where the killer shot him.

    The killer went to the laundry to wash his clothes but neglected the undies, and also missed resting his bloody palm on a surface where the print in blood was later found.

    There is no shadow of doubt about Robin not being the killer.

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  87. Short Shriveled and Slightly to the Left (786 comments) says:

    “EDIT: oh, and if Robin Bain had survived unharmed then he would probably have been the lead suspect.”
    –grabs some of Right Now’s popcorn —
    go on………

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  88. F E Smith (3,307 comments) says:

    Dave,

    Please don’t try and use the facts of the current case on a hypothetical. That doesn’t work, because a number of issues would have arisen, not least that some of the evidence would have been different, regardless of who was the killer.

    I repeat, had Robin been alive when the other members of his family were killed, then I assure you that he would either have been a direct witness of the killings or the prime suspect.

    And there must be a shadow of a doubt about Robin Bain being the killer, because David Bain was acquitted. What you are saying is that you believe David Bain to be the killer. Those are two totally different statements.

    EDIT: Because the Police ALWAYS suspect those closest to the deceased in the type of situation under discussion. Which is why both Chris Kahui and Macsyna King were suspects, before the cops settled on Kahui. Which is why Lundy was a suspect. I know police habits, and that is one of them. I don’t rely on evidence in the Bain case, but on police procedure.

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  89. Dave A (61 comments) says:

    grabs some of Right Now’s popcorn

    He’s entertaining, isn’t he?

    Sounds like a member of Karam’s fantasy team…..

    the Police ALWAYS suspect those closest to the deceased in the type of situation under discussion.

    Actually, the police began their investigating believing it was a murder-suicide, as David Bain claimed in his 111 call.

    It was only as they examined the crime scene that they realised this was not the case, and brought charges befitting the very clear evidence…

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  90. F E Smith (3,307 comments) says:

    Dave A,

    you, with your massive 8 posts, are obviously fairly ignorant of this topic on KB. The discussion has gone on for a long time, with thousands of comments. But, to put you out of your ignorance, I am a criminal defence lawyer, so I do have some knowledge of what I am talking about. Unlike you and many others here, I make no claim to know who is responsible for the Bain killings. I have repeatedly said that over the years (although you, with your wopping 8 comments, would undoubtedly have gone back and researched that so you know what has been said before).

    But, just to say it again, I don’t know who killed the Bain family and, what is more, I don’t care. My concern is with process, not outcome. Hence my comments on Bain are never directed towards David or Robin’s guilt or innocence, simply towards processes and procedures.

    And the sheer ignorance of many people spouting forth on the case. For some reason it spikes people’s blood pressure quite significantly.

    Also, to repeat what I have earlier said, I also think that Peter Ellis is innocent and that the Scott Watson case has serious questions over the verdict.

    But, Dave A, you will already know that, won’t you?

    EDIT:

    and had Robin Bain been alive and unharmed, he would have been a suspect also. Sheesh, can none of you read what I have written?

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  91. Scott Chris (6,177 comments) says:

    F E Smith says:- “The acquittal is, I feel, proof of what happens when you give the Defence even a moderate portion of the funding that the Crown gets in order to present its case.”

    Interesting. Reid is obviously a very competent lawyer, and as a result, he comprehensively befuddled the layman jury.

    So what you are inferring is that given sufficient resources, more juries would be befuddled.

    Hardly an endorsement of the jury system you are so fond of.

    Better to allow an impartial judge weigh up the evidence IMO. Most laypeople just aren’t capable of being objective.

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  92. F E Smith (3,307 comments) says:

    Scott,

    Reid is obviously a very competent lawyer, and as a result, he comprehensively befuddled the layman jury.

    No, you are convoluting two different points there.

     Reid QC is indeed a very competent lawyer.  But he did not befuddle the jury.  If it had simply been Reid QC befuddling the jury then the case would not have cost the millions of defence funding that it did. 

    What Reid QC and his team was able to do was to call expert evidence (and it was expert, despite what you lot say, because the trial judge, a very, very competent former Crown prosecutor, then indpendent QC, then High Court judge called Graeme Panckhurst, examined their credentials and agreed that they were indeed experts) to dispute the expert evidence that the Crown presented.  They were also able to conduct greater investigation into the Crown case than a regularly funded defence team would have been able to, and thus present the jury with an alternative point of view. 

    So what you are inferring is that given sufficient resources, more juries would be befuddled.

    That is a misrepresentation of pretty much everything that I have ever said on the topi of equality of arms in criminal trials.  Go back and you will see that I am very consistent on this. 

    But what you seem to be saying is that when the Crown calls evidence, including experts, and presents it to a jury, then that is informing, but when the defence does the exact same thing then that is befuddling?  I think Tui has a billboard for you.

    And I disagree with you re laypeople being objective.  I simply take that as an admission that you are not objective.

     

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  93. Dave A (61 comments) says:

    Actually Mr Criminal Defence Lawyer, I have a comprehensive knowledge of the Bain case that predates Kiwiblog by a decade :-)

    There is no aspect of it I am unfamiliar with.

    High Court judge called Graeme Panckhurst

    I know Graeme Panckhurst well. The look on his face when the jury delivered its verdict said it all.

    Sheesh this is fun.

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  94. F E Smith (3,307 comments) says:

    Dave A,

    explain, please.

    EDIT: And I wasn’t saying that you were ignorant of the Bain case. I was saying that you are ignorant of what has been said on Kiwiblog, and of my position on the case. I claim no knowledge of the Bain case whatsoever. I do claim a good knowledge of criminal procedure, though.

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  95. F E Smith (3,307 comments) says:

    I know Graeme Panckhurst well. The look on his face when the jury delivered its verdict said it all.

    That first part is interesting.  The second I am already aware of.  I have no accepting the idea that Panckhurst J believes Bain to be guilty.

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  96. tvb (4,519 comments) says:

    If Bain is offered compensation I trust the very significant cost of his defense is deducted off any award. There are good people being refused medical treatment and therefore given a death sentence, which would costs LESS than what was spent on Bain’s legal costs.

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  97. Scott Chris (6,177 comments) says:

    F E Smith says:- “And reasonable doubt is explained in criminal trials as meaning that the finder of fact (in this case the jury) must be ‘sure’ that the accused person is guilty. In the Bain case that means that the jurors were not ‘sure’ that he was guilty.”

    Wishful thinking Smithy? That is way too high a test, surely. Nothing is ever certain, and your definition of ‘reasonable doubt in a criminal trial’ amounts to certainty.

    >>”But what you seem to be saying is that when the Crown calls evidence, including experts, and presents it to a jury, then that is informing, but when the defence does the exact same thing then that is befuddling?”

    I would have thought that in the main, it is in the crown’s interests to inform, and in the defence’s interests to befuddle in order to raise the possibility of some doubt. That is a characteristic of an adversarial system.

    Whereas in an inquisitorial system, the *whole* idea is to inform in order to establish the truth. And yes, we’ve been down this road before.

    >>”And I disagree with you re laypeople being objective. I simply take that as an admission that you are not objective.”

    I’m not saying they are dishonest, and like me, they attempt to be objective. But to be truly objective takes rigorous training. Few people are able to take their ‘self’ out of their assessment of evidence.

    In theory, Judges are trained to be, and are capable of being objective….. within the context of the law as it stands.

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  98. Dean Papa (784 comments) says:

    “People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue.”

    yeah, that’s a bullshit statement. It’s not without reason Lawyers are one of the most loathed of professions. It’s the sense of entitlement and narcissism that turns people off. A lot of them are also crooks who will shamelessly rort the legal aid system for as much of our money they can get their greedy little hands on. The manner in which Dr Mathias would dismiss the opinions of others is a perfect illustration of the conceit of the profession. While the total hash Dr Mathias makes of explaining the “prosecutors fallacy” further highlights the all talk with little substance impression. Robin received a single gunshot to the left temple. Given Robin was right handed this evidence does point to suicide as being unlikely. Whether the figure 3% is accurate or not, the evidence does point away from Robin and towards David. However Dr Mathias seems to be of the opinion that the occurrence of murders by left temple gunshots is a missing piece of information. Unless I’m missing something here, I’d have thought the mere fact that Robin was shot is entirely consistent with the premise of David being guilty. That is Probability(evidence/David is guilty)=1??? or have I missed something here?

