Binnie on Bain

Sunday tonight has an interview of retired judge Ian Binnie on the Bain murders. Very interesting – if you want to see it and have missed it then try TV +1 from 8:30.

Binnie wrote the report that said that in all probability David Bain was innocent and deserved compensation from the Crown. It created a political furore.

Binnie believes David is almost certainly innocent, and that his father set things up to make it look like David had done it in an act of revenge.

He cites in particular that David Bain had no history of mental instability while his father Robin was in a deteriorating state and was effectively estranged from his family.

One thing doesn’t make sense if David did it – why did he kill his mother and siblings, go on his paper run, and then return and shoot his father.

Binnie says that the police inquiry was inept, complicated somewhat by the burning down of the Bain house by the Police about two weeks after the murders.

There is still a number of aspects that don’t make sense and could implicate both David and Robin.

Binnie says that Judith Collins is the poster case why a politician should not get involved in legal cases – she was Minister of Justice when the Binnie report was released.

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.

 

Bain payout not compensation

The Government is paying David Bain $925,000 but say it is not compensation. It seems to be to put to an end decades of legal wrangling, and is unlikely to reduce polarised views/.

NZH: No compensation for David Bain; $925,000 ex gratia payment

David Bain is disappointed with the decision that he will not receive compensation for wrongfully spending 13 years in prison.

Justice Minister Amy Adams said today that retired judge Ian Callinan had found that Bain was not innocent “on the balance of probabilities”.

Speaking to the NZ Herald at his Christchurch home today, Bain professed his innocence.

“Quite frankly, the only thing I have to say is that Mr Callinan, Ms Adams and everybody that’s been involved in the case to date have got it wrong: I am innocent. That will always be my only comment and there’s nothing else I have to say on the matter,” Bain said.

As a result of the decision, the Government would not be making an apology or compensating Bain for his time spent in prison.

However, Adams also said that Bain’s team had promised to make a legal challenge to Callinan’s report.

In an unusual move, the Government has agreed to make an ex gratia payment to Bain in the interests of bringing closure to the long-running claim. A full and final payment of $925,000 has been accepted by Bain’s team.

Adams stressed that the payment was not compensation, and had been offered solely to avoid further litigation and costs to the Crown.

In announcing the decision, Adams said the Bain case was one of the most complex and unique cases ever witnessed in this country.

Even after the latest report, New Zealanders were likely to be divided about the case, she said. But it was in the interests of everyone to bring some closure to the claim, given that the murders occurred 22 years ago.

Adams said Bain’s legal team had made it absolutely clear they intended to legally challenge Callinan’s report, leading to considerable further cost and delay in this matter.

“While the Crown is confident in the strength of its position in any such review, it’s clearly desirable to bring finality to this case and avoid the cost and uncertainty of further proceedings,” she said,

“In my view, no one benefits from this matter continuing to drag on. In light of that, the Crown has agreed to make an ex gratia payment of $925,000 in recognition of the time involved and expenses incurred by Mr Bain during the compensation process, and the desirability of avoiding further litigation.”

Bain had accepted this payment in full and final settlement of all matters.

But it won’t settle ongoing debate.

Seymour on Bain

David Seymour has tweeted some scathing “thoughts on the David Bain circus”:

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The murders occurred in 1994, nearly 22 years ago, so that’s a long time for ‘justice’ and it still has a way to go yet.

The leaking of the Callinan report has been controversial, with the Greens asking for an inquiry into who leaked it.

The Herald reports the Former president of New Zealand Criminal Bar Association thinks that Bain leak ‘could force new investigation’ but Bain report leak won’t change ministerial approach – Adams.

In an editorial the ODT recaps the story in Bain: a vexing compensation issue and concludes:

The Government has handled this appallingly.

It seems to have put block after block in front of any final decision being made in a timely and fair manner.

The Cabinet needs to decide if Mr Bain is innocent on the balance of probabilities and/or exceptional circumstances.

