Want to say something about the Binnie Report on David Bain's innocence? Or Robert Fisher's review of that report? Or Judith Collins' handling of the whole matter? Here's your chance.

So, at 3 o'clock Judith Collins will release Ian Binnie's report on David Bain's innocence (because we all know now that this is what it says) along with Robert Fisher's "peer review" of that report. I'm sure this decision has nothing whatsoever to do with Binnie's pretty scathing comments about how she has handled the process thus far, and is based purely upon her assessment of "David Bain's best interests and the interests of justice". 

So now we'll have to move beyond speculation and actually deal with what has been said and counter-said. There's bound to be lots of it. So here's what I'm proposing ...as and when you're leafing through the report, share with us all in the comments section below any little items of interest you may uncover, or thoughts you might have, or impressions you may form.

Who knows - maybe at the end of the day we'll be able to form a consensus view as to whether David Bain really is innocent (or not)! That should be possible, right? Right??

Comments (85)

by Andrew Geddis on December 13, 2012
Andrew Geddis

So I'll go first ... Binnie says "innocent on the balance of probabilities" plus "Police failures provide exceptional circumstances". Fisher says "Binnie has made a bunch of errors in how he approached this issue". Any news yet on what Collins has said about what she'll do?

My prediction? Binnie will be asked to withdraw his report, he'll say "no", and so Collins will say we can't rely on it and ... back to the start, I guess!

[Update: according to the NZ Herald, "Ms Collins said it would be 'unacceptable' to take a recommendation to Cabinet for compensation based on a flawed report." So it looks like Fisher has given her what she wanted!]

by Andrew Geddis on December 13, 2012
Andrew Geddis

Here they are!

However, it would appear that demand is crashing the MoJ server!! 

by Graeme Edgeler on December 13, 2012
Graeme Edgeler

However, it would appear that demand is crashing the MoJ server!

The documents are also available on Scoop.

by Mike Osborne on December 13, 2012
Mike Osborne

Fisher's report point 7 - 

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.!

So - nope - no chance of deducing Bain's guilt or otherwise from his report. Fisher has played this with a very straight bat - and forthright comes to mind.

What next? Page 66 point 249 - so yes back to start - except that Fisher's report has now pretty clearly spelt out how an evaluation should be made.

by Mike Osborne on December 13, 2012
Mike Osborne

Binnie 126. In other words, despite the accepted view that the killer was either his father or himself, David Bain went out of his way in my interview with him not to speak ill of Robin.

Ergo?

by James Green on December 13, 2012
James Green

Apart from his typing/dictation crumbling a little by the end, Binnie's excoriation of Fisher's report is compelling reading. I do not have the expertise to evaluate the competing counter-claims, but it seems Binnie considers that Fisher of not doing his homework and misreading Binnie's report in several key ways.

by Mike Osborne on December 13, 2012
Mike Osborne

Binnie 129. I believe he is telling the truth as best as he can recall with respect to the sequence of activities in the house between the time he arrived home (around 6.45 am) and the time he called the 111 emergency number (7.10 am). There are no other eye witnesses, of course as everyone else who was in the house is dead. He may be in error on some of the details but I find him credible on the important issues.

Seriously? We paid $400k for that.

by Andrew Geddis on December 13, 2012
Andrew Geddis

At the risk of being unsufferably smug and self-satisfied (yes, yes, I know ... it's too late for me to worry about that!), I suggested in my last post:

Which then opens up some pretty thorny questions as to who is going to take up this particular poisoned chalice, and where they will come from. Would an overseas figure want the job, given Binnie's fate? What odds that Collins decides that as Fisher already has looked at the issues, he is the ideal person to take on the job of assessing Bain's innocence? 

Looks like this is what Fisher thinks Collins wants to do - see para 7 of Fisher's review report: "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." 

Also, Binnie isn't going quietly - see his reponse to Fisher's review.

by James Green on December 13, 2012
James Green

@Mike - I might be wrong, but I believe the 400k is likely to include his not inconsiderable working expenses.

Another interesting sidepoint: Paul Rishworth, University of Auckland law professor was his NZ legal advisor (though I note his interests are largely in Human Rights?)

by James Green on December 13, 2012
James Green

What odds that Collins decides that as Fisher already has looked at the issues, he is the ideal person to take on the job of assessing Bain's innocence?


