A (former) judge may be going to say that David Bain is not innocent beyond all reasonable doubt. That doesn't necessarily mean he won't get compensation, but it makes it a bit harder to do so.

 According to the NZ Herald, by way of a fortuitous leak to Jared Savage, the report into David Bain's compensation claim by retired Australian Judge Ian Callinan, QC is in the hands of Minister of Justice Amy Adams. (Remember that a previous report on this matter by Canadian ex-Supreme Court Judge Ian Binnie was binned by then-Justice Minister Judith Collins - something I discussed in a really too-long;read-at-your-own-peril post here.)

Savage has been told that Callinan's report finds that Bain has failed to prove his innocence beyond a reasonable doubt. Before talking about what that might mean, note what Savage apparently hasn't been told - whether Callinan believes Bain is innocent on the balance of probabilities. Because, remember, that's all that Ian Binnie concluded in his earlier report. So it's ... somewhat interesting that someone has seen fit to pass on one bit of Callinan's conclusions, but not the bit that actually may matter the most. Read into that what you will.

Anyway, let's for now just take what Savage has reported at face value and assume its accuracy (which may be risky, but hey - I live on the edge). What does it mean, and why is it (as the Herald reports and some moron talked about on the radio) a potential problem for Bain's compensation claim?

The perhaps most important point to note about compensation for wrongful conviction is that it is not really a legal process at all (although the law may have something to say about how certain aspects of it should proceed). There is no explicit legal right to such compensation - New Zealand has not created any statutory or other process to govern it. Instead, the Crown (in reality, Cabinet) has indicated its willingness to make so-called "ex gratia" payments to people who have been wrongfully convicted if-and-when it believes such compensation is (in its opinion) warranted.

(Note that this refusal to acknowledge a legal right to such compensation flies in the face of the International Covenant on Civil and Political Rights, Art. 14(6):

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

However, when New Zealand signed this instrument it reserved the right not to apply this bit as we didn't like how it might impact on our domestic legal order. Apparently something we didn't bother doing with various bits of the TPPA, because that international agreement (apparently) doesn't impact on "sovereignty" ... but now I'm really just trolling, aren't I?)

Of course, Cabinet has set in place some "guidelines" to structure its decision on whether or not to provide compensation in some cases. To summarise, a QC is appointed to look at the case, and if she or he concludes it is more-likely-than-not a person was innocent of the offence, then compensation will be calculated according to a particular formula. The exact status of these guidelines is then a little uncertain ... they certainly aren't "law" in the same way an Act of Parliament is, but by the same token they may have become something that people applying under them have a legitimate expectation will be followed, such that a failure to do so would be "unreasonable". 

The problem is that in David Bain's case these guidelines simply don't apply, as Cabinet has indicated they will be used only for people whose convictions are quashed without having a retrial ordered (or, who get a pardon for their conviction, as happened with Arthur Allen Thomas). And, of course, Bain was acquitted at a retrial ordered by the Privy Council. That means that Bain had to ask for compensation outside of Cabinet's guidelines, which is a harder road to walk down.  

Cabinet prescribed no additional criteria or process for consideration of claims falling outside the Cabinet guidelines.  However, current practice is to ensure that, where relevant, important principles in the Cabinet guidelines are applied in a consistent manner to such claims.

Claimants outside guidelines must show, at a minimum, that they are innocent on the balance of probabilities.  They must also show that there are extraordinary circumstances that justify compensation.

It is this last (bolded) bit that is critical here. Because the Crown (or, rather, Cabinet) says that one "extraordinary circumstance" is that you can "show you are innocent beyond a reasonable doubt". That's what it said back in 2011 when deciding to compensate Aaron Farmer for his wrongful conviction for rape, and repeated the same year when compensating Phillip Johnston and Jayden Knight for wrongful arson convictions: 

The Crown has discretion to consider “extraordinary circumstances” claims that fall outside the Cabinet guidelines where it is in the interests of justice to do so. The discretion is exercised very rarely. [These cases are] the first in which compensation has been paid under “extraordinary circumstances”.

