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Bain’s compensation claim

Written By: - Date published: 9:00 am, February 20th, 2015 - 293 comments
Categories: Judith Collins, national, national/act government, same old national - Tags: ,

This post is an update of an earlier post I did on Waitakere News amended to include comment on the recent announcement that Cabinet is seeking another report on David Bain’s application for compensation.

Previous events surrounding David Bain’s claim for compensation for his prosecution, imprisonment and subsequent acquittal left many in the legal profession aghast.<

There are some very important principles at stake.  Essentially Bain is asking the Crown for compensation because the justice system improperly took away his liberty for an extended period of time.  He spent 13 years in custody for something that the justice system eventually agreed he had not done.  There are strong views either way on his guilt or innocence.  But any such claim needs to be considered seriously.

The claim relies on extraordinary circumstances being found.  Amy Adams has said that the test is Bain has to establish his innocence on the balance of probabilities.  The decision maker is Cabinet and as is usual with our adversarial system David Bain should have the opportunity to make his claim, the Crown Solicitor can respond, and Cabinet, after taking advice, can then decide.

Reviews or appeals of these decisions are difficult.  The decision can be judicially reviewed and obviously there is an obligation on Cabinet to adhere to the rules of Natural Justice.

Natural justice has two basic rules:

1.     No party should be a judge in a decision in a matter they have an interest in (“the bias rule”)
2.     All parties should have notice of the case, access to the evidence and the ability to present their own case (“the fair hearing rule”).

The bias rule poses difficulties in this situation because Cabinet is the only entity with decision making power and it has an interest in the decision in that it has to pay compensation if the application is successful and the payment of compensation is a criticism of an entity or entities under its control.  So unless you overlook this rule no decision could ever be made.

But this is why it is vital for the Crown to make sure that it sticks meticulously to the fair hearing rule.  And my strong impression is that Collins’ handling of the claim trampled on the fair hearing rule.

The brief history at the time was that an eminent Canadian Jurist Ian Binnie was instructed to review the case and make recommendations on whether or not compensation should be paid.  He recommended firmly that compensation was appropriate.  Collins then urgently sought a critique of the report by former New Zealand Judge Robert Fisher without telling Bain and then used this report to publicly attack Binnie’s credibility.

Bain’s lawyer Michael Reed QC was scathing at what had happened.

Michael Reed QC was scathing

He said that he was “deeply disturbed at the process”.  He criticised the fact that Collins handed Binnie’s report over to the Police and the Crown Law Office for comment without Bain and his advisers being given the same opportunity.  He called it a “one sided process” and said that Bain and his advisers had not been able to participate in the process at all.  The Police and Crown Law are the entities that had caused Bain’s incarceration and so of course they had an interest in undermining his attempt for compensation. So why should they be the only ones with a say in the review process of a very robust recommendation.

Perhaps the best way to understand the anguish that was caused is to imagine a situation where a professional adviser makes a recommendation to a Court about a case.  The Court does not like the recommendation and then goes to one of the parties, offers them the report and following receipt of their comments asks for a critique of the report.  The other side is not told of this.  The Court then relies on the critique to rule against the recommendation.  The sense of injustice would be palpable.  Reed’s description of the process as being “Banana Republic” like is regrettably correct.

And to make matters worse Collins then set out to publicly undermine Binnie’s report.  No wonder Binnie was angry.  I have never seen the public undermining of a jurist in a first world country the way this has occurred.  It is the sort of behaviour you would expect in Fiji, not New Zealand.

Binnie’s response to Fisher’s critique was made public.  It is obviously typed by him and represents a heated, passionate rebuttal of Collins’ and Fisher’s criticsms.  It makes great reading.

A particular passage from his response was spot on.  He said “[i]t is of interest that … Mr Fisher was retained on 26 September … he met the Minister the same day … and without having performed the “first stage” analysis he reports that “as we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at its own conclusions on the merits”.  As he pointed out one would normally expect Fisher to make his analysis of Binnie’s report and have his analysis considered by the Minister BEFORE a decision to have an entirely new report performed on the merits.  Yet on the first day that Collins and Fisher spoke a second report was being planned.  Binnie is probably correct in concluding that Collins had already made up her mind on September 26 regarding the outcome.

In another telling passage Binnie considers the suggestion the report should not be published because some of the players were criticised to be “contrived”.  Of course people were going to be criticized.  This happens in all sorts of inquiries.

Collins then took the opportunity to ridicule Binnie’s understanding of NZ law and the Fisher review reinforces this.  But Binnie’s response was exquisite.  He noted that this is an application for compensation and not a criminal trial.  The subtleties of evidential rules for criminal trials do not apply.  The inquiry should only be interested in the truth and in what is just.

Reed was utterly right.  The process had been hopelessly compromised.  The application for judicial review had every chance of succeeding, especially when it was revealed that Collins had given Cameron Slater preferential treatment in processing OIA requests concerning the Bain inquiry.  One was processed within 37 minutes and a second within 5 hours.  Current Justice Minister Amy Adams somehow managed to neglect to mention these requests when asked to compile a list of Slater’s OIS requests made to Collins.  The scent of predetermination and failure of process is strong.