It seems pretty clear that Binnie doesn't think so!

by Andrew Geddis on December 13, 2012
Andrew Geddis

Another interesting sidepoint: Paul Rishworth, University of Auckland law professor was his NZ legal advisor.

To quote Dean Knight ... wow!

So, I guess Judith Collins' claim that "any lawyer in New Zealand" could tell that Binnie's report was flawed isn't exactly accurate ... .

by Steven Price on December 13, 2012
Steven Price

So much for Stuff's report that Binnie concluded Bain was innocent beyond reasonable doubt. A Stuff-up?

by Andrew Geddis on December 13, 2012
Andrew Geddis

So much for Stuff's report that Binnie concluded Bain was innocent beyond reasonable doubt.

Don't you know you can't trust the MSM? Blogs are where it is at, man.

by James Green on December 13, 2012
James Green

Any of you legal types ready to pass an opinion on either Fisher's interpretation of Binnie, or Binnie's subsequent interpretation of Fisher yet?

by Mike Osborne on December 13, 2012
Mike Osborne

@Andrew and/or @Stephen Can you please explain to me what this means - I don't understand the implications of "beyond reasonable doubt" and "factual innocence" in the same point. And... what is the relationship to "balance of probabilities"?

476. None of the foregoing points are free of difficulty. 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 light of my interview with David Bain on 23 July 2012, persuade me that David Bain is factually innocent of the murder of his parents and sisters and brother. 

by Andrew Geddis on December 13, 2012
Andrew Geddis

@James,

No. I'm going to have to read all documents pretty closely to do so. And even then, it may be a case of which one I've read last!

@Mike,

I think that it's simply an indication of the strength of his conclusion, based on the evidence (as he sees and analyses it - which Fisher says was wrong). So, I believe beyond reasonable doubt that the earth is round. And I believe on the balance of probabilities that it was my four year old daughter who broke the vase that was on my table, and not my 18 month old son (as my daughter tried to claim). Thus, I think both of these are "facts", but I think there's stronger and better evidence for my conclusion on one issue than the other.

by Andrew Geddis on December 13, 2012
Andrew Geddis

Just a random thought - have we seen the terms of reference for Fisher's review yet? All he mentions in his review is meeting with the Minister ... was there anything more formal than that?

I ask because doesn't it matter a lot how this job was presented to him? If he was told "there's problems with Binnie's report - I'd like you to look at it and see" , doesn't this rather predispose Fisher to look for problems and thus say that they exist? As compared to, say, simply being told "we're making doubly sure everything's OK with this ... It's probably fine, but just make sure for us."

by Morgan Godfery on December 13, 2012
Morgan Godfery

Punctuation aside, I think Justice Binnie offers a compelling rebuttal. As one example, it's astounding (well, it's not really) that Collins was planning for:

a second and final report... for the purpose of reviewing the evidence afresh and arriving at its own conclusions on the merits

If this doesn't point to planning for a particular outcome, hell knows what does. As another example, Fisher appears to have failed to show a "robustness of reasoning". Fisher argues that a conclusion should be reached looking at the evidence "cumulatively", and implies that Justice Binnie didn't do so, only to quote him doing exactly that - considering the evidence cumulatively. It's like the appelant judge criticising the trial judge for applying a subjective test, only to apply the same test himself. The main concern, however, is that Fisher seems to be arguing that Justice Binnie should have taken a narrow approach to determining Bain's innocence. The sort of approach a Judge would take in a criminal trial. This argument loses sight of the fact that this is a review looking to determine innocence on the balance of probabilities. This allows room, I think, for a broader inquiry rather than a narrow, step by step, box ticking exercise that would usually happen in trial. 