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  99. ross (1,437 comments) says:

    FE Smith said: “Every word of evidence is right there for them to read.”

    That’s not what you said earlier…you were talking about witnesses. The Court of Appeal and the Supreme Court typically do not hear or see from any witnesses. In the case of Peter Ellis, there is no evidence that the judges sitting on Ellis’ first or second appeals watched any of the evidential videotaped interviews of the complainant children, pretty important evidence I would have thought. In the Ministerial inquiry that was held into the case, the Inquiry head, Eichebaum, didn’t speak with any witnesses apart from two sets of parents who testified for the prosecution. Yet Eichelbaum concluded that Ellis’ conviction was safe and that the case had had “the most thorough examination possible.” When Val Sim, then chief legal counsel at the Justice Ministry, reviewed Lynley Hood’s book on the case, she said: “neither the media nor Ms Hood have had access to all of the evidence and in particular have not had the advantage of seeing the children give their evidence.” Well, neither had Sim yet that didn’t stop her from declaring to then Justice Minister Phil Goff that Ellis’ conviction was safe.

    But FE Smith, your comment is misleading for another reason. Even if the appeals courts are given every word of evidence, if a trial was conducted unfairly for the accused, the appeals court may be exposed to evidence that should not have been admitted at trial, or not exposed to evidence that could indicate a miscarriage of justice occurred. The Ministerial inquiry into the Ellis case was limited to traversing evidence that was heard at trial and depositions. So relevant and important evidence that had come to light since the trial was excluded on the basis that it was outside the inquiry’s terms of reference.

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  100. ross (1,437 comments) says:

    I would note that Lynley Hood did not attend the trial of Peter Ellis and therefore did not hear or see any witnesses. Dr Mathias would presumably conclude that her opinion is worthless. I seem to recall that Hood spent 7 years researching the Ellis case.

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  101. RRM (10,034 comments) says:

    I always enjoy watching idiots attempt to argue with F E Smith.

    I don’t know where he finds the patience though.

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  102. ross (1,437 comments) says:

    RRM,

    I have no idea what you’re talking about. But feel free to add something constructive.

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  103. F E Smith (3,307 comments) says:

    Dean Papa & ross,

    you were talking about witnesses. The Court of Appeal and the Supreme Court typically do not hear or see from any witnesses

    The manner in which Dr Mathias would dismiss the opinions of others is a perfect illustration of the conceit of the profession.

    there will always be exceptions to a general rule. An exception that I am very happy to admit to what Dr Mathias posits is in situations where an author has researched a book.  In those cases, which are very rare, there is of course an element of worth to their opinion, although even then it is still not on the same level as a person who saw the entirety of the trial. 

    I agree that the CA et al do not see the witnesses, but they do get to read the entire transcript (if they wish) and therefore their opinion is of worth, even under Dr Mathias’ position.  Notwithstanding the narrowness with which you two approach the word witness (which is wrong, because some witnesses at trial have their evidence admitted in written form, read out to the jury by the registrar, therefore one must allow some latitude in what is understood by the terms Dr Mathias uses to fit in with criminal procedure), the CA is still in a far, far better position to give an opinion than either of you.

    (David A may be another matter, but going on his claim yesterday it must be that he is, or was until recently, a senior policeman, involved in both investigations and trials. Especially if he knows Justice Panckhurst well, that would tend to mean he is a senior and possibly even a commissioned officer in the NZ Police. I very much like for him to tell us where he gets his comprehensive knowledge from!)

    I take it that both of you, ross and Dean, are highly experienced criminal litigators, highly qualified and able to tell us from experience that Dr Mathias is wrong.  Speaking as a criminal lawyer, I fully agree with Dr Mathias.  I have even seen news reporting on cases that I have worked on in the news and wondered whether the journalist was even at the same trial that I was at.  Many journalists, of course, wander in an out of trials, but feel able to provide the public with sensational reports notwithstanding.

     Even if the appeals courts are given every word of evidence, if a trial was conducted unfairly for the accused, the appeals court may be exposed to evidence that should not have been admitted at trial, or not exposed to evidence that could indicate a miscarriage of justice occurred.

    That makes no sense.  That is the exact function of the appellate court, to hear about issues arising from the trial at first instance.  If a case goes to appeal it is because the first trial is alleged to have an issue of some sort that could lead to a miscarriage.  In fact, the appellate court will concentrate on those issues.  What you say, ross, is completely incorrect.  Moreover, you don’t seem to understand that the CA is not primarily a verdict checking body.  It does not take upon itself the task of confirming whether the jury was correct or not, save in limited circumstances and then only at the request of counsel if it alleged that the verdict is perverse and against the evidence, but in fact is primalriy a process checking body.  It reviews the processes and decisions involved and makes a judgment based upon that.  Except in rare cases, appellate Courts are very reluctant to ‘go behind the verdict’, as we say. 

    Which is not to say the CA gets it right all of the time.  It doesn’t.  I myself think that the standards it sets for overturning verdicts is too high.  But that is just my opinion.  Because the CA can get it wrong, we have the SC.  And then the Royal Pardon, etc etc. 

    The Ministerial inquiry into the Ellis case was limited to traversing evidence that was heard at trial and depositions. So relevant and important evidence that had come to light since the trial was excluded on the basis that it was outside the inquiry’s terms of reference.

    Which still does nothing to disprove what Dr Mathias says.  What it does prove is that the drafting of the terms of reference often the most important part of an inquiry.  The inquiry into Taito Philip Field is a good example of that.  

    The fact is that opinion, even apparently informed opinion, that is not gleaned from observing the trial itself, is (subject to the caveats above)
    worthless.  It can be validly and passionately held, but it is generally of necessity gleaned by reading or viewing news reports, which are already tainted by whatever filter the journalist operates with (and they all do, I assure you).

    So I respectfully disagree with both of you on this.

    One other point, though:  I don’t care who killed the Bain family. It might have been David Bain, or it might have been Robin Bain.  I really, truly don’t care.  Trying to show by reference to the evidence that Robin couldn’t be the killer, or that David must be, will have no effect on the arguments that I put forward about processes and procedures.  If you want to argue that one or the other is guilty, be my guest.  But just understand that nobody’s view is authoritative, not even David A’s, because, ultimately, only one person alive truly knows the answer. 

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  104. Scott Chris (6,177 comments) says:

    F E Smith says:- “or it might have been Robin Bain.”

    Or it might have been me. On the balance of probabilities, it was David. What you are effectively promoting is an institutionalized version of reality. What the rest of us are talking about is what actually happened.

    To your credit, you are loyal to your profession.

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  105. Dexter (312 comments) says:

    “People who were not at the trial and who did not hear all the witnesses and see all the evidence cannot possibly have worthwhile opinions on that issue”

    So by that measure your opinion on the Peter Ellis and Scott Watson cases is completely worthless and should be ignored…

    Thankfully in the interest of justice that view isn’t widely held, people do research cases and express strongly held opinions as to guilt rather than just blindly accepting a verdict without question.

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  106. hiphip (92 comments) says:

    there are too many criminal lawyers, as an investigation into legal aid found. i love the movie liar, liar as it exposes the difficulties some would have in such an occupation.

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  107. ross (1,437 comments) says:

    “I take it that both of you, ross and Dean, are highly experienced criminal litigators, highly qualified and able to tell us from experience that Dr Mathias is wrong.”

    I’ve shown why Don Mathias is wrong. I’ve referenced the Ellis case as an example. I’ve mentioned the Bain case. The Privy Council ruled that Bain had suffered a “substantial miscarriage of justice”, quite a curious decision when the law lords didn’t see or hear from any witnesses. Presumably, the law lords saw enough evidence to convince them that police and prosecutors made serious mistakes which enabled the law lords to reach the conclusion they did.

