As Dr Fisher points out, a circumstantial case depends on the strength of a single rope made up of many strands, any one of which may be insufficient. Justice Binnie’s method is to begin with the Luminol footprints, the weakest strand (at least in the sense of being the most technical and therefore technically arguable), declare it favours David Bain, and then bring each of the other strands in the case up against those footprints and find it wanting. And it is to the footprints he returns first in his “Summary and conclusions as to factual innocence” (p.138).
Yet even Justice Binnie admits “‘luminescence’ in the dark does not exactly give rise to laser-like accuracy”, and agrees “there must be some room for error in the Luminol measurement” (p.79/257). It seems strange, therefore, that he has “no hesitation in recommending that the Minister accept the results of the tests of Mr Walsh” [for the Defence] (p.77/251), and proceeds from that point in a manner which suggests the case for innocence has been made and needs only be demonstrated by reiterating the defence argument against each of the other strands.
His consequent bias is apparent in statements like the following: “It is only the fingerprint blood that can tie David Bain rather than Robin Bain to the killings.”Only? And there is nothing at all that can tie Robin to the murder weapon except that he was killed with it!
Another example of this bias: “Nothing has been established beyond a reasonable doubt. Nevertheless, the cumulative effect of the items of physical evidence, considered item by item both individually and collectively, and considered in the light of my interview with David Bain” [my italics] … “persuade me that David Bain is factually innocent” (p.139/ 463). But why should items of fact, none of which, Justice Binnie concedes, is “free of difficulty”, be considered “in the light of” the accused’s own testimony, which is more likely than any other to be false?
A further example: “If David Bain’s recollection … is accepted, and I do accept it, then the force of the prosecution’s argument … is much diminished” (p.38/124). But of course if we only have to go to David Bain for the truth, then the prosecution’s argument is not just diminished – it’s dead! What kind of source is the accused for the truth of the matter in a case of murder?
As several law professors have also pointed out, Binnie measured evidence one by one against the footprint, rather than consider it in the totality. And his statement that only the fingerprint blood ties David to the killings is staggering.
Predisposed as he is, Justice Binnie is able to wave away David’s brother’s blood on his clothes; the broken glasses at the murder scene which were of use to David but not to Robin; David’s fingerprints on the murder weapon and his handprint on the washing machine; David’s admission that he heard his sister gurgling and that he alone knew where the trigger key to the rifle was hidden; the blood on David’s gloves – and many other finer strands in that rope of circumstantial evidence. Instead of David Bain as the killer, Justice Binnie offers us (since there is no third alternative) a murder by the father, Robin, who must have worn gloves (why?) while killing his wife and children, then changed his clothes and put the blood-stained ones in the washing basket (again, why?) before killing himself, still with a silencer on the rifle (why?) and having first turned on the computer to write his confession rather than writing it by hand. Justice Binnie dispenses, it seems to me almost casually, with each of these elements, as with David’s strange behaviour after the murders.
Why would you spare your son, only to then frame him for the crime, yet also do a confession so he is not blamed, but also do a confession in a way that can’t prove you wrote it?
In every case where the original police enquiry failed to preserve, or to look for, evidence – Robin’s hands which should have been checked for gunshot residue, and fingernails for any signs of a fight with Steven, the bloodstained carpet, the whole house which was allowed to be burned down – the David Bain team has used this failure as if here was a piece of evidence that would have cleared his name; and Justice Binnie has tended to follow them in this. But in each case it could be (and in my view equally or more likely was) the destruction of an incontrovertibly damning piece of evidence for the prosecution.
The Police did make mistakes. I agree that if they had not, there is no guarantee at all they would have favoured David.
One final word against the payment of compensation: to say, as Justice Binnie does, that the “factual innocence” of David has been established clearly implies the “factual guilt” of the father, Robin. Yet no case has ever been made against him, except by implication. And if the case were made, it would be so much weaker than the one against his son that it would not stand inspection for more than a few minutes. I don’t think a decision by the New Zealand Government should be allowed to label Robin Bain the murderer of his family.
If one accepts that the only two possibilities are David did it, or Robin did it, what I’d like to see in an properly done independent report is a summary of the evidence for both cases. Here’s how it happened if David did it, and what evidence there is for it, and here’s how it happened if Robin did it, and what evidence there is for it – with the evidence considered in totality – not in isolation.
I’m not opposed to compensation if an independent report that applies the correct procedure to the evidence reaches the conclusion that Robin was the more likely killer than David. I’ll be surprised, but prepared to accept it. Sadly for all, the Binnie report didn’t qualify.