The legal system has acquitted Mr Bain, that much is clear.

People need to ask why the acquittal is good enough for a court but not Cabinet – which includes a former Crown prosecutor, a former policeman and former lawyers.

This time, the present Cabinet and Prime Minister John Key need to end the deferral and make a decision and stand by it.

There is an old maxim of “justice delayed is justice denied”.

Mr Bain has passed some significant hurdles but there is still one more to clear.

Whatever is decided by Cabinet it is sure to be controversial.

 

Bain not “innocent beyond reasonable doubt”

The debate will no doubt continue on the Bain murders after and Australian judge has found that David Bain’s claim for compensation didn’t meet the threshold of “innocent beyond reasonable doubt”.

This doesn’t surprise me as there are a number of contentious points about the murders and their investigation.

It was always going to be difficult to prove his innocence beyond reasonable doubt with evidence that is already known about, and with the number of investigations done into this case it is unlikely that any compelling new evidence would surface unless someone makes a credible confession.

NZ Herald reports: David Bain compensation case misses benchmark

David Bain has suffered another blow in his compensation claim for wrongful imprisonment following a confidential report by a senior judge found he did not meet the threshold of “innocent beyond reasonable doubt”.

The report has just been delivered and the Government has not yet begun any consideration of the latest development in the Bain case, which has divided the country for years.

Ian Callinan, QC, a retired judge from Australia, was asked to advise whether he is satisfied that Mr Bain has proven he is innocent of murder on the “balance of probabilities” and, if so, whether he is also satisfied Mr Bain has proven he is innocent “beyond reasonable doubt”.

His review has been delivered to Justice Minister Amy Adams.

The Herald understands that the judge did not find that Mr Bain is innocent beyond reasonable doubt — the benchmark for “extraordinary circumstances” required for compensation under previous guidelines.

Ms Adams will make the eventual recommendations to Cabinet after sounding out her colleagues.

Interestingly the Herald writes this as if it’s no deal for Bain already. It sounds unlikely but has not yet been determined.

If Mr Bain had been successful in his application, he could have received up to $2 million on estimates from other successful compensation claims.

Key points:

• Confidential report by Australian judge finds David Bain not “innocent beyond reasonable doubt”.
• The finding means Bain – who served almost 13 years of a minimum 16-year life sentence for murder before the Privy Council quashed his convictions and he was acquitted at a subsequent retrial – does not meet the “extraordinary circumstances” test for a compensation claim of wrongful imprisonment.
• The Government previously ignored a Canadian judge who found Bain innocent on “the balance of probabilities” and recommended compensation be paid.
• An estimated $1 million has been spent on considering Bain’s bid for compensation. Justice Minister Amy Adams now has to make a final recommendation to Cabinet.

Recap (Wikipedia Bain family murders):

  • The Bain family murders refers to the deaths of Robin and Margaret Bain, along with three of their children – Arawa, Laniet and Stephen – in Dunedin,New Zealand on 20 June 1994.
  • Their eldest son, David Cullen Bain was wrongfully convicted in May 1995 on five counts of murder.
  • He spent almost 13 years of a life sentence in prison before the Privy Council declared there had been a ‘substantial miscarriage of justice’.
  • In May 2007, Bain’s legal team, guided by Karam, successfully appealed to the Privy Council in Britain. Finding there had been a substantial miscarriage of justice, the Privy Council quashed Bain’s convictions and ordered a retrial.
  • He was released on bail in May 2007, pending retrial.
  • The retrial ended with Bain’s acquittal on all charges in June 2009.
  • Because the case had such a high profile in New Zealand, Justice Minister Simon Power appointed Canadian jurist Ian Binnie in November 2011 to review the circumstances and advise the Government on whether compensation should be paid.
  • Binnie’s report was subsequently rejected by the Minister of Justice, Judith Collins, in controversial circumstances.
  • In March 2015, the Government picked another retired judge, Ian Callinan, a former justice of the High Court of Australia, to review once again Bain’s claims for compensation for wrongful conviction and imprisonment.

