Bain report leak

February 18th, 2016 at 9:00 am by David Farrar

Stuff reports:

David Bain’s years-long fight for compensation for wrongful conviction and imprisonment reportedly faces a fresh setback.

The government has just received a new report by retired Australian judge Ian Callinan, QC, four years after it shelved another judge’s inquiry backing compensation for Bain.

The government is yet to consider the confidential report, but its key finding – that Bain does not meet the “innocent beyond reasonable doubt” threshold – has already been leaked to the New Zealand Herald.

This does not mean he will not get compensation. To summarise there are four possible conclusions that can be reached:

  • Guilty beyond reasonable doubt – not available as a jury has found this not to be the case
  • Guilty on balance of probabilities – will not get compensation
  • Innocent on balance of probabilities – may get compensation
  • Innocent beyond reasonable doubt – will get compensation

It is no big surprise that he has not been found innocent beyond reasonable doubt. There is plenty of doubt.

The big question is whether the report has found him guilty or innocent on the balance of probabilities.

My view is that if he is found innocent on balance of probabilities, he should get compensation.

Thinking further about this though, the judge would only have looked at innocent beyond reasonable doubt if he had already established innocent on the balance of probabilities. So it appears we do know the outcome – that the judge has determined that when you take all the evidence together, it is more likely Bain is innocent than guilty.

Again if this is the case, I think Bain should get compensation.  It is time for the saga to end.

Callinan appointed for Bain case

March 20th, 2015 at 4:12 pm by David Farrar

Amy Adams has announced:

A senior retired Australian judge has been appointed to head up the inquiry into David Bain’s compensation claim, Justice Minister Amy Adams announced today.

Hon Ian Callinan AC QC, a former Justice of the High Court of Australia, has been appointed to conduct a fresh inquiry into Mr Bain’s claim for compensation for wrongful conviction and imprisonment.

“Mr Callinan is a distinguished and highly respected member of the Australian legal fraternity. He brings a diverse mix of experience and expertise, following an exemplary career of nearly forty years practice as a lawyer and nine years on the bench of the High Court of Australia,” says Ms Adams.

The Australian High Court is the equivalent of our Supreme Court. He has been a QC for 37 years, and is a former President of the Australian Bar Association. Unusually for a lawyer, he has prosecuted a sitting High Court Justice (Lionel Murphy) for perverting the course of justice. He also took part in the Fitzgerald Inquiry into police corruption in Queensland.

He looks a good choice.

Mr Callinan’s role is to provide advice on questions relevant to Cabinet’s determination. Initially, Mr Callinan has been asked to advise whether he is satisfied that Mr Bain has proven that he is innocent of murder on the balance of probabilities and, if so, whether he is also satisfied Mr Bain has proven he is innocent beyond reasonable doubt. Mr Callinan is being asked the latter question at this stage because Cabinet has previously treated innocence beyond reasonable doubt as an example of “extraordinary circumstances”.

It’s fascinating that he has been asked to advise both on whether Bain is innocent on balance of probabilities and innocent beyond reasonable doubt. This will actually help get closure for this long running case.

Broadly there are four possibilities with regard to David Bain and the murder of his family. They are:

  1. David Bain is guilty beyond reasonable doubt – ruled by the second jury that he is not, so no longer a possibility
  2. David Bain is guilty on the balance of probabilities – if found to be so by Callinan, then no compensation
  3. David Bain is innocent on the balance of probabilities – if found to be so by Callinan, then eligible for compensation if there are “extraordinary circumstances”
  4. David Bain is innocent beyond reasonable doubt – if found to be so by Callinan, then almost beyound doubt he will get compensation

So (1) can not happen. If it is (2) or (4) then it is an easy decision for Cabinet. If it is (3) (innocent on balance but not beyond reasonable doubt) then it will be a finely balanced decision.

Camp David will want (4) and Camp Robin (2).

Freddie wants his jersey back

February 20th, 2015 at 9:57 am by David Farrar

bain2 kruger

First image is of David Bain in today’s NZ Herald, trying to make the case he didn’t kill his family.

I thought it would be hard for him to find a worse jersey than the one he was arrested in, but this one manages it!


A new Bain review

February 20th, 2015 at 7:00 am by David Farrar

Amy Adams released:

The Government has agreed to set aside all previous advice relating to David Bain’s compensation claim and conduct a fresh inquiry, Justice Minister Amy Adams has announced.

In November 2011, former Canadian Supreme Court judge Justice Ian Binnie was appointed to provide advice on the claim. He completed his report in August 2012.

After being made aware of concerns raised about Justice Binnie’s report and receiving advice from the Solicitor-General, the then Justice Minister Judith Collins decided to seek a peer review by former High Court judge Dr Robert Fisher. Dr Fisher found that Justice Binnie’s report contained a number of errors and was, therefore, unsafe to rely on.

“Given these events, it’s my view that Cabinet doesn’t have the information in front of it on which it could reasonably reach a decision,” says Ms Adams.

“For that reason, the advice of both Justice Binnie and Dr Fisher will be set aside and I will appoint a new inquirer to conduct a fresh inquiry into Mr Bain’s claim.”

This was the only sensible outcome. Regardless of your personal views on the Bain case, most people will support a decision being based a proper inquiry.

I have my personal views on who did it, but I am happy for compensation to be paid or not paid, based on what an inquiry finds to be the balance of probabilities.

It is a damn shame that Binnie’s report was so flawed (see here for details from three law professors). Not necessarily the conclusion, but the reasoning. If the Binnie report had been up to scratch, then this would have been settled two years ago.

The next key step will be the identity of the person or persons asked to do the second report. I pity the person, but hope they do such a good job that it convince all but the most ardent believers on both sides (many of whom comment here!).