Legal things aside, I find the political aspects more interesting. What are Collin's motivations? Is she trying to reinforce her tough-girl image? Probably, but that's a consequence of her main motivation. Justice Binnie holds nothing back in criticising the New Zealand legal system and that forces Collin to 1) accept the findings and admit the system failed or 2) go one the defensive and protect the reputation of the system. Kim Dotcom, the Urewera trials and the Bain miscarriage have damaged the system's reputation and, I think, the National government has and will bear some of that. Collins, a leadership aspirant, will not want that to rub off on her record. Then again, I'm probably hopelessly wrong and Collins does think that there are serious flaws in the report. If she does, I think she's misguided. 

by John Norman on December 13, 2012
John Norman
I'm left field for now.. mainly for inoculatory purposes if you can both follow and accept. AG, it would be helpful to know more about the nature of Justice Binnie's original terms of reference(tor), plus where also available - preferably online - other related material in respect of this. Why? Did, for instance, some change occur upon Minister Powers relinguishing parliamentary duties. I could google I'd suppose and find a whole heap of stuff though purpose would be better served in taking what good direction I can. Powers professed himself a doer in Parliament, whilst accepting any such career was more likely 90% planning and 10% execution(qv Valedictory). Could be wrong on so slight an acquaintance but there appears a prudent need for him to step outside local-scene as needed. One thusly wonders to what extent this may have played on his decision to approach IB. And what consequence such decision may have had among his cabinet colleagues. I'd really appreciate knowing how to para any inputs here. As of now I expect another 'blocky' job to come up. Aint pretty. Or helpful. So.. help!
by mickysavage on December 13, 2012
mickysavage

Can I linkwhore?  

http://waitakerenews.blogspot.co.nz/2012/12/crusher-collins-v-binnie-and...

Essentially I think the Binnie rebuttal even though it is punctuation challenged and obviously typed in haste and in anger is an exquisite rebuttal and if Cabinet is bound by considerations of natural justice it needs to change its current approach ...

And even though I am but a modest suburban general practitioner of the art of law I thought Binnie's report was pretty good ...

by Andrew Geddis on December 13, 2012
Andrew Geddis

M/S,

Yes. You may.

And FWIIW, I'm also waiting for the fuck-up moment in Binnie's report, which I'm reading now (post putting kids to bed). No doubt I'll change my mind on reading Fisher ... then change it back reading Binnie's response. I'm easily swayed.

by Andrew Geddis on December 13, 2012
Andrew Geddis

I'm still not nailing my colors to one mast or the other just yet, but Binnie's response to Fisher just made me laugh out loud (para 8):

Once again Mr Fisher's analysis raises a distinction without a difference in order to discredit a report based on evidence he hasn't read.

Ouch! If this is decided on style/wit, Binnie's going to walk away with it!

by Steven Price on December 13, 2012
Steven Price

The terms of reference are attached to Fisher's report, as an appendix to the Minister's letter.

by Andrew Geddis on December 13, 2012
Andrew Geddis

And again (para 10):

Once again, Mr Fisher's complaints are academic and theoretical and indicate little familiarity with the case.

You do not want to mess with this guy!

by Andrew Geddis on December 13, 2012
Andrew Geddis

Steven,

Yes - thanks. He also references them in his report proper.

That said, I do wonder how the fact he and the Minister were discussing a "stage 2" enquiry into Bain's innocence on the day of his appointment may have coloured how he approached his "stage 1" review of Binnie's report?

by Jane Beezle on December 13, 2012
Jane Beezle

I'm willing to pass judgment on the relative merits of these two opinions.

Dr Fisher is true to form.  He has one of the sharpest legal minds in the country and his opinion makes it clear why he is approached to deal with compensation claims by the Executive regularly.

There is a lot of discussion about ex-Justice Binnie's "responses" to Dr Fisher but I'm not sure if they are worth considering.  They appear defensive and point-scoring, which is probably fair enough.  As you say, Andrew, he is not going quietly.

As to the more important question of his report itself - particularly the question of whether it is flawed because he has not applied the onus of proof and given improper weight to evidence - I would have to side with Dr Fisher who is a recognised expert on the law of evidence.

There is a harsh lesson in this for the Executive - go outside of the country for a superjudge at your peril.  I always thought it was a good idea to get rid of the Privy Council and this spat appears just shows it was the right decision.