Being able to establish innocence on the balance of probabilities is a minimum requirement, consistent with the Cabinet guidelines. There are stricter criteria for claims that fall outside the Cabinet guidelines, which include an applicant being able to establish their unequivocal innocence (i.e. innocence proved to the higher standard of beyond reasonable doubt).

The same test applies to David Bain’s application for compensation. Mr Bain’s application is being considered under Cabinet’s residual discretion as, like [these cases], his case falls outside the Cabinet guidelines.

Now, you may query, why does "exceptional circumstances" mean "innocent beyond all reasonable doubt"? Well, it does because Cabinet says it does. And because Cabinet is only giving compensation out of the goodness of its heart, as it were, it gets to make up whatever rules it wants to, or interpret those rules as it sees fit. If this sounds a little bit like Calvinball, well ... I can't really help that.

Note, however, that showing your innocence beyond reasonable doubt is not the only sort of "exceptional circumstance" that may put you in line for compensation outside of Cabinet Guidelines. Back in 2000, David Dougherty (who was, remember, finally acquitted of rape after 5 years in jail and some fine crusading work by Donna Chisholm and others) received compensation despite the QC who examined his case finding only that he was innocent on the balance of probabilities. Of course, we learned subsequently in 2003 that Dougherty was completely, unarguably innocent of the crime when Nicholas Reekie was convicted for it. But at the time compensation was agreed, innocence beyond a reasonable doubt was not required.

Furthermore, when Justice Binnie was brought in to examine Bain's case back in 2011, the letter of appointment he got from Judith Collins stated:

Although there can never be an exhaustive list of the kind of circumstances that might be regarded as “extraordinary”, the mere fact that an appeal has been allowed could never, of itself suffice. To qualify as extraordinary, the circumstances must include some feature which takes the claimant’s case outside the ordinary run of cases in which appeals have been allowed. Examples of such circumstances include, but are not limited to:

a. Unequivocal innocence – i.e. cases in which it was demonstrable that the claimant was innocent beyond reasonable doubt, for example, due to DNA evidence, strong alibi evidence, etc.; or

b. No such offence – i.e. the claimant had been convicted of an offence that did not exist in law; or

c. Serious wrongdoing by authorities – i.e. an official admission or judicial finding of serious misconduct in the investigation and prosecution of the case. Examples might include bringing or continuing proceedings in bad faith, failing to take proper steps to investigate the possibility of innocence, the planting of evidence or suborning perjury.

6. The test of “extraordinary circumstances” is inherently open‐ended and the list above cannot be treated as exhaustive. There may be rare cases where there are other extraordinary features that render it in the interests of justice that compensation be paid

And recall that Justice Binnie then went on to conclude that there were "extraordinary circumstances" in Bain's case (even though he didn't think him innocent beyond all reasonable doubt) due to the flaws in the way his case was handled: 

605: Of course in many cases where appeals are allowed there will be instances of Police investigative failures. It is the number and cumulative importance of errors here that should, in my view be seen as constituting extraordinary circumstances.

606. The sheer length of David Bain’s incarceration takes the Bain prosecution “outside the ordinary run of cases in which appeals have been allowed”.

607. This is not a case where my respectful recommendation, the Cabinet ought to say to David Bain “tough luck” and “move on”. The state authorities and in particular the Dunedin CIB, were seriously complicit in this miscarriage of justice.

All of which means that, yes, if Callinan really has concluded Bain is not guilty beyond a reasonable doubt, then it makes his case for compensation harder because it takes away one of the "exceptional circumstances" that Cabinet requires be shown before paying compensation in cases like his. And it's the only exceptional circumstance that Cabinet has accepted so-far when paying out compensation to people acquitted at trial.

However, there always are other possible exceptional circumstances that Bain may claim instead, such as the ones that Binnie identified in his report. Those circumstances, however, appear to involve Cabinet accepting that the Police and prosecutors really, really screwed up their jobs. A conclusion which, you can bet, the institutions involved will fight against tooth-and-nail. 