The Callinan report is what has just been reported on, finding that David Bain was not “innocent beyond reasonable doubt”.

There is no doubt about the controversial murders and subsequent trials and appeals remaining controversial.

 

Justice Minister reignites de Bain debate

Minister of Justice has announced that Cabinet will start from scratch in investigating whether David Bain will be compensated for being imprisoned or not.

This will please all those who relish an excuse to debate the merits of the case.

Press release:

CABINET TO TAKE FRESH LOOK AT BAIN CASE

The Government has agreed to set aside all previous advice relating to David Bain’s compensation claim and conduct a fresh inquiry, Justice Minister Amy Adams has announced.

In November 2011, former Canadian Supreme Court judge Justice Ian Binnie was appointed to provide advice on the claim. He completed his report in August 2012.

After being made aware of concerns raised about Justice Binnie’s report and receiving advice from the Solicitor-General, the then Justice Minister Judith Collins decided to seek a peer review by former High Court judge Dr Robert Fisher. Dr Fisher found that Justice Binnie’s report contained a number of errors and was, therefore, unsafe to rely on.

“Given these events, it’s my view that Cabinet doesn’t have the information in front of it on which it could reasonably reach a decision,” says Ms Adams.

“For that reason, the advice of both Justice Binnie and Dr Fisher will be set aside and I will appoint a new inquirer to conduct a fresh inquiry into Mr Bain’s claim.”

Ms Adams says it’s important that the final decision on Mr Bain’s claim is durable and withstands the close scrutiny the case attracts.

“The New Zealand public rightly expects the Government to make a decision with the full set of facts and reliable advice in front of them. A fresh look will safeguard the integrity of the process and reassure the public that Cabinet will act on the best advice available,” says Ms Adams.

“Despite the further delay, conducting a fresh inquiry is the best approach in the circumstances and enables Mr Bain’s claim to be progressed on a proper and robust basis.”

Mr Bain’s claim for compensation falls outside existing Cabinet guidelines because when his conviction was quashed, a retrial was ordered. However, Cabinet has also reserved a residual discretion to consider claims outside the guidelines in “extraordinary circumstances … where this is in the interests of justice”. To satisfy the test for the payment of compensation that applies in his case, Mr Bain will need to prove his innocence on the balance of probabilities and be able to satisfy Cabinet that the circumstances are sufficiently extraordinary that it would be in the interests of justice for compensation to be paid.

“I have notified Mr Bain’s representatives of Cabinet’s decision and I understand they are comfortable with the process. All parties have agreed to draw a line under what’s happened and move forward in a constructive manner,” says Ms Adams.

Ms Adams will now seek advice on an appropriate inquirer and develop their terms of reference. There will be a further announcement in due course.

Related Documents

Bain given new hope for compensation

David Bain has been given some hope of getting his compensation claim considered. He had previously hit a l;egal brick wall in Judith Collins but the new Justice Minister Amy Adams seems prepared to deal with it,

Stuff: Bain has a fresh chance for compensation

David Bain has been given fresh hope in his fight for compensation after court wranglings came to an end.

The Government and Bain’s lawyers have agreed to end judicial review proceedings over a report that suggested he was innocent of the murder of his family.

It means the decision to award him compensation for wrongful conviction and for the 13 years he spent behind bars will go back before Cabinet ministers.

Justice Minister Amy Adams announced the move this afternoon.

“This discontinuance does not resolve Mr Bain’s underlying compensation claim, just the separate judicial review process,” she said.

“I plan to discuss next steps with my Cabinet colleagues over the coming weeks. 

“While the details of the agreement are confidential, I can confirm that there was no contribution made towards Mr Bain’s compensation claim as part of this discontinuance.”

