This is the last word on the David Bain case. There will never be, nor need to be, another thing written about it ever again. Do you believe me much?

In my first ever Pundit post on the David Bain saga, I expressed a fear that touching it might lead me to suffer the same fate as Br’er Rabbit when he foolishly chose to engage with Br’er Fox’s Tar Baby. It appears those fears had some foundation, insofar as publicly expressing an opinion on this site about some aspects of the case has lead to real news organisations wanting me to do so again, thus stroking my overinflated ego and insatiable desire for attention, resulting in me running my mouth off about it ad nauseam in whatever media outlet will have me.

But I do not – do not! – want to become one of those amateur Bainologists (a term I’m very proud of and so keep dropping into my public statements) who see the case come to take over all their other interests. So this post is an attempt to wipe its tar from my fur with one last comment on where we are now and how we got to get there. I warn you up front that it is going to be long – it’ll probably be the longest thing to ever appear on Pundit. And it’s going to cover a lot of ground. So if you’re coming along for the ride, grab a coffee and buckle yourself in.

First off, what do I think about the question that matters the most – is David Bain innocent or guilty? I don’t know.

That might sound like a gutless cop-out, but it really isn’t. I’ve traced my thinking on this question in previous posts. I began with a not-very-informed presumption that he was guilty, based primarily on the certainty of others and a few opinion columns/blog posts that seemed quite convincing to me. But I certainly hadn’t looked into the issue in any detail or with anything like an open and inquiring mind.

Thus, when word leaked out that Ian Binnie had concluded that David Bain most likely was innocent, I was quite prepared to abandon my previous weak belief and accept his opinion in place of my own. After all, he had been handed a job to do – assess in depth the issue of innocence/guilt – and I trusted him to do it properly (given his evident legal skills and past credentials). So given that I had no really solid epistemic grounds for thinking David Bain to be guilty and no real desire to search out such grounds for myself, I was content to adopt wholesale the views of the guy officially charged with deciding the issue.

Now that Binnie’s report on the main issue has been made public, along with Robert Fisher’s critique of that report and Binnie’s response to that critique, I just don’t know. I am (spoiler alert! spoiler alert!) going to have some fairly trenchant things to say about how Fisher’s “peer review” came to be commissioned and conducted. However, for all those problems, I think that Fisher’s core criticism of Binnie’s report – that he mishandled the process of assessing David Bain’s innocence from the evidence available to him – is justified. And this criticism is strong enough to undermine my trust in Binnie’s conclusion to the extent that I can no longer unquestioningly adopt it.

The net result is that I am in a genuine state of uncertainty over David Bain’s innocence or guilt. There is enough in Binnie’s initial report to cause me to doubt my previous assumption of David Bain’s guilt. But I also think it would be unsafe for me (or anyone else) to say on the basis of Binnie’s report alone that he is most probably innocent.

A couple of final points on the question of David Bain’s factual innocence (or guilt) before I move on to the issues I really want to comment on. For anyone who thinks that my varying views over time on the actual question that matters makes me an unreliable commentator on all Bain-related topics, I’d simply quote Keynes and note that when my information changes, I alter my conclusions. What else would you have me do?

And finally, for anyone who sees my expressed uncertainty as an invitation to send me an email/letter/phone call with VERY IMPORTANT INFORMATION that will CONVINCE ME ON THE ISSUE … don’t. Just don’t. I’m quite happy to live in a state of not knowing, and I’m quite happy for others to do the job of working through the issues to come up with a conclusion that I can then adopt. I’ll have something to say at the end of this post about how that working through might be done – but it’ll be someone else’s job to do it, not mine. So please just leave me alone.

I’ve addressed this substantive issue – is David Bain innocent or guilty? – along with my views on it at some length because it seems to me that the primarily process-based issues that will take up the rest of the post often get collapsed into it. That is to say, people who “know” David Bain is innocent think that Binnie’s report and his reply to Fisher’s criticisms of it are “magnificent” (as Bain’s lawyer, Michael Reed, put it). Equally, those who “know” David Bain is guilty thought from the outset that something must have been wrong with Binnie’s contrary conclusion, hence their wholesale acceptance of Fisher’s root-and-branch criticisms of Binnie.

Now, I’m not for a moment suggesting that just because I claim to be uncertain of David Bain’s innocence or guilt, I am an utterly reliable commentator whose views should be trusted as gospel on all matters. All I’m saying is that I think (insofar as I can determine through self-reflection and interrogation) that I am not seeking to skew the following analysis of process in order to favour a preferred substantive outcome. You can decide for yourselves whether any of my other biases shine through – in particular, whether my comments about the actions of a populist National Party Minister of Justice contain little more than the expected world-view of a liberal-to-the-point-of-caricature legal academic.

Alright. Enough scene setting. What do I think of the three documents we now have to hand – the Binnie report, the Fisher review, and the Binnie response?

Well, before I get to that, another diversion. But a very important one.

The way in which Robert Fisher was brought in to review Binnie’s report was very badly handled. In fact, it was so badly handled as to almost – but not quite – completely discredit Fisher’s review (in my eyes at least).