Boy-oh-boy ... this really is the case that just keeps on giving, isn't it?

Comments (21)

by Stewart Hawkins on February 19, 2016
Stewart Hawkins

Very informative post Andrew. Like most NZers I have formed an opinion on the Bain case after looking at all the evidence in the general public domain. I don't think the police screwed up the case at all. I think overall it was a typical investigation conducted in the correct manner by the officers involved. I think that allowing the Bain house to be destroyed was not good but I am not clear about the control of the property or the police role. The Cabinet may well look for extra-ordinary circumstances but I don't think they can find any to get themselves off the "political hook" they might think they are on, although I personally don't see a hook at all as to give compensation inappropriately will push National supporters to ACT. Labour are always happy to hand out other people's money. The most extra-ordinary circumstance I can think of was the decade of Joe Karam and the media clamouring for "justice", without any new or substantive evidence that wasn't available for the first trial, which lead to the second trial and ultimately in the most extraordinary behaviour of the second jury at the time of the verdict and through attending Bain's party afterwards. The jury seem to have been influenced and I cannot conclude they were neutral or unbiased when they sifted the evidence. That evidence to me was overwhelmingly in favour of a guilty verdict. The three years of early release seems compensation enough for any errors made for Trial #1. Amy Adams has done well so far. My jury awaits the "political" reaction to the full report.

 

by Andrew Geddis on February 19, 2016
Andrew Geddis

@Stewart,

I think it highly probable that the report of the Australian Judge (Ian Callinan) will find that Bain is innocent on the balance of probabilities. Two reasons for this.

1:  If Callinan had found Bain guilty on the balance of probabilities in his report, then that fact would have been leaked by whomever talked to Jared Savage (because it would essentially scuttle any hope Bain might have of compensation). The fact it hasn't been makes me think Callinan hasn't said this, but instead thinks Bain innocent on this (lower) threshold;

2: As David Farrar notes, there would be no reason for Callinan's report to even examine whether Bain is innocent beyond reasonable doubt unless he already had decided that he was innocent on the (lower) balance of probabilities test.

If that really is the case, then does the fact that both of the external judges (Binnie and Callinan) brought in to review the evidence have concluded that David Bain is more likely innocent than guilty change your views? If not, what would?

by Ian MacKay on February 19, 2016
Ian MacKay

Hope Stewart is never on a jury when any of us are accused.

by Moz on February 19, 2016
Moz

But Ian, a large part of the point of a jury is so that people like Stewart *can* opine on the guilt or innocence of other people. Better yet, they're deciding on the basis of laws written by populists and idiots selected by counting morons, using language that cannot describe a statement unambiguously and has no natural way to express truthiness.

My entertainment is that I've been asked to turn up for jury duty but I can't honestly say I'd believe anything said by someone willing to swear the witness affirmation(on the basis that if they can recite that with a straight face they're either thoughtless idiots or skilled liars). Taking the oath, obviously, is a mark of irrationality on top of the affirmation problems.

by Ian MacKay on February 19, 2016
Ian MacKay

Having served on juries, most are able to consider the evidence and if a contrary opinion is expressed based on the evidence presented, it is considered by all. Blatant prejudice is rubbished.

by Lee Churchman on February 19, 2016
Lee Churchman

But Ian, a large part of the point of a jury is so that people like Stewart *can* opine on the guilt or innocence of other people.

Isnt the point of requiring twelve jurors to cancel out the effect of any "Stewarts" who might make it onto a jury?

by Andrew Geddis on February 19, 2016
Andrew Geddis

@Lee,

That's the point of allowing majority jury verdicts!

by Stewart Hawkins on February 19, 2016
Stewart Hawkins

It is mightily ironic that the other posters all conclude that Bain is innocent (Ian's word) presumably based on the same careful judgement of the evidence presented to me by the media (there have been very detailed productions on this case) yet I am somehow accused of being unworthy to serve on a jury for having a different opinion to theirs. In fact I have been called four times and could not fulfil my public duty to Justice each time due to my other public duties. Ian is quite correct to fear my presence on a jury sitting in judgement of him accused of a crime for which the evidence is as overwhelming as the Bain case. I shall refrain from joining in the name-calling. The other posters (with the exception of Andrew) did not understand my arguments for they certainly did not address them. I think Andrew will be proved correct in his prediction. I guess the police won't be looking for anyone else in connection with the murders though.

by Chuck Bird on February 20, 2016
Chuck Bird

Andrew, I will tell you my take on the instructions to the two judges.  I would appreciate it is you would tell me if you think I am wrong and why.