Bain’s bid for redress stalled in early 2013 after a row over a report commissioned by then justice minister Judith Collins.

Written by retired Canadian judge Justice Ian Binnie, it found that Bain was innocent of the murder of his parents, brother and two sisters “on the balance of probabilities”.

Collins publicly questioned the findings and ordered a review by High Court judge Robert Fisher. Fisher pointed to errors in Binnie’s findings.

Bain’s legal team took the matter to the High Court and asked for a judicial review.

And they now seem to be making some progress.

I don’t have an opinion on whether Bain deserves compensation.

I’m not neutral on the Bain murders, but I’m uncertain. There doesn’t seem to be compeling evidence either way. And from what I’ve seen some evidence points one way and other evidence points another.

The fact is that legally Bain has been acquitted. And he’s trying to get financial redress.

If he is innocent (and that’s a distinct possibility) then he has a crap twenty years, having had the rest of his family killed or topped, copping all the blame and being locked away for years.

If he killed his family (and that’s also still a possibility) he has either got a massive cheel seeking compensation.

Or he’s been swept up in the Karam campaign and doesn’t know how to tell them to leave it now he’s at least out of prison.

I’m sure others will have views on this, many feel strongly one way or the other.

Martin van Beynen unconvincing on Bain evidence

Christchurch Press writer Martin van Beynen has responded to the new discussions about the Bain case, dismissing the thumb marks:

The latest revelation is certainly not the clinching piece of evidence the programme claims. It’s not even particularly convincing.

Van Beynen is a well known believer in David Bain’s guilt.

Press senior writer Martin van Beynen has been writing about the Bain case since 1997 and covered David Bain’s second trial in Christchurch in 2009.

He has made no secret of his view that David Bain killed his family in June 1994, and today gives his opinion on the TV3-aired evidence which Bain’s supporters say removes all doubt about Bain’s innocence. 

On the thumb marks he says:

For a start the marks don’t even look much like the sort of powder deposits seen on the collection of Bain camp experts who participated in the tests by loading bullets into the rifle’s clip.

If the marks on Robin’s thumb are from the magazine they would have been deposited close to the moment Robin shot himself. So you would expect an imprint very similar to that left on the thumbs of the Bain experts. It’s possible some of the residue was removed as Robin placed and held the rifle to shoot himself in a very odd way but, amplified, the lines on Robin’s thumb look defined and crisp.

Unlike the marks left on the Bain camp’s thumbs, the marks on Robin’s digit are not parallel or soft in outline. They are also thinner and from what I can see, not even the same colour as the test marks.

If Robin was loading a number of bullets, as he must have according to the defence scenario, how come only one set of marks was left on his thumb? Did his thumb follow the same track every time?

This point has been brought up elsewhere.

It’s certainly possible to get multiple soot lines, this has happened to me when I’ve tried it.

But – when I’ve tested loading my magazine I usually push the bullets in barely touching the magazine with my thumb. Then when I’ve finished I press down on the top bullet to ensure it is in correctly and springs freely. This levels indentations on my thumb in a similar position to the thumb marks.

And just on Firstline an English arms expert has also suggested this. He said he has seen it often. In some cases if a magazine has sharp enough edges it can cut the thumb.

And the lines being out of parallel can be due to deformation of the thumb when you press down. When the skin and flesh go back into their normal shape the lines don’t always look parallel.

Van Beynen then goes over much covered ground. I question tTwo points he makes.

The new scenario propounded by the TV3 programme would have Robin shooting his family and then waiting to just before David was due to come home from his paper-run to turn on the computer (so he could write his last message) and, before shooting himself…

That sounds like a feasible scenario (except for the magazine placement) – Robin will have known he would have so much time while David was away on his paper round. Enough time to do what some allege.

The other scenario – David killing his mother, sisters and brother, going on his paper round, then hiding waiting for his father to come into the house, seems to me to be implausible. There was no guarantee that Robin would come into the house at any time, let alone a convenient time to fit in with this plan.

