The Dim-Post

December 13, 2012

Fisher Binnie Idiot’s Summary (I am the idiot)

Filed under: crime — danylmc @ 6:02 pm

My initial take is:

Binnie: Was asked to advise Cabinet on whether he thought David Bain was innocent on the balance of probabilities. Binnie has not concluded that Bain was innocent ‘beyond reasonable doubt’ or guilty on the basis of the evidence, because – he argues – the police investigation against him was so incompetent that guilt or evidence could not be determined, and the initial prosecution should not have taken place. Due to these ‘extraordinary circumstances’ Bain can be said to be innocent in a legal sense. Binnie feels that due to actions by the New Zealand police and judiciary there has been a miscarriage of justice against David Bain and that the state should compensate Bain for this.

Fisher: Argues that Binnie wasn’t asked to determine whether there were extraordinary circumstances, or whether the justice system should pay restitution to Bain because of the way it handled the case. It asked him to weigh the evidence and determine his guilt or innocence on the balance of probabilities.

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45 Comments »

  1. Slightly more than that – Fisher also says that the job Binnie ought to have done (decide whether Bain was innocent or guilty) also was botched, in that Binnie failed to approach the evidence in a way consistent with NZ law. Whether or not this is true is irrelevant, it now means Collins will say “Binnie’s report is not worth anything” – which leaves us back at square one.

    Comment by Andrew Geddis — December 13, 2012 @ 6:15 pm

  2. Binie, last night on Pravda, sounded rational and sensible, unlike the NZ legal establishment.

    Comment by phil — December 13, 2012 @ 6:46 pm

  3. “Whether or not this is true is irrelevant, it now means Collins will say “Binnie’s report is not worth anything” – which leaves us back at square one.”

    Do you think he’ll give the Crown a $400,000 refund?

    Comment by izogi — December 13, 2012 @ 7:07 pm

  4. More to the point, izogi, if Collins is so convinced his report is “fundamentally flawed”, will she sue to recover the money?

    (Clearly not … The costs would far outstrip the amount recovered.)

    Comment by Andrew Geddis — December 13, 2012 @ 8:28 pm

  5. ” The police investigation against him was so incompetent that guilt or evidence could not be determined, and the initial prosecution should not have taken place”

    Yes you can imagine the reaction if the police despite the large volume of evidence against db, had turned around and said ‘nah sorry, just not enough there. Blood and fingerprints and clothing and injuries and weapon and presence notwithstanding, there’s just not enough there. Enjoy your day folks.’ Binnie is a nut bar.

    Comment by insider — December 13, 2012 @ 8:42 pm

  6. I never, ever would have pictured myself writing this, but I feel sympathy for Collins in having to deal with this. Binnie wasn’t asked to establish whether the NZ Police did a good job of investigating the case or not, he was asked to advise whether or not Bain was innocent on the balance of probabilities. For him to advise instead that it’s impossible to reach a conclusion due to the incompetence of the investigation, and therefore Bain is owed compensation, is just a copout – the task was actually quite straightforward but he hasn’t carried it out.

    Regardless of the competence or thoroughness of the investigation, enough of the facts are known for someone being paid hundreds of thousands of dollars to sit down and figure out the following: is it more likely that the family was killed by:

    1. David Cullen Bain?
    2. Another person or persons?

    Binnie seems to have taken the cash but decided he can’t pick 1 or 2. If Collins is wildly fucked off with him, I can entirely sympathise because, after all, we all paid for this non-performance.

    Comment by Psycho Milt — December 13, 2012 @ 8:50 pm

  7. Completely off topic, but ahem.

    http://vup.victoria.ac.nz/unspeakable-secrets-of-the-aro-valley/

    Congratulations.

    Comment by Pascal's bookie — December 13, 2012 @ 8:54 pm

  8. Insider/Psycho Milt,

    How far through Binnie’s report are you? What make you of the “tunnel vision” claims, and don’t you think the “exceptional circumstances” component to the Cabinet Guidelines necessitates some investigation of the way the investigation/subsequent prosecution was handled?

    Comment by Andrew Geddis — December 13, 2012 @ 9:04 pm

  9. The reason politicians set patsy questions for people like Binnie is so they get only answer they want to get. He’s quite correct in pointing out that a false conviction is what New Zealand law allows compensation for, that the state’s handling of the case was poor and is the reason for the false conviction, and thus the state is naturally liable for that.

