Where is the expert analysis

December 19th, 2012 at 1:45 pm by David Farrar

The Herald today has an article on how Lindy Chamberlain’s lawyer thinks should be paid compensation. It doesn’t look like he has even read the reports incidentally.

What I want to read, and have been waiting for media to report, is expert legal analysis of the Binnie and Fisher reports.  Surely the key issue isn’t what you think of David Bain, or Judith Collins, but did Justice Binnie interpret New Zealand law correctly or did he make significant errors as Dr Fisher has stated? Are Fisher’s criticisms valid and significant or are they nit picking?

I have a view on Bain, as most people. I’m prepared to go along with an expert review of the evidence, even if it reaches conclusions different to my expectations. But only if it has correctly applied New Zealand law. My lay reading of Fisher’s report is that Binnie made several very significant errors. Now again, I am not a lawyer, so can’t judge how significant Fisher’s critique is. But there must be scores of top lawyers out there who are experts on this stuff. Can’t a news outlet go interview some who have no connection to the case?

I don’t want them to be asked what they think of David Bain, and should he get compensation. I don’t want them to talk about the process. I want them to be asked to read both the Binnie and Fisher reports and to state whether or not Fisher’s criticisms are accurate and significant.

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114 Responses to “Where is the expert analysis”

  1. thedavincimode (6,527 comments) says:

    Wot? 950+ comments and rising not enough for you??!!

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  2. RRM (9,427 comments) says:

    DPF said expert analysis, DVM ;-)

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  3. Pete George (22,754 comments) says:

    Once Andrew Geddis got past trying to be clever he has analysed it. His conclusion:

    …I think that Fisher’s core criticism of Binnie’s report – that he mishandled the process of assessing David Bain’s innocence from the evidence available to him – is justified. And this criticism is strong enough to undermine my trust in Binnie’s conclusion to the extent that I can no longer unquestioningly adopt it.

    http://www.pundit.co.nz/content/binnie-vs-fisher-the-definitive-guide

    And I agree with his suggestion here:

    I want to suggest that having only one person responsible for deciding factual innocence/guilt questions always invites attack. And where the case is as divisive, high profile and outright unresolvable as David Bain’s, those attacks will be magnified exponentially.

    So maybe the only way through this is to give the job to more than one person.

    A(nother) single person is going to get bollocks from about half of New Zealnd for their recommendation. A majority (or unanimous) recommendation would be a much stronger final word, before Cabinet takes over.

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  4. ross69 (3,652 comments) says:

    Well, it wasn’t just operating outside NZ law that was the problem. It was a number of other things. Such as Binnie believing that Bain was a credible witness. Judges and jurors are hopeless at assessing credibility. Besides, whether Bain is credible is beside the point – is he reliable? A good liar can appear credible but his is or her testimony may be unreliable.

    Binnie gave Bain credit for not speaking ill of his father. But David hated his father, something which Bain seems to have great difficulty admitting. In other words, Binnie gave credit despite Bain telling porkies!

    Binnie simply ignored some evidence, such as the fingerprints on the rifle. But Fisher said such evidence needed to be taken into account (and he noted that David’s prints were on in the gun in unidentified blood, while Robin’s prints were not found on the gun).

    One of Binnie’s biggest mistakes was that he expected the Crown to provide proof. Of course, the Crown don’t have to prove anything. Whilst Binnie said that Bain had to prove his innocence, he deviated from that position on several occasions.

    I recall thinking on one occasion that I thought Fisher was nit picking but cannot recall what that was.

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  5. wreck1080 (3,725 comments) says:

    My point of view is that Bain was convicted, then, that conviction was found to be wrong by a jury of peers.

    Compensation is due, there is no need for a report.

    I don’t know if he did it or not, but, the justice system failed and for that fact alone compensation is due. People are entitled to a fair hearing and Bain did not get that regardless of innocence or guilt.

    Bob Jones hit the nail on the head too.

    http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10854684

    So with that background and the moderation rider I mentioned, I have no hesitation in saying there has never been a more disgraceful political action in the post-war years than the behaviour of the Justice Minister Judith Collins over the Bain compensation matter. Its breath-taking arrogance is without precedence.

    She has effectively said she disagrees with a jury’s findings after an exhaustive three-month trial, disagrees with the widely regarded greatest law lord of the past half century and his Privy Council, and disagrees with Canada’s (former) top judicial figure after his three-month investigation.

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  6. Mr Nobody NZ (397 comments) says:

    Can anybody tell me where/how to get hold of a copy of the original trial transcript and subsequent appeals?

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  7. RRM (9,427 comments) says:

    Pete – or the Minister could just make the call?

    Bain’s applied for compo.

    The Minister’s commissioned an independent report to assist her decision.

    The report favoured Bain, but the Minister’s legal advisor has now shown that the report has serious things wrong with it.

    Therefore the Minister now has some sort of reasonable basis for saying NO, Mr Bain, we’ve thought about it but we’ve decided we’re NOT going to give you compo. goodbye. Thanks for playing.

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  8. ross69 (3,652 comments) says:

    “She has effectively said she disagrees with a jury’s findings after an exhaustive three-month trial, disagrees with the widely regarded greatest law lord of the past half century and his Privy Council, and disagrees with Canada’s (former) top judicial figure after his three-month investigation.”

    Wreck, Jones has no idea what he is talking about. The jury trial was about guilt, not innocence. Would Robin have been found guilty had he been tried? Fat chance. And the Privy Council never declared Bain innocent. It could have acquitted him but said that there should be a trial. Only one “judicial figure” has concluded innocence, and he has made several blunders.

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  9. Chuck Bird (4,666 comments) says:

    But there must be scores of top lawyers out there who are experts on this stuff.

    I doubt it. There are very few compensation cases and it appears the rules pertaining to evidence are a lot different than for a court case.

    Just because someone has a law degree does not mean they are very bright or in extreme case know the basics of the law.

    Firstly, look at this below.

    Mr Tipple said he had followed the Bain case closely. He was aghast at Ms Collins’ criticism of the independent report written by retired Canadian judge Ian Binnie, while keeping its contents confidential.

    Tipple is in Oz so he can be excused for not being up to date. The reporter should have brought him up to date.

    Secondly , look at a direct quote.

    That’s how she’s viewing the Binnie report. She’s actually not accepting the jury verdict – which is: You are not guilty David Bain, you are innocent.

    It’s so inappropriate for a Minister of Justice. She should be accepting that the jury’s verdict as binding.

    The jury well have felt that David was probably guilty but would still be obliged to come in with a not guilty verdict. Tipple is either dishonest or incompetent to make such an outrageous and slanderous statement towards Judith. Can he show one statement that the she has made that indicates in any way that Judith did not accept the jury’s verdict?

    Judith has been put in a very awkward position by her predecessor. The law is very clear. It does not matter what the police have done to obtain evidence. They could have made illegal searches or third degree that would not make David entitled automatically to compensation. The first hurtle he must pass is whether Cabinet considers him not guilty on the balance of probabilities. How Cabinet decides this is up to them.

