It looks like a lot of people owe David Bain an apology - as well as an awful lot of cash. Here's my contribution (to the apologies, anyway).

The beauty of this blogging lark is that it is very easy to quickly develop an opinion on whatever happens to be prominent in the news on a given day, pad it out into a few hundred words with a couple of links, throw it up onto the web ... then move on to next week's installment. And because there's so many people saying so much stuff about so many things on the internets, there's (usually) no-one around to keep a tally of whether anything any particular person says turns out to be true - or a load of old cobblers.

But every now and then I've been known to crow about my perspicacity regarding current events. So, in the interests of intellectual honesty, I thought I better put my hand up when I got something wrong.

Back in the aftermath of "the trial of the century", I wrote a couple of posts regarding David Bain and his struggle for compensation following his acquittal for murder and release from nearly 13 years of imprisonment. While I didn't positively state a belief in Bain's guilt - indeed, I made the mealy-mouthed claim that "I've tried to avoid tangling myself up in the evidence on this issue, so I don't really claim to know one way or the other if he can [prove his innocence]" - the manner in which they were written indicated a pretty healthy scepticism about Bain's chances of getting anything. That was a scepticism that, I think it is safe to say, was widely shared amongst my fellows in the legal academy and profession generally.

It now looks like that point of view, and the attendant assumption of Bain's guilt-in-fact, was misplaced. According to the Herald, by way of Newstalk ZB, the retired Canadian Supreme Court Judge Ian Binnie has concluded that on the balance of probabilities Bain is innocent of all the charges laid against him. That is to say, he's not only not guilty of killing his family at a criminal standard of proof, but it is more likely than not he did not do it as a matter of fact. 

That's good enough for me. And so, I am sorry for the tone of my previous posts. It was wrong, and so was the unstated belief underpinning it. 

Comments (32)

by Ross on September 10, 2012
Ross

I said David wouldn't be given a brass razoo. So far, he hasn't. I recall retired judge Sir Thomas Thorp enquired into Bain's conviction and concluded it was safe. And lest it be said that Thorp was a protagonist for the powers that be, he wrote a book explaining his concern about miscarriages of justice in this country. He also wrote a report into the Peter Ellis case where he suggested that Ellis might have been wrongly convicted. Interesting, then, that he should doubt Bain's innocence.

by Andrew Geddis on September 10, 2012
Andrew Geddis

Ross,

But was the evidence that Thorp reviewed the same evidence that Binnie did? Again, not having followed the various twits and turns in every detail, I still think there was some stuff discussed at trail number 2 that wasn't in trial number 1? 

by Ross on September 10, 2012
Ross

Andrew

I think a more pertinent question is: on what basis has Binnie concluded that Bain is probably innocent?

But it is not at all clear if the witness who spoke of David's plan to rape a jogger was interviewed by Binnie, nor if the learned judged spoke with the juror who said compensation should not be paid. Binnie's report could come in for some criticism if he has overlooked some important matters. Most importantly, it could give the government an opportunity to deny Bain compensation.

 

 

by Richard Aston on September 10, 2012
Richard Aston

But he was, and is, guilty of a breathtaking bad taste in jumpers.

 

by Andrew Geddis on September 10, 2012
Andrew Geddis

@Ross: "I think a more pertinent question is: on what basis has Binnie concluded that Bain is probably innocent?"

Sure - I'll be interested to see this, too. But the point of my post is to say that now there (apparently) is a finding by someone with the calibre of Ian Binnie that David Bain probably didn't commit these crimes, that's good enough for me.

Of course, if it turns out that Binnie has completely messed up his report, then that would change things. But I doubt he has.

by Kyle Matthews on September 10, 2012
Kyle Matthews

Will the report have to cross the threshold of "if not likely to be David, then probably was..."

Not having followed every detail, my impression was that the attempt to lay the blame on Robin, while it obviously convinced the most recent jury, didn't stack up very well.

by Ross on September 10, 2012
Ross

Andrew,

Binnie is just one opinion. I would like to think it would be reviewed by his peers at least. The Supreme Court and Court of Appeal don't rely on just one opinion.  Given the stakes involved in this case, it would be foolish to think Binnie's word is the best and last.