Bain then applied for judicial review of Collins’ handling of the claim.  The matter was set to be determined by the High Court but was settled last month.  It appears that the settlement is based on Amy Adams’ announcement that a further report would be called for and the Binnie report and the Fisher critique would be disregarded.

This announcement was inevitable.  National had three options:

  1. Continue to defend the Collins handling of the matter and the application for judicial review.  This was to my mind almost inevitably going to fail.  Collins had mishandled the situation too badly.
  2. Agree to pay Bain compensation.  It seems that National has a deep aversion to even thinking about doing this.
  3. Go for a further report and keep their fingers crossed.

Option 3 is what they have chosen and to my mind it was the only palatable choice for them.  By the end of the process they would have blown well over $1 million in report fees and this does not include the Police’s or the Crown’s legal fees or the costs of defending the judicial review.

I look forward to the Taxpayers union criticism of Collins’ actions.  And I look forward to a proper resolution of the Bain claim where the evidence is considered impartially and due process is followed.

293 comments on “Bain’s compensation claim ”

  1. les 1

    I think everyone wants finality re this sorry saga.As an aside I always wondered why after Reeds glowing assessment of David Bains operatic potential he didn’t pursue this .after all talent is talent.

  2. ianmac 2

    Belligerent Collins defended her stance on Morning Report this morning.
    What else would you expect.

    • mickysavage 2.1

      Wow. She is not making it any easier. No doubt the Bain team is recording her latest comments and filing them away just in case they need to apply for Judicial Review again.

      Stop digging Judith …

      • ghostwhowalksnz 2.1.1

        Ist this really partly about making a few ramparts higher in Collins attempt to fight her way back into cabinet ?

        Its a messy situation with Bain, and again with Lundy where the Crown essentailly makes a hell of lot up and the Court of Appeal lets them get away with it.

        That is the real problem with ‘the system’ and will continue unless some fundamental changes happen with the Appeal process.

        • mickysavage

          I think you are right. It is not as if she would come out and apologise. Belligerence is a treasured characteristic for right wing pollies …

      • Clemgeopin 2.1.2

        After about four minutes, Collins makes a very peculiar comment. She says, “I did not have any pecuniary interest or advantage in making my decision either way.” What a strange comment to make in the context of this. This isn’t about Oravida or something!

    • Tracey 2.2

      It would be great to ask her a series of questions framed as follows

      What do you think about the Appointment of Justice Lowell Goddard to head the inquiry into systematic child abuse in the UK?

      I presume, both as a prominent member of the Law Society and Minister of Police and especially Justice, you have met her, what is your opinion of her?

      Collins surely has to be complimentary???


      If Justice Goddard finishes her report and then the Secretary (Minister) in the uK issues very public statements denigrating her work and appoints someone to tear her work to shreds to support the Minister’s view, how would you fee about that?

      WHY would anyone accept a review engagement from this government ever again, unless they agreed with your position (before they have even begun a review)?

  3. Anne 3

    Canterbury Law Professor, Chris Gallavin comments on the latest developments in the Bain case.


  4. les 4

    the main point is compensation is payable at Cabinets discretion….not guilty on the grounds of reasonable doubt ,does not hurdle innocence on the balance of probability.

    • mickysavage 4.1

      But the decision is subject to judicial review. This is why they have sought a further report because they were going to lose the judicial review hearing.

    • Clemgeopin 4.2

      What you are saying is that as far as the courts, the rule of law, the judges, the jury, the justice system and fairness is concerned, the law is,

      “A person is Innocent until proven guilty”


      as far as the minister, the government, the lynch mob and the blog commentators are concerned,

      “A person is GUILTY until proves himself/herself to be innocent”

      Oh, how cute!

  5. cricklewood 5

    “He spent 13 years in custody for something that the justice system eventually agreed he had not done. ”

    Just a query, did the jury actually say they found him innocent? Or did they find that the crown failed to prove guilt beyond reasonable doubt? After sitting on a couple of juries at the high court and having to make some difficult decisions I feel these are two quite separate things.

    Obviously he was wrongly imprisoned and compensation is due regardless the distinction above. But I do think the quantum of the compensation should relate to a finding of innocent or not proven .

    • mickysavage 5.1

      Not guilty rather than innocent. For purposes of the judicial system if you are acquitted then you have not done what was alleged. I agree that the finding of itself does not necessarily justify compensation.

      Conceptually proof beyond reasonable doubt could require 90% certainty. The test that Adams has set is that he is innocent on the balance of probabilities which could mean that there is less than a 45% chance that he is guilty.

      • cricklewood 5.1.1

        Ok makes sense, You would have to wonder who will take it on, it’s a real can of worms and any decision one way or another will attract fierce criticism.