Bain fingerprint tests

October 7th, 2013 at 2:15 pm by David Farrar

The Police have announced:

Scientific analysis by fingerprint and firearms experts do not support claims that gun powder residue caused the marks on Robin Bain’s fingers. 

Police have released an analysis of the original fingerprints taken from Robin Bain plus a report on testing of the firearm used in the Bain homicides.

This follows claims by the 3rd Degree programme in June that marks on pictures of Robin Bain’s thumb were caused by gun powder residue from the firearm’s magazine.

Police fingerprint experts examined the original post mortem fingerprint forms taken at the mortuary and compared those to the marks seen in the photographs of Robin Bain’s thumb and forefinger.

That examination confirmed that features were observed in the fingerprints which corresponded accurately with the marks shown in the photographs.

The experts concluded that this was strongly indicative that the marks shown in the photographs were the result of minor superficial damage to the skin surface.

Tests were also carried out by an ESR firearms expert on the weapon used in the Bain homicides. These tests aimed to replicate residue marks that were similar in appearance and position to the marks shown in the photographs of Robin Bain’s fingers.

The scientist formed the opinion that although there appeared to be a pair of lines on Mr Bain’s thumb that could have resulted from loading a cartridge into a magazine, there was considerable doubt that the shape, dimensions and colour of the marks on Mr Bain’s thumb were consistent with marks made as a result of loading a cartridge into a magazine.

“These tests have been carried out using accredited experts in controlled conditions with access to the original exhibits and in the presence of Mr Bain’s advocates” says Assistant Commissioner Malcolm Burgess.

“The most likely explanation for the marks on the photographs would seem to be pre-existing damage or injury to the skin on Robin Bain’s thumb.

I predict those with strong views on either side of the David vs Robin camp will not change their views!

The fingerprint report is very interesting and is here. The firearms report is less conclusive and is here.



June 28th, 2013 at 10:00 am by David Farrar

Stuff reports:

Bain’s lawyer Michael Reed is calling on Key to issue his client an immediate pardon after new information came to light, and to deal with his compensation claim ahead of other legal matters.

That’s outrageous hypocrisy.

The claim is stalled, because Mr Reed has filed a judicial review. He actually asked the Government to stop consideration, at threat of injunction if they did not.

If Mr Reed wants the claim dealt with quickly, then he should drop the judicial review.  Don’t blame others for your own actions.

As for the ridiculous demand that the Government should issue an immediate pardon because of a TV show, well let’s just replace the Supreme Court with Judge Judy!

The evidence around the marks on Robin Bain’s finger thumb is helpful to David Bain’s case. But it is far from conclusive, and it is just one of 20 or so pieces of strong evidence.

Martin van Beynen, a journalist who sat through every day of the second trial, has written a must read column on this latest evidence, and especially on how the story was given exclusively to Bain friendly media.

I’ve love to see this concluded quickly. Here’s how it can be:

  1. Bain drops his judicial review
  2. Cabinet appoints a three person panel to review his guilt or innocence on balance of probabilities
  3. If they find he is innocent on balance of probabilities, then Cabinet grants compensation

Also worth reading this story, which quotes the Police:

Assistant Commissioner Malcolm Burgess said police yesterday did a preliminary examination of fingerprints taken from Robin Bain after his death.

The marks cited as crucial new evidence were likely to be cuts to the thumb as there were no prints in the same place as the dark marks in the photograph.

”Our fingerprint experts advise that this is consistent with someone sustaining cuts or damage to the fingers prior to prints being taken, which would then affect the print image,” Burgess said.

”Had these been powder marks or smudges as claimed, we would expect to see a complete fingerprint image.”

Police would take another look at the show’s theory, and re-examine the photograph.

”However, I am mindful that this theory has been put forward through a programme whose makers chose not to seek comment from police prior to broadcast, and who also refused to provide details about their story when approached by police on Tuesday.

”Had they done so then we would have pointed out that fingerprints had been presented in evidence and have always been available through the court to help them decide if their story stacked up.”

I’m not saying the Police are necessarily correct in saying the marks re cuts. But what is wrong is that 3rd degree didn’t seek any opinions that didn’t fit with their story. Their show was advocacy, was objective journalism.

The Bain marks

June 27th, 2013 at 9:00 am by David Farrar

David Fisher at NZ Herald reports:

Discovery that seems to have escaped detectives and forensic scientists during the 19 years since the Bain family were murdered in Dunedin indicates Robin Bain was the person who loaded the .22 rifle

David Giles peered closely at the photograph on the screen of his computer.

On the thumb of Robin Bain, dead 19 years, were parallel marks of a kind he recognised instantly.

As a boy in the Waikato he would shoot rabbits and possums with a .22 rifle, the same calibre of rifle used to murder the Bain family.

After firing a magazine full of bullets, he would disengage the clip which fed more rounds into the rifle. Taking a bullet, he would push it into the top of the magazine using his thumb and then use the digit to fix the bullet in place. Doing so dragged the thumb across the top of the magazine – parallel metal sides which carried a light coating of burned gunpowder residue from the back-blast of the shots just fired. As the thumb came away, it carried twin lines from the gunpowder and grime on the top of the magazine.

Mr Giles told TV3’s 3rdDegree show he knew instantly what he was seeing on his computer. Robin Bain carried the same marks on his thumb any shooter would have after reloading the magazine on a recently fired rifle.

3rd degree ran this story last night, and there is a link to Kiwiblog. It seems it was comments in a couple of the threads we have had on the David Bain case, that led to this evidence being seen by the person involved. I’m pleased that some people actually have waded through the thousands of comments on the Bain threads. I normally give up after the first hundred.