 

by Ian MacKay on September 10, 2012
Ian MacKay

ACC seems to have had a pattern of having a case go from one assessor to the next to the next, until they find one that says what they want to hear.

Now since this pattern was Government generated, what bets that they apply the same method to David Bain? How many judges would be willing to........

by Mike Osborne on September 11, 2012
Mike Osborne

@Ian "until they find one that says what they want to hear."

Well you can tick that one off, their man has delivered - pay the $2m and Bain and more importantly Karam go away and "Justice" Ministers have got a messy problem off their plate that's been hanging round for years.

On "balance of probablities" it had to be Robin? And to have brought that morning's paper in for David to read, that was a nice touch.

by Ross on September 11, 2012
Ross

Last year Justice Binnie was quoted as saying:

"It is a fact of life on the Supreme Court that you are dealing with eight other people, week in and week out, year in and year out. You have an institutional responsibility to try to generate as much clarity and solidarity in the law as you can. It is extremely frustrating when you feel you have written an elegant and clear exposition of the law, to have your colleagues jump all over it and complain about this, that and the next thing. But on the other hand, it is a great comfort when a judgment is released that eight other people have been pounding away at it and pointing out the gaps in what you thought was a seamless piece of great scholarship.   So, yes, it is frustrating. But the whole point of the Supreme Court is you are not dealing with individual judges penning their own thoughts."

http://www.theglobeandmail.com/news/national/justice-ian-binnies-exit-interview/article555452/?page=all

He seems to be saying that he may have written rubbish occasionally while a SC judge, but it didn't matter because he had 8 other judges to put it right. So if his report into the Bain case is rubbish, who (if anyone) is going to put it right?

by Scott Chris on September 11, 2012
Scott Chris

It now looks like that point of view, and the attendant assumption of Bain's guilt-in-fact, was misplaced.

I disagree. Okay, so Binnie's a retired judge and has had reviewed all the evidence but in my mind the evidence implicating Robin as being the murderer was very very thin so I'll be flabbergasted if what has been leaked turns out to be true.

Point is, they both probably didn't do it so I can only guess that Binnie has decided that there was insufficient evidence to conclusively implicate either Robin or David - which of course is complete bollocks. Of course David did it. Some things y' jus' know.

Looking forward to reading Binnie's summary. 

 

 

by Ross on September 11, 2012
Ross

It looks as though the Justice Minister is keeping all her options open.

http://www.stuff.co.nz/national/politics/7652137/Collins-Bain-report-recommendation-not-decision

 

by James B on September 11, 2012
James B

Surely the only way David could be innocent on the balance of probabilities is if his father was more likely than David to have committed the murders. If a trial had been held to prove the fathers guilt the case would never have got off the ground. David's saving grace was to raise a small doubt that it may have been the fathe due to the incest etc. So let me get this straight...Robin Bain must have decided he was going to kill his whole family while David was on his paper route and implicate David by wearing his clothes, glasses etc. However halfway through he changes his mind about implicating David, puts Davids clothes out for a wash (very kind) and writes a letter saying "you're the only one that deserved to live". A person who would wash clothes to hide the evidence, would be one trying to avoid detection, however why would someone on a family killing suicide spree fear detection...I don't see how Binnie could possibly come to a position from reasonable doubt to likely innocent, that is just absurd and a second opinion is needed...My thoughts go back to the retired High court charged with examining Arthur Allan Thomas (and did an awful job) who asked Muldoon as he left his office "what newspaper are you from again?"

by Steven Price on September 11, 2012
Steven Price

Woah. Let's hold fire here. I'm with Andrew in fessing up to being wrong that anyone assessing this was very unlikely to find Bain innocent on balance of probabilities.

But let's wait and see how convincing his reasoning is before we accept or reject his conclusions.

by stuart munro on September 12, 2012
stuart munro

The problem with our reconstructions is less than complete evidence and that the killer may not have been especially consistent or rational at the time. Mind I thought the civic creche verdict much less credible.

by James B on September 12, 2012
James B

Yeah i'm very interested to wait and see what Binnie says. However his status as a supreme court judge does not give him any more special insight than the layman when we are dealing with circumstancial evidence and logic. We are not dealing here with long held legal precedents and common law principles etc. Any intelligent layman faced with the evidence has a good chance of being just as correct as like Binnie. This is not about legal knowledge its about instinct and common sense and cabinet would be foolish to give too much weight to this decision.

by Andrew Geddis on September 12, 2012
Andrew Geddis

@stuart: "Mind I thought the civic creche verdict much less credible"

I'm of the opinion it was flat wrong, and that Peter Ellis suffered a massive miscarriage of justice.

