This is the last word on the David Bain case. There will never be, nor need to be, another thing written about it ever again. Do you believe me much?
In my first ever Pundit post on the David Bain saga, I expressed a fear that touching it might lead me to suffer the same fate as Br’er Rabbit when he foolishly chose to engage with Br’er Fox’s Tar Baby. It appears those fears had some foundation, insofar as publicly expressing an opinion on this site about some aspects of the case has lead to real news organisations wanting me to do so again, thus stroking my overinflated ego and insatiable desire for attention, resulting in me running my mouth off about it ad nauseam in whatever media outlet will have me.
But I do not – do not! – want to become one of those amateur Bainologists (a term I’m very proud of and so keep dropping into my public statements) who see the case come to take over all their other interests. So this post is an attempt to wipe its tar from my fur with one last comment on where we are now and how we got to get there. I warn you up front that it is going to be long – it’ll probably be the longest thing to ever appear on Pundit. And it’s going to cover a lot of ground. So if you’re coming along for the ride, grab a coffee and buckle yourself in.
First off, what do I think about the question that matters the most – is David Bain innocent or guilty? I don’t know.
That might sound like a gutless cop-out, but it really isn’t. I’ve traced my thinking on this question in previous posts. I began with a not-very-informed presumption that he was guilty, based primarily on the certainty of others and a few opinion columns/blog posts that seemed quite convincing to me. But I certainly hadn’t looked into the issue in any detail or with anything like an open and inquiring mind.
Thus, when word leaked out that Ian Binnie had concluded that David Bain most likely was innocent, I was quite prepared to abandon my previous weak belief and accept his opinion in place of my own. After all, he had been handed a job to do – assess in depth the issue of innocence/guilt – and I trusted him to do it properly (given his evident legal skills and past credentials). So given that I had no really solid epistemic grounds for thinking David Bain to be guilty and no real desire to search out such grounds for myself, I was content to adopt wholesale the views of the guy officially charged with deciding the issue.
Now that Binnie’s report on the main issue has been made public, along with Robert Fisher’s critique of that report and Binnie’s response to that critique, I just don’t know. I am (spoiler alert! spoiler alert!) going to have some fairly trenchant things to say about how Fisher’s “peer review” came to be commissioned and conducted. However, for all those problems, 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.
The net result is that I am in a genuine state of uncertainty over David Bain’s innocence or guilt. There is enough in Binnie’s initial report to cause me to doubt my previous assumption of David Bain’s guilt. But I also think it would be unsafe for me (or anyone else) to say on the basis of Binnie’s report alone that he is most probably innocent.
A couple of final points on the question of David Bain’s factual innocence (or guilt) before I move on to the issues I really want to comment on. For anyone who thinks that my varying views over time on the actual question that matters makes me an unreliable commentator on all Bain-related topics, I’d simply quote Keynes and note that when my information changes, I alter my conclusions. What else would you have me do?
And finally, for anyone who sees my expressed uncertainty as an invitation to send me an email/letter/phone call with VERY IMPORTANT INFORMATION that will CONVINCE ME ON THE ISSUE … don’t. Just don’t. I’m quite happy to live in a state of not knowing, and I’m quite happy for others to do the job of working through the issues to come up with a conclusion that I can then adopt. I’ll have something to say at the end of this post about how that working through might be done – but it’ll be someone else’s job to do it, not mine. So please just leave me alone.
I’ve addressed this substantive issue – is David Bain innocent or guilty? – along with my views on it at some length because it seems to me that the primarily process-based issues that will take up the rest of the post often get collapsed into it. That is to say, people who “know” David Bain is innocent think that Binnie’s report and his reply to Fisher’s criticisms of it are “magnificent” (as Bain’s lawyer, Michael Reed, put it). Equally, those who “know” David Bain is guilty thought from the outset that something must have been wrong with Binnie’s contrary conclusion, hence their wholesale acceptance of Fisher’s root-and-branch criticisms of Binnie.
