David Bain's compo report had list of 'errors'

Last updated 19:01 13/12/2012
Fairfax NZ

Justice Minister Judith Collins says that judge Ian Binnie report had a list of errors.

Retired Canadian Supreme Court judge Ian Binnie.
Reuters
REPORT AUTHOR: Retired Canadian Supreme Court judge Ian Binnie.
David Bain
FAIRFAX NZ
Long-time supporter Joe Karam, left, with David Bain

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Retired Canadian judge Ian Binnie recommended that David Bain be compensated for the 13 years he spent in prison for the killings of his family.

Binnie's report slated "egregious errors" by Dunedin police "that led directly to the wrongful conviction" and stated that Bain should receive compensation after spending 13 years in jail for the 1994 killings of his father, mother, brother and two sisters.

"Although his factual innocence has not been established beyond a reasonable doubt I conclude that it is more likely than not that David Bain is factually innocent according to the lower civil standard of 'balance of probabilities'."

In his report, Binnie said his interview with Bain "was the last step in the compensation inquiry" and he found him to be a credible witness.

"His recollection of the relevant events, while not complete, is consistent with the physical evidence."

But Binnie was critical of the "numerous instances of investigative ineptitude and the failure of the Dunedin CIB to respect the rules and principles set out in the Detective Manual.

"I do not impute to the police any criminality or deliberate misconduct."

However, the evidence established that the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence.

"This is not a case of one or two isolated errors. There was an institutional failure on the part of the Dunedin CIB.

Even Detective Senior Sergeant James Doyle, one of its directing minds, acknowledged that the efforts to investigate the timing of David Bain's alibi were 'amateurish'.

"The police rushed to judgment that David Bain was guilty on the second day after the murders. At that time not enough of the facts were known and much of the forensic evidence was not available ... the narrative of this case represents a tragic example of police 'tunnel vision' defined by a Commission of Inquiry into a comparable wrongful conviction'.

Police Commissioner Peter Marshall doesn't accept Binnie's view that the investigation by the Dunedin Police contained "egregious errors."

In a statement tonight, Marshall said officers in Dunedin were experienced, having dealt with the Aramoana massacre of 13 people and two other familial homicides before the Bain murders. 

"This was a multiple homicide with a difficult scene. Reviews of that 1994 investigation found it was conducted in accordance with the standards or the day and without fear or favour," Marshall said.

He conceded that some errors were made but had "all been thoroughly traversed by the courts."

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"This is one of the most scrutinised police investigations and cases in New Zealand...No new points were raised by Justice Binnie that haven't already been extensively debated through the court process," he said.

Binnie concludes that:

"Compensation would express the Government's disapproval of such a cumulative failure by the authorities to take proper steps to investigate the possibility of innocence.

"It would be an acceptance of some responsibility by the state for the shame and stigma of a wrongful conviction and 13 years in prison for crimes which, in my view, David Bain is unlikely to have committed."

He also quoted Bain at the conclusion of his interview as saying: "The only thing I can reiterate is that these five members of my family were my life. They were part of who I was. We were extremely close. We all loved each other dearly. The last thing that I could possibly have done is to take their lives.

"I find it difficult hurting an animal but to take a person's life, let alone my own family's life, is unimaginable and not only have I served 13 years in prison for doing this, I've also served the so-called sentence of being labelled a convicted killer and a murderer and you know, a monster, and being told on a daily basis that I'm a psychopath, and I was psychotic and all these various you know, horrible, you know psychiatric issues and all this sort of -  I've had all of this to deal with and so the pain and the anguish that I have felt has been ... from the original mourning has been compounded time and time again."

David Bain's statement ended: "The last thing that I should be called is a murderer cos I did not kill my family."

POLICE ERRORS

The list of police errors listed by Binnie included:

* Police authorised the Bain house at 65 Every Street to be burned to the ground less than three weeks after the murders, before all the relevant evidence had been collected.

* Police failed to obtain from the pathologist important photographers of Robin Bain’s body taken at the mortuary

* Despite the important question of whether Robin Bain's arm was long enough to reach the trigger of the rifle to shoot himself, his arm span was not measured.

