Entrenched views on Bain case

The release of the Callinan report and the announcement that the Government would pay Bain nearly a million dollars to bring closure to legal actions is unlikely to change many if any minds about whodunnit.

It’s not unusual for pundits from the public to stick to what they believe regardless of evidence, but you would expect a journalist who has taken a close interest in the ongoing Bain cases and has written extensively about it would base his claims on known facts and law.

But Martin van Beyen appears to be determined to stick to his beliefs as much as anyone.

Stuff: Callinan report highlights issues in David Bain’s innocence appeal

Reporter MARTIN VAN BEYNEN, who covered David Bain’s retrial in 2009, believes the Callinan report highlights the longstanding flaws and inconsistencies in David’s story that he is innocent of the deaths of his family and that his father Robin was the killer. 

In just 144 pages, former Australian Supreme Court judge Ian Callinan lays bare David Bain’s case for compensation and finds it wanting.

For ardent followers of the case, Callinan’s report released on Tuesday doesn’t say much new. He has perused mountains of material and highlighted the flaws evident in Bain’s case as early as his trial in 1995 at which he was found guilty.

The report raises justifiable and inevitable doubts when looking at Bain’s account of what happened on 20 June, 1994 and the evidence the police investigation has revealed.

Callinan’s job was not to say whether Bain was innocent or guilty, although clearly on one reading of the report he appears to have doubts about Bain’s innocence.

Of course he has doubts, nothing has been conclusively proven one way or the other.

His job was to say whether he was satisfied Bain had proved whether he was innocent on the balance of probabilities. In other words, he had to be happy Bain was more probably innocent than guilty. The evidence provided by Bain’s defence failed to reach that threshhold, in Callinan’s view. 

The conclusion from that alleged failure is inescapable. If he can’t show he probably didn’t do it, he probably did it.

That is a ridiculous statement and a journalist who has covered criminal trials should know better.

Van Beyen has written in the past that he is convinced that David is guilty of the murder of his parents and siblings. He has weighed up the evidence and made his judgement, as many people have.

But stating that a failure to prove you didn’t do something means you ‘probably did it’ it nonsense.

I can’t prove that I have done nearly everything I have done in my life. And it’s even harder to prove things that I haven’t done.

Most of us wouldn’t be able to prove now what we were doing on 20 June 1994, let alone what we were not doing. Or for parts of just about any day of our lives.

From what I know about the Bain case there is evidence that seems to suggest both possible guilt and possible innocence of both David Bain and his father Robin. To me it is inconclusive either way.

The quantity of implicative evidence and the lack of conclusive evidence makes it easy for those convinced one way or the other to cherry pick bits that fit their beliefs.

The only person left who probably knows is David, and he still insists he is innocent. Perhaps he is right, or perhaps he is caught in a story of denial, or whatever.

But I am still not sure if it was David, or if it was Robin, or if it was both David and Robin, or if it was someone else. Neither is the Callinan report. Neither apparently is the Minister of Justice or the Government.

Quite often things remain unproven forever.

 

50 Comments

  1. Lawyer Garry Gotlieb says that the payout reflects a legal stalemate.

    It’s not uncommon for pragmatic agreed compromises.

  2. Blazer

     /  3rd August 2016

    What other conclusion can a reporter arrive at ,when you fail the test of the balance of probabilities?Apart from unsubstantiated slander of a dead man who cannot defend himself ,please provide any evidence you think points towards Robin.It is accepted the Police made a number of errors regarding their handling of this case.I remember when David told the press…’I am the only one who really knows what happened’….Karam ,naturally was horrified and the new version before almost complete muzzling was…’I don’t know,I wasn’t there’.When David rang 111 he said ‘they’re all dead’…when the Police arrived he said he hadn’t been in all the rooms!..Karam…’David just wants the chance to get on the stand and tell what happened’…yeah right….no chance of that happening.The only thing is Karam and David Bain will have to live with the reality.Feel sorry for the wife……mind you a 22 y.o with a paper round was ‘the only one who deserved to live’…not the school dux or promising sportsman…both got murdered.

    • Gezza

       /  3rd August 2016

      Amen, brother. Your list yesterday says it all imo.

    • “What other conclusion can a reporter arrive at ”

      That it remains inconclusive?

      I would hope for better than ‘if you can’t priove you didn’t do something you probably did it’.

      • Blazer

         /  3rd August 2016

        probable and possible are 2 different words with different meanings.

    • Kitty Catkin

       /  3rd August 2016

      I agree with your summary above-don’t faint-and I hadn’t realised that he hadn’t been into all the rooms (???) but still knew that they were all dead. Perhaps he has psychic abilities.

      The distressed call would have been easy to fake; even I can make myself sound like that by the simple means of holding my breath for as long as I can before I speak. One then sounds as if one is in a real state of shock.