      • Tracey 5.1.2

        I wonder how many jurers have convicted people because they had a little doubt or some doubt. I wonder how many actually understand enough the beyond reasonable doubt thing? i ask because I don’t see the law being very helpful to them in this regard….

        • cricklewood

          In my experience the both Judges were excellent in regards to explaining this and any other similar legal issues.

          • ghostwhowalksnz

            Its more the understanding of evidence, what is fact and what the jury has to decide is fact.

            ie. he went to work that day- fact as its not contested evidence.
            While at work he returned home- disputed as no one saw him leave.

            reasonable doubt right away, they all add up yet the jury inst really thinking like that

    • Tracey 5.2

      A jury cannot find anyone “innocent”. Nor can they convey that they found him innocent, which you know from your time on juries.

      I assume you mean that in the discussions the 12 of you found (in your deliberations) that he/she didnt actually do it… not that they may have but you have enough doubt to rule accordingly?

      I am wary of opening up jury deliberations to the kind of scrutiny required to use on the off chance someone later gets found not guilty…

      • cricklewood 5.2.1

        Yes I thought possibly the Jury or Juror had made public comment with this distinction.
        In terms of my own experience, it involved multiple charges some we found ‘guilty’ others ‘not guily’ do to reasonable doubt although we were fairly confident the party was guilty and on one charge because we felt they were innocent as it were. (We couldnt understand as the jury why the charge had been brought tbh).
        I do wonder if a result of Not Proven would be of use at times…

  6. Is it not the Courts role to determine Guilt or Innocence ?
    Either by Judge alone, or by Jury !

    It seems the situation we have now is that Politicians would like to take over as Judge and Jury and this should not be allowed to happen.

    Certain Political individuals should hang their heads in shame.

    • Tracey 6.1

      Well, if you are innocent til proven guilty and you are found NOT guilty, then applying that principle you remain innocent.

      • Richard Christie 6.1.1

        Exactly, any other reading is insupportable without abandoning the principle of presumption of innocence.

      • Murray Rawshark 6.1.2

        If cabinet takes any other approach, Tracey, they are making an absolute mockery of the guiding principle of our justice system. Once again.

    • les 6.2

      yes the courts have decided that,it is however not their task to award compensation.

  7. shorts 7

    I don’t understand why National or was it purely Collins were so against Bain being a) innocent and b) getting compensation to have tread the path they have

    I get they have to double down now as Collins has left them little choice politically, but why the animosity towards Bain in the first place? Was it merely public opinion (polls) or what?

    • Tracey 7.1

      She is a very opinionated lawyer. I suggest she had made her own decision (base don her extensive background as a taxation lawyer) and hangs with QCs and others and thinks he did it and over her dead body will he get a bean… not when Novopay, mediaworks and SkyCity are more deserving of our money.

      • shorts 7.1.1

        thanks Tracey

        I don’t follow these sorts of cases/stories and thought there must be more to it than simple bias coupled with a loathing of handing state money to “plebs”, deserving or not as the case may be

        • crashcart

          They probably also feel that their support base think he is guilty and that by paying him it will cost them votes. Strangly spending millions to try and avoid paying compensation is the way they went.

        • Richard Christie

          Collins, and those who continue to support the original guilty verdict, have no concept of reasonable doubt.

      • les 7.1.2

        Binnie specialised in commercial not criminal law as I recall.

    • David Bain is unpopular amongst National’s supporters. My guess is that Collins doesn’t care either way, she just doesn’t want her ambitions frustrated by being seen to be on a politically inconvenient side of the issue.

    • les 7.3

      more likely that a reasonable person ,looking at the available evidence impartially would conclude that any compensation would be quite repugnant.

      • Richard Christie 7.3.1

        Being a reasonable person, I strongly disagree.

        • les

          you may well be reasonable…but you need to look at the available evidence .

          • Richard Christie

            You made a claim, sans evidence. My reply merely illustrated how easily unsupported assertions, even if hedged as a “likelihood”, can be demolished with similar authority.

            • les

              what claim was that then?

              • Jeeves

                “more likely that a reasonable person ,looking at the available evidence impartially would conclude that any compensation would be quite repugnant”

                a) bullshit.
                b) no-one can look at the available evidence, because the evidence produced in court is only a part of the available evidence.
                c) Facts beat evidence every time:

                FACT ONE- Guilty verdict quashed as unsafe.
                FACT TWO- David Bain is as innocent as you are of this crime, with the added assurance that he has been found not guilty, whereas you haven’t.

                • les

                  Fact 3…compensation decided on by Cabinet if they are convinced on the balance of probabilities the claimant is innocent.

                  • Jeeves

                    How does that ‘fact’ lend anything to your ‘repugnant’ charge?

                  • Clemgeopin

                    “compensation decided on by Cabinet if they are convinced on the balance of probabilities the claimant is innocent.

                    So, why didn’t the court come out and say clearly that ‘David is not guilty beyond reasonable doubts’, but ‘he is guilty on the balance of probabilities’?