 

by Jane Beezle on December 13, 2012
Jane Beezle

Andrew,

I don't think you can presume that Dr Fisher, or the Minister of Justice, necessarily envisage that he will conduct the "next" inquiry.   He has put his view of the merit of Justice Binnie's report beyond doubt by saying that a fresh inquiry should be conducted.  From that point, sensible advice would be to engage a New Zealand retired judge who has no previous involvement.  

by Jane Beezle on December 13, 2012
Jane Beezle

Though they must be pretty thin on the ground ....

by Anthony Britton on December 13, 2012
Anthony Britton

At one level Collins makes New Zealand the laughing stock of the world. Being an island nation where so many people in power know each other, it is seriously difficult to get an unbiased view along with fairness and justice. So in this case it was a really good idea to get in a well respected overseas expert. Then Collins comes along, and not only hijacks but stuffs up the whole process.

At a deeper level Collins highlights just how incompetent and closed mind we can be, and I use the word we in the sense of someone from outside the country looking at us as a nation of people. Earlier Collins unfairly made Binnie sound like some dithery old incompetent, but everything I've read from the guy makes sense and shows a sharp mind, far more so than either Collins, who looks and sounds like a bullying buffoon, or Fisher who appears as a lightweight sycophant.

by Jane Beezle on December 13, 2012
Jane Beezle

You have no idea.

by Simon on December 13, 2012
Simon

My entirely non-judicial and left-field contribution is to hypothesize what possible function Collins thinks she is performing.

Years ago, Tom Scott wrote about Rob Muldoon's most accident prone minister, Ben Couch, firing off completely inane press-releases just before Christmas and through to New Year. Tom Scott then retold how he had just seen on tv an old British war film where a plucky working class Cockney named Nobby was badly wounded on a Desert Rats raid against Rommel's Afrika Korps. Nobby of course demands to be left in the path of the pursuing panzergrenadiers with a Vickers 303 machine gun and lots of ammunition. Then Tom Scott wrote that the lightbulb went on for him and that Ben Couch was Nobby, strafing the media with his press releases as covering fire so Muldoon and the other ministers could escape for their holidays.

So....obviously Collins is Nobby! and her role is to distract us from ...oooh....lots to choose from.

John Key fudging body recovery with the Pike RIver Mine families? Tim Groser finding out at Doha you can't opt out of the Kyoto Protocol while still buying bargain-bin Kyoto emissions units? Hekia Parata/ Craig Foss, Novapay and teachers payroll trainwreck? Phil Heatley watching Petrobas dissappear into the unprospected distance?  

by Jane Beezle on December 13, 2012
Jane Beezle

Truth is, Simon, Collins has so much backbone it sticks out about three feet above her skull.

by Andrew Geddis on December 13, 2012
Andrew Geddis

Jane,

Isn't Robert Fisher a retired NZ judge with no previous involvement in the case (prior to this, anyway)?

As for the issue of "improper weight" of evidence, what make you of Binnie's claim that he was simply giving the evidence the weight the Crown gave it (i.e. the SG's admission to the Privy Council that whoever made the footprints had to be the killer ... which makes that issue somewhat more important than (say) the glasses lens or washing machine cycle time)? Isn't Binnie's point that Fisher's somewhat abstract evidential theorising needs to be applied in the actual context of the case (complete with 17 years of history and multiple trials)?

by Mark Bennett on December 13, 2012
Mark Bennett

I don't know much or anything about this, but it seems to me that the key point is whether Binnie J made appropriate use of the evidence to determine whether Bain is innocent on the balance of probabilities. 

Here are some simple points that might structure the analysis. 

Having read the Binnie J response and the first 4 chapters of the Fisher review report, it seems that the battle on this question is based in Chapters 2 and 3 of Fisher, which are countered by points 4-8 of the Binnie J response.

It is not obvious to me whether Binnie's responses to Dr Fisher's critique are successful.

If one agrees with Fisher's view of what logic requires in terms of evaluating circumstantial evidence to determine what happened on the balance of probabilities, and if Binnie J did not follow these principles properly, then the Binnie report is flawed. That is Fisher's position. 

So one might say that Fisher's view of what logic requires is wrong, or that Binnie J essentially did what Fisher says he should have done, notwithstanding some of the language that seems to indicate otherwise. Binnie J seems to say both of these things in his points 6, 6 (the second), and 7. 