It appears to be significant evidence in David’s favour. I presume it will be considered by whomever is appointed to review Bain’s likely guilt or innocence for his compensation claim, once the judicial review proceedings are done with.

Hope legal aid isn’t funding this

January 30th, 2013 at 4:36 pm by David Farrar

The Herald reports:

David Bain has filed a High Court claim against Justice Minister Judith Collins seeking a judicial review of her actions since she received the Justice Binnie report last August.

The claim includes allegations Ms Collins has breached Mr Bain’s rights to natural justice and his rights under the New Zealand Bill of Rights Act 1990, acted in bad faith, abused her power, and acted in a biased, unreasonable and predetermined manner.

Mr Bain’s long time supporter Joe Karam said in a statement today that Ms Collins had stated she intended to recommend further options to Cabinet on Monday.

“In the circumstances, a request has been made to the Crown that any further action in relation to David’s claim be deferred pending the outcome of this judicial review,” Mr Karam said.

He said Mr Bain had “anguished” over the prospect of returning to court and did so only reluctantly.

It’s a delaying tactic, which is ironic as they have complained about the delays.

Ms Collins said the compensation application fell outside Cabinet guidelines and was entirely at Cabinet’s discretion.

“I have taken steps to ensure the process is fair and proper throughout.

“Put simply, it would be unacceptable for Cabinet to base its decision for compensation on an unsafe and flawed report. That would not have resulted in justice for anyone, let alone Mr Bain.”

She said Mr Bain’s request for the Government to put the compensation application on hold while a judicial review went ahead would only result in a further delay.

Ms Collins would not comment further while the matter was before the Courts.

I would be amazed if the judicial review gets anywhere. The Bain claim for compensation in fact falls outside the Cabinet guidelines. Bain and Karam have asked for Cabinet to use their discretion to give him compensation even though he doesn’t qualify outside the guidelines. It would be highly unusual for the courts to injunct a Minister from reporting an issue to Cabinet involving a discretionary decision.

The Cabinet could in fact have just said “No, you do not qualify – go away”.

A new Bain report?

January 25th, 2013 at 9:00 am by David Farrar

Audrey Young at NZ Herald reports:

The Government will “most probably” commission another report on David Bain’s application for compensation, Prime Minister John Key said yesterday.

That is the sensible thing to do. There is no way one could make a decision on compensation on the basis of the Binnie report. it isn’t that the conclusion is necessarily wrong – it is that the reasoning and weighting of evidence was done in a way that several law professors have said was outside the norm.

It is possible a more standard review of the evidence will reach the same conclusion on whether Bain is innocent on the balance of probabilities (and that is all that was asked for).

Mr Key said Ms Collins would return to the Cabinet with other options that included asking Dr Fisher or someone else to do more work.

Asked if there would be a second report, he said “most probably”.

Mr Key said that while the cost of the process was important, it was necessary to reach a robust conclusion by which New Zealanders could understand why any decision had been reached.

If an individual is appointed and they reach a different conclusion to Binnie, then the accusation will be the Govt just cherry-picked the answer they wanted. This is why I like the suggestion that a panel of three be asked to do the second report. If they all agree on the key issue of innocence on the balance of probabilities then I think there will be fairly widespread acceptance of any decision by Cabinet that follows that report. The hardcore believers on both sides will never accept a report that doesn’t say what they want – but I think the majority of NZers want to see an end to it, and a multi-person panel will give them confidence of a fair resolution.

C K Stead on the Bain case

January 5th, 2013 at 1:00 pm by David Farrar

C K Stead writes in the Herald:

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.

Guest on Bain

January 1st, 2013 at 11:00 am by David Farrar

David Fisher at NZ Herald reports:

David Bain’s first defence lawyer has emailed Justice Minister Judith Collins to say that, in his opinion, his former client had made a “damning admission” which in his view “shatters any suggestion of innocence”.

The email was sent by disbarred lawyer Michael Guest to the Minister of Justice on September 10, just weeks after she received a report from retired Canadian Justice Ian Binnie saying Mr Bain was “factually innocent” and should be compensated.

Mr Guest’s email became a factor in the decision to have Justice Binnie’s report peer reviewed. On September 26, Mrs Collins wrote to retired Justice Robert Fisher saying Mr Guest’s email, concerns from the police and her own issues “led me to consider that I need to proceed to this peer review”.

Mrs Collins confirmed the link to the Herald, saying it added to concerns raised by herself, the police and the Crown Law Office.

Mr Guest claimed in his email he was prompted to contact Mrs Collins after reading reports Mr Bain had been found “innocent”.

In a personal email, Mr Guest expressed his view to Mrs Collins which stated “finding that [Mr Bain] is innocent is not a correct conclusion”.

Mr Guest claimed he was freed from client confidentiality because of an earlier waiver by Mr Bain. He said he was concerned because neither he nor his co-counsel had been interviewed by Justice Binnie as part of the inquiry.

I would have thought that was sensible to do, even if you didn’t treat his views as determinative.

The claims focus on whether Mr Bain was wearing his mother’s glasses the weekend before the murders – the frame was found in his room and a lens in his brother Stephen’s room.

Mr Guest said he was told by Mr Bain he had been wearing the glasses. He said Justice Binnie could have found a way to take a different view on the evidence about the glasses “but, in my opinion, it shatters any suggestion of innocence”.

There seem to be two main possibilities. Either David Bain told the truth to his lawyer Guest, and later lied about it.

Or David Bain has always denied wearing the glasses the weekend before the murders, and his former lawyer has invented the story.

I understand this story was first reported on Monday in Truth. Their website may have more details later today.

Truth has put online the documents released under the OIA. The letter from Police listing the errors in Binnie’s report is very detailed.