    You say an appellate court will examine new evidence and then you claim that the Court of Appeal “does not take upon itself the task of confirming whether the jury was correct or not..it is is primarily a process checking body.” In other words, it does not traverse the evidence in the same way that a trial would. I suggest you read the Court of Appeal’s decisions in respect of the Ellis case. At the second appeal , the judges were unable or unwilling to rule on the new evidence before it. Nigel Hampton QC, an eminent lawyer, criticised the appeals court and said that the entire case needed to be reviewed. That is correct but it is not a function of the appeals court to conduct such a review. Nevertheless, the CoA ruled against Ellis even though it failed to rule on the new evidence.

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  108. ross (1,437 comments) says:

    “So by that measure your opinion on the Peter Ellis and Scott Watson cases is completely worthless and should be ignored…”

    Well, quite, but then FE Smith knows more than anyone else on these cases. Personally I prefer the opinions of those who have worked tirelessly researching these cases, ie Lynley Hood and Keith Hunter. I respect their opinions, notwithstanding they didn’t attend the respective trials. It’s a bit like saying that people who didn’t attend the Nuremberg trials shouldn’t write about Nazism or the Holocaust. If that were the case, we’d have precious little research on those matters.

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  109. Dave A (61 comments) says:

    David A may be another matter, but going on his claim yesterday it must be that he is, or was until recently, a senior policeman, involved in both investigations and trials. Especially if he knows Justice Panckhurst well, that would tend to mean he is a senior and possibly even a commissioned officer in the NZ Police. I very much like for him to tell us where he gets his comprehensive knowledge from!)

    ROTFLMAO!!!!!!!

    You’re as crazy as Ian Wishart!

    Wow! Suddenly humble me, who just happens to know a few people around town, is a senior commissioned police officer!

    Bring on the Black Helicopters, fast, to take away the guy in the tinfoil hat.

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  110. linz (61 comments) says:

    I’m a little surprised at F E Smith’s assertion that the Privy Council said in it Judgement that they had found the first trial gave rise to the “substantial” miscarriage of justice, when in fact in its outline of the history leading to the second successful application for a Council hearing, the first being refused in 1996/7, the Council in fact comments favourably on the trial and compliments the late Williamson J for his rulings during the trial.

    The Council in fact set the substantial miscarriage of justice as the 3rd CoA appeal making finds of fact as regards “new” evidence and in reality said it acted ultra vires and it should have quashed the conviction and sent the case to retrial as it [the RC] did do. The council was at pains to emphasis that it ruling was not a reflection on the first trial nor was it a comment on the strength or otherwise of the evidence but was about the CoA ruling and ruled DB remain in custody till a second trial. It qualified that by saying that did not detract from the Governments right to not proceed to a second trial

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  111. F E Smith (3,307 comments) says:

    hiphip,

     there are too many criminal lawyers, as an investigation into legal aid found.

    the report said no such thing.  You have just made that up off the top of your head.  Go and read the report and actually see what it says.

    dexter,

    So by that measure your opinion on the Peter Ellis and Scott Watson cases is completely worthless and should be ignored…

    Yes.  It is my opinion that I think he is innocent, but it is entirely possible that I am completely wrong.  I have not read the transcript, nor have I seen what was excluded (although colleagues who have tell me it is pretty damning).  My opinion on the justness of the Ellis decision is worth nothing more than any other person on the street, and much less than that of those who worked on the case.  I discount the review because of the terms of reference.  That said, I know lawyers who worked on the case, on both sides, so my opinion is slightly better informed than most.  But, overall, my opinion is based on hearsay and third party reports, so should in no way be taken as conclusive whatsoever. 

    Scott,

    On the balance of probabilities, it was David.

    I have no issues with you holding that opinion, or with that statement in and of itself, at all.  But see the previous paragraph for the proviso on it.

    ross,

    The Privy Council ruled that Bain had suffered a “substantial miscarriage of justice”, quite a curious decision when the law lords didn’t see or hear from any witnesses. Presumably, the law lords saw enough evidence to convince them that police and prosecutors made serious mistakes which enabled the law lords to reach the conclusion they did.

    you are not very good at actually reading what I write, are you?

    You say an appellate court will examine new evidence

    Did I?  It was most certainly a typographical error if I did- it should be ‘an appellate court will usually not examine new evidence’.  That said, I cannot see where I said that, so could you link to the comment please so I can see what I did write?

    At the second appeal , the judges were unable or unwilling to rule on the new evidence before it. Nigel Hampton QC, an eminent lawyer, criticised the appeals court and said that the entire case needed to be reviewed. That is correct but it is not a function of the appeals court to conduct such a review. Nevertheless, the CoA ruled against Ellis even though it failed to rule on the new evidence.

    I know Nigel and he was absolutely correct in his criticism of the CA.  I don’t see what this paragraph has to do with what I said.  It confirms what I have previously said, as far as I can see.

    FE Smith knows more than anyone else on these cases

    I never said that.  I am simply responding to what you and others have said.  I am not able to say anything authoritatively on the Ellis case, or any other case that I have not acted in. 

    It’s a bit like saying that people who didn’t attend the Nuremberg trials shouldn’t write about Nazism or the Holocaust. If that were the case, we’d have precious little research on those matters.

    Like I said, you are not very good at actually reading what I have said, are you?

    David A,

    You’re as crazy as Ian Wishart!

    I don’t know where that comes in, but the ad hom attack is unnecessary.  I said I as interested in what you would say on the matter.  I speculated as to your involvement in the case based on your statements that

    I have a comprehensive knowledge of the Bain case that predates Kiwiblog by a decade 

    There is no aspect of it I am unfamiliar with.

    and 

    I know Graeme Panckhurst well.

    Those two comments, taken together, lead to speculation on my part.  If it was wrong, just say so, rather than saying that I am crazy or that I wear a tin foil hat, neither of which is applicable to me or my comments on this thread.

    I am simply asking you to substantiate your statements, so that we may evaluate your opinions on this topic.  However, based on your answers so far, I must conclude that you are in fact trolling.  I am happy for you to persuade me otherwise, however.

     

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  112. Dave A (61 comments) says:

    The Council in fact set the substantial miscarriage of justice as the 3rd CoA appeal making finds of fact as regards “new” evidence and in reality said it acted ultra vires and it should have quashed the conviction and sent the case to retrial as it [the RC] did do.

    Thanks for raising this. As you say it was the nub of the PC decision. I attended (of course) the Court of Appeal hearing. It was unusual in that it reheard the evidence from the prosecution, and then the welters of fantastical “new” evidence on behalf of Bain.

    Karam was in full flight leaping about the courtroom having orgasms and was told to sit down more than once by their honours.

    Their honours well recognised that Robin Bain could not have been the killer, and that David Bain was. They cuttingly asked Bain’s lawyers why Robin Bain, having supposedly murdered his family and been in a violent fight with Stephen, could have been found dead in fresh clothes, clean shoes, a full bladder, not a trace of blood on him save from the head wound that killed him.

    “Simple!” was the response from Bain counsel “He was a man of god. He would not wanted to have gone to his maker covered in the blood of his victims. Clearly he showered and put on fresh clothes before killing himself.”

    Without even having taken a pee in the two hours from the first murders to his own death! The absurdity of this was palpable in the courtroom. End of case.

    Where the Court of Appeal seriously erred was hearing the “new” “evidence” and that was done because of the heat Karam was putting on the politicians via the news media, who all believed Bain was innocent, because the Nice Mr Karam said so (until of course the media sat through the new trial and actually heard the evidence).

    The PC rightly said this was a miscarriage because a jury should be the ones to hear the “new” “evidence” not a panel of judges.

    The most disappointing thing about this development was that Peter Ellis’s counsel have not pursuded the same course. Almost all the evidence in the Ellis case was stopped (by the judge, Williamson J, same judge as in Bain) from being put before the jury. The jury never got to hear the 99 pc of the Ellis case that showed it was a crock of shit. Had Ellis’s team gone to the PC after Bain, Ellis would have been acquitted long before now.

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  113. RightNow (7,013 comments) says:

    Shame about the DDOS attack on Kiwiblog last night, I need more beer and popcorn. Actually, I have the beer already.
    I’ll have one for you too F E Smith!