Now, I’m not for a moment suggesting that just because I claim to be uncertain of David Bain’s innocence or guilt, I am an utterly reliable commentator whose views should be trusted as gospel on all matters. All I’m saying is that I think (insofar as I can determine through self-reflection and interrogation) that I am not seeking to skew the following analysis of process in order to favour a preferred substantive outcome. You can decide for yourselves whether any of my other biases shine through – in particular, whether my comments about the actions of a populist National Party Minister of Justice contain little more than the expected world-view of a liberal-to-the-point-of-caricature legal academic.
Well, before I get to that, another diversion. But a very important one.
The way in which Robert Fisher was brought in to review Binnie’s report was very badly handled. In fact, it was so badly handled as to almost – but not quite – completely discredit Fisher’s review (in my eyes at least).
I’ll start by being fair (because I probably won’t be for long). Judith Collins found herself in an unenviable spot. She received a report from someone she hadn’t chosen, that said something she (probably) didn’t want to hear, and did so in a way that (as I’m going to get to) had real problems with it. Plus, the issue was one that evokes very strong passions on both sides – so whatever she did with Binnie’s report was going to damn her in the eyes of a not insignificant proportion of the populace.
In such circumstances, it was entirely understandable why she would want to get a second opinion (or “peer review”) of the report in question – and I note that Binnie himself says that this was an entirely valid step to take. But if that second opinion was to do its job – act as a reliable form of quality control that would silence doubters or provide cover for rejecting the initial report – then how it is commissioned and carried out matters. And on this point, Collins did not behave well.
First, Collins sought only input from those institutions that had long asserted David Bain’s guilt before making her decision to seek a peer review. The “Bain camp” didn’t even get a copy of the report, let alone get asked what they thought should happen in relation to any concerns the Minister may have had about it.
Now, I have my (unverified and purely speculative) suspicions why this was the case. I think that Collins believed that if the Bain camp were given a copy of Binnie’s report, it (or extracts of it) would quickly find their way into the media as part of a determined PR effort to cement in the public’s mind the “fact” of David Bain’s innocence before any concerns about Binnie’s work could be reviewed. That may have been an unfounded and unduly cynical view on Collins’ part … or it may not have been. I leave it for individual readers to decide.
Nevertheless, the failure to consult with the Bain camp does mean that the decision to seek a second opinion on Binnie’s work – as well as the decision as to what the reviewer would be asked to do, as well as what information he would be provided with – was reached after hearing from only one side of the matter. (I fully understand that the Solicitor General and Crown Law were operating in their capacity as Ministerial advisors and not as advocates … but I also note that it’s asking a lot of human beings to go from stoutly supporting the long-held view that David Bain is guilty to dispassionately and objectively assessing the merits of a report concluding the opposite with a mere change of hats!) In itself, that decision to involve only “one side” in the review process is problematic – and also somewhat ironic given Fisher’s subsequent criticisms of Binnie for (allegedly) failing to follow natural justice principles when completing his report.
And those problems in process get worse. It appears from Fisher’s review report, as well as the letter Collins wrote to Fisher when commissioning him to conduct the review (which is attached to his report as an appendix), that the following took place. First, the two of them met in Collins’ office on September 26. At that meeting, Collins obviously told Fisher that she thought there were significant problems with Binnie’s report. They discussed whether he would be prepared to provide a second opinion on the Binnie report – which is fair enough, even Binnie accepted the Minister was entitled to do so – and then also what ought to happen if the Minister rejected Binnie’s report. Fisher notes this in his review:
This interim report does not purport to apply the appropriate tests to the actual evidence. As we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at conclusions on the merits. An outline of the suggested steps involved in preparing such a report is included at the end of this report.
At the very least, as Binnie notes in his reply to Fisher’s report, saying that “a second and final report will be required” makes it look like the Minister already knew she wasn’t going to accept Binnie's views even before getting Fisher’s second opinion on them.