I’ll start by being fair (because I probably won’t be for long). Judith Collins found herself in an unenviable spot. She received a report from someone she hadn’t chosen, that said something she (probably) didn’t want to hear, and did so in a way that (as I’m going to get to) had real problems with it. Plus, the issue was one that evokes very strong passions on both sides – so whatever she did with Binnie’s report was going to damn her in the eyes of a not insignificant proportion of the populace.

In such circumstances, it was entirely understandable why she would want to get a second opinion (or “peer review”) of the report in question – and I note that Binnie himself says that this was an entirely valid step to take. But if that second opinion was to do its job – act as a reliable form of quality control that would silence doubters or provide cover for rejecting the initial report – then how it is commissioned and carried out matters. And on this point, Collins did not behave well.

First, Collins sought only input from those institutions that had long asserted David Bain’s guilt before making her decision to seek a peer review. The “Bain camp” didn’t even get a copy of the report, let alone get asked what they thought should happen in relation to any concerns the Minister may have had about it.

Now, I have my (unverified and purely speculative) suspicions why this was the case. I think that Collins believed that if the Bain camp were given a copy of Binnie’s report, it (or extracts of it) would quickly find their way into the media as part of a determined PR effort to cement in the public’s mind the “fact” of David Bain’s innocence before any concerns about Binnie’s work could be reviewed. That may have been an unfounded and unduly cynical view on Collins’ part … or it may not have been. I leave it for individual readers to decide.

Nevertheless, the failure to consult with the Bain camp does mean that the decision to seek a second opinion on Binnie’s work – as well as the decision as to what the reviewer would be asked to do, as well as what information he would be provided with – was reached after hearing from only one side of the matter. (I fully understand that the Solicitor General and Crown Law were operating in their capacity as Ministerial advisors and not as advocates … but I also note that it’s asking a lot of human beings to go from stoutly supporting the long-held view that David Bain is guilty to dispassionately and objectively assessing the merits of a report concluding the opposite with a mere change of hats!) In itself, that decision to involve only “one side” in the review process is problematic – and also somewhat ironic given Fisher’s subsequent criticisms of Binnie for (allegedly) failing to follow natural justice principles when completing his report.

And those problems in process get worse. It appears from Fisher’s review report, as well as the letter Collins wrote to Fisher when commissioning him to conduct the review (which is attached to his report as an appendix), that the following took place. First, the two of them met in Collins’ office on September 26. At that meeting, Collins obviously told Fisher that she thought there were significant problems with Binnie’s report. They discussed whether he would be prepared to provide a second opinion on the Binnie report – which is fair enough, even Binnie accepted the Minister was entitled to do so – and then also what ought to happen if the Minister rejected Binnie’s report. Fisher notes this in his review:

This interim report does not purport to apply the appropriate tests to the actual evidence. As we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at conclusions on the merits. An outline of the suggested steps involved in preparing such a report is included at the end of this report.

At the very least, as Binnie notes in his reply to Fisher’s report, saying that “a second and final report will be required” makes it look like the Minister already knew she wasn’t going to accept Binnie's views even before getting Fisher’s second opinion on them.

Then in Collins’ letter setting out the terms of Fisher’s review – a letter that she addresses to “Dear Robert”, which suggests a degree of personal closeness and informality that is inappropriate given the task she was asking him to conduct – she specifically states: “I am asking for your assessment of Justice Binnie’s conclusions, having regard to the appended bundle of documents and the appended synopsis of concerns with Justice Binnie's report.” In other words, Fisher wasn’t asked to conduct a blind review of Binnie’s report, but rather to first examine the criticisms of it compiled by others (the same parties, note, that had been trying to keep David Bain in jail and deny him compensation) and then assess it with these specific criticisms in mind.

This structuring of the review process carries real risks. By presenting the exercise as one of looking at already identified "problems" with the Binnie report and asking Fisher to (in effect) endorse or reject those allegations (without, it should be noted, any input from anyone who might want the report endorsed), Collins framed the issue in a particular way. And once an issue is framed in a particular way, it opens an observer to confirmation bias – to looking for evidence that can support a pre-existing conclusion, and overlooking evidence that negates it.

Now, I need to be clear about what I am and am not saying. I am not saying that Collins and Fisher were engaged in a conspiracy to undermine the Binnie report. I am not even saying that Collins was deliberately manipulating Fisher into producing a negative review. And I am most certainly not saying that Fisher as an individual was incapable of carrying out the task of reviewing Binnie’s report in a dispassionate and informed fashion.

What I am saying, however, is that Fisher is a human being. Therefore, like all human beings, he is susceptible to forms of cognitive bias. In particular, the way in which he was asked to perform this review task raises at least the possibility that the result of the task was (at least in part) the result of biases that predisposed him to “find” those "problems" in Binnie’s report already suggested to him and conclude on that basis that it was not fit for purpose. And no matter how much lawyers try to train themselves out of displaying such biases – by emphasising the need to be objective, to assess all the facts, to not give the client the answer they want but rather the answer the law requires, etc – they cannot be entirely eliminated. Which is why we see so many situations where two sides to a dispute can wave “an opinion from a lawyer”, each saying emphatically that they are in the right. Or, as John Key so presciently put it: “[Mike Joy’s] one academic, and like lawyers, I can provide you with another one that will give you a counterview.” We lawyers have a natural, human tendency to shape our views and conclusions in a way that is favourable to the outcome that best serves our perception of the desires of the person we are working for.