    I have read the whole of Fisher’s report and am very impressed. I am amazed at people who have read neither but want to pay a huge amount of taxpayer’s to who many people believe on the balance of probabilities murdered his family for an inheritance.

    I think the case has been discussed adequately on the thread without going into the details of the case.

    If Tipple should be ashamed of anyone it should be himself for coming out with such stupid ill-informed comments. If he represented Lindy Chamberlain it is no wonder it took him so long to get a result.

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  10. RRM (9,427 comments) says:

    Ross – the PC quashed the conviction from the first jury trial saying it was a miscarriage of justice, and the 2nd Jury trial did not convict him.

    So why was he in jail for 13 years, again?

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  11. cctrfred (41 comments) says:

    Add a binding referendum question at the next election – should improve voter turnout.

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  12. ross69 (3,652 comments) says:

    > So why was he in jail for 13 years, again?

    He was in jail because he was convicted. But that is irrelevant in the context of proving his innocence. You’ll recall that one juror wrote to the Justice Minister and Binnie, saying she didn’t think Bain was innocent and therefore should not be paid compo.

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  13. Dexter (272 comments) says:

    Here’s one expert analysis -

    “The Otago University law professor, Kevin Dawkins, told Radio New Zealand last week that he agreed with Robert Fisher’s criticism that Binnie failed to consider circumstantial evidence and the way we in New Zealand approach it.
    Professor Dawkins said Binnie’s dismissal of individual pieces of evidence was problematic and “corroborates the Minister of Justice’s conclusion that the finding in the report is not supported by robust reasoning and analysis”.

    And another by Prof Mark Henaghan.

    http://tvnz.co.nz/breakfast-news/judith-collins-being-responsible-expert-video-5292419

    So in conclusion all expert opinion from prominent law professors in this country coming out and stating that Binnies report was flawed and that Fishers reasoning was correct. But I guess they are just part of the ‘conspiracy’…..

    A

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  14. Tom Jackson (2,458 comments) says:

    Binnie did what was asked of him. He did weigh the cumulative evidence. It’s just that he didn’t understand he had to spell it out at playschool level for us dumb antipodeans.

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  15. Tom Jackson (2,458 comments) says:

    “expert opinion from prominent law professors”

    From Mickey Mouse universities in a Mickey Mouse country, no less.

    Making us look like even bigger rubes.

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  16. Tom Jackson (2,458 comments) says:

    “Binnie simply ignored some evidence, such as the fingerprints on the rifle.”

    He did not. He simply pointed out that police incompetence with evidence threw massive doubt on the value of that evidence.

    We could have known who did it 15 years ago if the police had done their job properly.

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  17. Chuck Bird (4,666 comments) says:

    “He did not. He simply pointed out that police incompetence with evidence threw massive doubt on the value of that evidence. ”

    That was not what he was paid to do. He should give us a refund.

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  18. Dexter (272 comments) says:

    “From Mickey Mouse universities in a Mickey Mouse country, no less. ”

    Here’s a clue, maybe, just maybe, law professors in this country might know a wee bit more about law in this country than an overseas Judge with no experience in this country. Now if you can get over your cringe worthy adulation and look at the fact’s rather than making these childish generalizations people might respect what you have to say, till then….

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  19. thedavincimode (6,527 comments) says:

    … fuck off?

    Works for me.

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  20. BeaB (2,056 comments) says:

    Guilty as sin. No money owed.

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  21. Colville (2,062 comments) says:

    Guilty as sin. No money owed.

    +1.

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  22. Elaycee (4,297 comments) says:

    Works for me.</blockquote

    Me too. He should get nothing. Nada. Zip. Zero. Zilch.

    But he should buy himself a Lotto ticket….

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  23. Elaycee (4,297 comments) says:

    Bugger: No edit function. :(

    Should have read:

    Works for me.

    Me too. He should get nothing. Nada. Zip. Zero. Zilch.

    But he should buy himself a Lotto ticket….

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  24. Chuck Bird (4,666 comments) says:

    Guilty as sin. No money owed.

    Except by Binnie for not doing what he was instructed to do.

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  25. Dotcom (1,386 comments) says:

    David Farrar, here is your expert legal opinion (in a series of short steps – posts):

    I’m sorry to be repeating myself, but I have been silent for a long time on this and I’ve been silent on some other important points that others in 18 years have never picked up on. Clearly, none of you commenters can see, just as Binnie didn’t see, the significance of this situation. It requires some above-average lateral thinking – to see the implications.

    Everyone wants to believe that the second jury found that David didn’t kill. This belief is simply unsustainable.

    If the jury thought that David “probaby killed”, which I am convinced the jury did find, then they were obliged to return a “not guilty” finding. My person belief is that David probably killed, but I have a doubt or two. I suspect every JFRB-type person would have to admit to some sort of nagging doubt somewhere. The questions the jury put to the Judge suggest that the jury thought David had probably killed, but each of the jury had at least one question of doubt – not necessarily all the same doubt, mind you. But even one reasonable doubt in jury member A, and another nagging doubt in jury member B (and so on), in otherwise unanimity of David probably being a killer, is enough to demand according to law, a “not guilty” vote.

    The significance of this bears on a huge number of the 900 or so comments above.

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  26. Dotcom (1,386 comments) says:

    The point is that if David “probably killed” he was entitled to be acquitted, but he is not entitled to compensation.

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  27. Dotcom (1,386 comments) says:

    Clearly Minister Collins thinks that David “probably killed”.

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  28. Dotcom (1,386 comments) says:

    Clearly too, Justice Binnie found that David “probably killed”, but he disqualified himself from taking this path. He said wrongly that he was legally bound by the only finders-of-fact, namely the second jury; and their conclusion of innocence. Binnie was pain wrong to limit their “not guilty” to meaning that conclusively, the jury thought that David didn’t kill.

    Binnie fundamentally erred on this basic point of law.

    On this point alone, Collins has no option but to reject the Binnie report on the grounds that it relies on a basic error of law.

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  29. Dotcom (1,386 comments) says:

    To explain slightly differently. The second jury might have found in one of four ways:

    a) That Robin killed beyond a reasonable doubt.
    b) That Robin probably killed.
    c) That David probably killed.
    d) That David killed beyond a reasonable doubt.

    In only one of these – (d) – Jury 2 was required to convict. But in only 2 of them – (a) and (b) – David would be entitled to compensation. Which leaves (c). In (c), Jury 2 was required to acquit, but David is not entitled to compensation.

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  30. mara (719 comments) says:

    Compo? WTF? Bottom line, Bain should still be in sing-sing and end his days there, considering the number of people he murdered. I am untutored in legal matters but am well experienced in matters of justice. We all know that justice and law are not the same thing; that’s not news and generally I wouldn’t bother ranting, but if I see a smiling , newly wealthy Bain on TV, I will puke.