@James B: "This is not about legal knowledge its about instinct and common sense and cabinet would be foolish to give too much weight to this decision."

Well, that's fine. Except that Cabinet has set up a process to examine cases where a person allegedly has been wrongly convicted and so lost years of their life to prison, in order to determine if we as a society owe them a huge (moral and financial) debt. A part of that process is to get an independent assessment of all the evidence against a person from someone of high social standing and used to the practice of impartially assessing evidence (usually this is a Queens Counsel, but because almost all the NZ legal fraternity has been involved one way or another in the Bain case, Cabinet turned to an overseas judge). And now that independent assessment has come back as "most liely innocent", you are suggesting it be ignored (or, at least, given little weight) because ... why?

I've got to say, after reading the above comments I can see there's obviously some people pretty invested in their views of Bain's guilt (just as Joe Karram, etc were invested in their views of his innocence). That's fine - if people are that invested, I doubt anything much will change their minds. But I'm not, and so if the outside guy who got tasked to assess the matter with no preconceptions and full access to the evidence reaches a particular conclusion, I'm happy to say "he probably knows better than me". And sure, it may be just "one man's opinion" ... but then again, so are the comments of every commentator casting doubt on it.

by James B on September 12, 2012
James B

I am suggesting that given the huge amount of circumstancial evidence it is not prudent to take the judgment of one man as the the defining opinion as to whether he gets compensation.. several opinions need to be weighed. It may be said that Binnie is impartial but he has has been presented with all the facts as has everyone else and also been exposed to Joe karam's books which the jury was never exposed to and which clearly have a preference for David's innocence.. It's unfair to say that people are too invested in their opinions to change them implying that they are beyond reason... Of course! we have already heard all the evidence and we didn't reach these opinions arbitrarily. Why would we reconsider them owing to the opinion of a judge who is subjected to the same evidence as us? thats not closemindedness thats having an educated opinion and also having no good reason at this point to change it... This article i'm commenting on simply says "ooops I was wrong" with absolute faith that Binnie nust be right! why not stand with your original conviction till Binnie proves you wrong using his intellect and not his reputation?

by Mike Osborne on September 12, 2012
Mike Osborne

@ James B - well said.

Hopefully Justice Binnie interviewed Bain's aunt and got a full explanantion of what she relayed at 35-40 seconds in this video http://www.youtube.com/watch?v=KXK1Pr2K0S8. I'm not saying it can't be dismissed - but will be very interested to see the reasonng.

by Andrew Geddis on September 12, 2012
Andrew Geddis

@James B,

You may feel you have followed the case so closely as to be aware of all the evidence on all sides in all it's detail and so feel confident that your assessment of it is superior to Ian Binnie's. That's fine, if you've really invested that much time and effort into forming a reasoned opinion. But two things:

One, I haven't, and frankly am not ever going to. So when I hear that the guy appointed to review all the evidence has concluded that it makes it more likely than not that Bain is innocent, then of course I'm going to change my mind. After all, my previous view was based on no more than a few newspaper/blog commentaries purporting to show how the evidence pointed to Bain's guilt ... hardly determinative stuff. As, I suspect, is the case for most people.

Two, Ian Binnie's opinion isn't just "another" view of the matter. He's the guy THE CROWN appointed to give advice on the issue of innocence. So for the Crown to turn around and say "thanks, but there still will be no compensation as we know better (because you stuffed up)", there's going to have to be pretty major evidence that he HAS stuffed up ... and that means a heavy onus lies on those maintaining Bain's guilt to show why Binnie is wrong. So yes, if it can be shown Binnie's report is fundamentally flawed, I'll retract my retraction. But 'till then, the mere fact of its existence means I can't in good conscience claim to have a reason to continue to think David Bain's likely guilty.

by Ross on September 12, 2012
Ross

A part of that process is to get an independent assessment of all the evidence against a person from someone of high social standing and used to the practice of impartially assessing evidence

Andrew

You're ignoring a key issue I brought up earlier. Justice Binnie was never a judge before being appointed to the SC. He has never presided over a case alone. He has admitted that whilst sitting on the SC, he wrote opinions which he believed were "a seamless piece of great scholarship" only for those opinions to be shot down in flames by his colleagues on the SC. You haven't explained why we should simply assume he's got it right in this case. If he has got it wrong, you and I will likely be paying a mass murderer at least $2 million. How much confidence will the public have in the justice system if that happens?