                    Do our so often crooked, biased, inefficient, irresponsible, arrogant dumb cabinet ministers that LIE, SPIN, BULL SHIT, DOUBLE DIP, DO DODGY DEALINGS WITH RICH DODGY DONORS, HAVE BRAIN FADES,
                    DO DIRTY POLITICS etc have the responsibility to make their judgement call on David Bain’s guilt or innocence and his claim for compensation for wrongful, unfair incarceration for thirteen long years? It simply boils down to the cabinet ministers’ feeling, intuition, gut feeling, logic and bias, doesn’t it? Doesn’t seem right, does it?

        • Murray Rawshark

          Add my name to the list of reasonable people who find Gusher’s behaviour repugnant.

  8. James 8

    Honestly – Like a lot of people I have followed this, not overly closely, for a long time. I for the life of me cannot see anyone other than David having killed his family.

    I know that there are lots of arguments on both sides – and, at the end of the day none of us will ever know for sure what happened that terrible day.

    What interest me is that (from reading the blogs) is that a lot of the left seem to think he is innocent, and a lot of the right seem to think he is not.

    • lprent 8.1

      The question is if the police could prove beyond reasonable doubt that he did. I can’t see that they ever managed it from the material that was published at the time and later. I certainly didn’t like the way the court case proceeded at the time just from looking at the press reports.

      To me it looked like the police made up their mind early and then proceeded as if that was the only alternative. They were also extremely sloppy about the procedures, storage, and simply railroaded Bain through court.

      I had no idea if that requiring the police to provide evidence beyond reasonable doubt is a leftie thing. I’d thought it was a legal standard.

      But it appears that you hold to a different standard – lynch law.

      • les 8.1.1

        But they did ,he was convicted at the first trial…he actually had dialogue in that instance.He is on record as saying …’I’m the only one who really knows what happened’He rarely ever commented after that revelation.His new answer became…’I dont know,I wasn’t there’!Much more appropriate for an innocent man.

        • ghostwhowalksnz

          Which proves what.

          The police never tested him for gunshot residue either which is an appalling lapse.

          • les

            well no one actually saw him do it…but consider these factors…
            1. David’s fingerprints in blood
            on murder weapon.
            2. The glasses implicate David, his lawyer said David
            would not dispute that he was wearing them
            on the Sunday before the murders on the Monday morning.
            3. Brothers blood on David’s
            clothes, front and back of his shirt and shorts.
            4. Opera Otago Gondoliers sweatshirt
            was worn by David over weekend,
            had blood stains on right shoulder and cuff
            no explanation from David.
            5. David’s gloves were found drenched
            with blood kicked under dead brothers
            6. David Changed his Testimony
            regarding rooms he visited
            after ringing 111.
            7. David heard Laniet “his words”
            groaning an gurgling.
            8. 3 separate witnesses said David
            organized family meeting.
            9. David had a Shooting Board
            Consisting of Five Targets in his Room.
            10.David told the police twice that the
            green jersey was Arawa’s
            but at trial he said for the first time
            that it was Robins and also for the first
            time, that Robin was wearing it over
            the weekend .
            11. Too very credible witness said David a few years
            before planned to use the paper run as
            an alibi to assault a female jogger.
            12.A friend of Arawa’s said David not Robin was
            intimidating the family with the rifle.
            13.David washed all the killers blood soaked
            14. Blood was found on David’s duvet cover
            and light switch in his room.
            15.David had 3 unexplained separate
            bruises on his head.
            16.Dr Pryde who examined David said these
            bruises were made in the early hours
            of the Monday morning.
            17. David told of a premonition where something
            terrible was to happen.
            18. The rifle mag was found on its thin edge
            experiments showed that it was 100%
            more likely that it was planted.
            19. The timing of when David arrived home
            easily puts him in the house when
            the final shot that killed Robin was fired.
            20.A girlfriend of David’s and a prison guard said David
            had unexplained scratches going from his
            shoulder down his chest.
            21. Davids palm print in blood was found
            on the washing machine.

            anything similar on Robin…A…NO!

            • lprent


              Most of these are circumstantial, irrelevant, hearsay, capable of varying interpretations (especially when it comes to blood spreads by someone who was at the house), and many rely on the memory of someone who would have been in shock either way.

              None are conclusive and most depend on the legal significance only to someone who has already made up their mind. None push a case beyond reasonable doubt, and nor do they in combination. That is the legal standard, not “is it possible?” which appears to be the standard you are using.

              They amount to a very weak case and one that shouldn’t have resulted in a conviction. And in essence you betrayed how weak they were when you said that the only only other suspect was Robin Bain. You appear to be relying on that ever suspect standard of “who else could it be?” in city full of people.

              • les

                I remember it was the judge in the 2nd trial who made the comment…so was it David or was it Robin.

                • Jeeves

                  “……a reasonable person ,looking at the available evidence impartially would conclude that any compensation would be quite repugnant…..
                  …20.A girlfriend of David’s and a prison guard said David
                  had unexplained scratches going from his
                  shoulder down his chest…..”