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  31. Chuck Bird (4,666 comments) says:

    Dotcom, I think you are almost correct. One juror who went public that as you suggest. However, I would imagine those who hugged David and/or went to a party did not share her view. We will probably never know what the rest of the juror thought.

    The rest of what you say should be obvious. I am amazed that more people cannot see this. Lindy’s lawyer is a disgrace.

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  32. thedavincimode (6,527 comments) says:

    I have been silent for a long time on this

    But not long enough it would seem.

    It requires some above-average lateral thinking – to see the implications.

    We’re waiting. But in the meantime try some non-lateral thinking. The threshold for “guilty” is proof beyond a reasonable doubt. “Probably” and “nagging doubt” don’t enter into it.

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  33. gravedodger (1,509 comments) says:

    Anyone heard from Binnie lately, seems a great silence has descended.

    I agree with Inventory 2′s suggestion the Binnie J donate half his fee to Bain and Karam $100k each.

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  34. Dotcom (1,386 comments) says:

    Then there is the onus of proof. Which Binnie got wrong. Binnie repeatedly said that The Crown (which he consistently carelessly refered to as The Crown Law Office), failed to provide proof of their theories (and variations of “failed to provide prooof” meaning the same thing).

    Understand this. There were/are two completely separate legal suits. They must not be overlapped as people are almost universally wont to do.

    a) The Crown went to Court seeking a conviction of David Bain (Courts are the legislated decision-maker)

    and separately

    b) David Bain has sought compensation from the Government (the Cabinet has given itself decision-maker status in this instance so nothing to do with any decision of the Courts (though it may later be found to be judicially reviewable)).

    In any given legal suit, it is the suitor who has the onus of proving their claim. So the Crown had the onus in (a) and ultimately the Crown lost this suit.

    But in (b), the suitor is David, and that places on him, the onus to prove to the satisfaction of the decision-maker (Cabinet) that he can establish on the balance of probability, that he did not kill.

    Though Binnie described this correctly, in the event as regards (b), repeatedly Binnie used words in his report, that indicated that he was not true to his own instructions to himself.

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  35. scrubone (3,044 comments) says:

    1. You don’t need to be a legal expert to read the report and see that it’s comically biased. Evidence that Robin did it – examine carefully. Evidence that David did it – dismissed as undeterminate. There’s no sign of the supressed evidence that David planned a rape, but the supressed evidence of the incest allegations features prominently.

    2. From what I’ve heard of other compensation reports, the process was traumatic to the victim. There’s no suggestion of that here, suggesting that he didn’t really ask the hard questions at all.

    3. In other cases of compensation, the public would have been outraged had compensation not been awarded – or at least ambivalent. The public are firmly against this.

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  36. Dotcom (1,386 comments) says:

    Now David Farrar, if you we to be true to the purpose of this one thread, you would do yourself and many others a favour, if you were to remove the first 24 comments, and the 30th to 33rd comments from here, so as to leave what I *guarantee* will help everyone for the first time understand better than they do at present.

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  37. scrubone (3,044 comments) says:

    Dotcom (14) Says:
    December 19th, 2012 at 4:33 pm

    Nailed it.

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  38. Chuck Bird (4,666 comments) says:

    @Scrubone

    “There’s no sign of the supressed evidence that David planned a rape”

    We are on the same side but that is not quite true Binnie raised the issue with David but accepted David’s word and allowed him to defame a business man.

    “3. In other cases of compensation, the public would have been outraged had compensation not been awarded – or at least ambivalent. The public are firmly against this.”

    That is not quite true I had a debate with Leighton Smith on ZB this morning.

    There are a number of prominent people who have little understanding of the law who want to spend our money.

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  39. scrubone (3,044 comments) says:

    We are on the same side but that is not quite true Binnie raised the issue with David but accepted David’s word and allowed him to defame a business man.

    I stand corrected then.

    That is not quite true I had a debate with Leighton Smith on ZB this morning.

    A good majority of public are firmly against this then. Point remains the same though.

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  40. OneTrack (2,574 comments) says:

    Innocent until proven guilty.

    He is not guilty (as per the second jury), hence he is defined by the law as being innocent. Hence he gets a payout for false imprisonment.

    Can someone point out what is wrong with this, apart from you not personally liking it?

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  41. Akaroa (535 comments) says:

    One track at 5.27 (and others)

    A number of posters evidently believe that a Not Guilty verdict means ‘Innocent”.

    Taint necessarily so.

    ‘Not Guilty’ – in my humble understanding – means ‘insufficient evidence to reliably and safely return a ‘Guilty’ verdict”.

    In other words: “You did it alright. Its just that we can’t prove it”

    (I’m happy to be corrected by any more erudite poster.)

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  42. Chuck Bird (4,666 comments) says:

    “Can someone point out what is wrong with this, apart from you not personally liking it?”

    The law. I say he is not innocent but guilty on the balance of probabilities. I think there are a few here with a basic understanding of the law who agree with me.

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  43. Dotcom (1,386 comments) says:

    Repeated for OneTrack.

    Civil court actions are decided on a “balance of probability” basis.
    Criminal court actions are decided on a “beyond reasonable doubt” basis.
    These two concepts don’t overlap, and a finding of one is not a finding of the other.

    The second jury could have found in one of four ways:

    a) That Robin killed beyond a reasonable doubt.
    b) That Robin probably killed.
    c) That David probably killed.
    d) That David killed beyond a reasonable doubt.

    In only one of these – (d) – Jury 2 was required to convict.

    But in only 2 of them – (a) and (b) – David would be entitled to compensation.

    Which leaves (c).

    In (c), Jury 2 was required to acquit, but David is not entitled to compensation.

    I acknowledge that not everyone will “get” this complicated situtation. If you don’t “get” it, then please accept that a law career is not for you, and stay out of the legal debate. The law is based on thousands of years of international experience, and we are not going to change thousands of years of law, just for David Bain.

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  44. Dotcom (1,386 comments) says:

    There you go OneTrack, all three posts above saying exactly the same thing, just in different words.

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  45. OneTrack (2,574 comments) says:

    Akaroa at 5:45

    I think that the law says that a Not Guilty verdict DOES mean Innocent (until a better case can be put forward by the police).

    That’s why I made the first point. Any learned legal guru will no doubt say that our system is based on the model of “Innocent until proven guilty”. If a pillar of our justice system says that, by default, you are innocent until the police prove otherwise, then I think that says that Bain is now deemed “innocent”, hence compensation is due. It doesn’t mean he is innocent for ever more – the police could conceivably charge him again.

    The short story is, I don’t get why we have to pay a bunch of troughing lawyers more than we might actually give to Bain.

    That’s what I am asking for someone to explain because I just don’t get it.