The Bain poll

December 28th, 2012 at 1:00 pm by David Farrar

The Herald reports:

Most Kiwis support paying compensation to David Bain, even though Justice Minister Judith Collins says many New Zealanders will be upset at any taxpayer payment for the man once convicted of murdering his family.

A Herald-DigiPoll summer survey found 74 per cent of those polled believe Mr Bain should be compensated if the judge who reviewed the case recommended that. (The survey was started on December 7, before Justice Ian Binnie’s recommendation of compensation became public.)

The results are reasonably meaningless. My view is that Bain should get compensation if an independent report concludes he is innocent on the balance of probabilities, and that report has followed the NZ law of evidence.

The Binnie report has been shown to be significantly flawed. It is quite possible another report could reach the same conclusion. But we need to be sure, before any compensation is agreed to, that you are not handing over millions of dollars to someone if they probably did kill their family.

Ms Collins dismissed the poll for asking an invalid question, as Justice Binnie was asked not to make a recommendation on compensation.

One of the many mistakes Binnie made – not understanding your terms of reference is a most basic error.

Labour justice spokesman Charles Chauvel said the “ad hoc” process had become “rotten”. He said Justice Binnie’s report was “perfectly adequate” and did not deserve “bile” from an “Auckland tax lawyer” like Ms Collins.

Chauvel thinks the Binnie report is “perfectly adequate”. I’ll be generous and presume he is speaking as a politician, and not a lawyer.

Three law professors on Fisher v Binnie

December 20th, 2012 at 8:15 am by David Farrar

I called yesterday for more focus on the substance of the Bain issue – mainly whether or not Fisher’s criticisms of Binnie’s report are justified and substantial, and wanted to hear from legal experts rather than those with a vested interest.

Was pleased to have commenters discover or point out that no less than three law professors have actually commented publicly on this issue. And it appears they have all concluded that they agree with Fisher’s critique. Let’s go through them all.

First, there is this video on TVNZ with Otago University Law School Dean Mark Henaghan. Definitely worth viewing.

Then the ODT report:

Having read both reports, Prof Henaghan said a main issue of concern with Justice Binnie’s report was whether it relied on the onus of Mr Bain proving his innocence, rather than the Crown proving his guilt.

”In this case, it is not a criminal trial. If you are asking for compensation the onus is on you to prove you deserve it and that was one thing Robert Fisher was worried most about in respect of Justice Binnie’s report.”

He thought Dr Fisher’s recommendation to have a revised report drafted and opened for feedback from all involved was sensible, and anyone preparing such a report could at least benefit from Justice Binnie’s ”thorough” compiling of data.

Tapu Misa reported:

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”.

He also agreed that Binnie incorrectly imposed the burden on the Crown to prove Bain wasn’t innocent, when the onus of proof should have lain with David Bain.

Also ZB reported Dawkins:

Otago University Law Professor Kevin Dawkins says there’s an ongoing concern in the Fisher review, that Justice Binnie was more inclined to believe David Bain’s version of events, than the Crown’s.

“I think there were parts of Justice Binnie’s report which indicate an inclination to find David Bain innocent on the balance of probabilities.”

Kevin Dawkins says Ian Binnie may have been confirmed in his view by the verdict of the jury in David Bain’s retrial, but that point isn’t relevant in this inquiry.

And finally we have Andrew Geddis. He has blogged extensively on this at Pundit. he is very critical of Judith Collins over not giving Bain’s camp a copy of Binnie’s report, and the way Fisher was commissioned. However he also gets into the substance of Fisher’s criticisms and his main conclusion:

I think Fisher’s core criticism of Binnie’s approach to the physical evidence is right.

And in detail:

But how and why Binnie thought this footprint evidence (put together with the timing issue, and the no blood in the shoe point) was stronger than the combinedevidence that pointed towards David Bain’s guilt we’ll never know – all we know is that he says he considered the matter and came to that conclusion.

And that is a problem, because it is only in the overall “thickness vs sharpness” analysis that you can reach an overall assessment on the balance of probabilities of whether David Bain is innocent. So I think Fisher is absolutely correct in this aspect of his criticisms: even if Binnie really did do what he says he did (and remember, an absence of evidence is not the same as evidence of absence), we needed to see him doing it in order to be fully satisfied about his conclusions.

So, yes – for all the problems that I have with the way Fisher’s review of Binnie’s report was commissioned and framed, Collins was right to conclude from it that Binnie’s report is not a safe basis for concluding that David Bain is innocent. Having read that report, and Fisher’s critique, and Binnie’s response, that is the conclusion I myself have come to.

So there seem to be three options going forward:

  1. Pay Bain compensation, despite the documented inadequacies of the Binnie report.
  2. Do not pay Bain compensation, on the basis that the Binnie report has failed to make the case that he is innocent.
  3. Ask someone to do another report on Bain’s likely innocence, and make a decision on compensation based on that.

I don’t think anyone expects (1) will occur. Nor should it occur.

I think (2) would be rather unfair to David Bain. It is not his fault that Binnie’s report was sub-standard. He shouldn’t lose his chance for compensation because of it.

So inevitable we need another report. As some have noted it can use as a starting point, the evidence collated by Binnie.

But who should do it? You have a double challenge. First to identify someone acceptable, and secondly to convince them to do it – considering the toxicity of the environment around this now.

Geddis blogged:

So maybe the only way through this is to give the job to more than one person. As my Boss at the Otago Law Faculty, Mark Heneghan, has suggested, “at least with a panel of judges they can reality-check each other and make sure they are not being influenced by one thing.” And as I make it a policy to never disagree with my boss, I’m going to suggest that this is a brilliant idea from a fair-minded, highly intelligent and devastatingly good-looking man.

The idea of a panel is not a bad one.  Maybe two NZ Judges or QCs who have had nothing to do with the case, and one Australian?