                  I think we ought to close the case on you as ‘reasonable, or impartial’ right here. I’ll grant you some repugnancy though.

              • Clemgeopin

                ” many rely on the memory of someone who would have been in shock either way.”

                Great point. You must be my mind reader because I had the exact same thought last night!

              • McFlock

                All of that might or might not be true, but the people suggesting that he should receive compensation are going at it in the same way you portray the police: just because the second jury did not find that the case proved his guilt beyond a reasonable doubt, it does not demonstrate that an injustice took place, in my opinion.

                To look at it another way, it might be fair that he did it but didn’t leave enough evidence/the cops bungled the case so he gets released, but it would be an injustice to pay him compensation if he did it.

                • Clemgeopin

                  “If” is the operative word. But did he? Do we know for sure? What if he ‘didn’t’? The problem is with the doubters, not him. It is for the doubters to prove beyond reasonable doubt that indeed he did.

                  • les

                    its not though…the test for compensation is ….the probability of innocence….!

                  • McFlock

                    Either position has a certain probability of being true. Compensation, at a minimum, should be paid only on the balance of those probabilities.

                    Personally, I lean towards a “beyond reasonable doubt” burden to demonstrate an injustice occurred for compensation payments to be made. What about any person who is tried but acquitted, should they be compensated a relative amount for their much smaller inconvenience? Or should it be manifestly demonstrated that an injustice occurred, e.g. malicious prosecution, before they receive compensation? Same deal here, only with bigger issues.

                    • One Anonymous Bloke

                      Nah, this is a wrongful conviction for which someone has served a considerable stretch.

                      Remember: the Crown is us. We did this. Paying compensation isn’t just a recompense for injustice: it’s an incentive for the Crown to get its (our) ducks in a row.

                    • McFlock

                      …or it’s also a case where prosecutorial failures resulted in a murderer being freed.

                      Which makes paying him for the privilege even more of an injustice.

                      And if we’ve learnt anything from this government, pissing public funds away is not an incentive for it to change.

                    • …or it’s also a case where prosecutorial failures resulted in a murderer being freed.

                      Which makes paying him for the privilege even more of an injustice.

                      Or not even prosecutorial failures, but just insufficiently conclusive evidence. Either way, fuck yes there’s a good reason for that “innocent on balance of probabilities” clause.

                • Tracey

                  agree being not guilty doesnt equal compensation. binnie would have known that principle and found for compensation.

                  • les

                    new territory for Binnie a commercial lawyer and made an absolute meal of his task that could not withstand scrutiny.

                • lprent

                  The point about my position is that as far as I am aware there wasn’t enough evidence to convict him beyond reasonable doubt in the first trial. What appeared to happen was there was a circumstantial case, a police theory that didn’t get enough scrutiny, and a botched police investigation.

                  The appeals process works largely on if he received a fair trial, ie at a procedural level. It doesn’t look to see if there was a miscarriage of justice by the judgement of the jury.

                  When a second trial was ordered after some of the missteps in process were pointed out, a second jury did not find the same result on what essentially was the same or similar evidence. Nor did an external observer.

                  The point you are missing is that two juries with essentially the same evidence came to quite different conclusions. In the intervening years David Bain lost more than a decade of his life.

                  Since then we have seen a populist minister of justice completely fuck up a ‘review’ in a way that made it clear that Bain wasn’t receiving natural justice.

                  • McFlock

                    As you say, two juries came to different conclusions. Was it the evidence, or the decade publicity campaign that was responsible for the difference? Was the case just on the fine line where a jury can go either way on circumstantial evidence, if the circumstances might still result in a probability of doubt beyond reasonable doubt?

                    Yes, he lost a decade to prison. But then maybe the system should look at whether, on the balance of probabilities, he should have lost a lot more or none at all before signing a cheque.

                    • Richard Christie


                      Yes, he lost a decade to prison. But then maybe the system should look at whether, on the balance of probabilities, he should have lost a lot more or none at all before signing a cheque.

                      And if, on balance of probabilities the system (and note, not a jury) considers he was guilty (“should have lost a lot more”) and refuses compensation, then your (this) position is synonymous with arguing that it was indeed justified that he served the sentence, not based upon on beyond reasonable doubt, but on a balance of probabilities.

                      There is no other way to read it.

                      From there we we can proceed to doing away with the standard of beyond reasonable doubt altogether.

                    • We never had the standard of “beyond reasonable doubt” when it comes to paying people compensation for wrongful imprisonment. It applies to jury trials.

                    • Richard Christie

                      We do have a standard of beyond reasonable doubt to meet before we justify sending them to prison.

                    • We do have a standard of beyond reasonable doubt to meet before we justify sending them to prison.

                      Yes indeed, and the standard wasn’t met at his retrial and he wasn’t sent to prison. Which is totally, completely, utterly irrelevant to the issue of whether he should get compensation – you keep going on about reasonable doubt as though it had some relevance to this discussion, when it has none. The standard for whether he is owed compensation is whether he can demonstrate his innocence on the balance of probabilities.