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  46. OneTrack (2,574 comments) says:

    Dotcom 5:57 – Didn’t see those comments until I hit send but they all seem to fall into the “I don’t like it” camp as opposed to addressing my actual point.

    Regarding your comment, how do you know the jury didn’t decide that Robin actually did it – their verdict wasn’t “Not Guilty But We Think He Did it”. You also missed the fifth option – somebody else did it.

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  47. BlairM (2,286 comments) says:

    My point of view is that Bain was convicted, then, that conviction was found to be wrong by a jury of peers.

    Compensation is due, there is no need for a report.

    I don’t know if he did it or not, but, the justice system failed and for that fact alone compensation is due.

    Well where’s my fucking compensation then? If the justice system failed, then it has failed me, because it let a man who murdered his family go free. We’ve had years of this crap, this injustice, to have put up with. Any idiot with half a brain can look at all the evidence and determine on the balance of probabilities that David did it. 99% of the evidence points to David, the footprint and the length of time of his paper run are the only things that might point elsewhere. EVERYTHING ELSE conclusively points to David Bain. So fuck him and fuck his claim. He doesn’t get a cent of my tax money. They should give that to me and the other Justice For Robin Bain folk for putting up with these insufferable fools who get Mumia fever whenever some convict pleads innocent.

    David Bain should not get money just because a bunch of cops and lawyers did not do their job properly at the second trial.

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  48. David in Chch (508 comments) says:

    OneTrack: The problem is that we don’t use the Scottish system. Our legal system only allows for Guilty (i.e. ‘proven’) or Not Guilty (i.e. ‘not proven’). The Sots have _three_ possible outcomes: Guilty, Not Guilty, Innocent. I suspect that in the Bain case, the verdict would have been Not Guilty; the verdict would not have been Innocent. Do you get the difference yet? Not Guilty is NOT the same as innocent.

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  49. Nostalgia-NZ (4,898 comments) says:

    ’99% of the evidence points to David, the footprint and the length of time of his paper run are the only things that might point elsewhere.’ Those two point will do BlairM, although there is host more proving his innocence, glad you’ve got over yourself and admitting the evidence against Robin.

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  50. twistedlemon (110 comments) says:

    The only expert analysis I have read was in this article:

    http://www.nbr.co.nz/article/judith-collins-ducks-cover-bain-compo-stoush-rv-133867

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  51. Judith (7,486 comments) says:

    That found him not guilty beyond reasonable doubt. That’s it. Any thing else is speculation. One jury member speaking out, does not make a full jury. She did not have authority to speak for the others, and the other jurors have not bothered to support her. I fail to see how this guessing game can have a winner, there is no way of knowing who is right, because if they were going to speak up, they would have by now.

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  52. Dotcom (1,386 comments) says:

    David Farrar, such is the nature of blogging with unmediated comments. You ask for expert comment, and everyone appoints themselves as the expert you have sought, and inane comments carry the same weight as expert comments. This while genuinely expert comments result in insults from inexpert people whose see insult as a defence mechanism for their own self limitations. Such is life. You have your free expert opinion. And you have a whole lot of crap from people who can’t read your guidelines as applying to them. For your free expert opinion, I’ll accept a published word of thanks as full compenation.

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  53. RRM (9,427 comments) says:

    everyone appoints themselves as the expert you have sought, and inane comments carry the same weight as expert comments. This while genuinely expert comments result in insults from inexpert people whose see insult as a defence mechanism for their own self limitations. Such is life. You have your free expert opinion. And you have a whole lot of crap from people who can’t read your guidelines as applying to them. For your free expert opinion, I’ll accept a published word of thanks as full compenation.

    :roll:

    That’s one of the funniest things I’ve read on Kiwiblog all year. Keep it up, champ! :-P

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  54. bhudson (4,734 comments) says:

    That found him not guilty beyond reasonable doubt. That’s it. Any thing else is speculation.

    Incorrect, Judith. The only thing that can be determined from the verdict, with any level of certainty, is that the jury could not find him guilty beyond reasonable doubt.

    Anything else is speculation.

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  55. Chuck Bird (4,666 comments) says:

    @Dotcom

    What are your qualifications to call yourself an expert?

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  56. Keeping Stock (10,092 comments) says:

    bhudson nails it. If David Bain gets compensation simply because a High Court jury acquitted him, that would open the floodgates for all those acquitted of crimes to lodge compensation applications, especially those held in custody awaiting trial. The higher standard of proof (with the burden of proof being on the applicant) for compensation is there for good reason.

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  57. Nostalgia-NZ (4,898 comments) says:

    ‘Keeping Stock (8,451) Says:
    December 19th, 2012 at 9:05 pm
    bhudson nails it. If David Bain gets compensation simply because a High Court jury acquitted him, that would open the floodgates for all those acquitted of crimes to lodge compensation applications, especially those held in custody awaiting trial. The higher standard of proof (with the burden of proof being on the applicant) for compensation is there for good reason.’

    You’re ‘simply’ is overlooking a Miscarriage of Justice that resulted in 13 years of false imprisonment. The mistrial wasn’t supported by a later guilty verdict it was disemboweled by a not guilty verdict. Try to get it right.

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  58. ross69 (3,652 comments) says:

    > The mistrial wasn’t supported by a later guilty verdict it was disemboweled by a not guilty verdict

    The vast majority of aquittals aren’t supported by a later guilty verdict. Indeed, someone who is acquitted generally isn’t charged again. So anyone spending time in custody should, by your reasoning, be entitled to compensation when acquitted.

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  59. Judith (7,486 comments) says:

    Keeping Stock (8,451) Says:
    December 19th, 2012 at 9:05 pm

    But David Bain cannot get compensation just because he was found not guilty. The criteria is different. If that was the case, there would be no need for reports.

    He must prove himself innocent, or with extra-ordinary circumstances criteria. That is NOT at test that Courts/jury considers when deciding guilt or not.

    I personally believe that extraordinary circumstances exist in this case due to the fact that there was evidence (several pieces) that could have decided this case one way or the other. However, the collection and treatment of that evidence did not follow the correct procedure as outlined in official documentation. For that reason compensation must be paid. David Bain is unable to prove his innocence due to the incorrect handling of the crime scene. Just as it is impossible to prove Robin Bain’s guilt or innocence due to the same.

    Whilst it may seem a very bitter pill to swallow for those that believe in David’s guilt, that is unfortunately the price that must be paid when people charged with doing a certain job do not do it to the required level of competency. As those people were government employees, we must all pay for their ineptitude. If that means a guilty man is paid, then so be it. Although I do not believe that is the case.

    Perhaps we should be putting our energy in to making sure there is never any doubt in future tragedies of this kind.

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  60. ross69 (3,652 comments) says:

    > David Bain is unable to prove his innocence due to the incorrect handling of the crime scene.

    He cannot prove his innocence because he left behind incriminating evidence. That’s what happens when you murder your family.

    However, if you feel so strongly about David’s innocence, there is nothing to stop you from setting up a fund for him.