If you have a sole reviewer, and they reach a different conclusion to Binnie, then the Bain camp will criticise that as having hand picked a favourable reviewer. But if you have a panel, it is much harder to criticise it – and it worth recalling appellate benches are always panels.

Of course a reviewer or review panel may come to the same conclusion as Binnie – and that is fine, so long as their report correctly sets out why, and the tests they applied.

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 David Bain 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.

Dom Post on Binnie report

December 14th, 2012 at 1:00 pm by David Farrar

The Dominion Post editorial:

If David Bain is innocent of the murder of his parents, two sisters and brother he deserves to be compensated for the 13 years he spent in prison. If he is guilty he does not deserve a cent.

Exactly. It isn’t so much about the money, but about the outcome. I don’t care about $2 million when the Government spends $80 billion a year. If David did not kill his family, then he has suffered more than any person should suffer – and deserves compensation and more. But if he did kill his father, mother, brother and two younger sisters and tried to frame his father for the killing – it would be repugnant to reward him for this.

The concerns raised by Auckland QC Robert Fisher about retired Canadian judge Ian Binnie’s report on the case are such that it cannot be used as the basis to compensate Mr Bain. …

However, Dr Fisher’s review of his report – commissioned by Justice Minister Judith Collins – suggests Justice Binnie misunderstood his brief and misunderstood the principles under which wrongful imprisonment claims are assessed. It is difficult to conceive of a more damning critique.

There is no dispute that Binnie got his brief wrong. He has admitted this. Fisher’s critique is damning. I am not a lawyer and am not competent to judge whether Fisher’s criticisms are valid, or as Binnie claims are nitpicking. I am not interested in the claims of anyone associated with the Bain camp (or Crown Law), or of those who are politically motivated by their views of Judith Collins.

I’d love to hear from non-interested legal experts as to their views of the Binnie and Fisher reports.

The Herald editorial sort of goes the other way and says:

Justice Binnie may also have erred in going beyond his mandate. But that is of no great importance.

Really? Obeying the terms of reference is not important? That is in fact crucial.

His reasoning has enough substance to warrant more than Ms Collins’ dismissive attitude.

I think it is clear a second report is needed. It need not be a report from start. It can use the evidence collated by Binnie, but follow the NZ law of evidence in reaching conclusions.

I think using Dr Fisher for this second report would lead some to attack it as they assume he is pre-disposed against Bain (I don’t think he is, but perceptions are important). but I am sure someone can be found – perhaps an Australian Judge?

The David Bain reports

December 13th, 2012 at 3:15 pm by David Farrar

The reports are out. Not online yet. Now on Scoop. The summary from Robert Fisher includes:

  •  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?


The Press on Bain report

December 13th, 2012 at 9:41 am by David Farrar

The Press editorial:

Collins’ announcement explaining why she had sought the review was candid, even sharp, but in the circumstances reasonable. The fact that she has had Binnie’s report since September had raised expectations that the matter would be put before the Cabinet and a decision announced before Christmas. It has also become well known, and has not been denied, that the report is favourable to Bain. The reasons for the delay needed to be explained and Collins did so in a characteristically forthright style.

It is worth noting that Collins did not seek publicity. It was in response to media inquiries that her statement was released as to why she sought a peer review. The announcement of Fisher was not made public, but inevitably leaked out.

Binnie’s report, she said, appeared to contain “assumptions based on incorrect facts, . . . showed a misunderstanding of New Zealand law . . . and lacked a robustness of reasoning used to justify its conclusions”. Binnie, perhaps unused from his lengthy term on Canada’s highest court to such direct comment, was stung by Collins’ remarks into responding. It was an unwise move.

By convention, judges never comment on their decisions once they are delivered. The decisions are taken to contain all the facts and reasoning required to be able to speak for themselves. Binnie is no longer a judge, of course, but in this procedure he is acting as one. Once he had delivered his report to Collins in September the function for which he was hired was over and he should have remained aloof from anything that ensued, whatever it was. It is unseemly and undignified of him to get into the mud and the dust of the political arena in the way he has done.

I think his response was a massive mistake. If he has confidence in his report, he should let that speak for itself.

If nothing else, it raises misgivings about his judgment. Fourteen long paragraphs in response to a terse couple of sentences from the minister looks weirdly disproportionate. In addition, questionable statements Binnie makes, particularly concerning the alleged views of the Privy Council on Bain’s guilt or innocence, look faulty enough to suggest that Collins’ doubts about the report are well-founded.

Again, I agree.

Collins said yesterday she was considering releasing the report along with the review of it this week. She says that both should be released together. While that would be ideal, she should go ahead and release Binnie’s report (both the original and the two subsequent versions that Binnie has given her unsolicited) whether the review is ready or not. The tumult is not going to die down, and rumour and surmise will fill the vacuum if she delays.

I understand there is a reasonable chance both the Binnie report/s and the Fisher report will be released tomorrow.

Also of note is this exchange in question time:

CHARLES CHAUVEL (Labour) to the Minister of Justice: What are the specific “assumptions” based on “incorrect facts” demonstrating some “misunderstanding of New Zealand law” that she alleges are contained in the report of Justice Binnie concerning the application by Mr Bain for compensation for wrongful conviction and imprisonment?