                    • Richard Christie

                      Of course its relevant to the discussion.

                      The system wrongly held a man in prison based upon a faulty decision due to faulty procedures involved in the first trial . That’s the system’s error, not David Bain’s.

                      That Bain should have to prove anything to be eligible for compensation for wrongful imprisonment is utterly reprehensible.

                    • tricledrown

                      Richard he went to prison because the DNA evidence was overwhelming read mcNeishes book on the first trial.
                      He was proven to be a liar by his own words.
                      The DNA under stephens fingernails was fresh and was Davids no one else’s the DNA brain splattet droplets on top of Davids socks he was wearing when carried from his house to hospital by ambulance officers accompanied by a detective so those socks would not be contaminated was Robins brain particals that could have only got their if David was behind the Curtains with his sock covered feet sticking out from under the curtains when the gun was fired!
                      Did the father come back to life wipe down the gun and cartridge holder leaving only davids finger prints on the bullets to incriminate his son.
                      Considering he was supposed to have left a note on the computer saying you were the only one who deserved to live!

                    • McFlock

                      And if, on balance of probabilities the system (and note, not a jury) considers he was guilty (“should have lost a lot more”) and refuses compensation, then your (this) position is synonymous with arguing that it was indeed justified that he served the sentence, not based upon on beyond reasonable doubt, but on a balance of probabilities.

                      The trouble is that there is a grey area.

                      I’m only talking about cases where there was no evidence fabrication or new evidence of exoneration, and even then people can get a payout if they probably didn’t do it. The opposing view is to give people payouts when they probably did do it, and seems to be a pretty massive fuckup as well. Accepting a verdict is one thing (even if it didn’t go your way), but paying for the privilege seems a bit much when they probably did do it.

                    • That Bain should have to prove anything to be eligible for compensation for wrongful imprisonment is utterly reprehensible.

                      Likewise, the fact that you don’t like the rules re compensation for wrongful imprisonment, and would prefer different ones, is completely irrelevant. The rules are what they are, and the people involved in this claim have to work with them.

                  • Stuart Munro

                    The NZ Police have an unhealthy attachment to circumstantial cases – it was a circumstantial case in Thomas too, and in the Sounds murders. But the Bain case is frankly inexcuseable – there was an abundance of physical evidence which police somehow contrived not to collect.

                    The presentation of rubbish evidence like the fingerprint in possum blood suggests that there was not so much an investigation as a fit up. Lundy has all the hallmarks of a similar debacle.

                    • The NZ Police have an unhealthy attachment to circumstantial cases…

                      Well, either that, or some murders provide only circumstantial evidence for the Police to work with – but your one totally sounds more likely.

                      But the Bain case is frankly inexcuseable – there was an abundance of physical evidence which police somehow contrived not to collect.

                      If only you’d been there to direct their efforts. How much better a job would have been done. But, this physical evidence – it would be of the circumstantial type, right? Meaning, the NZ Police would thereby have demonstrated an even more unhealthy attachment to circumstantial cases?

                    • tricledrown

                      Munro read my comments.
                      I read all the trial notes from the original trial you have read Karam’s books which only shoe selected bits of evidence.
                      The DNA evidence against David was overwhelming!

                • Jeeves

                  “….. it might be fair that he did it but didn’t leave enough evidence/the cops bungled the case so he gets released, but it would be an injustice to pay him compensation if he did it….”

                  Okay maybe so-
                  but in order for you to make the great leap that says ‘it might be fair that he did it ‘-

                  you have to provide some proof beyond a reasonable doubt, which is the whole point of the justice system.

                  If its an injustice to pay a not guilty man for wrongful imprisonment, then let’s take another leap:

                  Let’s say it was you, and you didn’t do it. And you’ve been found not guilty…..

                  what would juctice feel like to you after 13 years, as far as your compensation goes???
                  Just put it behind you yeah??? Have a Tui.

                  • McFlock

                    As I have repeatedly said, that an innocent man who lost his family was jailed is one possible injustice.

                    Another possible injustice is that a guilty man with nothing to lose gamed the system and won.

                    The fact that an injustice has occured is without doubt: there’s no just way for five people to be murdered, and one person to be locked up for it for a decade and then released.

                    The question is which injustice has occurred?

                    You don’t know. I don’t know.
                    As it is, Bain will get a large payout if he probably didn’t do it.
                    Do you think he should get a large payout, on top of the release, if he probably did do it?
                    At the very least, making the payout contingent on a probability of innocence might make it easier for the other victims of the crime: the friends and other relatives of the deceased. That loss is still there for them, too.

                    • Clemgeopin

                      “might make it easier for the other victims of the crime”

                      True, but it won’t make it easier for David if he is innocent. Doesn’t that matter?

                    • McFlock

                      Of course it matters.

                      If, if, if, if, if, fucking if.