    He also found Bain innocent on balance of probability, given evidential standards typical of false convictions. There’s a whole field of study about that, how evidence looks in false convictions, why they happen. For the state to say “but there’s all this blood and stuff” and “we don’t have laws in NZ to re-examine evidence around false convictions” is just complete bullshit. Saving it ’till parliament breaks is a giant red-flag, and asking the prosecution side only what they thought of the evidence in a false conviction is a fucking joke.

    As Binnie said, the prosecution and crown was present when he was interviewing everyone and they choose to speak up only now? Shifting the goal-posts after the kick, eh.

    Comment by tussock — December 13, 2012 @ 9:10 pm

  10. I guess Collins can keep requesting reports until she finds one favourable to her views?

    I’ve been reading Binnie’s report and it’s quite a remarkable assessment. The guy has done his homework, regardless of what Collins might waffle on about.

    Comment by Frank Macskasy — December 13, 2012 @ 9:29 pm

  11. @ Tussock & Andrew Geddis,

    I concur. Binnie’s 193 page report makes for clear, concise reading. Moreover, he uses considerable references when presenting facts, quotes, and other information. When some folk dismiss it and rely, instead, on preconceived prejudices, that is where injustice is really cemented into place.

    I hope people take time out to read the report. It is well worth the effort.

    http://media.nzherald.co.nz/webcontent/document/pdf/201250/01Justice%20Binnies%20report.pdf

    Comment by Frank Macskasy — December 13, 2012 @ 9:36 pm

  12. How far through Binnie’s report are you?

    Not very far at all. Having reached the bit that said “innocence on the balance of probabilities is a minimum requirement,” there didn’t seem much point in wading through the rest of it. The question of what evidence points to David C. Bain having committed the murders vs what evidence points to someone else being responsible is pretty thoroughly answered in favour of Bain being the most likely candidate. The “exceptional circumstances” section of the Cabinet guidelines certainly do suggest some investigation of the incompetent Police investigation should be carried out, but that’s a separate issue – the fact is that the minimum requirement for compensation hasn’t been met.

    Comment by Psycho Milt — December 13, 2012 @ 9:42 pm

  13. P/M,

    So we’re not reading the report because we know what it says isn’t right because … because … it just can’t be right.

    You and Judith would appear to have more in common than you think.

    Comment by Andrew Geddis — December 13, 2012 @ 10:30 pm

  14. Milt does not need evidence, he/she is Psycho. EOS.

    Comment by peterlepaysan — December 13, 2012 @ 10:54 pm

  15. My impression is that the govt are genuinely at a loss.

    They opted for an outsider so that whatever they concluded in terms of compensation, yes or no, the govt could go “wasn’t me”.

    What they got stuck with was a bit of nonsense and they’ve sitting there for a few weeks thinking oh shit what the fuckndoner do now.

    Comment by NeilM — December 13, 2012 @ 11:20 pm

  16. Perhaps they got an impartial outsiders assessment that points out the Bain investigation and prosecution was a cluster fuck.

    Comment by phil — December 14, 2012 @ 5:34 am

  17. So we’re not reading the report because we know what it says isn’t right because … because … it just can’t be right.

    Well, I suppose it is conceivable that Binnie’s found and listed evidence for someone else having carried out the crime, and that that evidence outweighs the evidence for David Bain having committed it, but that would be a major news story – in the absence of such on the news I don’t feel honour-bound to search through the report just in case. What’s much more likely is that Fisher’s correct about Binnie failing to grasp what “balance of probability” means.

    Comment by Psycho Milt — December 14, 2012 @ 6:04 am

  18. Let’s burn Binnie and his report, after all there is precedent in this case for destroying evidence.

    Comment by phil — December 14, 2012 @ 6:27 am

  19. So is Crusher Collins going to be held to account for spending $400k on what she now complains was a complete waste of time?

    Comment by R — December 14, 2012 @ 6:30 am

  20. “Well, I suppose it is conceivable that Binnie’s found and listed evidence for someone else having carried out the crime, and that that evidence outweighs the evidence for David Bain having committed it… .”