So I would like to see discussion of whether Fisher's analysis is really just 'academic' in the pejorative sense, or whether it is 'academic' in the "well thought through and convincing sense" (if the latter exists?!). If one cannot properly answer the question but by taking a particular approach, then if Binnie J did not take that approach there is a problem. 

The other thing I would like to see discussed, on the assumption that Dr Fisher's 'academic' approach to evidence and probability is correct, is whether people think Binnie J did actually follow that approach in substance if not in form, which he seems to claim to have done. 

Analysis of this would include the footprint 'weight' point. Paras 87-98 of the Fisher review. Is the point here that an initial conclusion on that one piece of evidence is used as the baseline of innocence for looking at other evidence, rather than adding the footprint evidence to all the other evidence to determine innocent or guilt on the balance of probabilities. Again, if Dr Fisher's approach is the only sound one, it does seem as though Binnie J erred. 

Not sure that is of any help - more just a framework. And in ignorance of the initial Binnie Report. 

The only other thing is that is seems unlikely that Dr Fisher has made major mistakes concerning the theory of evidence and probability, and about whether Binnie J took the correct approach. 

by James Green on December 14, 2012
James Green

Listening to Chris Gallivan's perspective on Binnie v Fisher, it struck me that while Gallivan appreciated Binnie's insight and thought his methodology was sound(ish), it seemed like his unspoken reservation was that he disagreed with Binnie's conclusion. I should be clear, that this is just my personal impression.

Which makes me realise the obvious that very few people are able to divorce their opinion of Bain's guilt and Binnie's report. Of the lawyers of my acquaintance, most seem convinced fo guilt, so assuming lawyers of my acquaintance are losely representative of the profession, then it's not surprising that Binnie's report is going down like a cup of cold sick. Had Binnie's report come to a more equivocal conclusion, we would not be having this argument. 

by Jane Beezle on December 14, 2012
Jane Beezle

Andrew,

It is a fair point about the Crown submission before the Privy Council but it is not a "silver bullet" piece of evidence that establishes innocence beyond all doubt.   It is important to remember it was a circumstantial case with a range of evidence used to develop the theories for guilt or reasonable doubt.  You would need to go back and look at the context in which the submission was made before the Privy Council.  From memory, at least at the first trial, there was uncertainty about the size of the luminol prints, and thus uncertainty about who made them.

I think Justice Binnie's criticism that Dr Fisher QC is "academic" is pretty off beam and a good example of the kind of defensive comment that doesn't add much to the debate.  Here we have a highly respected practising lawyer who ran High Court criminal trials and sat on the Criminal Appeals division of the Court of Appeal.  Alongside that he was the expert adviser to the Justice select committee on the Evidence Act.

Therefore I don't take his report as academic consideration.  Ex gratia compensation paid by the Crown is a specialist area and he understands it better than anyone else in New Zealand.

by Jane Beezle on December 14, 2012
Jane Beezle

On your point about Dr Fisher's involvement, I presume he has no prior involvement in the Bain case to this point.

I suppose my view is that the Executive will want public confidence in the next report.  There is the danger if Dr Fisher is selected to do it that he will be perceived as a "hatchet man" - regardless of his impartiality which is without question.

The appearance of justice is as important as doing justice - this case is really breathing some llife into that appeal court truism. 

by Scott Chris on December 14, 2012
Scott Chris

Heh, turns out you were spot on with what you said about judicial egos Andrew. 

All that aside, this part of Binnie's response to Fisher's review sticks in my mind:

As explained in my Summary at the outset of the Report, the most persuasive evidence was the physical evidence including not only the luminol prints, but the absence of any blood on the inside of David Bain's running shoes, and the lack of a "window of opportunity" to accomodate the Crown's case.


I can't see how Binnie finds this evidence persuasive of David Bain's probable innocence.

1.)The killer didn't appear to wear shoes during the killings so why would blood get into the killer's shoes? 

2.) It has been shown that Bain did have a window of opportunity to commit the murders if you plug in the right scenario factors and analyse the witness testimony properly.

3.) As for the foot prints, well they were shorter than Bain's foot, but who's to say that his entire foot was inked with blood.