* Important elements of the testimony of both police officers and ESR experts at the 1995 trial were shown on appeal to be misleading

* Efforts to clarify the DNA of the blood constituting David Bain's fingerprint were described by one expert as "an unspeakable mess".

* Some forensic evidence collected by the police was ordered to be destroyed after the first trial.

LIST OF APPARENT 'ERRORS' IN BINNIE REPORT

However, a review of the report into Bain's compensation claim alleges Binnie accepted Bain's version of events without question, except where it directly contradicted other witnesses.

A list of apparent "errors" in Binnie's report after a review by former High Court judge Robert Fisher included:

* Binnie made fundamental errors of principle.

* He disregarded any item of evidence that did not prove a subsidiary fact on the balance of probabilities, contrary to New Zealand law, and excluded significant evidence such as blood stains on Bain's clothing, the broken glasses, Bain's fingerprints on the rifle, his father Robin's motive and mental stability, Bain's post-event admissions and Bain's admission that he heard sister Laniet gurgling.

* Binnie regarded the jury acquittal as something that was relevant to whether Bain had proved his innocence.

* Binnie arrived at a provisional conclusion of innocence based on one item, luminol footprints, followed by a serial testing of that conclusion, instead of considering the cumulative effect of all evidence.

* Binnie's approach was markedly generous to Bain in its reliance on background facts sourced from him.

* Instead of requiring Bain to satisfy him on the balance of probabilities, Binnie imposed on onus on the Crown whenever it suggested factual possibilities inconsistent with Bain's innocence.

* Binnie went beyond his mandate

* Instead of founding conclusions on the evidence available to him Binnie drew an adverse inference to the Crown where in Binnie's view the police ought to have gone further in its investigations.

The Binnie report cost $400,000 and the Fisher peer review cost $100,000.

Collins signalled there was now likely to be a further report into David Bain's compensation claim.

David Bain's lawyer Michael Reed said he had not yet had time to digest the report.

BINNIE BITES BACK

Binnie lashed back at the review of his report in an early morning email.

He penned the 6am missive to Collins after receiving the peer review from Fisher.

In the five-page email Binnie uses capital letters to emphasise his points. And he appears to blame government officials for leaking his report.

He said Collins had already "made up her mind" in September about the outcome of Fisher's review.

And he criticised Fisher for not reading evidence and says his "academic model" is "impractical".

Fisher concluded that Binnie misunderstood New Zealand law - a point the Canadian said was "demonstrably incorrect."

Binnie also said: "I ... had to decide whether on the whole I believed him [Bain] or not. That was part of my mandate ... David Bain's version of what he did on the morning of June 20 was inherently likely because it conformed to a long-standing paper route routine to which there were independent witnesses. ... I found that in large part his credibility rested on its consistency with the physical evidence, not the other way round."

He said it was "galling" that Fisher referenced the "well publicised recommendation that compensation be paid".

"The only people that had my report were the ministry and myself. If the leak occurred it had nothing to do with me," he wrote.

Collins didn't want to comment on the email other than to say it was unusual and disappointing.

She also said people use capitals when they "are shouting".

KAREM STATEMENT

Bain supporter Joe Karam says his repeated requests for a copy of the Bain compensation report have been ignored.

He says he wrote to the government yesterday asking for both reports "with some reasonable notice before they were made public."

"I have had no reply to that message. At this point in time nobody from the Bain team has seen the reports or had any other communication from the Ministry."

He also says Bain's legal team have been requesting the report "on numerous occasions" since August.

"We made it clear that we were seeking the report on a confidential basis so that in the event the Minister wished to take any further steps or seek advice from the other side (i.e. the Solicitor-General and his staff at Crown Law) then we would have an equal opportunity," he said in a written statement.

"Disclosures over the last few days would indicate to us that Justice Biinie's report was viewed by more perople than just the Solicitor-General himself, which adds to the unfairness of the process conducted by the Ministry over the past three months," he added.

He said the peer review by Robert Fisher QC - ordered by Collins - was "secret" and undertaken "without any input from us whatsoever."


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