 

by Ross on September 12, 2012
Ross

my previous view was based on no more than a few newspaper/blog commentaries purporting to show how the evidence pointed to Bain's guilt ... hardly determinative stuff.

I think Martin van Beynen's view should carry a little more weight than that. He did, after all, sit through the trial.

http://www.stuff.co.nz/the-press/opinion/2518912/Plenty-of-doubt-in-Bain-jurys-verdict

by Andrew Geddis on September 12, 2012
Andrew Geddis

@Ross,

It's a bit late to point all that out now, isn't it? If Binnie's so poorly suited to perform this job, why was he appointed to do it in the first place ... and where was the outcry about his manifest incompetence at the time of that appointment? I also assume that if his report had come back saying "David Bain is likely guilty", you'd be here arguing that Binnie's apparent inability to do the job means that we would have to think Bain is innocent? Or is this an after-the-fact assessment of Binnie's qualities, based on the fact he's (apparently) reached a decision you don't agree with?

As for "He has admitted that whilst sitting on the SC, he wrote opinions which he believed were "a seamless piece of great scholarship" only for those opinions to be shot down in flames by his colleagues on the SC", you are conflating the job of a judge on the highest bench of a country (with an obligation to not just decide a case, but also to set the course of the nation's law for the future) with that of looking at evidence and assessing what it most likely demonstrates. Any ... and I mean ANY ... judge on any Supreme Court will experience moments where they think the law ought to be set on a particular course, only to have their colleagues say "wait a minute, what about this, that and the other?" That's a part of the institutional nature of top courts across the world.

My point is simply this. We (as in "The Crown", representing NZ society generally) gave this guy a job to do, trusting in his ability to do it. Now he's completed that job, I think we have to accept his conclusions ... at least and until it is comprehensively demonstrated that he screwed up. In which case, of course we'd be silly to accept his views just because he was a judge. 

So, when it comes to "waiting to see Binnie's reasons" ... sure. But given his status and the role he was entrusted with, I'd need to be convinced he is wrong in his conclusions, not convinced that he's right about them. It's about where the onus now lies.

by Andrew Geddis on September 12, 2012
Andrew Geddis

@Ross: "I think Martin van Beynen's view should carry a little more weight than that. He did, after all, sit through the trial."

Yes - that piece was pretty fundamental to my previous view of Bain's guilt. But, it is worth remembering that 12 other people sat through the whole trial as well (even if their verdict wasn't necessarily "innocent"). And, with respect to Martin van Beynen, he wrote that as a piece to show why he believes Bain to be guilty, which isn't the same thing as a balanced assessment of the evidence across the board.

by Ross on September 12, 2012
Ross

where was the outcry about his manifest incompetence at the time of that appointment?

Those are your words, not mine. But what about Justice Thorp's competence? After reviewing the evidence, he declared that David Bain's conviction was safe. Is Justice Thorp incompetent?

I think we have to accept his conclusions.

That is a rhetorical statement. His conclusions ought to be peer-reviewed, esepcially given the high stakes involved and given that there is a contra opinion from within the legal community (Thorp). Not to mention the evidence which strongly hints at Bain's guilt.

by Ross on September 12, 2012
Ross

it is worth remembering that 12 other people sat through the whole trial as well

Yes, and we know that at least one of them doesn't want Bain to be paid any compensation. The same juror has also raised concerns about the actions of 3 fellow jurors. I note that van Beynen has also raised concerns about some jurors.

http://www.stuff.co.nz/national/6472004/Don-t-pay-Bain-compo-juror

by Andrew Geddis on September 12, 2012
Andrew Geddis

Ross,

I suspect this can't go any further until Binnie's reasoning gets released. But on the point of "peer review", doesn't the Privy Council's judgment call Justice Thorp's conclusion that Bain's conviction was "safe" into some question? To say nothing of the fact he subsequently was acquitted at retrial, of course.