    So you are calling for a post-death trial for Robin Bain? Someone should have told Binnie that was his job … you’ll need to tell Fisher, too, because that isn’t the approach he says is needed, either. If you were to read his report, that is. Which you won’t. Because your argument is so strong you don’t need to talk about it.

    Comment by Flashing Light — December 14, 2012 @ 6:42 am

  21. “What’s much more likely is that Fisher’s correct about Binnie failing to grasp what “balance of probability” means”.

    A former justice of the Canadian Supreme Court can’t grasp the meaning of the “balance of probabilities?” And you admit you’ve not read Binnie J’s full report? Are you serious? You appear to have a very strong belief in the strength of New Zealand jurisprudence, which based on some of the decisions I’ve read I don’t share.

    Comment by TerryB — December 14, 2012 @ 6:48 am

  22. It is apropos that at the same time as Collin’s exhibiting a truculent dismissal of advice she doesn’t like in a report her government had commissioned, we see Gerry Brownlee dismiss out of hand a report on the Auckland Central Rail Link his government commissioned, with government agencies all giving input on terms and criteria his government had set on the basis he didn’t like the outcome.

    Remember this?

    http://www.listener.co.nz/commentary/john-keys-unhappy-week-at-the-bbc/

    “…Sackur: Yeah but he’s a scientist, it’s based on research, it’s not an opinion he’s plucked from the air.

    Key: He’s one academic, and like lawyers, I can provide you with another one that will give you a counterview…”

    Who knew then that this was a government that thinks “when we act, we create our own reality”, and that we are led by willful eogtists in full retreat from reason and empiricism in favour of arrogance and cronyism?

    Comment by Sanctuary — December 14, 2012 @ 7:07 am

  23. “He’s one academic, and like lawyers, I can provide you with another one that will give you a counterview…”

    That’s exactly the quote that has been in my mind for the last couple of days.

    Comment by Flashing Light — December 14, 2012 @ 7:18 am

  24. So is Crusher Collins going to be held to account for spending $400k on what she now complains was a complete waste of time?

    Unlikely, given that Collins didn’t commission the report.

    So you are calling for a post-death trial for Robin Bain?

    Balance of probabilities means establishing whether it’s more likely that David Bain or another person killed the victims. No posthumous trial for Robin Bain is required for that, merely a review of what evidence exists for David Bain having committed the crime vs what evidence there is for someone else having committed it. Evidence for David having committed the crime exists in significant quantity, evidence for someone else having done it not-so-much. That may not be sufficient to convict on beyond-reasonable-doubt, but it’s plenty good enough for balance-of-probabilities.

    A former justice of the Canadian Supreme Court can’t grasp the meaning of the “balance of probabilities?”

    According to Fisher, yes. And based on Binnie’s findings as reported in the press, it seems likely Fisher’s right.

    He’s one academic, and like lawyers, I can provide you with another one that will give you a counterview…

    In this case, we are dealing with lawyers, and yes you can easily find one to give you a different view. In this case, it looks like the Cabinet knows the decision it wants to reach but lacks the courage to take responsibility for the decision itself. It’s not the first Cabinet to lack the willingness to take responsibility for its actions and presumably won’t be the last. We get to stump up for the lawyers’ fees until they get the answer they want. It’s a bitch, but that’s the problem with elected officials – some of them are pricks.

    Comment by Psycho Milt — December 14, 2012 @ 8:05 am

  25. Evidence for David having committed the crime exists in significant quantity

    But Binnie’s argument is that this evidence simply cannot be trusted because of the nature of the investigation.

    Comment by danylmc — December 14, 2012 @ 8:17 am

  26. “Evidence for David having committed the crime exists in significant quantity, evidence for someone else having done it not-so-much.”

    Again, a read of Binnie’s report and his discussion of whether the “significant quantity” of evidence against DB really does outweigh that pointing to RB as the murderer might cause you to question that conclusion. So for God’s sake, don’t read something that might make you change your mind. You instead should instead rely on second hand press accounts of someone else’s view as to what Binnie did or did not say. That will be far more comforting.

    FWIIW, I was pretty sure Bain did it (based on nothing much more than what Van Benyen was saying in The Press). Now … I’m happy to believe he didn’t.