So, for example, we might observe that that whenever Fisher’s review drew an inference from Binnie’s report, that inference invariably pointed to the report being unreliable. For instance, Fisher states that “[Binnie] appeared to accept David’s version of events without question except where it directly conflicted with other witnesses”, which was part of an “approach to the facts [that] was markedly generous to David Bain”. However, what does not appear to have been considered (as Binnie points out in his response to Fisher) is the possibility that Binnie actually did what he said he did in his initial report. He reached a preliminary conclusion on the balance of the physical evidence available to him that David Bain was innocent – a conclusion that his interview with David Bain then did nothing to gainsay. And having concluded David Bain was an innocent man, he then preferred David Bain’s account of issues on which there was no other evidence to alternative possibilities. In other words, when Binnie quotes David Bain’s account of what happened, he does so not as evidence of Bain’s innocence but rather as an explanation for matters that otherwise would be left as potentially controversial question-marks in his report.

[This is the inverse of the point Fisher makes: "A suspect who lies in denying his responsibility for the crime itself would scarcely shrink from lying about the factual background." By the same token, a person who is innocent of a crime could be expected to be telling the truth about the individual facts  – so if you think a person is innocent (on grounds other than their testimony and your subjective assessment of their candour), then why wouldn’t you “accept [their] version of events without question” in regards any individual issues you have no other evidence on?]

Now, it may be that Binnie really was captured by a naïve belief that he could tell David Bain was being open and honest with him when recounting his version of events, and (at least in part) based his assessment of David Bain’s innocence on facts that he sourced solely from that subjective assessment of David Bain’s credibility and character. Or, it may not. I’ll just note that the interpretation favourable to Binnie – that Binnie actually did what he said he did and based his view of David Bain’s credibility on something other than subjective trust and a belief that he could tell he was being honest – isn’t one that Fisher even mentions in his review. Which seems odd, and could itself be taken as evidence that Fisher himself was captured by a particular view of Binnie’s alleged failings.

These deficiencies in the process by which Fisher was appointed and tasked to conduct his review of Binnie’s report almost are enough to make me think that his review cannot function as a reliable reason to reject Binnie’s conclusions. I say “almost”, because I think (whatever the risk other aspects of Fisher's review are tainted) there is one aspect of it that is so fundamental and clearly correct that it requires me to reach for the bold and italics keys.

I think Fisher’s core criticism of Binnie’s approach to the physical evidence is right.

[I deliberately set aside what Fisher says about how Binnie handled the psychological/propensity evidence he considered, because I think Binnie’s conclusion after reviewing this was that it just isn’t “evidence” at all ... it simply is not capable of permitting him or any other observer to assess whether there is an increased or decreased probability of David Bain's innocence. Binnie may have been wrong in his factual assessment on that issue (i.e. the various assertions about David and Robin Bain’s mental state at the time of the shootings may have been able to do what Binnie said it couldn’t), but that’s not what Fisher was assessing in his review report ... so insofar as Fisher criticises Binnie for ignoring this “evidence” when finally assessing David Bain's innocence on the balance of probabilities, I think he is mistaken.]

Explaining why I think Fisher's core criticism is right requires a digression into evidence theory, as applied in the context of circumstantial evidence. Take a simple example. The police get a call that there’s been a robbery at a Dairy. They rush over there, and the owner tells them that a stocky white male wearing a bandana over his face, a black sweatshirt and black baseball cap pulled a knife on him and ran off with about $130 from the till. (We’ll also say there is security camera footage to back this up, so there’s no problem with eyewitness reliability.)

Alerted to the crime, another police patrol in the neighbourhood spots a stocky white guy running along the street about a mile away from the Dairy in question. He’s wearing a black sweatshirt and baseball cap. The patrol pulls him over and asks him what he’s doing. He explains he’s late to meet a mate, so is running to get there. Upon being asked if he’d mind emptying his pockets for the police, he voluntarily does so – and reveals he has $125 in cash.

Now, what evidence is there that this man is the robber of the Dairy? (We’ll assume the Police do not find a knife or bandana or anything else, no-one comes forwards to say they saw anyone running through the streets, and that the suspect can provide no solid alibi for the time of the robbery.) Well, taking each item of evidence by itself, perhaps not much. The robber was a stocky white man, like the suspect. But there’s lots of them around. The robber wore a black sweatshirt, like the suspect. But so do lots of people. The robber wore a black baseball cap, like the suspect. But so do lots of people. The robber ran away, and the suspect was running. But you often see people running in the streets. The robber stole around $130, and the suspect had $125 in his pocket. But that’s not an unusually large sum to be carrying.