Then in Collins’ letter setting out the terms of Fisher’s review – a letter that she addresses to “Dear Robert”, which suggests a degree of personal closeness and informality that is inappropriate given the task she was asking him to conduct – she specifically states: “I am asking for your assessment of Justice Binnie’s conclusions, having regard to the appended bundle of documents and the appended synopsis of concerns with Justice Binnie's report.” In other words, Fisher wasn’t asked to conduct a blind review of Binnie’s report, but rather to first examine the criticisms of it compiled by others (the same parties, note, that had been trying to keep David Bain in jail and deny him compensation) and then assess it with these specific criticisms in mind.
This structuring of the review process carries real risks. By presenting the exercise as one of looking at already identified "problems" with the Binnie report and asking Fisher to (in effect) endorse or reject those allegations (without, it should be noted, any input from anyone who might want the report endorsed), Collins framed the issue in a particular way. And once an issue is framed in a particular way, it opens an observer to confirmation bias – to looking for evidence that can support a pre-existing conclusion, and overlooking evidence that negates it.
Now, I need to be clear about what I am and am not saying. I am not saying that Collins and Fisher were engaged in a conspiracy to undermine the Binnie report. I am not even saying that Collins was deliberately manipulating Fisher into producing a negative review. And I am most certainly not saying that Fisher as an individual was incapable of carrying out the task of reviewing Binnie’s report in a dispassionate and informed fashion.
What I am saying, however, is that Fisher is a human being. Therefore, like all human beings, he is susceptible to forms of cognitive bias. In particular, the way in which he was asked to perform this review task raises at least the possibility that the result of the task was (at least in part) the result of biases that predisposed him to “find” those "problems" in Binnie’s report already suggested to him and conclude on that basis that it was not fit for purpose. And no matter how much lawyers try to train themselves out of displaying such biases – by emphasising the need to be objective, to assess all the facts, to not give the client the answer they want but rather the answer the law requires, etc – they cannot be entirely eliminated. Which is why we see so many situations where two sides to a dispute can wave “an opinion from a lawyer”, each saying emphatically that they are in the right. Or, as John Key so presciently put it: “[Mike Joy’s] one academic, and like lawyers, I can provide you with another one that will give you a counterview.” We lawyers have a natural, human tendency to shape our views and conclusions in a way that is favourable to the outcome that best serves our perception of the desires of the person we are working for.
So, for example, we might observe that that whenever Fisher’s review drew an inference from Binnie’s report, that inference invariably pointed to the report being unreliable. For instance, Fisher states that “[Binnie] appeared to accept David’s version of events without question except where it directly conflicted with other witnesses”, which was part of an “approach to the facts [that] was markedly generous to David Bain”. However, what does not appear to have been considered (as Binnie points out in his response to Fisher) is the possibility that Binnie actually did what he said he did in his initial report. He reached a preliminary conclusion on the balance of the physical evidence available to him that David Bain was innocent – a conclusion that his interview with David Bain then did nothing to gainsay. And having concluded David Bain was an innocent man, he then preferred David Bain’s account of issues on which there was no other evidence to alternative possibilities. In other words, when Binnie quotes David Bain’s account of what happened, he does so not as evidence of Bain’s innocence but rather as an explanation for matters that otherwise would be left as potentially controversial question-marks in his report.
[This is the inverse of the point Fisher makes: "A suspect who lies in denying his responsibility for the crime itself would scarcely shrink from lying about the factual background." By the same token, a person who is innocent of a crime could be expected to be telling the truth about the individual facts – so if you think a person is innocent (on grounds other than their testimony and your subjective assessment of their candour), then why wouldn’t you “accept [their] version of events without question” in regards any individual issues you have no other evidence on?]
Now, it may be that Binnie really was captured by a naïve belief that he could tell David Bain was being open and honest with him when recounting his version of events, and (at least in part) based his assessment of David Bain’s innocence on facts that he sourced solely from that subjective assessment of David Bain’s credibility and character. Or, it may not. I’ll just note that the interpretation favourable to Binnie – that Binnie actually did what he said he did and based his view of David Bain’s credibility on something other than subjective trust and a belief that he could tell he was being honest – isn’t one that Fisher even mentions in his review. Which seems odd, and could itself be taken as evidence that Fisher himself was captured by a particular view of Binnie’s alleged failings.