    Comment by Flashing Light — December 14, 2012 @ 8:32 am

  27. “But Binnie’s argument is that this evidence simply cannot be trusted because of the nature of the investigation.”

    No. It actually isn’t. He says that on the evidence relied on by the Prosecution, DB is more likely than not innocent (so RB is more likely than not guilty – though he doesn’t expressly say this, because that wasn’t his mandate (and note he’s already been attacked for exceeding this!)).

    The nature of the investigation goes to the “exceptional circumstances” point, not to the basic guilt/innocence point.

    Comment by Flashing Light — December 14, 2012 @ 8:34 am

  28. Both times this case has gone to external review – the Privy Council and Justice Binnie – they’ve come back with stinging rebukes for the NZ Police and judiciary. And as Collins made abundantly clear today (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10853952) that is what this is really about now. The guilt or innocence of David Bain is now an irrelevance compared to the desire to maintain the elevated levels hubris in the NZ police and judicial establishment, a desire eagerly abetted by this grostesquely authoritarian minister. They simply refuse to accept the now double judgement of their foreign peers that they fucked things up in this case big time, and like so many other cases (Peter Ellis and the Christchurch creche, Arthur Allan thomas, etc) they would rather pervert the system than admit they made mistakes.

    Comment by Sanctuary — December 14, 2012 @ 9:06 am

  29. But Binnie’s argument is that this evidence simply cannot be trusted because of the nature of the investigation.

    Partly, he also claims there could be innocent explanations for every single piece of evidence against David Bain. Well, so there might be but I think there really is an onus on him to give an example of how such evidence David’s finger prints in fresh blood being on the gun could have arrived there “innocently”.

    How? And how is that evidence in anyway compromised but what ever mistakes the police made?

    Comment by NeilM — December 14, 2012 @ 9:22 am

  30. A former justice of the Canadian Supreme Court can’t grasp the meaning of the “balance of probabilities?” And you admit you’ve not read Binnie J’s full report? Are you serious? You appear to have a very strong belief in the strength of New Zealand jurisprudence, which based on some of the decisions I’ve read I don’t share.

    Binnie claims as “fact” that Bain never changed his clothes. That is an absurd conclusion. His reasoning is quiet bizarre. he’s not claiming to have deduced this from evidence, he’s claiming it as fact.

    Comment by NeilM — December 14, 2012 @ 9:25 am

  31. “…How? And how is that evidence in anyway compromised but what ever mistakes the police made..?”

    Here you go again, re-hashing the past from your partisan viewpoint.

    The Herald editorial today makes the pertinent point that the outcomes of the Privy Council appeal and Justice Binnies report indicate that we’ve all become far to entrenched in our views on this issue for anyone now to have a truly objective view.

    I’ve got my own opinion, but that doesn’t stop me simply thinking that we should swallow a bit of pride, accept the outside adjudication, pay Bain some money to put this whole damned rotten business behind us.

    Comment by Sanctuary — December 14, 2012 @ 9:39 am

  32. “I think there really is an onus on him to give an example of how such evidence David’s finger prints in fresh blood being on the gun could have arrived there “innocently”.”

    How about the fact that the finger prints were not in “fresh blood” at all, but dried blood of unknown origin (ie not shown to be human or animal) that could have been put on the gun some weeks or months before the shooting? Does that change the picture at all?

    “Binnie claims as “fact” that Bain never changed his clothes.”

    Here’s what he actually says (para 49): ” [DB] says the clothes he was wearing when the Police arrived around 7.20 am are the clothes he put on when he got up to do his paper route and continued to wear until taken to the Police station. There is no compelling reason to disbelieve him.”

    In other words, while DB could have changed his clothes, there is no more reason to think he did than that he didn’t … and Binnie finds DB to give a credible account of his actions that morning. That’s his judgment on DB’s veracity (which is what he was brought in to provide) – so if he says “I believe what DB tells me (which is what you asked me to decide) based not only on how honest I thought he was, etc but also on how well his account stacks up with the physical evidence”, then of course he’s going to treat it as a “fact” that DB did (or didn’t) do what he said he did (or didn’t) do.

    I mean, what else would you expect him to say? “DB tells me he didn’t get changed, and this gels with what I think of the other physical evidence, but he needs to SHOW he didn’t get changed.” How exactly does one prove a negative like this?