Both judges were given the same instructions.  However, Judge Ian Callinan was given one example of what extraordinary circumstances may be.  The example given was innocent beyond a reasonable doubt.  That was just an example and Callinan J was free to come with another or more than one.

Now, one of the ways Binnie J was wrong was that he took it upon himself to declare that the extraordinary circumstances he gave called for compensation.  That was Cabinet's job - not his.

I have a second question and that is should this report be made public like Binnie J's and Fisher's review was and if not why not?  I would expect that any parties aside from David Bain coud have their names and details that could identify them redacted.

Thank you
Chuck

 

by Andrew Geddis on February 20, 2016
Andrew Geddis

@ Chuck,

I think your understanding of the instructions given to Binnie and Callinan is right, except that I just don't know whether Callinan was told to look at any potential exceptional circumstances other than "innocent beyond reasonable doubt". Here's the Radio NZ account of it from last year:

[Amy Adams] said [Callinan] had been given similar instructions to those given to Justice Binnie but it had been made clear what was expected of him as a reviewer.

He will advise her on whether he is satisfied that Mr Bain has proven his innocence on the balance of probabilities. If that is that case, he has also been asked to say whether he believes Mr Bain's innocence has been proven beyond reasonable doubt.

Ms Adams said there should not be a repeat of Justice Binnie's report, which went outside its terms of reference in offering an opinion on whether Mr Bain should get compensation.

On making the report public - yes, I think it should be! 

by Chuck Bird on February 20, 2016
Chuck Bird

Andrew, I thank you for you comment.  The issue of compensation for anyone wrongfully jailed should not just depend on someone taking up their cause.  Whether it is left to Cabinet or decided by the courts is another issue but there should be consistency and transparency in either case.

The Bain supporters claim the goalposts have been shifted.  Judging from your response it is unclear if they have.  Do you think Amy Adams should make public the exact instructions given to both former judges?

I do not think Bain should get a cent but the process should be fair and consistent.  I think proving one is innocent beyond reasonable doubt is too high for anyone. 

I have studied this case a lot and cannot see how any judge can think Bain is innocent on the balance of probabilities but I could be convinced if I read the report.  I wonder if he asked David about the goat that David claimed someone who told of his proposed alibi was having sex with.  I am not joking.  Bain's claim about the goat is in the Binnie report.


by Lee Churchman on February 21, 2016
Lee Churchman

It is mightily ironic that the other posters all conclude that Bain is innocent

How so? I have no idea which of Robin or David was the killer? What seems harder to dispute is that the case against David wasn't very good, and if the police had bothered testing him for gunpowder residue, this case would be all but forgotten. Personally, I still maintain that David Bain's red jumper is what got him convicted. 

I think New Zealanders have a pretty good nose for when a case stinks. The Thomas case stank to high heaven, and the Watson case wasn't much better (most people can't get over the incredible shrinking ketch). 

by Chuck Bird on February 21, 2016
Chuck Bird
I quote Stewart Hawkins below

I personally don't see a hook at all as to give compensation inappropriately will push National supporters to ACT.

Stewart, have you seen David Seymour's comments on him FB page?  He thinks someone in National has leaked Callinan's report and could not case less whether Bain Jnr. is guilty or innocent he thinks he should be paid at least lawyers fees as he was found not guilty by a dodgy jury at his second trial.

ACT used to be strong on law and order - not any more. Their main focus is on libertarian principles like people should be free to watch CGI kiddie porn and no drugs should be illegal for those over 18.  