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  61. ross69 (3,652 comments) says:

    > we must all pay for their ineptitude.

    Funny but I haven’t heard you talk about Binnie’s ineptitude. He could donate a sizable chunk of the 400k he’s received to Bain.

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  62. BlairM (2,286 comments) says:

    ’99% of the evidence points to David, the footprint and the length of time of his paper run are the only things that might point elsewhere.’ Those two point will do BlairM, although there is host more proving his innocence, glad you’ve got over yourself and admitting the evidence against Robin.

    I don’t think it will do at all. Ambiguous footprint sizes are somewhat outweighed by the utter stupidity of believing that Robin killed his own family on a full bladder, resetting his alarm clock after rising early, using David’s clothes, David’s rifle, the key that only David had hitherto known existed, being thoughtful enough to use the washing machine after doing the deed, changing clothes, planting David’s broken glasses in Stephen’s room, typing a ludicrous message to David on the computer when a note in his handwriting would have sufficed, magically wiping the rifle clean of his own prints, not bothering to take the silencer off, and holding the gun -without sweating at all – in the most awkward angle possible to top himself, before using his last breath to set the bullet cartridge on its edge. I’m not saying it’s impossible that that actually did happen, but I think that it is so unlikely that there is simply no way I can believe it did. But you are entitled to be a nutcase who says otherwise.

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  63. Kanz (1,222 comments) says:

    ross69 (1,333) Says:
    December 19th, 2012 at 9:42 pm

    However, if you feel so strongly about David’s innocence, there is nothing to stop you from setting up a fund for him.

    Actually, it will be far more satisfying to watch it come out of your pocket by way of taxes. ;)

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  64. bhudson (4,734 comments) says:

    Actually, it will be far more satisfying to watch it come out of your pocket by way of taxes

    Well those taxes did pay for his years of incarceration. Not satisfying enough for you?

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  65. Keeping Stock (10,092 comments) says:

    Judith said

    I personally believe that extraordinary circumstances exist in this case due to the fact that there was evidence (several pieces) that could have decided this case one way or the other.

    Are you agreeing Judith that there was actually evidence against David Bain? After all, the defence put the scenario to the jury that it had to be either David or Robin, and you’re saying that there was evidence “that could have decided this case one way or the other.”. If that’s the case, then how can anyone find that David Bain is innocent on the balance of probabilities if there was evidence that could have seen him convicted?

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  66. ross69 (3,652 comments) says:

    > Actually, it will be far more satisfying to watch it come out of your pocket by way of taxes

    If you’re feeling that lucky, may I suggest you buy a Lotto ticket? :)

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  67. Kanz (1,222 comments) says:

    bhudson (2,997) Says:
    December 19th, 2012 at 9:58 pm

    Well those taxes did pay for his years of incarceration. Not satisfying enough for you?

    Nope.

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  68. Nookin (3,033 comments) says:

    Although DPF is calling for the opinion of an expert, I want to make it clear that this is not necessarily my area of expertise. However, I have been known to find my way around legal arguments and jurisprudential issues.

    I have not analysed the entirety of the Binnie or Fisher reports. These reports have been released at a time of year for which clients have, by design or otherwise, saved their most pressing, urgent and urgent work and there simply is not time to do justice to the views and reputations of either gentlemen.

    I have looked at the approaches to circumstantial evidence. Fisher opines that Binnie J has applied an inappropriate and incorrect test to the assessment of circumstantial evidence.

    He has assessed individual items and, if they do not pass his “probability” test, he discards them altogether.

    Fisher J states that this is not the appropriate approach and is not how circumstantial evidence is considered in New Zealand or, indeed, in other jurisdictions.

    He asserts that the assessment of circumstantial evidence in the Binnie report is contrary to the law in New Zealand. This is one of the reasons why Collins doubts the validity of the Binnie report

    His criticism of the approach is encapsulated in the following paragraph of his report:

    “1 7. In addition to that problem, the way in which Binnie J approached the
    cumulative significance of the evidence in its totality seriously skewed the exercise
    towards an innocence outcome. That followed from an approach which began with a
    provisional conclusion of innocence based on a single item of evidence followed by
    serial comparison of that item with each of the others. This too is contrary to the way
    in which circumstantial evidence cases are assessed in this country and elsewhere.
    The process adopted had much in common with the selection of a champion
    gladiator against whom all others are tested singly and in turn. The problem with that
    approach is that one never finds out what would have happened if the battle had been
    waged between the full armies for each side.”

    Fisher J’s reference to the “gladiator” approach is illustrated by the following passage in his report:

    “89. The way in which Binnie J related one item of evidence to another began with
    luminol footprints. In his view the luminol footprints “were probably made by Robin
    rather than David Bain” (his emphasis).67 That was to become “the foundation of my
    conclusion of factual innocence”.68 Other items were then measured directly or
    indirectly in turn against that starting point.”

    The luminal footprints are acknowledged, by Binnie, to be his gladiator.

    The outcome, as illustrated by a series of examples in the official report, is that a number of items of evidence were never brought into the equation when the ultimate question was asked. They had all been dealt with by the gladiator perceived to be the strongest.

    This may well seem altogether esoterical. However, it is an established approach to the assessment of circumstantial evidence in New Zealand and it any other approach is contrary to New Zealand law and of the law of other jurisdictions.

    By way of example, the extracts at the end of this post are from a recent Court Of Appeal Case.
    Fisher’s view is that although Binnie J may have enunciated the test correctly but then proceeded to apply at incorrectly. As a result, many items of evidence that commenters on this and other threads have beaten half to death were discarded. The debate on this blog alone clearly shows that those with a passionate belief one way or another are not prepared to discard them. They disagree on weight or significance but do not discard them as non-fact.

    Ultimately, Binnie J may have come to the correct conclusion. Fisher acknowledges the possibility. He also stresses that exculpatory evidence was also excluded.

    Process is stressed in many employment cases. Most commenters here are well aware that employers have ended up paying compensation where they have failed to follow the correct procedure. The rationale is quite simple. The incorrect process may lead to a correct result but this is more luck than good management. A sound reasoning process is much more likely to result in a sound outcome. Get the facts and develop the theory. Do not get one facts, develop a theory and discard inconsistent facts

    Without analysing the minutiae of individual examples, I believe Fisher’s reasons to be sound and must create some concern as to the validity of the final, conclusions.

    This is what the Court of Appeal had to say when it last dealt with circumstantial evidence.
    Paragraph [49] is the summing up of the trial judge. Exception was taken to that summing up and the Court of Appeal response to that exception can be found in paragraph 29. Paragraph 29 explains the justification for the holistic approach.