There is just so much more evidence that would point to David Bain's probable guilt that Binnie appears to have ignored or dismissed. Binnie, like all the rest of the Bainers out there appears to have lost sight of the forest for the trees.

 

by Scott Chris on December 14, 2012
Scott Chris

But from a political point of view I can't help but feel this whole situation has been mishandled by Collins and co. Apart from anything else, is Fisher properly qualified to critique Binnies report? 

by Andrew Geddis on December 14, 2012
Andrew Geddis

"1.)The killer didn't appear to wear shoes during the killings so why would blood get into the killer's shoes?"

Because the claim is that DB shot 4 of the family (in his socks, which got bloodied), then put on his shoes, then did his paper round, then came home and shot his Dad. Hence, if he put on shoes after getting blood all over the soles of his feet, you'd expect to find blood in the shoes he did his paper round in. So if you don't, then that's pretty good evidence that there wasn't blood on his feet (i.e. the dog didn't bark ... ).

"2.) It has been shown that Bain did have a window of opportunity to commit the murders if you plug in the right scenario factors and analyse the witness testimony properly."

This boils down to timing questions that Binnie canvases at quite some length - suffice to say, he doesn't think it can.

"3.) As for the foot prints, well they were shorter than Bain's foot, but who's to say that his entire foot was inked with blood."

The Crown did. Until they realised that this kind of fucked their case. When they stopped saying it.

"But from a political point of view I can't help but feel this whole situation has been mishandled by Collins and co."

I agree.

by James Green on December 14, 2012
James Green

@Scott Chris

1.)The killer didn't appear to wear shoes during the killings so why would blood get into the killer's shoes? 

: "259.  A further important point, mentioned earlier, is the Police theory that David Bain got his socks bloodied during the early morning hours before going on his “alibi” paper route.  It seems obvious that were he to have inserted the bloodied socks he was wearing when found by the Police into his Lasers [running shoes] to run the paper route he would have transferred in the process some blood to the inside of the running shoes." [emphasis in the original]

3.) As for the foot prints, well they were shorter than Bain's foot, but who's to say that his entire foot was inked with blood.

Binnie:"258.  A further curiosity tending to exclude David Bain as the print maker is that Mr Hentschel was quite clear that all six footprints he found were made with a right foot.  There is no explanation for why no left footprints were located.  The socks David was wearing when found by the Police on 20 June 1994 were both bloodied as a result, he claimed, of going innocently from room to room in the early morning seeking family members.  Both his socks, when tested by Mr Hentschel with Luminol, luminesced. 136   None of the witnesses was able to explain satisfactorily how if the prints found by Mr Hentschel had been made by David Bain, only the right sock print on the carpet luminesced." [emphasis in the original]

by James Green on December 14, 2012
James Green

Snap. Too slow!

by Ross on December 14, 2012
Ross

Andrew

You refer to the sock print evidence. Didn't Robin's socks lack the presence of blood? How would he make bloodied sock prints but not have any blood on his socks? The only explanation is that he took off his socks and put on a clean pair before killing himself. To say that scenario strains credibility is an understatement.

 

by Scott Chris on December 14, 2012
Scott Chris

1.) You wouldn't get blood in your shoe if you were to strip off your bloodied clothes and throw them in the washing machine (leaving a bloody palm print on it in the process) before putting your shoes on.

2.) Regarding the timing, well, crown witness Denise Lahey testified that she saw David on her way to work where she was due to start at 6.45 am (and for which she she states she wasn't late) putting the sighting at around 6.40 am in my estimation. And who is to say that Robin didn't turn on the computer as was his daily habit? (as well as collecting the daily paper - ya, the kind of thing you'd do if you'd just murdered your family - not)

3.) Just because the crown asserted that the foot-print matched David's in respect to length when in fact it was shorter doesn't mean it wasn't David's footprint. Too much emphasis seems to be being placed on the veracity of the Crown's proposed and sometimes flawed scenarios as opposed to attempting to establish what actually happened imo.