These deficiencies in the process by which Fisher was appointed and tasked to conduct his review of Binnie’s report almost are enough to make me think that his review cannot function as a reliable reason to reject Binnie’s conclusions. I say “almost”, because I think (whatever the risk other aspects of Fisher's review are tainted) there is one aspect of it that is so fundamental and clearly correct that it requires me to reach for the bold and italics keys.
I think Fisher’s core criticism of Binnie’s approach to the physical evidence is right.
[I deliberately set aside what Fisher says about how Binnie handled the psychological/propensity evidence he considered, because I think Binnie’s conclusion after reviewing this was that it just isn’t “evidence” at all ... it simply is not capable of permitting him or any other observer to assess whether there is an increased or decreased probability of David Bain's innocence. Binnie may have been wrong in his factual assessment on that issue (i.e. the various assertions about David and Robin Bain’s mental state at the time of the shootings may have been able to do what Binnie said it couldn’t), but that’s not what Fisher was assessing in his review report ... so insofar as Fisher criticises Binnie for ignoring this “evidence” when finally assessing David Bain's innocence on the balance of probabilities, I think he is mistaken.]
Explaining why I think Fisher's core criticism is right requires a digression into evidence theory, as applied in the context of circumstantial evidence. Take a simple example. The police get a call that there’s been a robbery at a Dairy. They rush over there, and the owner tells them that a stocky white male wearing a bandana over his face, a black sweatshirt and black baseball cap pulled a knife on him and ran off with about $130 from the till. (We’ll also say there is security camera footage to back this up, so there’s no problem with eyewitness reliability.)
Alerted to the crime, another police patrol in the neighbourhood spots a stocky white guy running along the street about a mile away from the Dairy in question. He’s wearing a black sweatshirt and baseball cap. The patrol pulls him over and asks him what he’s doing. He explains he’s late to meet a mate, so is running to get there. Upon being asked if he’d mind emptying his pockets for the police, he voluntarily does so – and reveals he has $125 in cash.
Now, what evidence is there that this man is the robber of the Dairy? (We’ll assume the Police do not find a knife or bandana or anything else, no-one comes forwards to say they saw anyone running through the streets, and that the suspect can provide no solid alibi for the time of the robbery.) Well, taking each item of evidence by itself, perhaps not much. The robber was a stocky white man, like the suspect. But there’s lots of them around. The robber wore a black sweatshirt, like the suspect. But so do lots of people. The robber wore a black baseball cap, like the suspect. But so do lots of people. The robber ran away, and the suspect was running. But you often see people running in the streets. The robber stole around $130, and the suspect had $125 in his pocket. But that’s not an unusually large sum to be carrying.
However, that’s not how we naturally think about this issue. Instead of taking the evidence piece by piece, we naturally link it together. What’s the chance of the robber and suspect happening to share the same physical characteristics AND be wearing the same colour sweatshirt AND be wearing the same colour baseball cap AND be running in the same general area AND having a similar amount of cash in their pockets? And note that each coincidence doesn’t just increase the likelihood of the suspect being the robber a little bit … it increases it a lot (the number people who are stocky white men is far greater than the number of people who are stocky white men wearing black sweatshirts, which is again far greater than the number of stocky white men wearing black sweatshirts and baseball caps … and so on.) Which is exactly how the law treats such evidence (as Fisher expresses it in his report, and as Binnie accepts in his):
The usual analogy is the strands in the rope explanation: each strand of evidence gains strength from the other, so that whilst an individual strand may be insufficient to support the load … the combination of them may be enough.