    “[49] What the law requires of you the jury is to take an holistic
    assessment of the evidence as a whole. In other words, on an holistic
    assessment of all the evidence are you satisfied beyond reasonable doubt,
    that is, are you sure that the accused was the perpetrator of these acts? If you
    are sure he was then you will find the accused guilty if your answers to the
    questions in your flowcharts are positive. And just to expand on how the
    law directs you to consider circumstantial evidence, the law is that the
    Crown does not have to prove each circumstance beyond reasonable doubt
    before you can take that circumstance into account and add it to the whole.
    As I’ve said the law requires you to make an holistic assessment of the
    evidence as a whole. And the law is that circumstantial evidence relies on
    reasoning by inference, and derives its force from the involvement of a
    number of factors which when combined points to the guilt of the accused.
    The analogy is often drawn of a rope. Any one strand of the rope may not
    support a particular weight, but the combined strands are sufficient to do so.
    And I remind you that the logic that underpins a circumstantial case is that
    the accused is either guilty or is the victim of an implausible sequence of
    coincidences. When you consider a circumstantial case against the accused
    you also need to have regard to what might be called defence circumstances
    which are circumstances that favour the defence. “

    The Court of Appeal responded to criticism of circumstantial evidence as follows

    “ [29] ………………We are not persuaded that this point has any substance. Indeed, the direction given follows the usual pattern. Circumstantial evidence relies on reasoning by inference and derives its force from the combination of a number of factors that independently point to the guilt of the accused. Logically, there may be two
    explanations for a series of such factors. One may be that the accused has simply
    been the unfortunate victim of a series of coincidental circumstances and that he is in
    fact innocent. The other is that the combined weight of the factors point towards his
    guilt. Where there are a series of factors clearly pointing to the guilt of the accused,
    it is unlikely (or implausible) that all of these factors could be explained as unlucky
    coincidences. There was no misdirection on this issue.”

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  69. Rowan (1,778 comments) says:

    BlairM @ 9.52
    “Davids clothes… Davids Glasses etc, Really where did you come up with this one from, it has never been suggested by the crown or the defence that the Robin wore Davids clothes similary it is now (as correctly shown in the second trial) and not in dispute that the glasses were a spare pare of Margarets. Despite various testimony showing that the green jersey was Robins and sometimes worn by Arawa and despite that the Jersey was demonstrated in 1995 was ridiculously to small for David, David was 6’4 and Robin and Arawa were 5’9 yet ‘Robin wore Davids Clothes’ Bill Wright in 1995 tries to say that ownership is irrelevant in the case of the glasses yet you are trying to have a bob each way here by ‘the key that only David had hitherto known existed’ being significant evidence of his guilt, I could go on but can’t be bothered your analysis of the case is ridiculous and not supported by the facts accepted at the retrial

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  70. Rowan (1,778 comments) says:

    Keeping Stock
    There could have been significantly more evidence taken if the crown had done there job, ie if either David or Robin had tested positive for gunpowder residue at the time then we wouldn’t be debating this nearly 20 years down the track, similarly blood samples from Robin Bain being not collected or destroyed prior to testing, the delay in admitting the patholigist remember the house was burnt down 3 weeks after the events without collecting the footprint samples
    The circumstantial evidence has been discussed in much detail by Binnie, should we really accept Kim Jones’s fingerprint evidence about the blood luminescing under the polilight? remember his 1995 evidence was shown to be completly wrong (by his own admission) and he even disputes the evidence of the other crown scientists Hentschell and Cropp!! Similarly the glasses and the gurgling

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  71. Rowan (1,778 comments) says:

    Keeping Stock
    I believe this goes beyond ineptitude when you look at some aspects of it, most of the investigation can be incompetent but not necessarily intentional however considering disclosure then the actions back in 1995 seem to go beyond incompetence i.e. when trying to establish the computer time Det Andersons watch was used, it didn’t have a second hand and only had 5 min time intervals, yet when established that the watch was 2min fast, this was not disclosed to the defence and not found out until after the trial. Anderson defence, he would have “told the truth about the watch if he had been asked”, timing is a very critical part of the prosecution case yet this and the second Denise Laney statement were not disclosed

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  72. BlairM (2,286 comments) says:

    Rowan – you can bat away the volume of strange coincidences all you want, but there are just too many of them. What suicidal killer does laundry and gets the paper in from the front gate? Unless he set out to deliberately frame David, the idea is ridiculous. That is what we are being asked to believe, but… then to do that, we have to believe the computer note was a false sentiment! Clever, crafty Robin plans to frame David for the murder, but then writes a note that he thinks is going to look like David wrote it to frame him! Oh, the twisted genius of it all! Except… that’s the most ridiculous bollocks I ever heard.

    Give it up. All the evidence points to David. It’s Ockham’s razor. Isn’t it just far more plausible to believe that David did all this? That the killer, still alive, would have a vested interest in washing the bloodstained clothing? To me, it fits like those white formal gloves he wore when he did the deed.

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  73. Bogusnews (441 comments) says:

    From a previous kiwiblog article:

    So what do you have to believe to think Robin was the killer? This list is not comprehensive, and is even a bit repetitive. But here goes:
    1. It was a lucky guess when David Bain told 111 ambulance officer they are all dead, despite later saying he only saw two bodies
    2. Again a lucky guess hen DB told police officer they are all dead
    3. The 25 minute gap between DB finding his family dead and calling 111 is in no way connected with trying to wash clothes and removed blood.
    4. The bruise on David’s head and scratches on his chest and graze on his knee – none of which he could explain, were just a coincidence
    5. The lens from his glasses found in Stephen’s room happened weeks ago and he never noticed OR someone else had borrowed the glasses
    6. The lack of fresh injuries on Robin despite the massive struggle with Stephen is just the product of healthy living
    7. David’s finger prints on gun are from a previous time
    8. David telling a friend he had premonition something bad was going to happen was a genuine psychic experience
    9. Stephen’s blood on David’s clothing was nothing to do with the struggle – OR someone else borrowed his clothes
    10. Robin managed to execute his family on a full bladder
    11. The lock and key to the rifle being found in David’s room is not relevant as they were obviously placed there
    12. Robin decided to wash David’s green jersey to remove blood and the fibres from jersey found under Steven’s finger nails
    13. David’s bloody palm print on the washing machine was from him checking the bodies
    14. The Ambulance officer was wrong when he said in his opinion Bain was pretending to have a fit
    15. Robin Bain would logically wear gloves to prevent fingerprints despite it being a murder-suicide
    16. That Robin Bain would type a message on a computer for David telling him he is the only one who deserves to live, instead of writing a note. A hand written note incidentally would have cleared David.
    17. Also that having just shot his family, and knowing David was due home, that Robin would wait 44 seconds for the computer to boot up to leave a message
    18. Robin would decide David deserved to live, but go out of his way to frame him for murder
    19. Robin Bain placed fibres from Davids jersey under Stephen’s finger nails
    20. Robin Bain would shoot himself with a gun in the most awkward way possible?
    21. That Robin Bain changed jerseys after he had killed his family and in particular Stephen Bain, washed the jersey, hung it on the line and then change into a brown jersey before killing himself?
    22. That there is a logical reason that David Bain can not account for the injuries on his face, the bruise or the scraped knee, yet knows he did not have them during his paper run.
    23. That Robin Bain put blood on the inside of David’s duvet and on his light switch
    24. That there is an innocent explanation for why David says he put on washing before he discovered the bodies, yet there is a blood print on the washing machine.
    25. That Laniet was being paranoid when she told friends she was scared of David
    26. That the “family meeting” David called the previous night and insisted everyone attended was not a way to make sure everyone would be at home to kill.
    27. That Robin Bain would wear a hat while shooting himself in the head.
    28. That even though David told a relative he hated his father, his father did not know this and deliberately decided David was the only one who deserved to live
    29. That David either imagined hearing Laniet gurgling or she gurgled 20 minutes after death
    30. That Laniet allegation of incest with Robin was true, as was her claims she had given birth three times by the age of 12 and a half.
    31. That Robin Bain managed to kill four family members without a single trace of his blood, skin, or DNA being left at the scene.
    32. That it is a coincidence that on the morning of the murders Bain took his dog onto a property, ensuring he would be noticed to give him an alibi.
    33. That the magazine found balanced on an edge next to Robin was not placed there by David but fell onto its edge from Robin’s arms.
    34. That a sickly Robin Bain managed to overpower his teenage son who put up a furious fight
    35. That Robin Bain went and got the newspaper from outside, despite planning to shoot himself

