- Justice Binnie went beyond his mandate. He did not have authority to express any conclusion on the question of whether there were extraordinary circumstances such that compensation would be in interests of Justice. Nor was he invited to make any recommendation as to whether compensation should be paid.
- In assessing innocence, Binnie J made fundamental errors of principle.
- In assessing misconduct by authorities, Binnie J has also made fundamental errors of principle
- Correct principles should now be applied to the evidence afresh. That is not saying a fresh assessment would produce a different outcome. It is possible that it would vindicate Binnie Js conclusions
- Binnie J criticised named individuals without giving them adequate opportunity to respond.
- Instead of assessing each piece of evidence to see whether it increased or reduced the likelihood of innocence, and if so by how much, Binnie J discarded any item that was not individually proved on the balance of probabilities.
- Instead of considering the cumulative effect of all relevant items of evidence, he arrived at a provisional conclusion of innocence based on one item (luminol footprints) followed by a serial testing of that conclusion against others in turn.
- Instead of requiring David Bain to satisfy him on the balance of probabilities throughout the enquiry, he imposed an onus on the Crown wherever the Crown suggested a factual possibility inconsistent with innocence
- He appeared to regard the jury acquittal as something that was relevant to the question whether David Bain had proved his innocence
- He appeared to accept David’s version of events without question except where it directly conflicted with other witnesses
- His decision to disregard any item of evidence that did not prove a subsidiary fact on the balance of probability was contrary to the law of NZ and to a proper understanding of the probability theory.
- Discarded were evidence of blood stains on David’s clothing, broken glasses, David’s fingerprints on the rifle, arguable shielding of part of the rifle, Robin’s motive, Robin’s mental stability, David’s post-event admissions, factors consistent with suicide, David’s admission that he heard Laniet gurgling, David’s gloves, and knowledge of the trigger key.
- The way in which Binnie J approached the cumulative significance of the evidence in its totality seriously skewed the exercise towards an innocence outcome which is contrary to the law of evidence in NZ when dealing with circumstantial evidence.
- Logic and experience suggest that if a suspect has lied in denying his responsibility for the crime itself, he will scarcely shrink from lying about the details. For the purpose of drawing inferences from surrounding facts, most decision-makers will prefer sources other than the suspect.
This poses a real challenge to the Government. Do they make a decision on the basis of the Binnie report, or do they now commission a new report? I am firmly of the view that if the Binnie report had not had the issues detailed above, then the Government would follows its recommendations (even if some Ministers have different private views). Not following a recommendation is politically damaging. But unless Dr Fisher is incorrect in his peer review, it is hard to have confidence in the conclusions.
Also a must read is this article by Martin van Beynen of The Press, who actually sat through the entire second trial. His summary:
1. How did the cadaverous Robin fight off son Stephen in a fierce fight and sustain no injuries?
2. Why did he put on David Bain’s gloves to execute his family when he was going to spare David, not implicate him, and commit suicide?
3. Why did he change into fresh clothes between killing his family and taking his own life? He took the soiled clothes and put them neatly in the washing basket.
4. Why were none of Robin Bain’s fingerprints on the rifle, especially since he must have clasped it tightly to kill himself in the very odd way he chose?
5. Why did he wait until David Bain was just about bouncing through the door before writing his suicide note and killing himself?
6. If he was supposed to put on fresh clothes and cleaned himself up after the killings, how come he still had spots of blood on his hands?
7. Why would he kill with a full bladder and after an undisturbed night?
8. Why did he follow his normal routine – set his alarm, get the paper from the gate – if he was so disturbed he had decided to kill the family?
9. How come it was David who was scaring the family before the killings by threatening behaviour with his rifle?
On the basis of these points, compensation for David Bain would be a travesty.
Binnie has responded to the Fisher report, which is at the link above. Somewhat amusingly it also seems he sent an e-mail to the Minister this morning in ALL CAPS.
What I will be interested to hear, are opinions from lawyers who have some expertise in this area, who are not connected to the case. Do they think Fisher’s concerns are correct?