      I wonder why Joe Karam had him sleeping in the sleepout (glorified garage, from what I remember) rather than in his house.

  3. Pete Kane

     /  3rd August 2016

    These guys made some thoughtful points this morning. I like the way Seymour is prepare to challenge his Executive (Political) collegues.
    “The Act Party leader David Seymour says the way compensation cases are handled needs a complete overhaul. David Seymour and Law Professor Andrew Geddis tell Morning Report reform is needed.”
    http://www.radionz.co.nz/national/programmes/morningreport/audio/201810640/act-says-compensation-system-needs-total-overhaul

    • Gezza

       /  3rd August 2016

      I liked the way David Seymour showed himself to be a complete ignoramus about the case.

  4. Ray

     /  3rd August 2016

    There is a theory that they both did it, Robin killed the family and David killed his father.

    • Gezza

       /  3rd August 2016

      The thing I don’t buy with that theory is that in that case the glaringly obvious defence for David would’ve been self-defence from Robin.

    • Blazer

       /  3rd August 2016

      utilise Ockhams razor and you will know.

    • Kitty Catkin

       /  3rd August 2016

      If that was the case, Ray, why didn’t he say so ? It would have been the get out of jail free card to end of all get out of jail free cards.

  5. Alan Wilkinson

     /  3rd August 2016

    Van Beynen is a fanatic on this case. I discount his opinion and dislike his advocacy.

    • Gezza

       /  3rd August 2016

      You should let him know Al. Otherwise he probably just thinks you agree with him. o_O

  6. Zedd

     /  3rd August 2016

    only one person probably knows the real truth on this.. & he’s ‘sticking to his guns’ (pun) !! :/

    • Gezza

       /  3rd August 2016

      I reckon I know the real tooth Zeddo and it’s stickin to me gums. 🙂

      • Zedd

         /  3rd August 2016

        do tell… 😀

        as they say on the x-files.. ‘the truth is…. (somewhere) out there ?’

        • Gezza

           /  3rd August 2016

          Bugger. I had it a minute ago. Now I can’t remember. >:D

          Hey thanks for that baccy you sent me to try? Why does it smell funny? o_O

          • Zedd

             /  3rd August 2016

            baccy I sent you ?.. twas not I or I

            maybe hallucinating 😀

          • Gezza

             /  3rd August 2016

            Soz.

            I just found it in me letterbox in a brown paper bag. Had a card inside that just said: “S’cuse me while I light my spliff’ (whatever that is?)… and a big ‘Z’.

            I thort: (I don’t know anybody called Zorro? o_O ).
            So I just thort: (Must be Zedd 😎 ).

          • Gezza

             /  3rd August 2016

            (PS: Not really folks)

            • @gezza

              I realise youre just ‘cracking a yoke’

              BUT not something to make light off.. I may smoke a bit now & then.. BUT I am not involved in ‘DEALING ILLEGAL DRUGS’ man !! 😦

            • Gezza

               /  3rd August 2016

              I know Zedd. Neither am I, & never would be. Went too far, & thanks for the reminder I can do that. Sincere apologies.

            • Zedd

               /  3rd August 2016

              @gezza

              enuff said.. no worries :/

            • Nelly Smickers

               /  3rd August 2016

  7. Nelly Smickers

     /  3rd August 2016

    I thort Wayne raised a couple of *very interesting questions* in bed last night…..which certainly had me thinking o_O

    Q1. Would DB now be allowed to hold a *Firearms License* ❓

    Q2. What would the committee’s reaction be, if DB applied to become a member of our *Pistol Club* ❓

    • Gezza

       /  3rd August 2016

      Awesome thinker. Man’s just got that incredible gift of bein’ able to slice straight through all the bullshit & get straight to the nub of all the big issues Nell. Respect !

      What were ya reckons back to him?

      • Nelly Smickers

         /  3rd August 2016

        I just went “duh….no way….his jersey is *sooo bogan* ” ❗

        • Gezza

           /  3rd August 2016

          Yup. Did ya just fart and go to sleep after that. I probably would. 😎

          • Alan Wilkinson

             /  3rd August 2016

            Yep, if you have to grow up to be an old fart it’s best to enjoy it.

            • Gezza

               /  3rd August 2016

              o_O

            • Kitty Catkin

               /  3rd August 2016

              Why is it not surprising that Wayne’s reported remarks about a mass murder of an innocent family are utterly crass and tasteless ?

            • Gezza

               /  3rd August 2016

              But if you go back & read them again, and stop and think what is the one thing they are really asking, from two different angles, they’re not.