Hon JUDITH COLLINS (Minister of Justice) : I stated in my media release that “My concerns are broadly that the report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law.” Prior to giving examples, I need to give just a little bit of context to this. I can advise the House that an independent peer review of the first Binnie advice is being done by the Hon Robert Fisher QC, and I am considering the public request made by Mr Bain’s supporters to release both these reports—or advice to me—before Cabinet has made its decision. One of the things I am considering is whether or not it is going to be in Mr Bain’s interests or in the interests of justice to do so. But in relation to the examples sought, there are many. I will give the House two of those. The first is relying on incorrect understanding of what has been given in evidence. In this case, Justice Binnie asserts that a named scientist testified at the first trial that he had chemically enhanced the prints and later sought to resile from this. The reference to chemical enhancement was an error on a label attached to a fingerprint, and this was explained as such by the named scientist at the retrial. A second example is in relation to assumptions as to the correctness of submissions on the law. Justice Binnie appears to have assumed to be correct Mr Karam’s submission that the adverse inferences should be drawn against the Crown case on the basis of evidence that is no longer available. This is incompatible with the onus of proof being on Mr Bain in this particular case, because this is, in fact, a request for Cabinet to use its discretion, and that is very clearly wrong.

Again, the reports will be interesting.

Binnie responds

December 12th, 2012 at 9:05 am by David Farrar

Ian Binnie has responded to the statement from Judith Collins about concerns with his report. What strikes me as fascinating is how passionately pro-Bain he is. He complains that David Bain has not yet been given a copy of his report, for example.

He also cites the Privy Council judgement at length, but of course that was a decision there were grounds for a retrial. That was not a decision that on balance of probabilities Robin Bain was the killer.

A commenter makes the point:

Binnies statement, reproduced above, is the best evidence so far supporting Judith Collins stance. In it, he quite clearly demonstrates a lack of understanding of the law and the facts.

In paragraph 4 he states that the decision of the Privy Council that there had been a miscarriage of justice was reinforced by the verdict in the 2009 retrial. I am astounded that he would make such a statement.

The acquittal did not reinforce the conclusion of the Privy Council. The Privy Council was at pains to say that it did not have an opinion as to whether Bain was guilty or not. In NZ, the term miscarriage of justice refers to the process, not the outcome. You can have a trial which is found to have been a miscarriage of justice, but which still reaches the right result.

Binnie has demonstrated in his statement that he does not understand the meaning of the term miscarriage of justice, nor doe he understand the PC decision. He has also demonstrated a failure to understand the 2009 jury’s verdict. His statement quite clearly demonstrates a belief that the not guilty verdict equates to a finding of innocence.

Then in paragraph 5 he states that “all of the “external” judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain’s guilt”. Again a mistake that goes to the very heart of his integrity.

The PC made no judgement on David Bain’s guilt. Their judgement states “In closing, the Board wishes to emphasise, as it hopes is clear, that its decision imports no view whatever on the proper outcome of a retrial”

Collins doesn’t have to release the report now. Binnie, by his own statements, has vindicated everything she has said about the report.

Another commenter (who is a lawyer) also says:

I have read Binnie’s statement which shows a scary misapprehension of events. The PC did not make any comment about guilt or innocence. It refused to go into that arena. It dealt with admissibility of evidence. The jury did not find him innocent. It found that the Crown had failed to prove guilt beyound reasonable doubt. I gather that he refused to hear from one of the jurors who expressed concern about jury misconduct. He cannot do that and, in the same breath, conclude that the jury found him innocent. I have no wonder why Collins is getting a second opinion.

Also worth reading this post by Andrew Geddis at Pundit.

Collins on the Bain report

December 11th, 2012 at 9:57 am by David Farrar

ZB reports:

Judith Collins is blunt in explaining why she wants a second opinion on the report on compensation for David Bain.

She says the retired Canadian judge’s report appears to contain assumptions based on incorrect facts, and shows a misunderstanding of New Zealand law.

The Justice Minister has asked for a peer review into the report by Justice Ian Binnie.

Judith Collins says the report lacks a robustness of reasoning used to justify its conclusions.

Since she told him she wasn’t happy, Justice Binnie has provided her with two revised versions of his report.

The minister says seeking a second opinion was not a decision she made lightly, but justice needs to be done, and a proper process undertaken.

It will be fascinating to see the original report, the revised reports and the peer review report. I’m hoping they will all be released.

The Press on Bain

December 5th, 2012 at 4:00 pm by David Farrar

The Press editorial:

The report has not been made public but it has been widely reported that retired Canadian judge Justice Ian Binnie found Bain was innocent, on the balance of probabilities, of the murders and that he should receive compensation. Supporters of Bain have suggested that Collins dislikes this result and is shopping around for an opinion she agrees with.

That is unfair. The decision on compensation will be a highly contentious and political one, whichever way it goes. If she has misgivings about the report she has been given, it is entirely proper that Collins should seek further advice before she makes any recommendation to her Cabinet colleagues.

Some people have suggested that the second report is because there is some damning criticism of govt agencies in the first report that the Govt wants to hide. But as far as I know, there is no question that the Binnie report will be released. Just, that the Fisher report will also be released.

The task of assessing this was, surprisingly, outsourced by an earlier Minister of Justice, Simon Power, to Canada’s Justice Binnie. The aim was to get an opinion from someone entirely outside the New Zealand justice system but it was odd, particularly in light of the fact that New Zealand had not long before ended one of the last vestiges of colonial practice by abolishing final appeals to the Privy Council in London. There are few people who would dissent from the view that it was right to establish the Supreme Court and make the entire justice system a domestic one.

To seek a foreign opinion in one of the most celebrated cases of the century looks like a strange and unjustified loss of confidence in the integrity of those who serve in that system. It is difficult to believe that it was impossible to find a retired judge within the country with the intellect and the integrity to be able to deliver a sound decision. That is, in fact, what Collins will be seeking from the man to whom she has now referred the matter, Robert Fisher QC, a former judge of the High Court and widely recognised as one of New Zealand’s pre-eminent legal minds.

