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?