  8. Gezza

     /  3rd August 2016

    The Bain case is probably our most frustrating ever, wouldn’t you think?
    Nobody likes to see an innocent person convicted of a murder they didn’t commit.
    And nobody likes to see a murderer go free because the evidence allowed to be seen/considered by the Jury wasn’t sufficient to convince them of the accused’s guilt beyond reasonable doubt, which, in a case I was on a jury for years ago, the Judge made clear, in his view, meant if there was any doubt, a not guilty verdict should be delivered.

    It also raises issues around whether people can even safely discuss the case without facing possible court action for defamation because of whether, in law, a finding of Not Guilty has the same effect as meaning someone has been found Innocent.

    Can’t help wondering what the outcome might have been if we had a ‘Not Proven’ option, or if it was a Judge-Only trial, where Judiciary J could decide, on the basis of all the evidence seen by the Judge, what was credible and applicable, in all the circumstances.

    • Blazer

       /  3rd August 2016

      the rider is ‘beyond reasonable doubt’.

      • Gezza

         /  3rd August 2016

        Yup. And the nub is what the judge and/or jury think is “reasonable”, after the judge’s directions, & before the Jury is sequestered.

        In the case I was on (a family dispute where an assault took place, damage was done to a vehicle, and a shotgun was discharged) we had to come back to the Judge with 3 more questions before reaching our 3 verdicts.

        Your definiton of ‘reasonable’ is?

        • Blazer

           /  3rd August 2016

          the test of a reasonable person…is the commuter on the Clapham no.8 bus.

          • Gezza

             /  3rd August 2016

            (smiles) Yup. The Judge in our case was a learned, bearded, affable chap, who reassembled the Court & the public gallery, and then congratulated us on asking these three questions, and proceeded to eloquently explain the legal position with so much intellectually elegant bumpf, we all soberly nodded our thanks, returned to the Jury Room, looked blankly at each other & in the end, just winged it.

            • Kitty Catkin

               /  3rd August 2016

              Not guilty in law is NOT the same as innocent.

              I like the ‘not proven’ verdict. The accused can then be tried again if new evidence is found.

              My friend who was rejected from the Plumley-Walker jury because he was slightly acquainted with P-W (they lived in adjoining streets and would talk at the bus stop) was very glad of this when he saw how long the case went on. And on. And on.

            • Gezza

               /  3rd August 2016

              Re first sentence, I think you’re right in a strict legal sense. I should really ask my brother, the crown solicitor.

              Where it gets complicated is where we speak about accused persons, in our legal system, being “innocent until proven guilty”.

            • Gezza

               /  3rd August 2016

              Technically, legally, I suppose this would be more accurately stated as:
              “presumed innocent until proven guilty”.

          • Blazer

             /  3rd August 2016

            correction I have looked it up…it is the no.88 Clapham bus!

            • Gezza

               /  3rd August 2016

              Well, that explains why, in our Jury Room, we ended up with two testosterone-fueled middle-aged male commuters from the Upper Hutt & Paraparaumu lines respectively just about coming to blows over who knew more about what a shotgun blast could do to someone, and then not speaking to anybody for about 20 minutes, after we managed to pull them apart.

            • Gezza

               /  3rd August 2016

              And I’m not joking. I’m serious.

  9. David Bain – innocent or guilty, he was denied his freedom for a long period of time on a verdict that was thrown out on appeal ultimately…..

    Did he do it or not? I always thought yes. BUT it wasn’t proven and he lost many years he will never get back.

    The 900 odd thousand to make it go away is not really compensation for the Police and Judiciary stuffing up on this case. He should be paid out for time served.

    And I don’t like the thought of that – BUT he was not proven guilty and he was subjected to state violence in the form of loss of liberty…. he deserves compensation not some hush money to make it go away…

    • Gezza

       /  3rd August 2016

      5 members of his family suffered the ultimate loss of liberty. Nobody can recompense them in this life. The crown has already had to pay for the stuff ups it made. This decision is the right one.

      • And if he genuinely didn’t do it Gezza??

        I said I don’t like it- I think he is guilty as sin on my less than in depth knowledge of the facts.

        But if the Police, Crown Prosecution Service and the Judiciary eff it up and get overturned on appeal after years in jail for the accused – then you have to face the fact he wasn’t PROVEN Guilty Beyond Reasonable Doubt. Which leads to a requirement for acknowledgement of wrongful conviction, illegal detention and loss of liberty – which ultimately equals compensation is required.

        Its not pleasant but its NOT a political issue – is an issue to be judged on facts. And the key fact is he was denied a normal life and locked away on an allegation that was not proven to the required standard.

        If it was me I wouldn’t have accepted hush money. I would pushed much harder until an adequate recompense for loss of liberty was made.

        And one final thought before I sign off – any anger in this case should be pointed squarely at the NZ Police and the piss poor job they did investigating the case. The performed woefully and have badly let down the victims of a nasty multiple murder…

        • Gezza

           /  3rd August 2016

          He can take it to Court. The Courts know who did it.