The 73 year old Binnie did serve on the Canadian Supreme Court, but it is worth noting he didn’t serve on any lower court before that appointment. That means he would probably never have presided over a criminal trial, and his background is business and corporate law – not criminal law. That doesn’t mean his report is not credible or thorough or sound – but it is worth noting that not all retired judges are equally experienced in all areas.

My default position is that the Govt should go with Binnie’s recommendation. But that is contingent on the quality of his report. By that, I don’t mean his conclusion – but whether all the evidence was considered, that the report complied with the terms of reference, that natural justice was followed etc. I can’t wait to read both the Binnie and Fisher reports.

The Bain review

December 4th, 2012 at 8:13 am by David Farrar

Andrea Vance at Stuff reports:

Prime Minister John Key denies the Government is casting around to get the advice it wants on compensation for David Bain.

He confirmed yesterday that Justice Minister Judith Collins had sought a second opinion on recommendations from retired Canadian judge Justice Ian Binnie.

Robert Fisher, QC, has been asked to look at Justice Binnie’s report, which the Government has had since September.

Asked if it was a question of the Government looking for the advice it wanted, he said: “No, I don’t think so . . . she [Ms Collins] had some concerns, or at least issues, that she wanted to flesh out a bit more before she took the next step.

“There will be a lot of public interest in what happens here and obviously the Government needs to ensure it’s fair.”

Justice Binnie concluded Mr Bain was innocent on the balance of probabilities of the murder of his parents, two sisters and brother in Dunedin in 1994.

Mr Bain is seeking compensation for the almost 13 years he spent in jail after being convicted in May 1995. Mr Bain was acquitted at a retrial in 2009 and stands to get about $2 million. But the Government is not obliged to pay compensation.

It is unusual for the Government to get a second opinion. It makes you wonder why.

I don’t think it is in anyway a fiscal issue – that the Government just doesn’t want to pay out money. To be blunt $2 million is less than 0.01% of Government expenditure – it’s loose change. So this isn’t a case of the Govt being stingy. In fact getting a second opinion in itself will cost money.

I also don’t think it is an issue of not wanting to do something unpopular, which they might be criticized for. Quite the contrary. While NZers have a variety of views on the competing David v Robin theories, I don’t think the Govt would be criticised for paying compensation if they were following the recommendation of an independent review as per long stated policy. In fact, if they do not pay compensation they will face serious criticism on Karam and other Bain supporters. The easy thing for the Government to do is to simply rubberstamp the report and recommendations. Certainly my assumption has been that this is what the Govt would and should do.

If it has been reported correctly that the report concludes Bain is innocent on the balance of probabilities and should be compensated  and the Government is seeking a review of the report, then I can only conclude that they have serious issues with the quality of the report. If they did not, then you’d simply follow its recommendations – that would be the popular non controversial thing to do.

Auckland-based Mr Fisher was a high court judge for 15 years. He was asked by the Government to look into a compensation claim from Aaron Farmer who was accused of rape. He found in favour and Mr Farmer was awarded $350,000.

This indicates that Mr Fisher is not predisposed to assuming guilt in these reviews.

Until both the Binnie report and the subsequent Fisher report are released, I guess we won’t know what the reasons are for the review – and how substantive they were. But I don’t think this unusual step is something the Government would do lightly.

While the amount of money is insignificant at a Government level, the principles are important. If David did kill his family, then it is repugnant that profits from it by getting a large payout. If however  Robin killed his family and himself, framing David for it, then it is repugnant that he spent over a decade in prison for a crime he didn’t commit.

A juror on Bain

November 20th, 2012 at 9:00 am by David Farrar

The Herald reports:

One of the jurors on David Bain’s retrial has spoken out about the case for the first time.

The woman, one of 12 jurors to reach a unanimous verdict of not guilty on all counts, says while she doesn’t dispute the final verdict, she wants her perspective on the meaning of the verdicts to be clear.

“I think there’s been a lot of confusion about what David Bain’s not guilty verdict in the second trial means,” she told TVNZ Sunday reporter Janet McIntyre.

“There’s been a lot of speculation that it means that he was found innocent. And I was a juror and I never found David Bain innocent,” she said.

She pointed out that the jury was never asked to find Bain innocent, but whether or not the prosecution proved the case beyond reasonable doubt.

“And that they did not do,” she said.

The woman said she didn’t believe Bain should get compensation “on the balance of probabilities”.

It is useful to have clarified that there is a big difference between not guilty and innocent. Also interesting to hear a juror say that on balance of probabilities, someone who heard all the evidence believes it is more likely David Bain was the killer.

However we are now at a stage where the opinion that counts is that of Canadian Justice Binnie, who was appointed to report on whether Bain is innocent on the balance of probabilities. The media have reported that he has concluded he is. While this goes against my beliefs, I have to respect the opinion of the jurist who spent months reviewing all the evidence. Having said that, I will be fascinated to read his report and reasoning.

The woman alleged that some of the other jurors broke the rule of sanctity by bringing outside material about the case into the jury room.

Three other jurors also went to Dunedin “of their own volition” to visit the Every St crime scene, she said.

Auckland University’s associate professor of law Bill Hodge, whom the woman sought for advice, told Sunday that the allegations were serious.

“I haven’t seen anything as significant in 40 years of looking at juries in New Zealand.

“In most trials, a visit to the scene is something that should be controlled and visits are unruly and possibly a form of misconduct.”

Bringing extraneous material into the jury room is a matter of great concern as jurors must base their decisions only on what they hear in court, he said.

That’s outrageous, if correct. I wonder if the jurors who allegedly did that could be in contempt of court or committed an offence?

But the revelation comes too late to change things. Justice Binnie’s report is with the Government, and if he recommends compensation then I reluctantly say that it should be granted.