However, that’s not how we naturally think about this issue. Instead of taking the evidence piece by piece, we naturally link it together. What’s the chance of the robber and suspect happening to share the same physical characteristics AND be wearing the same colour sweatshirt AND be wearing the same colour baseball cap AND be running in the same general area AND having a similar amount of cash in their pockets? And note that each coincidence doesn’t just increase the likelihood of the suspect being the robber a little bit … it increases it a lot (the number people who are stocky white men is far greater than the number of people who are stocky white men wearing black sweatshirts, which is again far greater than the number of stocky white men wearing black sweatshirts and baseball caps … and so on.) Which is exactly how the law treats such evidence (as Fisher expresses it in his report, and as Binnie accepts in his):

The usual analogy is the strands in the rope explanation: each strand of evidence gains strength from the other, so that whilst an individual strand may be insufficient to support the load … the combination of them may be enough.

And it was just this sort of reasoning that was deployed in David Bain’s criminal trials. The prosecution effectively argued that the chain of coincidences revealed by the physical evidence (supplemented somewhat by other evidence involving things David Bain said before and after the trial, as well as other incidental matters) was so great that the only possible explanation that could account for them was his guilt. In turn, the defence sought to attack this evidence by either claiming it was flawed (that it didn’t actually show what the prosecution alleged it did) or else could be explained by other, non-incriminating explanations. As we all know, in the end the defence obviously managed to convince the jury that the prosecution could not fashion a strong enough rope on which to hang the conclusion of David Bain’s guilt (beyond reasonable doubt, at least).

Having set out this “strands of rope” analogy, I’m immediately going to complicate it. Because I don’t think it works all that well in the context of Binnie’s inquiry. Where you've got someone advancing a proposition (“this suspect robbed the Dairy”) and then a bunch of claimed facts ("he wore the same sweatshirt and baseball cap as the robber"; "he was running in the same general area"; “he had a similar amount of money in his pockets” etc, etc) which all are alleged to point to that conclusion, then the analogy is perfect. In that context, you can assess the extent to which each claimed fact actually increases the likelihood of guilt (adds strands to the rope on which the conclusion hangs, to use the analogy).

But that’s not the approach Binnie took in his report. Rather, he said (in essence):

There’s a bunch of physical evidence put forwards by the prosecution that has been through a number of court hearings and so received repeated cross examination as to its veracity – that’s the best-tested evidence on the question of who killed the family I have available to me. And some of that evidence has been identified by the Privy Council (in its decision that David Bain suffered a miscarriage of justice) as being central to the question of his guilt (and, thus, logically his innocence). So, looking at that evidence, is David Bain more likely than not innocent?

I have no problem with this basic approach. Out of the hundreds, and maybe thousands, of asserted points of “critical” evidence in this case, choosing the ones that New Zealand’s (then) highest court said were most important to it and giving these priority in your analysis strikes me as a quite reasonable way to go. (Go have a read of any comment thread about the Bain case if you don’t believe me about the number of things various people passionately claim “proves” the matter one way or another.)

But the issue with doing so is that only some of this prosecution evidence may be capable of proving Bain's innocence; it can serve as a strand in a rope on which to hang the required conclusion. So, says Binnie in his report, the footprint evidence, the timing issue and the no-blood in the running shoe problem all point to a conclusion that David Bain didn't do it. But other evidence simply cannot support a conclusion that David Bain is innocent – it is logically incompatible with this conclusion – so can never be a "strand in the rope" in this context. For example, the fingerprints on the rifle evidence, or the claimed blood spatter patterns, or the hearing Laniet gurgle point ... these simply are incapable of strengthening David Bain's claim to innocence (i.e. there is no interpretation of them that makes it more likely that David Bain is innocent, all that can be done with them is say that they are not evidence that makes it less likely he is innocent). So in order to make the analogy work, these sorts of pieces of evidence can only ever be "knives" that could cut the rope on which any conclusion of David Bain's innocence hangs. 

So, really, there were two questions in play in Binnie’s report on David Bain’s innocence. First, how thick is the rope upon which we can hang the conclusion that David Bain is innocent – how strong is the combined circumstantial evidence that David Bain didn't shoot his family (because Robin Bain did)? And second, how sharp is the knife that could cut that rope – how strong is the combined circumstantial evidence that David Bain did shoot his family? 

The key problem with Binnie’s report, which I think Fisher accurately identifies and describes, is that Binnie did not expressly carry out that cumulative comparison in his report. He says he did it:

. . . the cumulative effect of the items of physical evidence, considered item by item both individually and collectively, and considered in light of my interview with David Bain . . . persuade me that David Bain is factually innocent . . .

 He then reiterates that point in his response to Fisher:

[Fisher’s] allegation is that I didn't do what I said I did. This is just wrong. I did what I said I did. Otherwise I wouldn't have claimed to have done it.

However, at no point in Binnie’s report does he show us the workings that support that conclusion. All he does is tell us what he thinks of individual pieces of the evidentiary record in the Bain case, in terms of their relative probative values. So, he clearly believes that the footprint evidence was the strongest single item of evidence pointing one way or the other – its probative value was greater than any other individual item of evidence. But how and why Binnie thought this footprint evidence (put together with the timing issue, and the no blood in the shoe point) was stronger than the combined evidence that pointed towards David Bain’s guilt we’ll never know – all we know is that he says he considered the matter and came to that conclusion.