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  114. ross (1,437 comments) says:

    David A

    I think you overstate the Crown case somewhat. You refer to fresh clothes and not a trace of blood on him…I think the truth is somewhat different. Having said, I have little doubt that Robin didn’t kill his famil, nor did he get on a computer (why not hand write the “suicide” note?) to tell the world that David was the only one who deserved to stay. I don’t find that credible in the slightest.

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  115. hiphip (92 comments) says:

    difficult as it is to say, i do find fes rather amusing. rorting of lsa was occurring, and a shake up was necessary and long overdue. any reasonable person can see there are unethical lawyers, even criminal lawyers, who defend clients they know to be guilty.

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  116. F E Smith (3,307 comments) says:

    I will happily acknowledge linz’s better knowledge of the PC decision, admitting to going on memory and a skim of the points made by the PC. I read the case in 2009, may have re-read it since, but, as I have said all along, this isn’t a case that interests me a great deal.

    David A, so you a) have a comprehensive knowledge of the case, telling us that b) there is NO aspect of it that you are unfamiliar with and c) you were at the PC hearing. You cannot be a journalist, as then you could not claim b), and you could not be Bain family and make that same claim. You would also have to have been involved in both the first investigation and the one following the PC appeal.

    So, again, please give us your connection to the case. Specifics not necessary, but enough to evaluate what you say.

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  117. RightNow (7,013 comments) says:

    hiphip – do you have anything to support what you’re saying? A link or citation?
    I’m not saying you’re wrong, but it’s the done thing to provide evidence that others can assess for themselves.

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  118. F E Smith (3,307 comments) says:

    rorting of lsa was occurring,

    Of course, this was all of the rorting that Dame Margaret Bazely found, from memory, no evidence of whatsoever.

    Or is there another report that has the actual cases where rorting has been shown to occur?

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  119. F E Smith (3,307 comments) says:

    any reasonable person can see there are unethical lawyers, even criminal lawyers, who defend clients they know to be guilty.

    Guilt or innocence of defendants is irrelevant to a criminal defence lawyer.  We are forbidden by the rules of professional conduct from refusing to act for people we know or think are guilty.

    I have explained this before on KB, I can’t be bothered doing it again.

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  120. ross (1,437 comments) says:

    “I know Nigel and he was absolutely correct in his criticism of the CA. I don’t see what this paragraph has to do with what I said.”

    Well, you were defending the CA even after I said that there was no evidence that the CA reviewed the tapes of the complainant children in the Ellis case. You seemed to infer that the CA had a good handle on the case. As I’ve said previously, the Justice Ministry, which recommends whether a petitioner should be pardoned and has twice recommended that Ellis not be pardoned, often uses the line that the jury were in the best position and their decision should be respected. I disagree when there has not been a fair trial, and where there is important evidence that the jury were not privy to.

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  121. Dave A (61 comments) says:

    You refer to fresh clothes and not a trace of blood on him…I think the truth is somewhat different.

    Robin slept in a caravan in the back yard. His daily practice was to come inside after dressing to pray before doing anything else.

    He was found shot in the head in his prayer space, in the clothes he would have put on in the caravan that cold Dunedin morn before coming inside.

    There was no blood on him apart from his own. David Bain’s clothes by contrast were soaked in blood and he put them through the wash to clean them. He forgot to wash his underpants which had Stephen’s blood on the back of them. Fibres from the jersey David washed were under Stephen’s fingernails from the huge fight he put up.

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  122. ross (1,437 comments) says:

    FE Smith, you might recall that in the case of the Urewera accused, Justice Helen Winkelmann said in 2010, when ordering a trial by judge alone, that:

    “I have no doubt that this trial will be complex, both factually and legally. I consider that the task of receiving evidence over such a lengthy period of time, and the volume and complexity involved when added to the legal directions that will be required, make this trial one ill-suited for resolution by a jury….The size and complexity of the task creates a substantial risk, if not a probability, that the jury, or sub-groupings of jurors, will begin deliberating before retirement in relation to innocence or guilt. It also creates the substantial risk that the jury will engage in improper reasoning if they are to reach their verdicts in a timeframe they would be prepared as a group to accept…there will be no vindication or justice in a trial which is aborted or in which the jury is so overburdened with the evidence that it applies illegitimate reasoning processes.”

    What “illegitimate reasoning processes” was she referring to? And doesn’t her comment suggest that she has little faith in juries when complex cases come before the courts?

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  123. hiphip (92 comments) says:

    fes, my point is simply that when a lawyer successfully defends a client who is actually guilty, he should not feel as if he has contributed to justice.

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  124. Nookin (3,472 comments) says:

    ross
    Not it doesn’t. It means that having regard to the specific characteristics of the proceedings at hand, she thought that those proceedings (but not all complex proceedings) should be before a judge alone. You are as bad as the waterwoman.

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  125. ross (1,437 comments) says:

    David A,

    With respect I think your facts are wrong. Blood was found on Robin’s clothes. There has been so much misinformation about the facts of this case. A lot of emphasis has been placed on the fact that there were no fingerprints on the rifle. But apparently it’s not unusual for fingerprints not to be left when a gun is held.

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  126. ross (1,437 comments) says:

    > she thought that those proceedings (but not all complex proceedings) should be before a judge alone.

    On what basis though? You haven’t explained why the judge felt that jurors were at risk of employing improper reasoning processes.

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  127. hiphip (92 comments) says:

    RightNow: I am sure you can google it. Everyone else is familiar with it as it was headline news long enough.

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  128. Nookin (3,472 comments) says:

    So, hiphip, let’s say you are wrongly charged but the police don’t believe you and you cant get a lawyer to believe you. All the lawyers you see are convinced that you did it. According to your standards the lawyers should not act for you. Is that the criminal justice system that you want? The police and the lawyers determine guilt?

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  129. F E Smith (3,307 comments) says:

    ross,

    re your 5.04pm: I just don’t see the relevance of your point to the comments I was making earlier, that is all.

    re your 5.08pm, juries have been known to arrive at decisions by means other than the facts. I myself was involved in a trial where I know for a fact that one of the defendants was convicted solely because the jury formed a dislike to that defendant. So juries aren’t seen as reliable. However, the problem is that much of the move toward judge alone has been in trials that the Crown has historically been not so good at winning- most often large fraud trials. Empirical research in other jurisdictions shows that judges are more likely to convict than juries, depending on the circumstances (the more tired they get, for example, the more likely you are to be convicted, so hope that your case is heard in the morning, not the afternoon; also, those who read the trial file before hearing the evidence in person are twice as likely to convict, apparently).

    So the answer your your second 5.08pm question is yes, although Her Honour is also repeating the Government’s position on this also.

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  130. Dexter (312 comments) says:

    “even criminal lawyers, who defend clients they know to be guilty”

    Yes maybe the bill of rights should stipulate that only ‘innocent’ people are entitled to a lawyer…

    “lawyer successfully defends a client who is actually guilty, he should not feel as if he has contributed to justice.”

    But thats exactly what they have done, it’s a necessary evil to ensure we have a fair, impartial and robust system of justice so that innocent people don’t end up wrongly convicted.

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  131. F E Smith (3,307 comments) says:

    Everyone else is familiar with it as it was headline news long enough.

    Yes, but the reports did not actually set out what was in the report, but rather what was said at the press conference when the report was released.  The report is very different.  Lawyers come third on the list of troubles, after the now defunct Legal Services Agency and then the Courts themselves.  

    There was no actual evidence of any fraud by lawyers.  The most Dame Margaret could come up with, from memory, was some anecdotal whining about some defence lawyers being unco-operative and apparently therefore ‘gaming’ the system.  No evidence, mind you.

    In fact, Dame Margaret was, for the most part, very complimentary about the lawyers who accept instructions on legal aid.

    What Simon Power has done was already decided, well before the report was released.  Hence the Criminal Bar Assocation’s recent submission on fixed fee cases pointing out that the Assocation believes that the decision on fixed fees has already been made, and that the consultation is, in my words, a sham.

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  132. F E Smith (3,307 comments) says:

    my point is simply that when a lawyer successfully defends a client who is actually guilty, he should not feel as if he has contributed to justice.

