Opinion: Binnie appears to be captured by defence
Reading a detailed report in a short time before deadline is not the best way to give a reasoned response to a report of the magnitude of the Bain compensation review by Justice Binnie.
So while this should not be treated as thorough analysis of Justice Binnie's report, a quick reading throws up some immediate concerns which were clearly picked up in more leisurely fashion by Robert Fisher QC.
The first thing that grabs the attention is Justice Binnie's reliance for a preliminary conclusion of innocence on the footprints left by the killer in the Bain house.
These were detected when the carpet was sprayed with luminol, a substance which in the dark shows up blood.
If the footprints were made by Robin Bain, then David Bain has a strong argument he is innocent. This is because Robin's socks, when he was found, had no blood on them, showing that if he made the footprints, he must have changed them between shooting the family and then himself. If they were Robin Bain's footprints, what was he doing in the bedrooms?
Robin's foot was 270 millimetre long and David's 300mm. A bloodied footprint in the house measured 280mm, but the scientist who did the testing stressed the footprint measurement might not show the "extremities of the heel and toe".
The defence hung its hat on testing done by both defence and prosecution experts who had subjects dip their feet in a tray of pig's blood and then walk on various surfaces.
These tests showed it was very unlikely a person with a foot of David's size would make a 280mm print under luminol testing (it is usually larger). As with many reconstructions, this testing appeared to me to be flawed from the start and started to look more ridiculous the longer it was spoken about. The variables were just too huge to make the testing credible. Were the socks the same? Was weight put on the feet the same? Did the carpet in the tests match the Every St carpet? Was the amount of blood originally on the socks the same?
Again, like so much of the evidence which the defence and now it appears Binnie hitches to the Bain wagon, we have an example of facts which in truth could be construed as supporting either side. The question for Bain is why there was so much of this evidence which, on at least one reasonable interpretation, supports him as being the killer of his family.
This brings me to the next point, which is Justice Binnie's dismissal of bloodstains on David Bain's clothing, the broken glasses, Bain's fingerprints on the rifle, his post-event admissions, and his admission he heard Laniet gurgling.
These were some of the crucial items of evidence at both trials and provided some of the key planks of the Crown case. The defence managed to poke a number of holes in each of the planks using various means but certainly not to the stage of sinking any of them.
Justice Binnie goes through each item and takes the most favourable interpretation to David Bain in each without seeming to weigh the cumulative effect of these key points. Each of his conclusions on the individual points are contestable. Could David Bain really have a innocent explanation for everything?
I agree with Justice Binnie the most vulnerable part of the Crown case is it accepting Bain went out on his paper run with bodies strewn around the house and knowing he was running the risk his father would find them.
The timings are crucial although the judge in my view does not allow for enough inexactitude. He seems to have adopted the view David Bain could not have been so incompetent. But he overlooks two vital facts. If David Bain was to successfully implicate his father, he needed an alibi. Where he came unstuck, in my view, was he never expected the fight with Stephen and the spanner that inevitably threw in the works.
While Justice Binnie relies on the "more plausible" theory Bain would not have left the house to risk the discovery of the bodies by his father, he finds it quite plausible Robin Bain would have killed his family wearing David's gloves and then changed his clothes and cleaned up before killing himself.
The dismissal of the fingerprint evidence is also puzzling. Two Crown experts for instance said they saw what looked like blood smeared all over the rifle except where Bain's fingerprints were placed on the stock. The Crown was not able to conclusively show the apparently fingerprints were put there by fingers already covered in blood but neither could the defence adequately explain the fingerprints untouched by smearing.
Again it was one of those pieces of evidence which, while not quite there in terms of squeezing out all doubt, added to an overall picture, which was a strong if not devastating case against David Bain.
Justice Binnie appears to have regarded the jury's acquittal as something that was relevant to whether Bain had proved his innocence. All I can say to this is juries are notoriously fickle and his faith is misplaced. If he had seen the conduct of some members of this jury, one of whom was a recently convicted thief, he might not have placed such reliance on the verdict.
Predictably, the police and authorities come in for a drubbing from Justice Binnie. "Disturbing ineptitude" is his phrase. Much of criticism will be deserved but Justice Binnie seems to have taken David Bain's word on how serious the ramifications were.
If police had indeed gone further in their investigations, David Bain might still be in jail without any controversy surrounding his guilt.
Justice Binnie seems completely taken with David Bain and after interviewing him for a day says he was a credible witness. He describes the young Bain as respectable and respected, and places weight on medical evidence that can find nothing mentally wrong with him.
This is a failure of the imagination. The judge seems unable to imagine an outwardly normal 22-year-old killing his family. In my view there was plenty of evidence to suggest the young Bain was disturbed, had a strange and unhealthy relationship with his mother and he loathed his father. Many murderers are outwardly respectable.
The Binnie report is a measured and well-argued document. Unfortunately he seems to have been captured by the defence arguments without given due credence to weight of the circumstantial evidence which, I believe, points to David Bain as the killer.
* Martin van Beynen is a senior journalist with The Press. He sat through all evidence during the 58-day retrial of David Bain in 2009.