And that is a problem, because it is only in the overall “thickness vs sharpness” analysis that you can reach an overall assessment on the balance of probabilities of whether David Bain is innocent. So I think Fisher is absolutely correct in this aspect of his criticisms: even if Binnie really did do what he says he did (and remember, an absence of evidence is not the same as evidence of absence), we needed to see him doing it in order to be fully satisfied about his conclusions.

So, yes – for all the problems that I have with the way Fisher’s review of Binnie’s report was commissioned and framed, Collins was right to conclude from it that Binnie’s report is not a safe basis for concluding that David Bain is innocent. Having read that report, and Fisher’s critique, and Binnie’s response, that is the conclusion I myself have come to.

But here's the ongoing issue. Binnie has provided us with his conclusion about a whole range of individual pieces of the evidence – he's told us what he thinks about the thickness of the individual strands of the rope (i.e. how strong the probative value of the individual bits of evidence pointing to Bain's innocence) and the sharpness of each piece of the knife (i.e. how strong the probative value of the individual bits of evidence pointing to Bain's guilt). (I note that this is where the analogy begins to part company with what is actually required in order to determine David Bain’s innocence, because the quality of "sharpness" is not reducible to individual components in the same way as a length of rope is ... but hopefully the point is understandable).

Now, I haven't gone through and tried to do a rigorous cumulative assessment of thickness vs sharpness based on Binnie's individual conclusions – we really needed him to do that, as Fisher says – but a rough impressionistic assessment is that such an exercise could very well still lead to the conclusion that the rope is too thick for a quite blunt knife to cut. In other words, even if Binnie had expressly done what Fisher (rightly) says he should have done, the outcome would be the same (which is a possibility that Fisher expressly ackowledges in his review report).

If that is right (and it may not be – I reiterate my formerly avowed agnosticism on the issue), there’s then an interesting question for us. I cannot see how the Cabinet can resolve the issue of David Bain’s compensation without some sort of further input on the question of his innocence (or guilt). I mean, I know that in theory it could. The nature of ex gratia payments is such that the Cabinet could make up its own mind on the issue (or, more likely, Judith Collins could just tell it she doesn’t think compensation is required and they then agree with her). But in practice I think that would be too highly charged (as well as potentially unfair) a decision for them to take.

So it seems inevitable to me that this matter is going to go back out to another review by someone else. And if and when it does, to what extent ought that person (or persons?) be bound by Binnie's assessment of the probative value of individual items of evidence? I mean, could somebody come in, look at the footprints evidence for themselves and say; “this actually isn't a strand of rope, it's part of the knife”; or examine the fingerprint evidence and say “this is razor sharp, not dull and blunted!” And if they do so ... why should we believe them on that particular conclusion over and above Binnie? Because, the fact he erred in not doing everything he ought to have done with the conclusions he reached on each piece of evidence does not in itself mean that those conclusions are wrong!

Which makes me think that despite my earlier prediction that the government would ask Fisher to carry on with the next stage of dealing with David Bain’s claim, it would be a real mistake to do so. I would note in this context, without wanting to be dickish about it, that there have been questions raised about Fisher’s previous work when advising Cabinet on whether should Rex Haig receive compensation for wrongful conviction and imprisonment:

[A] December 2010 report by Prof Joseph, a School of Law professor at the University of Canterbury, criticised Mr Fisher's findings as legally and factually baseless.

"Fisher's finding of probable guilt was based on a hypothesis that was entirely novel and untested. Furthermore, Haig had no opportunity to rebut or challenge the hypothesis," Prof Joseph said.

Mr Fisher went outside the parameters of the initial Crown and defence cases. He played no part in the proceedings leading to Mr Haig's conviction or the subsequent quashing of it, did not personally interview witnesses, was not involved in gathering evidence and did not attend the trial, he said.

“He was, for all intents and purposes, a casual bystander. Yet Fisher could be confident that he, and only he, really knew what happened on the boat when Roderique was murdered. Such prescience is truly admirable," Prof Joseph said.

He found three grounds on which Mr Haig could legally challenge Mr Fisher's report and seek a judicial review.

I make this point not to undermine Fisher’s criticisms of Binnie’s report (like I say, I think he was right on the main point of his review), or to suggest that he was just as bad as Binnie when he had to do the same job, or that he couldn’t be trusted to carry out a substantive review of David Bain’s innocence. Rather, I want to suggest that having only one person responsible for deciding factual innocence/guilt questions always invites attack. And where the case is as divisive, high profile and outright unresolvable as David Bain’s, those attacks will be magnified exponentially.

So maybe the only way through this is to give the job to more than one person. As my Boss at the Otago Law Faculty, Mark Heneghan, has suggested, “at least with a panel of judges they can reality-check each other and make sure they are not being influenced by one thing.” And as I make it a policy to never disagree with my boss, I’m going to suggest that this is a brilliant idea from a fair-minded, highly intelligent and devastatingly good-looking man.

Right. That’s it. I’m all Bained out now, so I’m going to try to stop myself from joining in the comment thread. But the rest of you can have at it.