                      Why do you guys have such a goddamn problem with the concept of “if”? Because if he did do it, then giving him a payout would be kicking blind justice squarely in the scales. So why do you lot want to give him compensation if he probably did do it?

                      Because that’s what you’re asking for if you reckon that there should be no reasonable probability test before compo gets paid.

                    • One Anonymous Bloke

                      Innocent until proven guilty. The trial process establishes that guilt. Only it didn’t.

                      We have enough trial by media posse as it is.

                    • McFlock

                      Criminal law is beyond reasonable doubt. Civil law?

                      And if he probably didn’t do it, he’d get a payout under the current system (judges who misunderstand that bit notwithstanding).

                      Our only disagreement is that you think he should get a payout even if he probably did it.

                    • Clemgeopin []

                      McFlock and les:

                      I am not sure if you have read Justice Binny’s reports. I hadn’t. Here is the link. I read a few pages of the ‘further amended report’.

                      It is very fascinating and interesting, though long. He writes so well, has a brilliant mind and very clear grasp of matters at hand as far as I can see. Read it if you haven’t already.

                      I hope to read it little by little at leisure in the next few days.


                    • McFlock

                      Good for you for finding it interesting leisure reading.
                      It’s almost like you forgot what you’re reading about.


            • NickS


              Except all you’re doing is presenting a list of claims, without even doing the fucking basic, simple thing of providing fucking links. Claims which I strongly suspect are part bullshit, heavily cherry picked and presented solely to craft a narrative of guilt. Ignoring any facts to the contrary, namely the same body of facts that lead to Bain being found not guilty on the subsequent retrial.

              And for fucks sake, the police seriously fucked up the chain of evidence and forensics on the Bain case, to avoid the complications that creates is beyond mere stupidity.

              But hey, why let critical thinking, logic and reality get in the fucking way of things right?

              • les

                while I appreciate expletives are part of the vernacular these days they fail to reinforce your viewpoint.There is a plethora of documented evidence about this trial available.Try Martin Van Beynon (I think thats the spelling)who has followed the case intently and is a Sth Island journalist.There was alot of evidence against DB not allowed for a variety of reasons.

                • NickS


                  Which the reasons why that evidence was not included have been already pointed out to you and like the fool you seem to be, have been side-stepped.

                  Also Martin’s bias was pretty fucking obvious, as others have already said, the way our justice system works is to assume the defendant is not guilty and have the prosecution build a argument that considers the entire body of valid evidence to show beyond a reasonable fucking doubt that the defendant is guilty. As for why, it’s due to the lessons learned from the historical failure modes of systems that assume guilt from the outset.

                  Despite only being educated in the life sciences and screwed over by depression even I can grasp this on sweet fuck all sleep*. Then again, depression has honed ones thinking and exposed first hand the flaws in human cognition the hard way…

                  *screwed over again last year, with the all new shiny symptom of self-harm whilst doing a pre-trades construction course, back on the mend now finally…

          • lprent

            Exactly. Weapons residue or lack of it would have been pretty convincing. Not having done it was criminal.

            • les

              Bloody fingerprints and a murdered brothers blood on a suspects clothes are quite convincing,one would have thought.

              • Clemgeopin

                Not necessarily. Think about it.

                • les

                  in context,the legal process is strands in a rope that alone are not strong enough ,but together with what can be circumstantial evidence ,make a strong ,convincing case.

                  • One Anonymous Bloke

                    It convinced you, and the original jury. The first few media reports of the murders had Robin bang to rights, and then David came into the frame, and my instincts were “There’s a police ‘theory'”.

                    This case relies very much on forensic evidence. Reading the emotionally invested ‘certainty’ in people’s accounts when they talk about socks and blood with such authority, and then contrasting that with Dr. Manlove’s testimony, convinces me of one thing: confirmation bias is a fact.

                    Hence my first paragraph. My confirmation bias on display.

                    These days, I reckon the Crown (that’s you and me and I’m not so sure about you) fucked up, the Crown pays.

                    • les

                      ‘The first few media reports of the murders had Robin bang to rights’…this is hardly a solid foundation to base your case on,indeed a very shaky one.The test for compensation is not framed the way you hope/suggest it is…thats the reality.

                    • One Anonymous Bloke

                      PS: I note the “Police ‘theory’ was established before any dna testing results were available. Who d’ya trust? The Crown?

                      PPS: My first paragraph establishes my confirmation bias. Hello, Earth calling Les.

                    • McFlock


                      what, you can’t have strong indications towards a suspect without DNA?
                      CSI effect.

                    • les

                      your confirmation basis is based on your instincts,evidence is a better foundation for arriving at conclusions.Forensic evidence is a major factor in homicide cases,funnily enough.

                    • One Anonymous Bloke

                      Not really McFlock. I’m saying that the Crown has an ugly and well-established reputation for confirmation bias and tampering with evidence, and cannot be trusted: it’s a system, not an all-seeing eye.