    Comment by Flashing Light — December 14, 2012 @ 9:41 am

  33. How about the fact that the finger prints were not in “fresh blood” at all,

    it was fresh blood, that is what the finger print expert said when they got the gun at the time. Clear, well defined finger prints of Davids, the only others being Stephen’s. not the fathers. Of course it could have been all the result of some hunter expedition weeks previous and none of the activities since that time and on the day of the murder – the fight with Stephen etc etc- happened to disturbed this pristine prints. or David was the killer. I know what I think of the balance of probabilities.

    In other words, while DB could have changed his clothes, there is no more reason to think he did than that he didn’t

    he believed David Bain’s account and on that basis and that basis alone claims this as “fact” – that is most remarkable.

    Comment by NeilM — December 14, 2012 @ 9:50 am

  34. NeilM,

    The relevant discussion of the fingerprint evidence is in Binnie’s report at paras 289-311 – I’m assuming you’ve read it, of course. So you’ll have seen that the claim the blood was “fresh” is based on what one witness says he “thought it looked like” at the time of original analysis. That witnesses’ credibility is then subject to some serious question, purely based on his less-than compelling performance at various trials. So what basis is there to treat that witnesses’ subjective impression as proven fact?

    As for “he believed David Bain’s account and on that basis and that basis alone claims this as “fact””, you need to look at the reasons why Binnie believes DB – i.e. his account best tallies with the physical evidence available. And I note you are ducking the challenge – what evidence could DB produce that would “prove” (on the balance of probabilities) that he did NOT change his clothes? And by demanding the impossible, aren’t you rather stacking the deck against him?

    Comment by Flashing Light — December 14, 2012 @ 10:07 am

  35. Again, a read of Binnie’s report and his discussion of whether the “significant quantity” of evidence against DB really does outweigh that pointing to RB as the murderer might cause you to question that conclusion. So for God’s sake, don’t read something that might make you change your mind.

    As I wrote above, “it is conceivable that Binnie’s found and listed evidence for someone else having carried out the crime, and that that evidence outweighs the evidence for David Bain having committed it, but that would be a major news story – in the absence of such on the news I don’t feel honour-bound to search through the report just in case.”

    Once again: balance of probabilities isn’t proof beyond reasonable doubt. In the matter of whether David Bain was proven guilty beyond reasonable doubt, the defence addressed the relevant question “What evidence do we have that it was possible for Robin Bain to have murdered the rest and then committed suicide?” Binnie’s relevant question is “What evidence do we have that he actually did so?” Those are two very different questions and if Binnie had substantive answers to the second one in his report it would be front page news. It’s possible I’m placing too much faith in the nation’s journalists, but on balance of probabilities I don’t think so.

    Comment by Psycho Milt — December 14, 2012 @ 11:27 am

  36. I am disappointed by the absence of the phrase “Orchestrated litany of lies” anywhere in Binnie’s criticism of police conduct. Is he unaware of New Zealand traditions?

    Comment by herr doktor bimler — December 14, 2012 @ 11:47 am

  37. funny ol worl, innit. everyone knows whodunnit, but only one knows for sure, and everyone knows that. and they think john key’s ok too, figure.

    Comment by ak — December 14, 2012 @ 9:21 pm

  38. Have only read a bit of Binnie, (still reading) and original police nvestigation absolute crap. Bain declared suspect after 2 days, Bodies hands not bagged for forensic testing, no gunshot residue tests done, a policeman shown to have lied about the glasses lens to the extent he claimed other police teasing him about planting evidence as grounds for early retirement. No human DNA found in fingerprint (old animal blood), Pathology photos of Robin mysteriously missing for 2005 trial, but turning up after, 2 cops suing Joe Karam for defamation and losing…………
    Remeber folks, we all got the original info from the papers and TV, and we know how rubbish they are for detailed info.

    Comment by Glg — December 15, 2012 @ 6:35 am

  39. @Flashing Light

    I’ve read it, I found the logic odd and circular at times.

    Binnie dismisses every piece of evidence against David as all having possible innocent causes and with one piece of ambiguous evidence – the luminal foot print – he finds as fact that it is Robin’ not David’s when there is no conclusive evidence either way.