Comments (28)

by Alan Ivory on December 18, 2012
Alan Ivory

Had the process been better handled it might have been possible to have asked Binnie to provide more detail as to how he weighed his evidential findings overall.  This additional detail could then have been considered by the parties and commented on to the Minister who would then have been able to take it to the Cabinet.  This process would have been quicker, cheaper and less controversial and divisive than what has occurred. It also would not have required Binnie to be "wrong" or "Fisher" to be "right".

by Eszett on December 18, 2012
Eszett

An excellent read, thanks Andrew

by Ross on December 18, 2012
Ross

First, Collins sought only input from those institutions that had long asserted David Bain’s guilt before making her decision to seek a peer review. The “Bain camp” didn’t even get a copy of the report, let alone get asked what they thought should happen in relation to any concerns the Minister may have had about it.

To be fair, there is little or no criticism of Bain in Binnie's report. But there is criticism of prosecution witnesses, police and the IPCA. Why was Collins required to give a copy of the Binnie report to Bain given that his reputation wasn't being tarnished by Binnie? She was under no obligation to do so.

Collins received Binnie's report on August 31. It was almost 4 weeks before she asked Fisher to review that report (and in the interim invited comment from affected parties). Binnie's subsequent response strikes me as nothing more than sour grapes, because his report has been shown to be severely flawed. Rather than complain about the process, I'd have hoped that Binnie would front up and admit that he made mistakes. Instead, he does the exact opposite and defends his work.

by Ross on December 18, 2012
Ross

(I fully understand that the Solicitor General and Crown Law were operating in their capacity as Ministerial advisors and not as advocates … but I also note that it’s asking a lot of human beings to go from stoutly supporting the long-held view that David Bain is guilty to dispassionately and objectively assessing the merits of a report concluding the opposite with a mere change of hats!)

OK, I take your point, but let's say Collins had given a copy of Binnie's report to Bain, Reed and Karam. What would their response have been? No doubt the same response that we've heard from them - that it's wonderful report and should be acted upon! I'm sure how that would've assisted Collins.

by Ross on December 18, 2012
Ross

I'm not sure how that would've assisted Collins...

by Keir on December 18, 2012
Keir

Collins wasn't showing Crown Law the report in a fair-warning-to-affected-persons way; if she was doing so then it would be insanely improper to also rely on their advice regarding its contents.

by Scott Chris on December 18, 2012
Scott Chris

And if and when it does, to what extent ought that person (or persons?) be bound by Binnie's assessment of the probative value of individual items of evidence?

Binnie's assessment of probative value may well serve as a useful reference point for any future assessors of fact, but the reason for why those assessments should be binding escapes me. I don't think that legal precendent can be built upon one person's opinion, rather that it can only be constructed by many people agreeing with one person's opinion.

 

by James Green on December 18, 2012
James Green

Nice argument Andrew.

I think my last-ish thought on the matter is that it seems odd that there is no mid-point in the gulity, probably guilty, probably innocent, innocent 'scale'. Though it could arguably be seen as a cop-out, sometimes, concluding that it is just not possible to tell from the evidence would be rational.

by Bruce Thorpe on December 18, 2012
Bruce Thorpe

Nice proposal James.

On a scale of guilty, probably guilty, probably innocent, innocent scale on the evidence,

Robin would have to be innocent on the basis of no evidence and no credible accusation.

A third party would be innocent on the basis of no evidence  and indeed no hint of an accusation. 

David would be probably guilty on the basis of significant evidence and credible accusation.

 

by Andrew Geddis on December 19, 2012
Andrew Geddis

Despite my vow not to comment here, and at the risk of displaying extreme confirmation bias, I'm going to take the rare step of linking to a Bob Jones column in the Herald ... and invoke Dean Knight's insightful comment in this previous thread!

by Ross on December 19, 2012
Ross

Andrew

Bob Jones makes the following comment:

She [Collins] has effectively said she disagrees with a jury's findings after an exhaustive three-month trial, disagrees with the widely regarded greatest law lord of the past half century and his Privy Council, and disagrees with Canada's (former) top judicial figure after his three-month investigation.

Collins has said no such thing. Like Binnie, Jones seems to give a lot of weight to the jury and Privy Council. But neither the jury nor the Privy Council said Bain was innocent. A fair few Bain supporters seem to be unaware of that fact. What Collins has said is that Binnie's report is seriously flawed, and it clearly is.

Jones says that Collins is "temperamentally unsuited for the Justice Ministry". I have no idea what he trying to say. It's most unlike Bob Jones to leave readers guessing.

 

by Andrew Geddis on December 19, 2012
Andrew Geddis

Ross,

I didn't endorse Jones' comments. I simply pointed to someone who had gone several degrees more critical of Collins that I had and said "wow"!

by Kent Parker on December 20, 2012
Kent Parker

Andrew, you should know that Jones' comments are partial.  He is a mate of our friend Karam.  He was the one who introduced him to Michael Reed.  Note also that the subsequent editorial in the Herald from the lawyer who represented Lindy Chamberlain has also benefited from a personal introduction to Karam.  I think it was wise of Judith Collins to withhold the report until now to ensure that a massive Bain is innocent campaign did not get underway before Fisher completed his review.  I for one object to trial by media, and I am not the only one.  I just hope Collins maintains her position and ensures that a fair process is undertaken, this time by a panel of judges rather than one.

by Andrew Geddis on December 20, 2012
Andrew Geddis

Kent,

I do know that. But who exactly is an "impartial" commentator on this topic? (As I noted in my post, I carry my own baggage when commentating on Judith Collins' actions and choices.)