 

by Chuck Bird on February 22, 2016
Chuck Bird

What seems harder to dispute is that the case against David wasn't very good, and if the police had bothered testing him for gunpowder residue,

Lee, I do not think there is much comparison between the Thomas and Watson cases and the Bain case.  I think even experienced police would have been very stressed and made understandable mistakes with not only dealing with a mass murder but David antics at the same time. 

In the Thomas case evidence was planted.  In the Watson case a lot of dodgy things were done by the police.  The David Bain fan club will claim the same about his case but I have seen no evidence of that - just some mistakes that would happen in many murder investigations.

 

by Ross on February 22, 2016
Ross

The fact David has publicly said thay it is his "core belief" he wasnt there when his family was murdered is surprising. The fact he says that even if you think he is guilty, he has served 13 years and should be allowed to get on wirh life, is somewhat astonishing. That he says he saw blood "streaming" down his mother's face and heard his sister gurgle but didnt immediately call police, is very sad. 

by Chuck Bird on February 22, 2016
Chuck Bird

Ross, he is allowed to get on with his life.  I just do not think he should get compo.

by Michael Stockdale on February 22, 2016
Michael Stockdale

Andrew
While I understand why you believe that Callinan may have found Bain innocent on the balance of probabilities I personally can't for the life of me believe he has come to that conclusion. I am reasonably well-informed on the Bain killings and have actually written a book The Bain Killings Whodunnit? which is evidence based, and also has a chapter relating to Justice Binnie's report [ where I have noted over thirty evidential errors and /or incorrect assumptions ] and also a chapter relating to Binnie's interview with David Bain . 
In his report Binnie has come to the conclusion that Robin Bain made those bloody sock prints, despite the fact that he had no blood on his socks , which means that Binnie must believe Robin changed his  socks, which the defence has suggested he did "to meet his maker".  Then we have David Bain's socks, one bloodier than the other. One would have thought that Binnie just might have entertained the possibility that  sock was the sock that made those sock prints.  
Then in that interview with David Bain Binnie appears to accept that Bain was always being truthful with his answers, despite witnesses testifying to a different version of events.
I do hope that Judge Callinan either interviewed Michael Guest or at least read that email he sent to Judith Collins. David Bain told Guest and his co-Counsel that he was wearing those all important glasses on the Sunday evening prior [ and an aunt testified at the retrial that David had told her that he had been wearing a pair of his mother's glasses that weekend ].  Bain told Binnie he didn't need those glasses to watch TV on the Sunday night. Not what he told Guest. 
So hopefully Callinan will have asked Bain for an explanation as to why those glasses were damaged and why a lens from those glasses was found in Stephen's room.  If he did I will be interested to read what that explanation was.
For Callinan to have come to the conclusion that Bain is innocent on the balance of probabilities he would have to have believed that explanation and that is one of the many reasons why I don't believe Callinan would have come to that conclusion.  

by Ross on February 22, 2016
Ross

Chuck

My point is that David seems to think that 13 years' imprisonment is punishment enough for 5 murders of his family. I am not sure many would agree. 

by Michael Stockdale on February 22, 2016
Michael Stockdale

My thinking is that the NZ Herald reporter has been given some incorrect information. 
It may well turn out that Callinan has found Bain not to be innocent on the balance of probabilities, instead of  [or as well as ] not innocent beyond a reasonable doubt. Amy Adams has stated that there are errors in that newspaper article and that may well be one of them.
The questions now are
[1] When will cabinet be considering that report and
[2] When will it be released to the public.
Adams said she received that report on Jan 26, so she has had it almost a month.
Maybe it will be discussed at the next cabinet meeting.  