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  74. Scott1 (444 comments) says:

    Im not an expert in this but considering the topic i think we can all make ourselfves experts on the key issue quite quickly.

    as i stated before – we need to get as many previous reports on compensation in NZ as possible (with instructions given for comparison) and see how they are written. the implication of fishers most relevant point (discarding the challangeability argument) would imply that those reports will be written in such a way as to combine probabilities at the end as opposed to the methodology that Binnie used and that fisher suggests is flawed.

    if fisher is right and i presume he would not be mistaken (although it is worth checking, in part to see the extent to which this is true) then surely the minister can reject the report.

    Beyond that I think we can accept fisher’s (NZ’s) methodology is superior.

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  75. thedavincimode (6,527 comments) says:

    BlairM

    Isn’t it just far more plausible

    Therein lies the problem. When you read Binnie, Fisher, and the PC and consider the questions arising from the issues around the evidence, the performance of defence counsel at the first trial (including pre-trial) and the questions that weren’t asked at the first trial and by Binnie, the people Binnie didn’t or couldn’t speak to, the forensic evidence that wasn’t collected, the Police investigation and the piss poor work at the crime scene, and then take into account that witnesses can make honest mistakes and nobody rabbiting on about it here has actually heard and seen the evidence presented first hand, it comes down to plausibility as much as anything which isn’t the basis of determining a compensation claim. I’ve only read through that crap once, and haven’t looked at the trial transcripts, but based on that once over lightly review, I can’t see how anyone can say that Bain has a snowball’s chance in hell of proving his innocence on balance of probabilities any more than the Crown had a hope of proving guilt beyond reasonable doubt. Nor can Bain prove his innocence deductively by proving Robin’s guilt. G** knows how a referee is menat to weigh that lot up (other than not the way Binnie did it).

    So when it comes down to expressing a view one way or the other, where there is not only the absence of a silver bullet, but incomplete, uncertain and conflicting evidence, those of us without the legal skills to do the job properly are left with plausibility: $600,000 + goat molesting + deserving to live as the apple of his father’s eye + Laniet’s reliability + animal lover who shoots animals + weirdo versus depression + incest + kill everyone who knew except David because he won’t tell.

    That’s an easy equation to resolve, except there are two camps with opposing answers and one camp thinks he should still be compensated simply because of the delay and the not guilty finding at the second trial. None of that has anything to do with the current regime for compensation which has been subject of input from the Law Commission.

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  76. SPC (5,334 comments) says:

    The Minister has made it clear that compensation would not be based on a differentiation between not guilty and innocence, but on Crown culpability for a flawed process.

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  77. Scott1 (444 comments) says:

    Bogus,
    well what one needs for tht is a list of how stringly each of those indicates davids guilt then compared to the luminol footprints and all the rest that indicates robins guilt. then we would have the report as fisher indicates it should have been written..

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  78. SPC (5,334 comments) says:

    Why is there a presumption that one or the other did it?

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  79. Scott1 (444 comments) says:

    SPC
    well the person seems to know where the gun is kept and the key.
    that implies david and possibly any other family member who had some time to look around his room at some stage.
    Lots of killing of sleeping or recently sleeping people at close range – that sounds like a person who knows the victims.
    Bloody clothes washed by david..

    In general it seems pretty hard to write a story involving another party unless david was in on it…

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  80. Scott1 (444 comments) says:

    But i’d be interested if you have a hypothesis…

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  81. ross69 (3,652 comments) says:

    > Nor can Bain prove his innocence deductively by proving Robin’s guilt.

    Well, in theory David could prove Robin’s guilt. But he would need strong evidence to support his arguments. A hand-written suicide note, for example, would be helpful. If Robin had called police moments before killing himself, and had admitted to the crimes, that would also be helpful. The trouble is, there is little incriminating evidence implicating Robin. Which is weird considering he is supposed to have murdered his family…

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  82. sgthree (7 comments) says:

    A point that has been made a number of times is that Binnie was appointed a judge direct to the Canadian Supreme Court. That point seems to have been made in the context that his appointment was political, not necessarily based on merit.. An aspect that I have not seen raised, which is, I suggest, of far greater significance, is that appellate courts such as the Supreme Court, deal solely in questions of law. Findings of fact are generally left to the court of first instance.

    This would mean that Binnie, despite his 12 years on the Supreme Court Bench, would have had zero experience assessing witnesses and establishing findings of fact in his capacity as a judge.

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  83. ross69 (3,652 comments) says:

    “17. Also that having just shot his family, and knowing David was due home, that Robin would wait 44 seconds for the computer to boot up to leave a message”

    According to Binnie, David may have already been back home when Robin committed the murders and then killed himself. He doesn’t seem to think this is odd at all!

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  84. SPC (5,334 comments) says:

    Someone who knew the family would be asleep while the son was out on the paper run.

    Someone who knew there was a gun in the house.

    Someone who knew about the jersey – either wearing one like it or the one in the house, before washing it.

    Sure that does not preclude the survivor being involved. But the alternative setting them up to be the suspect.

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  85. thedavincimode (6,527 comments) says:

    SPC

    Pleeeaase, noooooooooo.

    It’ll never stop anyway. Do you have to make it worse. :(

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  86. SPC (5,334 comments) says:

    the davincimode

    Just saying that presumptions are just that, and have little place in evidence based decion-making.

    Follow the money … (motive). There are other living relatives, who can join the list of suspects.