    I missed this bit:  it is, of course, complete rubbish.  In fact, when a lawyer successfully defends someone who is actually guilty then he should in fact feel as if he has contributed to justice.

     Why?  Because we hold to the principle that no-one should be punished unless they are convicted either on their own acceptance of guilty, or else when proved guilty beyond reasonable doubt.  If a guilty person is acquitted, then there was insufficient evidence for punishment to be justified and the lawyer has done a sterling job of ensuring that our society’s principles of criminal justice are upheld.

    EDIT: Nookin, I am interested to see that I disagree with you on the Urewera jury question asked by ross. I accept the point you make, however, so perhaps I should address my criticism to the policy that allowed that decision, rather than the decision itself. Although I would have let it go to a jury, had it been my decision.

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  133. Dave A (61 comments) says:

    A lot of emphasis has been placed on the fact that there were no fingerprints on the rifle.

    David Bain’s fingerprints were on the rifle, in the place where he held it to clean it before he put it next to Robin’s body. Karam spent years trying to explain this one. He ultimately claimed the blood and prints were from an ancient pig-hunting expedition Bain had gone on.

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  134. Scott Chris (6,177 comments) says:

    F E Smith says:- “And reasonable doubt is explained in criminal trials as meaning that the finder of fact (in this case the jury) must be ‘sure’ that the accused person is guilty. In the Bain case that means that the jurors were not ‘sure’ that he was guilty.”

    Your definition of “reasonable doubt in a criminal trial” amounts to “certainty” as far as I can see. Does “sure” have a specific legal meaning?

    Of course you can come up all kinds of reasons as to why *each individual peace of evidence* could be innocently explained away, but in concert, the evidence is damning. That’s not an opinion. That is the nature of sequential probability.

    Again:

    1) Stephen Bain’s blood was found on David Bain’s clothing.
    2) A lense from Bain’s glasses was found in Stephen’s room while the frames and another lense were found in Bain’s room.
    3) The trigger lock and the key to the .22 calibre rifle were also found in David Bain’s room.
    4) Bain had also tried to wash blood out of some of his clothing, including a green jersey, in the laundry.
    5) Woolen green fibres were taken from under Stephen’s finger nails which match the fibres from the green jersey.
    6) Bain was also seen to have scratches on his chest above his nipples.
    7) A policeman also noticed a bruise on Bain’s temple, about the size of a 50 cent piece.
    8] No finger-prints belonging to Robin Bain were found on the .22 calibre rifle.
    9) There was about 20 minutes of “lost time” between the time that the Crown believes he finished his paper round – 6.45am – and the 1,1,1 call made by Bain – 7.10am – from the family home.
    10) Alleged Bain had also displayed some “unusual behavior” in the days leading up to the murders.
    11) Alleged Bain told a friend that he had had a premonition and that he “sometimes knew what was going to happen”. He also “told her he had a feeling something horrible was going to happen”.
    12) A partial palm print of David Bain was found inside the washing machine.

    Also, had Robin shot himself, he did so in a very unusual manner and left handed as opposed to his natural right.

    The point about this is that if you hold a gun in a normal pose, then your right hand is at the trigger, and your left is at the forestock. As you turn the gun towards yourself, why would you:

    1) Swap hand positions and,
    2) Shoot yourself in a very very strange pose?

    Yes, it’s possible to do so, but it is HIGHLY UNLIKELY, along with all the other highly unlikely explanations. Let’s say, being generous, that there is a one in ten chance of each circumstance being true. In terms of sequential probability, we’re looking at 0.1 to the power of 10.

    That amounts to a chance of one in 10 billion.

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  135. Dexter (312 comments) says:

    “Empirical research in other jurisdictions shows that judges are more likely to convict than juries, depending on the circumstances”

    I’m sure the discrepency is down to the sympathetic defendant syndrome being taken out of the equation rather than any inherent bias they have towards the prosecution.

    Obviously we can’t take jury’s out of the equation alltogether, but this case highlighted the need that if an appeal against conviction is granted, the subsequent factfinder should be a panel of Judges as opposed to another jury.

    There was no way given the passage of time, unavailable evidence, media reports, books & propaganda from both sides, sheer multitude of witnesses and opposing experts, that a jury could make a reasoned informed decision.

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  136. F E Smith (3,307 comments) says:

    Scott

    Your definition of “reasonable doubt in a criminal trial” amounts to “certainty” as far as I can see. Does “sure” have a specific legal meaning?

    Oddly enough, is is described as not having to be certain.  Otherwise, what they mean by ‘sure’ is left to the jury.  So, for the criminal trial, ‘certain’ is a higher standard than ‘sure’.  

    Don’t look at me, I didn’t come up with it!  In other jurisdictions they don’t try to describe it at all and just leave it to the jury to work out.

    I presume the rest of your comment (or perhaps all of it?) is aimed towards Dave A, not me.  I have never argued the facts in this case and don’t intend to start now.

    Dexter,

    You are partially correct.  And you could take juries out if you want – Germany doesn’t have them at all.  I would love to discuss this, but unfortunately have to go out.  Apologies.

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  137. ross (1,437 comments) says:

    David A,

    You have done it again – making a statement as if it were fact. There was considerable debate about the fingerprints on the rifle. I recall reading in Bain’s application for a pardon that there were no fingerprints on the rifle. At the retrial, it was argued that if there were prints they were old and were probably animal blood. Another expert said they were not blood at all.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10573662

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  138. ross (1,437 comments) says:

    > I recall reading in Bain’s application for a pardon that there were no fingerprints on the rifle.

    Bain’s application for a pardon seems to have been removed from the MoJ’s website. But I think the argument from the defencde was that if Robin had shot himself, it is quite plausible that he didn’t leave fingerprints. The absence of Robin’s fingerprints proves nothing because apparently not leaving prints is not uncommon.

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  139. hiphip (92 comments) says:

    perhaps robin wiped prints off after he was shot. after all, the killer had been using david’s gloves to conceal identity and hid evidence which has not been found. the killer also took time to put the washing out for david. it does seem rather strange considering the killer wrote a message to exonerate david and implicate robin.

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  140. Dave A (61 comments) says:

    Bain’s application for a pardon seems to have been removed from the MoJ’s website. But I think the argument from the defencde was that if Robin had shot himself, it is quite plausible that he didn’t leave fingerprints.

    Well they would say that.

    This is a case where I give no credence to the defence argument whatsoever.

    Just because Ellis is innocent (and he is — there was no evidence of a crime whatsoever in his case), it doesn’t mean that every other convicted killer who claims their innocence is actually innocent. It took years of reporting by some concerned journalists before the public got the hint that something was wrong there. Ellis had no celebrity backing until Hood’s book came out, well after several concerned journalists had exposed what was going on there.

    You have to look at the evidence for the prosecution — does it stack up? In the case of David Bain, it is utterly compelling.

    Bain got off second time around because he had become a national celebrity thanks to Karam and a gullible news media. The jury — who celebrated with Bain straight after the verdict — was clearly impressed with the celebrity nature of the case they were on.

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  141. ross (1,437 comments) says:

    “Just because Ellis is innocent (and he is — there was no evidence of a crime whatsoever in his case), it doesn’t mean that every other convicted killer who claims their innocence is actually innocent.”

    I am not suggesting that, and I’ve agreed that I think David Bain killed his family. But you shouldn’t present statements as fact. I think it’s true that some people simply don’t leave fingerprints, though I don’t know how common it is. But as I linked to, an expert testified for the defence saying that there wasn’t blood on the rifle. Another expert testified that it was more likely than not that Robin shot himself. Again, I don’t believe that happened but it seems that such evidence possibly had some effect on jurors.

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  142. Dave A (61 comments) says:

    The rifle was dripping with blood but had been wiped before it was placed in front of Robin’s hand. The wiping served to remove all the prints bar one — where it was held — but otherwise it was smeared from end to end with blood.

    Shooting people at close range is very bloody.

    I give no countenance at all to defence “experts” claiming there was no blood and no prints. They would say that.

    As you say, the jury lapped it up.