Has Bain been found innocent on balance of probabilities

September 10th, 2012 at 12:00 pm by David Farrar

NewstalkZB reports:

Confidence the report into David Bain’s compensation claim will be well thought out, and thorough.

It’s understood retired Canadian Supreme Court judge, Ian Binnie, who’s reported back to the Government on David Bain’s claim over wrongful imprisonment, has concluded that on all probabilities Mr Bain is innocent of the 1994 murders of his parents, two sisters and brother.

I have long had the view that David Bain did kill his family, based on evidence at all the trials, plus having read both books on the family and the killings.

When he was acquitted at his second trial, I accepted that the jury found reasonable doubt but always maintained that is different to whether or not he probably did it.  Just like the Ewen Macdonald case.

I have to say I was doubtful a claim for compensation would ever be filed as I thought that having a report reach a conclusion on balance of probabilities would not be in David Bain’s interests.

If NewstalkZb is correct, and Justice Binnie has concluded that on balance of probabilities David Bain did not do it, I am staggered.

However Justice Binnie, a former member of Canada’s Supreme Court, has spent months going through all the evidence in this case. I am not so arrogant that I prefer my opinion on some of the evidence to his considered opinion on all the evidence. If he has concluded that it probably was not David Bain, then I for one will respect that.

And while I instinctively do not like the thought of my taxes going to David Bain as compensation, when I have suspicions he was the killer, I do think it is important we have due process. If Justice Binnie has concluded that Bain was innocent on balance of probabilities, and should receive compensation, then that should occur. The upholding of the principle is important.

Also if the report is correct, one has to acknowledge Joe Karam for his tenacity. He managed to get the Privy Council to order a new trial, helped get an acquittal and now has had Bain found innocent on balance of probabilities. An incredible achievement.

Assuming the report is released eventually, I look forward to reading it, and especially Justice Binnie’s conclusions on what evidence he found most persuasive.

The “Bain” factor

July 5th, 2012 at 9:00 am by David Farrar

Michael Forbes at Stuff reports:

Ewen Macdonald has been acquitted of murder in a court of law but he will still have to overcome the “Bain factor” in the court of public opinion, a top defence lawyer says.

Jonathan Eaton said the best advice he gave clients found not guilty of serious crimes was to accept the allegation would always follow them around.

Mr Eaton had Rex Haig’s murder conviction quashed in 2008 and successfully defended George Gwaze on charges of murder and sexual violation in May.

On Tuesday, Macdonald was found not guilty of murdering his brother-in-law and business partner, Scott Guy, in July 2010 after a month-long trial in the High Court at Wellington.

Mr Eaton said that in Macdonald’s case – where a crime had clearly been committed and police were not looking for anyone else – there would inevitably be members of the public who thought he was “lucky”.

“Regrettably, you’re always going to be tainted; whether it’s applying for employment positions, starting new relationships, moving to a new town – there’s always going to be a Bain factor, which you can’t escape.”

I’m not sure it is a case for regret. I don’t think there is anything wrong with people having an opinion based on balance of probabilities, rather than a criminal sentence which must be based on proof beyond reasonable doubt.

On Radio Rhema yesterday it was suggested to me and Sue Bradford (the panelists) that all defendants should receive name suppression until they are convicted, so they don’t have to wear the stigma of being accused but found not guilty. It was a rare issue where Sue and I both agreed – we were against.

I actually think it reflects well on our society, that we understand the difference between thinking someone did it, and the legal need to prove it beyond reasonable doubt.

I see the Macdonald case as somewhat different from the Bain case, which suggests to me that Macdonald may face much more hostility than David Bain. They are:

  1. In the Bain case, there was a plausible (to some anyway) alternative explanation for the killer. In the Guy killing, there has been no alternative explanation.
  2. David Bain actually served over a decade in prison for the murders, so even those who think he did it, recognise that he in no way “got away scot-free”,
  3. If David Bain did not do it, he was the horrible victim of a framing by his father. With Ewen Macdonald, he has admitted to a campaign of harrassment, vandalism and arson against Scott and Kyle Guy. So regardless of (1) and (2) above he will rightfully be judged badly for the crimes he has admitted to.

It will be interesting to see what sentences are handed down for the six charges Macdonald has admitted to.

Bain says parents made him strong

March 4th, 2012 at 11:34 am by David Farrar

Edward Rooney in HoS reports:

David Bain says he was able to cope with the conviction for killing his entire family because his parents had raised him to be courageous and strong.

He makes the comment in his interview with TV3’s 60 Minutesshow, which airs tonight. Asked how he coped with the loss of his family, Bain says, “Thinking back over a lot of the circumstances I don’t know how I got through them. I can only thank my upbringing, my family, my Mum and Dad [who] helped us with our education, with our upbringing, with university studies and helped us become the people we are. And somewhere in there I guess was the learned strength and courage that they both had.”

Hmmn so David now speaking so well of his father. Recall the trial, as reported by NZ Herald:

David Bain said he hated his father, a court has heard.

Valerie Boyd, David’s aunty, told the High Court today that she had a conversation with David in the days following the death of five members of his family on June 20, 1994.

Bain, 37, is on trial for the murder of his parents and three siblings in their Dunedin home on June 20, 1994. His defence team say his father Robin, 58, shot dead the rest of the family before turning the .22 rifle on himself.

Mrs Boyd said when she spoke with David, he told her that he hated his father.

David considered Robin sneaky, because he listened in to conversations that had nothing to do with him, Mrs Boyd said.

Robin had separated from his wife Margaret, and David said they did not want him in the family home, but he would not leave.

What a coincidence having the first ever interview, just as the compensation claim is being considered.

UPDATE: I have now closed this thread for further comments. After over 1,250 comments any valid points people wish to make will have been made.