But we're just scoring points off each other now. So let's wait and see what Binnie said, then we can go at this again.

by Ross on September 12, 2012
Ross

Andrew, 

I am sure that Justice Binnie, being the great legal mind that he is, will have asked David Bain some searching questions, and I await reading his report. I imagine some of the questions asked of Bain will include:

What did David do in the 15-20 minutes from when he returned home from his paper run until he phoned for an ambulance?

How long after he heard Laniet gurgling did he call for an ambulance?

What were his thoughts when he heard Laniet gurgling and did he try to help her?

Did he turn on and turn off the light in her room that morning?

How did he get bruises on his face and grazes on his knee and left shoulder?

How did he get the blood of his brother Stephen on his shorts and t-shirt?

Why did he tell the 111 operator that his family were all dead and then say he had only seen his parents’ bodies?

When did he learn that his brother and sisters had died?

Why did he enter the gate on the property of Mrs Mitchell on the morning of the killings?

Did he discuss, with two high school friends, the possibility of abducting and raping a female jogger and using his paper run as an alibi?

Did he, as Arawa allegedly told a friend, walk around inside the house holding a gun intimidating the family?

What motivated him to say, after his first trial, that the judge “was very kind to me during the trial”?

Did he think the first trial judge was kind when the judge said that he had acted “with a significant degree of cunning and premeditation"?

Does he know how did blood came to be found inside the duvet cover on his bed?

Did he own a pair of white opera gloves and where did he keep them? Where were the gloves the night before the murders?

Whilst in prison, David allegedly said:  "I find this state of limbo depressing and often hard to live with [being in prison], but it is eminently easier than being constantly crushed by shattered dreams, destroyed plans, broken promises and betrayals, by all I once held dear”? What dreams were shattered, what plans were destroyed, what promises were broken, and what betrayals did he suffer?

Did David take a motorbike for a test run some weeks before the murders and crash it? If so, did he have – at the time of the murders – an outstanding debt regarding the motorbike? If so, how much was the outstanding debt and did David promise to pay it? Did David pay that debt?

What was David’s yearly income (if any) and what was his financial position?

Did David have in his bedroom a piece of cardboard with five hand drawn circular targets which had various bullet holes in and around them? Who drew the five circular targets and did they represent anything in particular? Why five targets?

Can he explain his premonition – just days prior to the murders – that his family would be murdered?

Does he recall talking with a relative after the killings about “black hands taking them away”? If so, what was he talking about when referring to the black hands taking them away?

by Roger Brooking on September 15, 2012
Roger Brooking

A key point which is generally overlooked in any discussion about David Bain's guilt or innocence is the issue of motive. No motive was ever put forward by the prosecution - not surprising really because David had no motive to kill his entire family.

Robin Bain on the other hand had considerable motive. His marriage had broken up; he was having intercourse with his daughter - who was about to expose him; he was living in a caravan in squalid conditions; he was suicidally depressed.  

by Ross on September 16, 2012
Ross

Roger,

You claim that Robin Bain had a motive and then refer to unproven allegations. I suggest instead you might like to answer the questions above, which should be pretty simple given that David is innocent. As for motive, so David wouldn't have benefitted financially from the killings?

 

by Ross on September 16, 2012
Ross

The Bain family inheritance is allegedly worth "well over $600,000". You really don't think that is motive for murder?

http://www.stuff.co.nz/national/crime/2483334/Bain-relatives-seek-advice-over-inheritance

Shades of Jeremy Bamber, a then 24 year old who slaughtered his family, blamed his sister who he said killed 4 members of the family and then herself. Bamber stood to inherit the family fortune.

http://www.bbc.co.uk/news/uk-12427702

by Viona C on December 12, 2012
Viona C

Ross that article does little to support your claim of money as a motive for murder.

"The exact amount cannot be published because of suppression orders but, with interest over 15 years, the amount would be well over $600,000. In 1994 it was enough to build a substantial house."

 

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