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  87. thedavincimode (6,527 comments) says:

    … but that said …

    Anyone who knew David would likely have known he had a gun and possibly also where the gunlock key was. The jersey is a red herring. But the unsub (!) could have then planted the lense. Bain would then have come home and put the washing on as per …

    Yes, it’s all starting to fall into place …. Motive?? To frame David or to frame Robin and why?

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  88. mikenmild (10,618 comments) says:

    What about a theory that David AND Robin were both responsible…

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  89. SPC (5,334 comments) says:

    Just ask Bernard Hickey.

    An old person with an interest in money.

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  90. BlairM (2,286 comments) says:

    SPC – sure, Robin is plausible as the killer. You would have to believe, however, that he intended to frame David, so calculating is the evidence available to us. And yet, despite those meticulous efforts, he then ruins it by implicating himself on the computer? As I said, you would have to believe that it was part of some shell game to make it look like David was the one doing the framing, but in that case, why leave a message at all? No, too many logical cartwheels for that scenario. Far more probable that David did it all, maybe dicey for a jury deciding reasonable doubt, but a no-brainer for anyone looking at balance of probabilities.

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  91. thedavincimode (6,527 comments) says:

    Ah, but that would mean that the job was incomplete there was a survivor who was inadequately framed – why the computer message? Why wasn’t David nobbled on his return. Presumably the perp knew he had a paper round and waited until he was gone to get the gun.

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  92. SPC (5,334 comments) says:

    mikenmild

    What would the common motive be?

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  93. thedavincimode (6,527 comments) says:

    milky

    You will be late for work. Piss off.

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  94. mikenmild (10,618 comments) says:

    Mass-murder-suicide pact with the final participant changing his mind?

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  95. SPC (5,334 comments) says:

    BlairM.

    I am not suggesting anyone in particular did it. In fact saying that suspects apart from the father or son have been neglected.

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  96. SPC (5,334 comments) says:

    davincimode,

    Leaving the son alive to be the suspect was the way to avoid suspicion.

    The computer message, as has been noted (lacking the handwriting) is not convincing. It is more likely to puish suspcicion onto the survivor.

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  97. BlairM (2,286 comments) says:

    SPC – Ah yes, those folk that randomly pop into strangers house, murder the whole family, then are kind enough to do their laundry after?

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  98. SPC (5,334 comments) says:

    BlairM.

    The nearest living relative as only viable supsect theory …

    Why not the nearest living suspect able to inherit if that person is in prison?

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  99. thedavincimode (6,527 comments) says:

    BlairM

    No no no. The cunning SPC theory, which does not involve random strangers, is not inconsistent with David’s story about doing the washing, the palm print or the sock prints.

    So, who paid for the house?

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  100. ross69 (3,652 comments) says:

    > What about a theory that David AND Robin were both responsible…

    Well, yes, I can accept that Robin might have turned on the computer and brought in the newspaper. :)

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  101. SPC (5,334 comments) says:

    As to the laundry – and that jersey in it. Simple matter 6’4 or 5’9 size. But that does not prove who was wearing it or that it is the one that was worn by the killer. There are other jerseys of a different size of the same type.

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  102. ross69 (3,652 comments) says:

    > The nearest living relative as only viable supsect theory …

    Except they didnt kill David. Since they’d gone to the trouble of killing 5, why not kill one more? It doesn’t make any sense.

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  103. Chuck Bird (4,666 comments) says:

    The thing the that worries me is that if Binnie is consider to have a great legal brain how bright are the other judge who we are meant to address as follows when we write to them.

    MEMORANDUM TO HIS HONOUR THE LEARNED HIGH COURT JUDGE

    Bringing in an activist judge with no background in criminal law is a mistake Judith has to deal with.

    When you look at the quantity of some lawyers like the one this thread started about it is a worry that some lawyers like Tipple end up being judges because they kiss the right arses.

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  104. thedavincimode (6,527 comments) says:

    why not kill one more

    Exactly – after all, at five you would only just be getting into the swing of things.

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  105. thedavincimode (6,527 comments) says:

    Chuck Bird

    An even bigger worry is the prospect that commentators on these bain threads might ever wind up on juries or, horror, on the same jury.

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  106. SPC (5,334 comments) says:

    ross69,

    And the father or son killing their family does?

    The nearest living relative as suspect means

    1. the case is closed
    2. the inheritance motive is not in play for any other suspect.

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  107. SPC (5,334 comments) says:

    thedavincimode

    Someone can come in to a house and start up a washing machine and then later go back to it and leave a palm print on it.

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  108. thedavincimode (6,527 comments) says:

    ??

    But why does your mystery perp option exclude bain as the washing machine operative?

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  109. thedavincimode (6,527 comments) says:

    %$@* … hence the palm print ..

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  110. SPC (5,334 comments) says:

    I was referring to your 7.49 post.

    Someone doing the shooting before David Bain comes home and turns on the washing machine and returns to it after finding bodies and leaves the palm print on it at this point is not dismissable. Nor does Robin Bain have to be the shooter.

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  111. Chuck Bird (4,666 comments) says:

    “Chuck Bird

    An even bigger worry is the prospect that commentators on these bain threads might ever wind up on juries or, horror, on the same jury.”

    @thedavincimode

    Yeah, especially the pro Bain cheer team.

    I ended up on a jury with someone like that who managed to be foreman.

    After the judges summing up I got sick of his bullshit and said “We have listened to three days of crap. This case should not have gone to trial. It is hot and I am thirsty I say not guilty.” I then went around the room and he was last and did not like but he said not guilty. I then joined the accuse who was fitted at the pub along with other jurors as the accused was innocent as opposed to just not guilty.

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  112. Chuck Bird (4,666 comments) says:

    SPC (1,681) Says:
    December 20th, 2012 at 8:21 am

    I was referring to your 7.49 post.

    Someone doing the shooting before David Bain comes home and turns on the washing machine and returns to it after finding bodies and leaves the palm print on it at this point is not dismissable. Nor does Robin Bain have to be the shooter.

    Have you considered the goat? It may have been grateful for David protecting him from Buckley and spared him.

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  113. SPC (5,334 comments) says:

    I do consider the Privy Council decision to award a retrial and a jury finding someone not proven guilty sufficient reason to challenge acceptance that anyone had been determined to have done it.

    Nor do I find this reason to limit alternative suspects to just one of the dead. Even if the defence of one suspect was based on raising that alternative possibility. Really to show that circumstantial evidence will always implicate those at the scene.

    In the end it is those who are convinced they know, when they do not, are the ones immune to evidence.

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  114. Bogusnews (441 comments) says:

    That list to me is compelling.

    Now, to each item, Joe Karam would give us a “Yes but…” and make (quite often) a reasonable argument to counter it. But to my mind I think the cumulative effect of the list is a powerful reason to ask, can David prove himself innocent? Does he deserve a payout?

    In my view, in spite of the desperate attempts of the herald to proclaim him innocent, my answer is: No – bloody – way.

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