    Well, back to the real world now, danke gott

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  143. Mitch (1 comment) says:

    We need to get rid of our antiquated adversarial legal system. David Bain went free because Joe Karam was able to canvas enough expert witnesses until he found enough to throw together a semblance of a defence.
    The focus of modern inquisitorial justice systems is to establish the truth, not to facilitate a contest of cunning and wit. This is especially important for criminal cases where victim closure is dependent on establishing the truth. Assisting the victims is arguably as important as punishing the offender, but it would seem our legal system disagrees with that sentiment.
    In my opinion David Bain would still be behind bars where he belongs if we had an inquisitorial system.

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  144. tristanb (1,127 comments) says:

    How it works:
    1. Brother’s blood on David’s undies – hire expensive quack forensics expert from overseas and say it could be from contamination.
    2. Cleaned gun lying strangely and improbable gunshot wound to dad – hire expensive quack firearms expert who can imagine a contortionist finds it possible.
    3. Evidence that David had thought of a paper run alibi previously – expensive lawyers will block this evidence.
    4. Inconsistent story from David – we won’t let the jury hear David’s testimony.
    5. Old man using computer to write suicide note and gloves to murder family pre-suicide – listen jury, Robin was a strange character: he had sex with his daughter!
    6. Computer timing and paper-round witness timing – what if the time was set incorrectly?
    7. David’s bloody fingerpri… – rabbit shooting.
    8. Bloody glov – irrelevant.
    9. Gurgling? Listen, go easy on the poor boy he’s lost his family! You’ll all get to hug the gentle giant after you find him not guilty.

    The courts turn everything into a race to find “expert witnesses” who’ll agree to debunk whatever you want if you pay them enough. Courts have got to be the most random and inefficient way to find an answer in a case such as this.

    I don’t really care about Bain. I’m not out to get the guy. I saw him at a restaurant once and I didn’t even say anything nasty to others at my table! But the fact his defenders have made so much cash out of this whole thing is irritating, given that I have contributed to paying for it.

    It must be weird being Bain though. Imagine walking around with the memory of shooting your entire family to death, the noise of your sister aspirating her own blood while she bleeds to death, fighting with your brother then taking his life. Killing your mother in cold blood. And then, having to pretend it wasn’t you. That’s something not even operatic society can prepare you for. At least he’s a better actor than Mark Lundie ever was.

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  145. big bruv (14,165 comments) says:

    Bain- Guilty as sin, should not get one cent from the tax payer

    Scott Guy- Call it natural justice, call it what you want, I simply don’t care. Watson is a piece of shit who is in the right place.

    Ellis- A travesty of justice and a huge disappointment that the Nat’s did not have the balls to take on the sisterhood and clear his name. If anybody deserves a million or so of our money it is that poor bastard.

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  146. ross (1,437 comments) says:

    “But the fact his defenders have made so much cash out of this whole thing is irritating, given that I have contributed to paying for it.”

    I’m not sure what you mean by making that claim. Bain’s lawyers would have been paid win, lose or draw, and they’ve been paid for the work they did. Like you, lawyers expect to get paid when they provide their services. As for Karam, he reckons he’s spent a fortune on the case and I can well believe him.

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  147. Kent Parker (451 comments) says:

    Foregone conclusion: David Bain will not receive any compensation. His case will not pass the balance of probabilities test for the simple reason that there is still the possibility that he could have done it. He has no alibi and evidence against him is all through the murder scene. I know the evidence well and have been in contact with a large number of key people from the case.

    I would further say that the original police investigation was not a shambles. If you read the PCA report (http://davidbain.counterspin.co.nz/resource/the-police-and-pca-investigation-into-the-arrest-and-prosecution-of-david-bain) you will see that, yes, there were some areas in need of improvement, but if that investigation was a shambles then we should be very wary of ANY police investigation. The idea that the original investigation was a shambles is a beat up courtesy of the David Bain Ministry of Misinformation. The whole David Bain case has very little to do with the law. It is a very interesting exercise in spin and propaganda. I invite you to read the report and then compare what all these officers, doctors and other personnel had to undertake, and the conditions that they undertook them in, with what happens in your own workplace. Is everything in your workplace beyond reproach?

    This case is not decided by the law but by media promotions and public opinion polls. Dr Mathias is correct in labelling it a farce. I am confident that the learned judge Binnie will help put it back into perspective.

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  148. hiphip (92 comments) says:

    how often do prisoners get millions of dollars in public funding ???? never – only bain. add to that, “loans” given by lsa for “extras” to prevent all evidence being heard. that’s public money, and we have a right to object to it’s misuse. there should have been a cap on the amount paid – especially given the simplicity of the case. unlike other cases, there were only two possible offenders, and evidence against only one of those.

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  149. hiphip (92 comments) says:

    How can David Bain claim “innocence” when even he said David Bain could be the killer? http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10569482

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  150. F E Smith (3,307 comments) says:

    hiphip,

    how often do prisoners get millions of dollars in public funding ???? never – only bain.

    Which, of course, is not true, either.  Any person who qualifies for a grant of legal aid so they can employ legal assistance is able to obtain funding, whether they are a prisoner or not.  I know of, and have been involved in, appeals where the final figures for the legal aid bill are in the tens of thousands of dollars, and that for a prisoner.  If a prisoner is successful in an appeal and wins a re-trial, then legal aid will fund the defence team for that re-trial if the prisoner is eligible for legal aid.  Bain’s re-trial (which wasn’t for a prisoner, by the way, as at the time of the re-trial he was once again merely an accused person) cost so much in legal aid because the defence team actually managed to persuade the Legal Services Agency to fund the experts the defence team thought necessary to defend the case.  Please note that the Police and Crown spent a far larger amount of money on the re-trial. 

    there should have been a cap on the amount paid – especially given the simplicity of the case.

    So it is ok for the Police and Crown to spend unlimited funds on a case but the defence should be capped, eh?  Why not just take away a person’s right to plead not guilty? That would be much cheaper.

    Kent Parker,

    it is my opinion that any person who places any weight whatsoever on what the Police Compliance Authority, hold on, sorry, the Police Complaints Authority, says is extremely naive. Among those who actually work in the area, nobody actually has any confidence in that agency, even if they have now put the word ‘Independent’ in front of its name.

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  151. Johnboy (17,035 comments) says:

    $401,951.81. :)

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  152. Pauleastbay (5,035 comments) says:

    ……nobody actually has any confidence in that agency, even if they have now put the word ‘Independent’ in front of its name..

    FE

    Pretty sure Lowell Goddard may take you to task on that.

    Those that are subject to the complaints would tell you of the rabid investigations that go on investigations that would not be tolerated by defence teams if it were their civilian clients under the pump.

    I can speak on this as being the subject of several totally false, vindictive and malicious complaints, thank the lord ,justice was done and seen to be done and my good character was left unsullied and my criminal record left at speed camera infringements.

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  153. hiphip (92 comments) says:

    there has been a belated effort to reign in Criminal lawyers, which was long overdue, http://www.nzherald.co.nz/jared-savage/news/article.cfm?a_id=304&objectid=10696928 . David Bain, found not guilty last year of murdering his family after a second trial, is the most expensive at $2.3 million. Another $455,737.76 was paid for his appeals. …

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  154. hiphip (92 comments) says:

    fes. you appear extremely anti-police, anti-police complaints authority. such prejudice is akin to being anti-black, or anti-asian. there are thousands of police – not all of them bad. if you have a problem with an officer or aspects of a report, you should address them rather than throw a blanket condemnation over all.

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  155. F E Smith (3,307 comments) says:

    hiphip,

    actually, I know many police officers and get on with them well. Your problem appears to be that which you accuse me of- you generalise about most things. The problem with your generalisations is that you are completely and utterly wrong in the ones that you make, and you have no actual evidence to back you up. That Herald article that you link to is just what I was talking about in a previous comment. Articles like that are based on the ignorance of the reporter simply repeating what the Minister and his minions have told him. They do not represent the situation on the ground. Go and read the report. And while you do, consider that criminal legal aid apparently takes up less than 3% of the criminal justice budget in NZ. There are plenty of legal aid threads here on kiwiblog in which I, in conjunction with other defence lawyers, have set out the true situation. I suggest you go back and read them. Or read the Law Society’s submissions on the various proposals made by the government in the sham they call consultation.