Further, I repeat my answer to Ross:

I didn't endorse Jones' comments. I simply pointed to someone who had gone several degrees more critical of Collins that I had and said "wow"!

The "wow" is a comment on the depth of the passions that this case stirs (on all sides), as well as surprise at the (even for Bob Jones) strength of the criticisms made. And that is all.

by Kent Parker on December 20, 2012
Kent Parker

Well, I would put Jones firmly in the pro-David camp.  He is entitled to that of course.  I doubt very much if he has looked at the evidence.

by Kent Parker on December 20, 2012
Kent Parker

For a scientific perspective on the Binnie report, go no further than here

by wallace chapman on December 20, 2012
wallace chapman

...The Privy council agreed with you  - 'It is the effect of all the fresh evidence taken together, not the evidence on any single point, which compels that conclusion.' 

But. As independent forensics expert Anna Sandiford said, of all the issues, there was one in which prosecution and defense agreed. Who ever made the footprints was the killer. So she tested the prints  (using the Crowns method) and found David's foot too big to make the prints. Maybe thats why Binnie highlighted the issue  - just an assumption though ! 

by Terry Baucher on December 20, 2012
Terry Baucher

I'm ambivalent about the case, but actually in this situation I really don't think it matters whether or not David Bain is guilty.  What matters to me is the process and I am appalled at Collins' actions for the reasons you set out and which in my view do completely discredit the validity of Fisher's report.  The processes she has followed have been appalling.  Binnie might be wrong in what he has said but he is absolutely correct to lambast the processes involved in Fisher's review..

What concerns me most about BInnie's report are his findings about the police investigative process.  The reason why we are still arguing about this 18 years later is that it was not as thorough as it should have been. That incidentally, as the  Binnie Report points out in Para 546, was a point conceded in 1997 by the Joint Police/Police Complaints Authority Report when it said in relation to the failure to test properly for firearms discharge residue

"we find that earlier consideration should have been given to preserving Robin’s hands and clothing for firearm residue testing. At the very least his hands and lower arms should have been enclosed in plastic/paper bags at the earlier opportunity. Those containers should have been subsequently examined for residue as should the upper outer clothing of David and Robin. (para 142)"

There's also the failure to establish a clear motive for David committing the murders and not investigating further the possibility that Robin had the motive.  This was clearly something the Privy Council was puzzled by cf para 106 of their judgement http://www.scoop.co.nz/stories/HL0705/S00225.htm

Overall chapters XV to XIX of the Binnie Report show poor process was endemic to the whole investigation.  Fisher rather brushes over this when he says:

“107. There is no suggestion that in instances of this kind the police had either deliberately destroyed evidence that they knew would still be relevant or deliberately refused to produce it. It follows that there was no room to draw any adverse inference from the unavailability of the evidence.”

Binnie didn’t make an accusation of deliberate destruction; he was at pains not to do so.  I find the second sentence a bit laughable to be frank because adverse inferences about David Bain’s guilt were drawn (and continue to be made) in the absence of unavailable evidence (and the same applies to those who believe Robin Bain was the murderer). 

The failure of police processes is getting overlooked here amidst all the emotion and that leaves us vulnerable to further mistakes.  Process counts and I'd like to think the processes are better now but as the Dotcom and Urewera Raids show, there are still gaps in procedure which are big enough to derail entire cases and that really isn't good enough.  As the Minister for Justice Collins ought to be pondering on that rather than picking a bun fight (for no particular political gain as far as I can see).

Finally, and without going all cultural cringe, we should keep in mind that the Privy Council concluded,” in the very unusual circumstances of this case, a substantial miscarriage of justice has actually occurred.”  Binnie has come to similar conclusions, and we ought to be mature enough to consider whether there are systemic issues to be addressed rather than reflexively proclaim “doesn’t understand New Zealand so it doesn’t matter”.  Dissing a former Canadian Supreme Court justice might play well for the Collins fan club but to me it just stinks. 

 

 

 

 

 

 

by Scott Chris on December 21, 2012
Scott Chris

Who ever made the footprints was the killer. So she tested the prints  (using the Crowns method) and found David's foot too big to make the prints. Maybe thats why Binnie highlighted the issue 

ESR's Peter Hentschel was the original and only forensic scientist to measure and evaluate the luminol enhanced sockprints (alas the photographs of them didn't develop) and he concluded that they were a match for David's foot. Confusion over the words 'complete print' appears to have cast doubt over his findings in the eyes of Binnie and the Privy Council, however I find his subsequent explanation and description of his measurement method to be most compelling and believable.

According to the Counterspin website:

He [Hentschal] explained that it was a complete print in that it comprised of the toes and the heel however he said that it was not the"complete toe and heal" he also said he measured the area of strongest luminance, not all the luminance.