And it was just this sort of reasoning that was deployed in David Bain’s criminal trials. The prosecution effectively argued that the chain of coincidences revealed by the physical evidence (supplemented somewhat by other evidence involving things David Bain said before and after the trial, as well as other incidental matters) was so great that the only possible explanation that could account for them was his guilt. In turn, the defence sought to attack this evidence by either claiming it was flawed (that it didn’t actually show what the prosecution alleged it did) or else could be explained by other, non-incriminating explanations. As we all know, in the end the defence obviously managed to convince the jury that the prosecution could not fashion a strong enough rope on which to hang the conclusion of David Bain’s guilt (beyond reasonable doubt, at least).
Having set out this “strands of rope” analogy, I’m immediately going to complicate it. Because I don’t think it works all that well in the context of Binnie’s inquiry. Where you've got someone advancing a proposition (“this suspect robbed the Dairy”) and then a bunch of claimed facts ("he wore the same sweatshirt and baseball cap as the robber"; "he was running in the same general area"; “he had a similar amount of money in his pockets” etc, etc) which all are alleged to point to that conclusion, then the analogy is perfect. In that context, you can assess the extent to which each claimed fact actually increases the likelihood of guilt (adds strands to the rope on which the conclusion hangs, to use the analogy).
But that’s not the approach Binnie took in his report. Rather, he said (in essence):
There’s a bunch of physical evidence put forwards by the prosecution that has been through a number of court hearings and so received repeated cross examination as to its veracity – that’s the best-tested evidence on the question of who killed the family I have available to me. And some of that evidence has been identified by the Privy Council (in its decision that David Bain suffered a miscarriage of justice) as being central to the question of his guilt (and, thus, logically his innocence). So, looking at that evidence, is David Bain more likely than not innocent?
I have no problem with this basic approach. Out of the hundreds, and maybe thousands, of asserted points of “critical” evidence in this case, choosing the ones that New Zealand’s (then) highest court said were most important to it and giving these priority in your analysis strikes me as a quite reasonable way to go. (Go have a read of any comment thread about the Bain case if you don’t believe me about the number of things various people passionately claim “proves” the matter one way or another.)
But the issue with doing so is that only some of this prosecution evidence may be capable of proving Bain's innocence; it can serve as a strand in a rope on which to hang the required conclusion. So, says Binnie in his report, the footprint evidence, the timing issue and the no-blood in the running shoe problem all point to a conclusion that David Bain didn't do it. But other evidence simply cannot support a conclusion that David Bain is innocent – it is logically incompatible with this conclusion – so can never be a "strand in the rope" in this context. For example, the fingerprints on the rifle evidence, or the claimed blood spatter patterns, or the hearing Laniet gurgle point ... these simply are incapable of strengthening David Bain's claim to innocence (i.e. there is no interpretation of them that makes it more likely that David Bain is innocent, all that can be done with them is say that they are not evidence that makes it less likely he is innocent). So in order to make the analogy work, these sorts of pieces of evidence can only ever be "knives" that could cut the rope on which any conclusion of David Bain's innocence hangs.
So, really, there were two questions in play in Binnie’s report on David Bain’s innocence. First, how thick is the rope upon which we can hang the conclusion that David Bain is innocent – how strong is the combined circumstantial evidence that David Bain didn't shoot his family (because Robin Bain did)? And second, how sharp is the knife that could cut that rope – how strong is the combined circumstantial evidence that David Bain did shoot his family?
The key problem with Binnie’s report, which I think Fisher accurately identifies and describes, is that Binnie did not expressly carry out that cumulative comparison in his report. He says he did it:
. . . the cumulative effect of the items of physical evidence, considered item by item both individually and collectively, and considered in light of my interview with David Bain . . . persuade me that David Bain is factually innocent . . .
He then reiterates that point in his response to Fisher:
[Fisher’s] allegation is that I didn't do what I said I did. This is just wrong. I did what I said I did. Otherwise I wouldn't have claimed to have done it.
However, at no point in Binnie’s report does he show us the workings that support that conclusion. All he does is tell us what he thinks of individual pieces of the evidentiary record in the Bain case, in terms of their relative probative values. So, he clearly believes that the footprint evidence was the strongest single item of evidence pointing one way or the other – its probative value was greater than any other individual item of evidence. 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 combined evidence 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.