    With regards the IPCA and related bodies, I am not anti-Police. I am pro-accountability. I also work in a system that often sees the bad side of the police, and that far more often than the media reports it. You, hiphip, appear to operate from a position of ignorance, an ignorance that doesn’t appear to prevent you from making silly statements. Go away and actually look at the situation and then come back.

    I say again, that among my colleagues, the IPCA has a very bad reputation for holding the police accountable in anyway. When clients suggest that they wish to make a complaint, our first reaction is generally ‘don’t bother’.

    PaulEB,

    yeah, I have heard some horror stories about investigations, especially when the investigating officer is an ambitious cop out to make a name. But that doesn’t change the fact that, from where my colleagues and I sit, the IPCA is basically a waste of time. We see it as being mostly an apologist organisation for the Police.

    And I am more than happy for Justice Goddard to hold me to account for that. It is something that I have said quite openly in my professional circles. Of course, I don’t get much disagreement on that statement, so it isn’t something that we talk about much.

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  156. hiphip (92 comments) says:

    fes. it is YOU who is wrong. time and time again you display total ignorance and arrogance. amusing as your foolishness may be, it is people like you who rejoiced when mr asia was found “not guilty” of drugs charges in nz. yeah, right – “not guilty” … and, in who’s bed was his lawyer when he was finally arrested for murder in UK? your definition of “justice” is rather appalling and distasteful to any right minded person. it is criminal lawyers who have proven themselves as incapable of ethical self regulation as land agents, and should be independently monitored.

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  157. hiphip (92 comments) says:

    as fes is carried away in a strait jacket screaming “you’re all corrupt, ignorant, and evil”, it is time to reflect on the title of this thread, and of course there is absolutely no evidence david is innocent or robin is guilty – so no reward. qed.

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  158. F E Smith (3,307 comments) says:

    it is people like you who rejoiced when mr asia was found “not guilty”
    of drugs charges in nz. yeah, right – “not guilty” … and, in who’s bed
    was his lawyer when he was finally arrested for murder in UK

    Firstly, your assertion about me is totally wrong.  Secondly, don’t extrapolate the actions of one young and naive lawyer to the whole profession. See what I said earlier about generalisations. 

    Thirdly, you are wasting my time.  Provide proof and then come back.  Here at KB we look at bald assertions pretty dimly, as you can see from some of the discussion re Robin vs David above.

    You have no evidence, therefore you are simply trolling.

    Goodbye, troll.

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  159. big bruv (14,165 comments) says:

    hiphip

    FE has far too much class, and manners, to tell you what you really need to be told. Given that nobody would ever accuse me of having either of the previously mentioned traits I will do what he has not.

    Just fuck off!.

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  160. hiphip (92 comments) says:

    big bruv is clearly an imbecile. why don’t you and fes just GET A ROOM.
    i was going to retire from this site, but now i can see i am needed.
    and fes: i am not wasting your time as i never asked you to comment. you have chosen to yourself.

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  161. Kent Parker (451 comments) says:

    F E Smith, you say you are a lawyer (in just about every second sentence you say, and a defence one at that!) and presumably a NZ one, but the only place I can find you by searching on the internet is on kiwiblog, unless you are the first earl of Birkinhead: http://wn.com/Frederick_Edwin_Smith_1st_Earl_of_Birkenhead. Can you give us a link so that we can actually verify your credentials. I’m not scared to reveal who I am, I’m the one being sued for telling the truth.

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  162. F E Smith (3,307 comments) says:

    Kent,

    why would you need to verify my credentials?  Is what I am saying on criminal procedure and the like incorrect?  Is there something above that leads you to believe that I am not a lawyer? 

    One of the great things about Kiwiblog is that we don’t have to reveal our real names.  Some do, some don’t.  But when it is clear that someone knows what they are talking about, we do give them a bit of room not to reveal themselves if they don’t want to.

    (That said, I am still waiting for Dave A to give us an idea of how he has come to have a comprehensive knowledge of the Bain case in which there is no part that he is unfamiliar with.  He doesn’t have to reveal who he is, just how he came by the knowledge)

    So, I am not going to reveal my real name.  If you want, you can go back through many of my comments and see what my level of knowledge of the NZ criminal justice system is and make a judgment for yourself on whether my assertion holds up.

    But I assure you that I am indeed a lawyer.

    hiphip,

    don’t be rude to bruv, he is in no way an imbecile. In fact, you could learn a lot from him.  That said, if you do stay around Kiwiblog, I am sure that bruv will teach you a lesson more than once, so keep at it!

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  163. Kent Parker (451 comments) says:

    Frederick Smith, Earl of Birkenhead is busted! Of course your name links to the Sensible Sentencing, Stephen Franks sponsored blog at http://www.justicehottub.co.nz/15173/index.html, but that doesn’t mean much if you are blogging there anonymously too. Unless I know who you are I cannot verify if indeed you are a lawyer. I have dealt with many lawyers and they mostly speak in shades of gray but you appear to be pretty much black and white about everything. I think that if you expect people to take you seriously, you need to reveal your actual identity. David Farrar does, I have. Why don’t you? I have no idea if what you say about criminal procedure is correct, because I am not a lawyer and you do not appear to me anyway, to know what you are talking about. You give the impression through your frequent references to being a lawyer, but it does not correspond with my layperson reality.

    There are lawyers and there are lawyers. The good ones do not have the time to make 1,432 comments on kiwiblog as far as I know, in my limited knowledge of not being a purported lawyer on kiwiblog.

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  164. Pauleastbay (5,035 comments) says:

    Well Kent that will have shown FES how it is. Clearly your psychology study has developed your communication skills to the level where you have learnt not to alienate people right off the bat.

    I would suggest however that your interview technique be tweaked a bit, presently its seems a bit on the abrasive side. Actually smacks totally of being a right fucking know all.

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  165. Kent Parker (451 comments) says:

    Sorry, Paul, I just don’t take everything at face value, so when someone categorically states that ”
    it is my opinion that any person who places any weight whatsoever on what the Police Compliance Authority, hold on, sorry, the Police Complaints Authority, says is extremely naive” and keeps claiming to be a lawyer, I ask for credentials. If his (or her) credentials were good then I might revise my opinion of the PCA report. Until then, I am in the dark. Simple. F E Smith might get him / herself a new disciple yet.

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  166. F E Smith (3,307 comments) says:

    PaulEB: :D

    Kent, try repeating that to GPT1 (another lawyer, currently on 1744 comments) and see how you fare…

    “when someone categorically states that ”
    it is my opinion that any person who places any weight whatsoever on what the Police Compliance Authority, hold on, sorry, the Police Complaints Authority, says is extremely naive” and keeps claiming to be a lawyer, I ask for credentials.”

    Why do you say that? Are lawyers supposed to be slavishly supporting of the IPCA?

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  167. Kent Parker (451 comments) says:

    Also, Paul, note, on the abrasive front, F E Smith started the attack by inferring that I am naive. Abrasive is the least of my worries in the interview department.

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  168. JamesS (352 comments) says:

    Presumably the F E Smith on kiwiblog is not the actual Frederick Smith, Earl of Birkenhead, who died in 1928. Fancy that.

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  169. Pauleastbay (5,035 comments) says:

    Think about it Kent, who in their right mind would choose “lawyer” as an alter ego?

    You are naive if you consider someone….inferring that I am naive… as starting an attack.

    Like I said …being a right fucking know all .. could be considered an attack, which its not , just an observation and you are consolidating my belief .

    Bath time

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  170. Kent Parker (451 comments) says:

    As a member of the public and a taxpayer surely I can excused for having some respect for the procedure and the outcome of the PCA report and until I have evidence to the contrary then why should I think otherwise. I am certainly not going to adhere any authority to an anonymous poster on kiwiblog. What other government departments do the secret and anonymous community of lawyers have complete disdain for? The Justice department? Legal Aid? The Supreme Court? Where does it stop? If the PCA or IPCA is by fact (or your opinion) only oriented towards the maturely challenged, then why does it exist?