    Yes, the finger print expert could have mistaken old blood from a hunting trip 4 months prior (the last time David says he used the gun) for fresh blood.

    Yes the blood on David’s clothes could have come from just the washing.

    Yes David’s injuries could have come from something other than a fight with his brother.

    Yes there could be explanations for all the evidence. But the likelyhood that all each and every piece of evidence can just happen to accounted for in this manner is a lot less than that for each individual element.

    There’s a lot odd about David’s behaviour at the time. He never did anything to ascertain his mother was dead but somehow new shw was. He heard his sister making sounds but never went to her assistance, never touched her see if she was conscious.

    Comment by NeilM — December 15, 2012 @ 3:36 pm

  40. That should be:

    ….all having possible innocent causes but with one piece of ambiguous evidence – the luminal foot print …

    Comment by NeilM — December 15, 2012 @ 3:40 pm

  41. NeilM,

    Fair enough. I can’t really quibble with that analysis.

    Comment by Flashing Light — December 15, 2012 @ 4:51 pm

  42. I’m a bit confused by the “balance of probabilities” thing.

    Not being a lawyer, it suggests to me a weighing up or comparison of some sort of sum of probabilities. But there dorsnt sppear to be an indication of how that probability is assessed or assigned.

    In this case Binnie has considered a series of events and assigned them individually a probability of probable or improbable and then come to a conclusion that if they are each probable then the series of events is probable.

    But in probability theory the probability of a series of independent events is the product of the individual probabilities.

    So even if each event is likely it’s not necessarily the case that the series of events is likely.

    Comment by NeilM — December 15, 2012 @ 11:10 pm

  43. At Neil M,

    “Binnie dismisses every piece of evidence against David as all having possible innocent causes and with one piece of ambiguous evidence – the luminal foot print – he finds as fact that it is Robin’ not David’s when there is no conclusive evidence either way.”

    That’s an interesting comment to make, Neil. Considering that Robin Bain’s foot was 270mm long and David’s 300mm, and a bloodied footprint in the house measured 280mm – it appears that the footprint was closer to matching Robin Bain’s than David’s.

    The fact that the bloodied was only 10mm longer than Robin Bain’s is easily explained that a socked foot can appear a wee bit larger than a naked foot.

    But how does a 300mm foot leave a SMALLER print – by 20mm (3/4 inch), no less?!

    This fact alone gives a fairly clear hint as to who dunnit. The only ones who dismiss this single most important clue are those who choose to ignore certain bits of evidence, and opt for others instead.

    Of course Robin Bain’s socks had little blood on them. If he had some bizarre plan to shoot David and pin the murders on him (or a “stranger”), then he would have changed his clothing. It would be interesting to know if there were WASHED socks in the washing machine or basket that morning.

    Comment by Frank Macskasy — December 16, 2012 @ 1:03 pm

  44. This fact alone gives a fairly clear hint as to who dunnit.

    Binnie certainly thinks so. Of course, the thing about this particular piece of evidence is that Robin, being a dead guy, lacks a wealthy sponsor and extensive support crew willing to do whatever it takes to cast some doubt on it, unlike the substantial pile of evidence pointing to his son. Perhaps if Robin hadn’t been so foolish as to take a bullet to the head, he’d be around to impress Binnie J with his intelligence and courtesy, be declared a credible witness and exempted from the offensive implication that he might have changed his clothes that morning, as David was. Along the same lines, perhaps he’d have attracted his own wealthy sponsor, who could have hired a lawyer to point out to Binnie the rather obvious fact that the footprints aren’t much help unless there’s a way to be sure they came from a sock soaked in blood from the tip of the toes to the end of the heel.

    Comment by Psycho Milt — December 16, 2012 @ 5:57 pm

  45. > Binnie’s 193 page report makes for clear, concise reading.

    Clear and concise it might be, but it also contains several blunders. The blunders are so severe to render his report largely meaningless. But one example should suffice. He gives David Bain credit for not speaking ill of his father. But David apparently hated his father. (Binnie understands this and draws Bain’s attention to the matter.) In other words, David lied to Binnie, and Binnie gives him credit for lying! How’s that for incompetence.

    Comment by Ross — December 20, 2012 @ 11:25 am


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