[Note: I am assuming that this description is accurate even though the original source isn't cited on the website]




 

by Ross on December 21, 2012
Ross

So she tested the prints  (using the Crowns method) and found David's foot too big to make the prints.

Wallace, there's a small problem with that analysis. Robin was wearing shoes at the time of his killing. He didn't have any blood on his shoes or socks. It's rather difficult to make bloodied footprints when you don't have blood on your shoes or socks!

by Ross on December 21, 2012
Ross

Binnie has come to similar conclusions

That's incorrect. The Privy Council never looked at the issue of innocence. It is worth remembering that Reed QC and Karam went back to the Privy Council (after the PC ha quashed Bain's convction), asking for an acquital. It took law lords all of 5 minutes to say that Bain should face another trial. So the Privy Council had an opportunity to impose it's own thoughts on Bain's guilt but believed it was a case that ought to be decided here.

 

by Dennis Horne on December 21, 2012
Dennis Horne

Whether one analyses the data quantitatively as Kent Parker and others have suggested, or intuitively after analysis and discussion, one is still left with the problem that however unlikely the event it can still happen. This is why I buy a Lotto ticket with the numbers 1 2 3 4 5 6. These are just as likely to win as any other numbers yet "impossible" to most people, and they are right. But they and I still part with the money.

In this case one is left believing the near impossible or concluding Bain is a scheming, lying, lunatic, which Binnie did not. So we're still left with personal preference, in my opinion. You pays your money and takes your choice.

Ultimately Collins will make her mind up, and she isn't going off course to accommodate lawyers, into whom she may have considerable insight. Fisher bought her some time but a lot of criticism, and buries a simple fact in a thicket of words, and he's not the only one.

She may believe there is enough evidence Bain does not tell the truth, for example telling the prison he acquired the weird tattoo two years earlier when it was two weeks. She may decide he did have motive, for example being unemployed for two years helping mum in the garden, a life which was about to change as Margaret developed the property. She may decide he did have a plan, as it was he who insisted the family have the meeting that drew them together, not Laniet.

Of course, she has a Pin-Up-Prime Minister to deal with. Peter Dunne, Bryan Gould and others are more concerned with appearances than substance and the pressure is.

My problem is I don't think the police are any better now than they were then. I don't think they examined the shotgun immediately they arrived on the Guy farm. If that had not been fired, it would have helped exclude Macdonald. The accusation of tunnel vision is valid too, in my opinion, when applied to the Scott Watson case.

I believe investigations of serious crime ought to be directed by an examining magistrate. Let some clever lawyers search for clarity early on, to counter their esteemed colleagues later, whose purpose in life is, it seems, to muddy the waters.

by Dennis Horne on December 21, 2012
Dennis Horne

Sorry, Ross, you just don't get it. Robin changed his bloodied clothes to meet his Maker. He left David's gloves in Steven's room to incriminate David. He left the note on the computer to exonerate David. You see, he was confused.

by Ross on December 21, 2012
Ross

Sorry, Ross, you just don't get it. Robin changed his bloodied clothes to meet his Maker. He left David's gloves in Steven's room to incriminate David. He left the note on the computer to exonerate David. You see, he was confused.

Hmmm, apparently so. But Robin had the presence of mind to put a comma after the word "Sorry". A spelling nazi until the bitter end eh. :)

 

by Dennis Horne on December 21, 2012
Dennis Horne

Ross: David is a nice boy. He told Binnie he would struggle to hurt an animal. How Binnie reconciled that with a rifle-owning hunter is not to clear to me. True it is ambigous the way I have written it: he would struggle or he wouldn't struggle?

Anway, it was very sweet. Perhaps Binnie discovered David is a very good shot. Always a clean kill, never experiencing the squealing of a wounded animal. That would certainly favour his not killing Steven, who put up quite a struggle.

Robin did not shoot animals.  Damn, I'm confused!

by Mike Osborne on December 21, 2012
Mike Osborne

@Ross  Punctilious about the comma yet a tad sloppy with "deserved" vs "deserves" unless he typed it posthumously of course.

by Ross on January 03, 2013
Ross

Andrew

I'm not sure whether this issue might be better discussed in a new thread, but there has been recent controversey over Michael Guest's disclosure to the Justice Minister that David Bain had informed Guest (David's former counsel) prior to the first trial that he had worn his mother's glasses the night before the murders. 

In about 2005, Bryan Bruce made a doco about the case in which then prosecutor Bill Wright was interviewed. Wright mentioned that Guest had approached him about David's admission (when David subsequently testified, he denied having worn the glasses). Justice Ian Binnie has recently criticised Guest, saying that David had not waived client-solicitor privilege for the purposes of his claim for compensation. Binnie claims there was a "limited waiver" which had expired. Can a waiver expire? Irrespective of the answer given that the information is publicly available, isn't the issue of client solicitor privilege somewhat redundant? Guest has informed the Minister: "Trenchant and continual criticism of me by the Bain team surely waived privilege from the early stages. There is common law authority to that effect." Is that correct?
by Ross on January 03, 2013
Ross

Irrespective of the answer, given that the information is publicly available, isn't the issue of client solicitor privilege somewhat redundant?

 

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