…placing the spare magazine on its narrowest side on the carpet. Then when he falls to the carpeted floor after the fatal shot, he conveniently lands with his hand right next to the magazine. It seems much more likely the killer placed the magazine on its edge right next to Robin’s hand to make it look like a suicide.

Why would anyone think of placing the magazine on the unlikeliest of positions? Why would it make it look like a suicide? This just doesn’t make any sense to me.

I think there is still more to be investigated regarding the thumb marks. There will no doubt be more claims and counter claims.

But I don’t think van Beynen adds any more to the argument. He is unconvincing in his criticism of then new evidence, and he mostly just rehashes old unresolved arguments.

And it seems odd for a journalist to have so strongly taken one side of a still very contentious and disputed case.

Bain thumb marks and thumb prints

More information has been made available by the police in response to the 3rd Degree revelation of parallel lines on Robin Bain’s right thumb.

Parallel lines are visible in both a photo and in a thumb print taken afterwards.

robinbain3

There’s doubt whether the lines are residue marks or indentations.

robin-bain-elimination-print

There are also parallel indentations at the top left of the thumb print.

Residue marks would presumably not show up in a thumb print like this. This suggests that either…

  • the thumb was injured earlier on one or two occasions leaving with parallel lines that curiously but coincidentally a similar distance apart as the sides of the rifle magazine.

Or…

  • the thumb was indented due to pressure on the magazine – I can replicate this – and the indentations remained after Robin Bain died. They would gradually disappear on a live thumb.

I have no idea if the second of those options is feasible. It would need an expert opinion from a pathologist.

Whether then indentations would show in a thumb print would depend on the degree and nature of the indentations, and how much they hold their shape on a dead thumb. The photo doesn’t seem to show any broken skin, so the pressure when thumb printing applies no matter what caused the indentations.

 

The only thing that’s certain is this adds to the substantial intrigue surrounding this case.

Police response to Bain thumb marks

News release on the Bain thumb marks from the police:

Police response to latest Bain theory

June 27, 2013, 5:30 pm

The latest story advanced through the media by representatives of David Bain is an interesting theory but is not new evidence says Assistant Commissioner Malcolm Burgess.

“It is an interesting idea when taken in isolation, but is no more than a theory when taken out of context of all the other evidence which has been presented to several courts.

“Marks on a photograph can always be open to several interpretations by experts, and the significance or relevance of these marks have not been tested in court.

“Examination of the original photograph does not give any definitive indication of what the marks could be. There are other possibilities, including that they are minor cuts.

“We know for example that Robin Bain was doing work to the roof and spouting of his Every Street home in the days leading up to the killings – any Kiwi handyman knows the sort of damage this can do to the hands. Post mortem examination of Robin Bain’s hands shows a number of minor abrasions and marks you would expect to find with someone familiar with manual work.

“Indeed, police have today conducted a preliminary examination of fingerprints taken from Robin Bain after his death. These prints show an absence of fingerprint markings in the same place on his right thumb as the dark marks appearing in the photograph. Our fingerprint experts advise that this is consistent with someone sustaining cuts or damage to the fingers prior to prints being taken, which would then affect the print image.

Had these been powder marks or smudges as claimed, we would expect to see a complete fingerprint image.

“I also reiterate the evidence put forward in court that the only identifiable fingerprints found on the firearm belonged to David and Stephen Bain.

“Police will continue to look at this issue to gain a better understanding of what this photograph may show.

“However, I am mindful that this theory has been put forward through a programme whose makers chose not to seek comment from police prior to broadcast, and who also refused to provide details about their story when approached by police on Tuesday.

“Had they done so then we would have pointed out that fingerprints had been presented in evidence and have always been available through the court to help them decide if their story stacked up.”

http://www.police.govt.nz/news/release/35430.html