by Ross on February 23, 2016
Ross
"What seems harder to dispute is that the case against David wasn't very good, and if the police had bothered testing him for gunpowder residue, this case would be all but forgotten. Personally, I still maintain that David Bain's red jumper is what got him convicted." I don't know that a gunshot residue test would have helped. There were about 20 minutes from when David returned home and called police. He hasnt explained what he did during that time. He may have killed several of his family before his paper run. Of course there was the evidence, not heard at his trial, that he was intimidating his family with a gun, and that he had planned a rape using his paper run as an alibi. He confided in a reltion that he hated his father, yet when there was made public he felt aggrieved. If I were innocent, I think I'd feel more aggrieved at being wrongly convicted. But Mike Stockdale is correct - why did David apparently lie about not wearing his mother's glasses the night before the murders? Such a small thing but I think David realized at his first trial the implications of admitting to wearing those glasses.
by Michael Stockdale on February 23, 2016
Michael Stockdale

Some of the errors made by Justice Binnie in his report. 

 [1 ] Para 55,87.274,277 & 278. In all these paragraphs Binnie refers to the "empty" 10 shot magazine. The fact is that magazine had 3 live rounds in it, and one round can be clearly seen in a photo showing Robin Bain lying in the lounge with that magazine standing upright about 1 cm from his outstretched right hand. 