    My reading of the PCA report is that it is detailed enough for people to challenge it point by point but no one has. If I have a burglary in my household or dare I say, something else, then I would call the police. I understand that they are not perfect, but nor am I, and nor are you, Mr Smith.

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  171. JamesS (352 comments) says:

    Kent, I think you need to calm down a bit; this is not Afganistan – no one is dying here, it is just a blog

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  172. Kent Parker (451 comments) says:

    I respect what you say, Paul, because at least you are open about who are. What makes you think I am a know it all? What have I done that gives you that impression… so that I can improve my interview technique in the future.

    All I have done is respond to someone’s opinion about what I have said. This person has used their expert-ness to back up the credibility of what they say but is unable to provide any credentials for said expert-ness.

    BTW I am fan of Nick Cave too.

    Thanks

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  173. Pauleastbay (5,035 comments) says:

    Kent …………..then why does it exist?

    Because the bleating members of the public considered that internal police investigations were biased in favour of the police member. Which incidentally they were not. Over 25 years I was the subject of ‘lots” and I can assure anyone that the investigations were through and professional.

    Just because someone makes a complaint against the policeit doesn’t make the complainant right.

    So we ended up with the PCA and the IPCA but the legal profession are still not happy because the interviews are done by police or ex police. This is solely because they are the only ones with the background to to conduct the interviews. And remember they are interviewing cops people who do the same job as them with the same set of skills, it si very hard to get information out of a member of the police if he does not want to talk to you . Lawyers think they are shit hot interviewers but generally they are not, they have a different set of skills when it come to obtaining information.

    So, no one is happy with the IPCA the cops hate it obviously, the lawyers hate it because of a perceptionof bias.

    Anyway FES talks alot of sense here especially on legal facts, he is allowed an opinion, being anonymous allows him to express that personal opinion he may not otherwise be able to express, thats the plan here, Sam.

    And yes go Nick Cave

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  174. Kent Parker (451 comments) says:

    OK, Paul, your comment accepted. That was the right amount of gray I expected to find in these circumstances. Maybe being naive puts me at an advantage regarding the PCA report in that I can review it in a new light.

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  175. F E Smith (3,307 comments) says:

    PaulEB,

    You make a good point about interviewing. It really is a difficult art to master, and many cops and lawyers don’t get good at it. Watching a well conducted interview is a real pleasure, while watching a bad one is just horrible.

    You also make a very good point about not getting information from a policeman if he doesn’t want you to have it. I got taught a very valuable lesson in that early on by a very experienced DSgt. Got absolutely trashed by him just trying to fill in some blanks in a jobsheet. He didn’t give me one straight answer, yet appeared to be the very model of co-operation while doing it!

    Your point that just because a complaint is made doesn’t make it right is also a very important one. It applies equally to complaints against judges and complaints against lawyers. The vast majority are baseless, often made out of disatisfaction with the outcome rather than what actually happened (I have had clients want to complain because a judge didn’t give them bail, for example). The same appears to hold true with most police complaints. One question, though: did you find that you got more internal complaints once you became a prosecutor? I have a friend who was in Prosecutions and if they made a decision that an investigation officer didn’t like re the case then it seems that a complaint would often be forthcoming. That person was a civilian, though, so maybe uniform proseuctors are treated differently, having the stripes and all?

     being anonymous allows him to express that personal opinion he may not otherwise be able to express

    A point that Kent would do well to understand.

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  176. Kent Parker (451 comments) says:

    I apologise for taking offence at being labeled naive. I now realise that it is something I can wear as a badge, after all the PCA was established for taxpayers like me and not for the legal profession. I respect your choice to remain anonymous Mr Smith, with the limitations that come with that. I can tell you, as a web developer, nothing is better for your legal career than a blog with your own domain name where you can espouse your learned treatises with the full power of your own reputation and knowledge. I personally don’t understand why people with good substance do not utilize it to their max.

    I agree with the Dr Mathias in that the whole David Bain case has become a farce and I am sure that the honorable Justice Binnie will be able to sort it out once and for all, and then go back to graceful retirement in Canada.

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  177. Nostalgia-NZ (5,283 comments) says:

    Great comments by F E Smith sustained under a fairly strong effort to break his anonymity – a telltale sign that his ‘opponent’ had lost the argument and needed the opportunity to make it personal so as to cast aspersions.
    FE Smith, whoever he or she may be possesses an exacting mind, that doesn’t compromise on clarity.
    As for another saying ‘I’m not scared to reveal who I am, I’m the one being sued for telling the truth’…well?

    In terms of the inquiry I think it is a poor compromise for the constitutional rights of David Bain and all other nzers, however I nevertheless welcome it as the man and the country surely need things to be set to order. As an optimist I hope that the inquiry may provide the depth necessary for the Justice System to recognise it’s failings in not only the Bain case, and to tear down the defensive walls that are immediately set in place around unsafe convictions such as that of Scot Watson and others.

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  178. Nostalgia-NZ (5,283 comments) says:

    In response to Scott Chris post above and in the interest of clarity, I answer his 12 points above.

    1/Small spots of blood were found on David’s clothing (2 from memory.) One predated the morning of the killings. None was described as spatter.
    2/The lens that was found in Stephen’s room was covered in dust and belonged to the glasses of Margaret Bain. This fact comprised evidence with-held from the 1st Jury and is that (along with other with-held material) which comprised the Privy Council ruling that an ‘actual’ Miscarriage of Justice had occured.
    3/There is no evidence that David tried to wash blood of any clothing.
    4/ A partial print of David’s palm was found in the laundry, however because of the luminol reaction to soap powder it couldn’t be determined as being in blood. David frainkly admitted doing the washing.
    5/While it is true that the gunlock key was in David’s room (one of 2 keys.) The fact that live shells were found scattered across the floor indicated someone in a hurry loading the rifle and magazine. This is consistent with the father waiting for David to leave the house, and not consistent with a person with free access to the rifle and able to load it at any time before the killing spree.
    6/David was strip-searched on the morning on the killings and had intimate body samples taken. There were no scratches recorded as being on his chest.
    7/A bruise consistent him falling and striking his head was found on his temple. The fall was witnessed by a police officer.
    8/There were a number of prints found on the rifle, some unidentifiable, one from an unknown person. It can’t be held that Robin Bain’s prints were not on the rifle. On this point there have been claims that David’s prints were found in blood, however a forensic Pathologist showed this couldn’t be true because the ‘blood’ showed as the wrong colour under poli-light.
    9/The ‘lost’ time is contexually explainable and consistent with sightings of David arriving home after the computer was turned on.
    10/Bain may have displayed unusual behaviour – they were somewhat an unusual family.
    11/Premonitions are a human characteristic, reading witchcraft into them in order to convince others of their meaning has no place in law.
    12/Green fibres were ‘apparently’ taken from under Stephen’s nails. The jersey they might have come from was consistent with one that Robin had been seen wearing. I have doubts about fibres adhering under nails.

    Other matters that might be considered in this inquiry – taken from the evidence

    1/ There was no reason for Laniet Bain to be giving her brother an ailibi some years before the murders when she told others about her claims of an incestual ‘relationship’ with her father.
    2/Robin had high speed spatter on his shoe going the wrong way, and therefore occluded as being from his own wound.
    3/Robin had blood smears inside his hands which can’t have arrived there after he suicided.
    4/Robin’s blood and dna was found sucked down inside the rifle barrel, consistent with a close contact suicide upward trajectory shot.
    5/There was no ‘shielding’ in the spatter spread from Robin’s wound that would indicate any person standing to his left at the time of the fatal shot.
    6/The rod (skull cap) used to demonstrate the trajectory of Robin’s wound was made by the Crown pathologist Dempster. Robin would not have needed to thread the rifle onto any rod to show direction of the shot, he simply needed to rest the butt on the floor on the chair and lean his head against the barrel.
    7/Upward trajectory shots are statistically rare in homicides.
    8/ Robin was right-handed and right-handed people suiciding with rifles are statistically more likely to shoot themselves holding the rifle in their stronger hand and use their left to pull the trigger.

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