But here's the ongoing issue. Binnie has provided us with his conclusion about a whole range of individual pieces of the evidence – he's told us what he thinks about the thickness of the individual strands of the rope (i.e. how strong the probative value of the individual bits of evidence pointing to Bain's innocence) and the sharpness of each piece of the knife (i.e. how strong the probative value of the individual bits of evidence pointing to Bain's guilt). (I note that this is where the analogy begins to part company with what is actually required in order to determine David Bain’s innocence, because the quality of "sharpness" is not reducible to individual components in the same way as a length of rope is ... but hopefully the point is understandable).
Now, I haven't gone through and tried to do a rigorous cumulative assessment of thickness vs sharpness based on Binnie's individual conclusions – we really needed him to do that, as Fisher says – but a rough impressionistic assessment is that such an exercise could very well still lead to the conclusion that the rope is too thick for a quite blunt knife to cut. In other words, even if Binnie had expressly done what Fisher (rightly) says he should have done, the outcome would be the same (which is a possibility that Fisher expressly ackowledges in his review report).
If that is right (and it may not be – I reiterate my formerly avowed agnosticism on the issue), there’s then an interesting question for us. I cannot see how the Cabinet can resolve the issue of David Bain’s compensation without some sort of further input on the question of his innocence (or guilt). I mean, I know that in theory it could. The nature of ex gratia payments is such that the Cabinet could make up its own mind on the issue (or, more likely, Judith Collins could just tell it she doesn’t think compensation is required and they then agree with her). But in practice I think that would be too highly charged (as well as potentially unfair) a decision for them to take.
So it seems inevitable to me that this matter is going to go back out to another review by someone else. And if and when it does, to what extent ought that person (or persons?) be bound by Binnie's assessment of the probative value of individual items of evidence? I mean, could somebody come in, look at the footprints evidence for themselves and say; “this actually isn't a strand of rope, it's part of the knife”; or examine the fingerprint evidence and say “this is razor sharp, not dull and blunted!” And if they do so ... why should we believe them on that particular conclusion over and above Binnie? Because, the fact he erred in not doing everything he ought to have done with the conclusions he reached on each piece of evidence does not in itself mean that those conclusions are wrong!
Which makes me think that despite my earlier prediction that the government would ask Fisher to carry on with the next stage of dealing with David Bain’s claim, it would be a real mistake to do so. I would note in this context, without wanting to be dickish about it, that there have been questions raised about Fisher’s previous work when advising Cabinet on whether should Rex Haig receive compensation for wrongful conviction and imprisonment:
[A] December 2010 report by Prof Joseph, a School of Law professor at the University of Canterbury, criticised Mr Fisher's findings as legally and factually baseless.
"Fisher's finding of probable guilt was based on a hypothesis that was entirely novel and untested. Furthermore, Haig had no opportunity to rebut or challenge the hypothesis," Prof Joseph said.
Mr Fisher went outside the parameters of the initial Crown and defence cases. He played no part in the proceedings leading to Mr Haig's conviction or the subsequent quashing of it, did not personally interview witnesses, was not involved in gathering evidence and did not attend the trial, he said.
“He was, for all intents and purposes, a casual bystander. Yet Fisher could be confident that he, and only he, really knew what happened on the boat when Roderique was murdered. Such prescience is truly admirable," Prof Joseph said.
He found three grounds on which Mr Haig could legally challenge Mr Fisher's report and seek a judicial review.
I make this point not to undermine Fisher’s criticisms of Binnie’s report (like I say, I think he was right on the main point of his review), or to suggest that he was just as bad as Binnie when he had to do the same job, or that he couldn’t be trusted to carry out a substantive review of David Bain’s innocence. Rather, 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. 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.
Right. That’s it. I’m all Bained out now, so I’m going to try to stop myself from joining in the comment thread. But the rest of you can have at it.