[2] Para 107 . "David Bain told the police at the initial interview after the murders that Robin had already collected the newspaper. That meant Robin was already in the house". 
In that interview Bain was asked if he remembered if the paper was in the letterbox to which he replied " No, I don't" . 
[3] Para 134. "We know from the police that Robin's clock radio was still playing". 
There was no clock radio. There was a clock and there was a radio. 
[4] Para 148. Re the female jogger a friend of David's said David had planned to molest using his paper round as an alibi. 
" The police spent time and energy trying to identify the mystery female without success. There is no evidence such a person ever existed". 
The fact is a female jogger who was a friend of David's was interviewed in 1994 . When Mark Buckley came forward in 2007 two detectives went to Australia and talked to her again. No-one knows if she was the female jogger Bain told Buckley about because David Bain never referred to her by name. 
[5] Para 355. "There was no reason for the police to be on the look-out for the washing machine noise as they moved through the house." 
When one of those police officers was asked how his senses were when he entered the house he said all his senses were heightened because of not knowing what the danger was. He said his sense of hearing was acutely heightened. 
[6] Para 203. " If the luminol footprints did not belong to Robin Bain". 
It was never proved who those footprints belonged to. 
[7] Para 258. " Both his [David Bain's] when tested by Mr Hentschel with luminol luminesced". 
It was not Mr Hentschel who tested those socks, it was Dr Peter Cropp. 
[8] Para 54. "The luminol footprints show Robin did not go directly into the lounge but in areas of the house where the bodies were found". 
Once again Justice Binnie is assuming that Robin Bain made those sockprints, despite the fact that Robin Bain had no blood on his socks and David Bain did. 
[9] Para 240. "despite his [Mr Hentschel's ] consistent testimony for 15 years that they were complete prints" . 
The fact of the matter is that when Hentschel was interviewed by the Police Complaints Authority in 1997 he admitted he may not have been able to see the extremities of the heel and toes. 
[10] Para 43. "He [Robin] sometimes used a downstairs door to come in from the caravan. This would have led him directly to the scene of the murders". 
Not necessarily so. Arawa's room was along a passage under the stairs, and Margaret, Laniet, and Stephen's rooms were to the left at the top of the stairs. If Robin went directly to the lounge he would not have gone past any of those bedrooms. 
[11] Para 45. " Despite police efforts to come up with a motive from 1994 to 2009 no plausible motive ever emerged". 
In fact the prosecutor at the first trial suggested the money his parents had put aside for the new house could have been the motive. 
[12] Para 408. " At trial David Bain testified there was a six inch gap between the bottom of its [the green jersey the killer wore] sleeve and his wrist."
Bain did not testify to that. 
[13] Para 51."He [David Bain ] was seen re-entering the house at 6.45 am."
Bain was seen at the gate at 6.45 am. 
[14] Para 31. " When staying at 65 Every Street he [Robin] was banished to the caravan". 
Margaret moved into the caravan before Robin did. They may well have come to a amicable agreement to change places. 
[15] Para 67. " Dr Arie Geursen of the Victoria Forensic Science Centre in Melbourne". 
Dr Geursen did not work for the VFSC. He was a co-founder of Genesis, one of New Zealand's first biotech companies. 
[16] Para 88. " For example, were Margaret's spectacles dislodged and broken in the killers struggle with Stephen, or did the left lens come to be buried at an earlier date amongst the dust and debris of Stephen's room?" . 
An aunt testified that David had told her he had been wearing a pair of his mother's glasses that weekend while his were being repaired. He said they weren't perfect but they got him by. He would surely have mentioned that one lens was missing from them, if that was, in fact, the case. 
[17] Para 60. " The police rushed to judgement that David Bain was guilty on the second day after the murders". 
There was no "rush to judgement". The police originally believed they were looking at a murder/suicide scenario. 
[18] Para 63. "The police authorised the house to be burned to the ground ". 
After the police had completed the scene examination they handed the house back to the trustees and it was the trustees who authorised the burning down of the house. 
[19] Para 75 e. " 29 April 1996. Leave to appeal to the Privy Council was refused". 
Michael Guest presented his case to the Privy Council on 29 April 1996. 
[20] Para 139b. "When he [Cyril Wilden] learned of the killings he immediately assumed Robin's mental health had deteriorated to the point he could no longer cope and that he had taken the lives of his family and then his own life". 
[i] Mr Wilden did not testify to having assumed that. 
[ii] David Bain's life was not taken. 
[iii] Had Mr Wilden assumed that it would have been a rush to judgement. 
[21] Para 147. "At one point the prosecution made much of the fact that a gunnery target in David's room had five circles , one each, it was suggested , for each of his five victims. However it turns out the target was drawn up by Robin." 
The first time David Bain said his father drew that target up was when he was interviewed by Justice Binnie. Prior to that interview he had only said that his father drew rabbit's ears on it. 
[22] Para 177. " The Crown Law Office throws out the theory that perhaps David not Laniet called the family to gather on the Sunday ". 
The Crown Law Office did not throw out that theory. Two witnesses testified that Laniet had told them that David had called a family meeting . An aunt testified that David had told her he had asked Laniet to come home. 
[23] Para 177. David Bain explained the arrangements made by Margaret and Arawa to collect Laniet from work". 
David Bain did no such thing. Also Laniet was collected from her flat. 
[24] Para 281. "Evidence of the misfed bullet [in the lounge]". 
There was no clear evidence that the bullet in the lounge was a misfeed. 
[25] Para 332. " ESR computer expert Marten Kleintjes". 
Martin Kleintjes is a police officer. 
[26] Para 549. " Dr Pryde's strip search". 
Dr Pryde did not strip search David Bain. 
[27] Para 448. " It is apparent [as the Privy Council noted] that Robin had used the murder weapon without David's knowledge on previous occasions to shoot the twenty spent rounds found in the caravan". 
The Privy Council did not note that. They noted that there was no evidence of how those rounds came to be there. 
[28] Para 51. "The door to the lounge was closed when he [David Bain ] arrived home". 
No-one can confirm that was the case. 
[29] " The Crown Law Office no longer contends that Robin could not have committed suicide though it considers it highly unlikely". 
It was accepted at the first trial that Robin Bain could have committed suicide [though highly unlikely]. 
[30] Para 384. " The prosecutor did not have Dr Pryde put forward this evidence in 2009 [re the timing of the bruises on David Bain's head] . Instead his evidence was changed to say the bruise was recent."
The reason why Dr Pryde's evidence was changed was because the Crown agreed to change it as a matter of fairness to the defence because Dr Pryde was no longer available for cross-examination having died before the retrial. 
[31] Para 262. "Mr Walsh's tests corroborated by Dr Sandilands". 
Should read " corroborated by Dr Sandiford".
[32] Para 91 "Stephen died from three bullets to the head " .
The first bullet went through Stephen's hand and creased his head , causing a wound that bled copiously.
Then after being semi-strangled with his T-shirt he was shot in the head again and that was the bullet that killed him. There was no third bullet.  

   

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