 

by James Green on December 14, 2012
James Green

Lord Bingham of Cornhill, delivering on behalf of his peers, was also underwelmed by the sock evidence:

Luminol sock prints

[107] At trial, it was asserted and accepted that the 280mm complete toe to heel sock print, found outside Margaret’s room, seen and measured by Mr Hentschel, was David’s because it was too big to be Robin’s. The fresh evidence throws real doubt on the correctness of that assumption. The jury could reasonably infer that the print, if a complete print, was about the length of print that Robin would have made and too short to have been made by David. A question now arises whether, as Mr Walsh suggests, his earlier report was misunderstood and misapplied by the third Court of Appeal. If the jury had concluded that the print had, or might have been, made by Robin, the jury might have thought this significant for three reasons. First, it would indicate that Robin had been to parts of the house on the morning of 20 June which, on the Crown case, he would never have visited. Secondly, it would establish that Robin had changed out of blood-stained socks, since if he made the print he must have been wearing blood-stained socks and the socks he was wearing when he was found dead in the lounge were not blood-stained. Thirdly, if he changed his socks, the jury might not think it fanciful to infer that he changed other garments as well, as (on David’s case) he had. The implausibility of Robin changing his clothes if he was about to commit suicide, was a point strongly relied on by the Crown, as something a normal and rational person would not have done. But the jury might conclude that whoever committed these killings was not acting normally or rationally.

 

 

by Jane Beezle on December 14, 2012
Jane Beezle

People.

At this stage it is not a discussion about David's probable innocence.  It is purely process.  Dr Fisher is the Executive's judicial reviewer, here to save us from improper application of the principles.

Isn't that right, Andrew?

by Kent Parker on December 14, 2012
Kent Parker

I think that the probabilies regarding David Bain's innocence or not in relation to the Bain murders is too uncertain for compensation to be paid out.  If you agree, then do please sign the petition at counterspin: http://davidbain.counterspin.co.nz/petition-list

by Andrew Geddis on December 14, 2012
Andrew Geddis

Sorry I've left this thread hanging - been doing Daddy Day Care stuff all day. 

@Mark: Sorry I haven't given your comment more discussion - it certainly deserves it. I think you are right in your "framework" for analysis. I

@Scott/James: Jane is right - we could probably go at this all day long ... there's lots of discussion in Binnie's report, which either will convince or not and so throwing snippets of it at each other doesn't get us very far.

@Jane: Yes - that was Fisher's role. But whether (1) the way he was appointed to it and how his task was defined undermines that role; and (2) whether he carried out the role handed to him in a satisfactory manner are still open questions. I don't think we can just say "Fisher is a smart and expert guy, so if he says something we must buy it" any more than we can say "Binnie is a smart and expert guy, so if he says something we must buy it" (as I once did - and look where that got me!).

@Kent: That seems an odd approach to take to what is, in the end, a factual issue - did he or didn't he do it? So are you of the opinion that the process Judith Collins is involved in is a purely political exercise, subject to popular lobbying like any other issue of public policy (ie mining in National Parks; Gay Marriage; putting folic acid in bread)? In which case, do you think there's any need for further reviews of this matter?

by Andrew Geddis on December 14, 2012
Andrew Geddis

One other thing people might find interesting - news of this is beginning to leak home to Canada. 

In an interview with the Star from England, shortly after going over the government’s “peer review” of his work, Binnie said the public attack had been “totally unexpected.”

“I haven’t actually been thrown under a bus, but there are probably some similarities.”

Binnie said the Bain case is “a major political issue in New Zealand” where reactions to it are “visceral” and deeply divided.

The population in that country, he said, has not had the wrenching experience Canada has had of probing wrongful convictions. “The Canadian reaction is to try to get to the bottom of it. We’ll have to see what the New Zealand reaction is.”

And then to finish:

Binnie told the Star while the “process” wasn’t handled well in New Zealand, he was not leery about taking on any other inquiry work from other governments, including Canada’s.

“We do things differently in Canada.”

That's us told, then!

by Ross on December 14, 2012
Ross

The population in that country, he said, has not had the wrenching experience Canada has had of probing wrongful convictions.

That's a strange thing to say. What would he know about NZ's history re wrongful convictions? Not much, I'd hazard a guess. Besides, he still seems confused. He seems to be suggesting that anyone who is wrongly convicted must be innocent. Weird.

It's apparent that Binnie isn't used to criticism and won't be apologising for the mistakes in his report. That's a shame.

 

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