                      When it drops the ball it has to pay. We have to pay. Otherwise we’re just a gang.

                    • McFlock

                      Which ball did the system drop?

                      The “don’t lock up innocent people” ball, or the “lock up people who kill their families and don’t kill themselves” ball?

                    • One Anonymous Bloke

                      Neither: the carriage of justice ball.

                    • McFlock

                      And what was “justice” in this case? That he should stay locked up, or that he should never have been locked up in the first place?

                    • One Anonymous Bloke

                      Neither. The process.

                    • McFlock

                      pay compensation to the process then.

                    • One Anonymous Bloke

                      Where’s the deterrent in that?

                    • McFlock

                      The deterrent is the thought that the system might have let a quintiple murderer go free, and the thought that the system might have locked up an innocent person.

                    • One Anonymous Bloke

                      I think the penalty should be more substantial than a thought experiment.

                    • McFlock

                      Better than the thought experiment of giving large sums of money to a probable murderer, which is what happens if compensation is granted where it wouldn’t have been when the balance of probabilities was taken to account.

                    • One Anonymous Bloke

                      Yes, that ought to have a significant deterrent effect: “if we screw this up our suspect will be getting millions in compensation.”

                    • McFlock

                      Interesting. So basically you feel that it’s not the thought of being responsible for an injustice that deters people from making mistakes, merely the possibility of sustantial amounts of money being reduced from a line item that isn’t even their responsibility, many years after the fact?

                    • One Anonymous Bloke

                      In fact, my proposal would achieve both of those goals.

                    • McFlock

                      …while not actually doing anything to deter murderers. Get a pr campaign and expensive lawyers to wheedle a jury, and you get a massive cheque for time served.

                    • Clemgeopin []

                      “…while not actually doing anything to deter murderers. Get a pr campaign and expensive lawyers to wheedle a jury, and you get a massive cheque for time served.”

                      You have presumed too much there!

                      Take a step back and PRESUME that it was you who was charged though innocent. What would have been your position/thinking then?

                    • One Anonymous Bloke


                      I certainly wouldn’t commit murder if it weren’t for all the money I might get if there’s a miscarriage of justice. Tui moment.

                    • McFlock

                      because nobody in history has been killed over piddling amounts of cash. Tui back atcha.

                      Ah, but what if I’d done it? Being found guilty would just be the beginning: I’d need a former all black, some good lawyers, and leave it a few years to maximise the chances that the evidence gets discarded/lost/chain of custody corruption, whatever.

                      Nothing to lose, and all the time in the world to work on it.

                    • One Anonymous Bloke

                      Yes, McFlock, guaranteed payout too 🙄

                    • McFlock

                      better odds than lotto.

                    • Clemgeopin []

                      It should have been paid long ago, especially after the very expensive report from one of the most eminent, if not the most imminent, judge Binny from Canada. For a tax lawyer, Collins over ruling him was a complete disgrace.

                      If David is paid the compensation and IS guilty then it will be on his conscience and soul and he will be answerable to his maker and his slain family after his death, presuming those things are possibilities which we don’t know for sure, just as we do not know if he is guilty or not for sure. The courts and jury have said that he is not guilty for whatever reason. So, we or the cabinet do not need to second guess that and presume he IS guilty.

                      Pay the man and close the chapter.

                    • McFlock

                      And there we are: you don’t care if he probably did do it or not, you just want him paid.

                      Well you know what, he’s not the only one who has to live with it. So yeah, I reckon it’s only fair that if he gets a payout, we know he probably didn’t do it.

                    • It should have been paid long ago, especially after the very expensive report from one of the most eminent, if not the most imminent, judge Binny from Canada.

                      The “imminent” judge from Canada, in his certainly very expensive report, misplaced the burden of evidence, failed to recognise he was asked to consider balance of probabilities rather than proof, and failed to understand NZ law relating to circumstantial evidence. If the “tax lawyer” Collins had accepted such a failure, we really would have had reason to ridicule her.

                      If David is paid the compensation and IS guilty then it will be on his conscience and soul and he will be answerable to his maker and his slain family after his death…

                      Dude, seriously? Even in that wildly, vanishingly-unlikely circumstance, wouldn’t we all rather he was giving an account of his activities without having spent years living large at our expense? If he can demonstrate he was probably innocent, he gets the cash – it’s not a big ask (well, it is in his case, for reasons that become obvious if you make any study of it, but as a general principle it’s not a big ask).

                    • Clemgeopin

                      Whoops, Correction..
                      2nd line:
                      one of the most eminent, if not the most *eminent, judge [*not imminent]

              • Tracey

                what if upon discovery of the massacre he raced to victims, touched them to see if alive or held them or cried on them.

                i think if he hadnt touched any of them the case would be made that he must have known they were dead and was cold and calculating

                • les

                  grasping at straws…originally he said on the phone call …they’re all deaaaad!When interviewed by Police he said that he hadn’t been in the rooms….when the police asked how he knew they were all dead…he um,um,err!

                  • Clemgeopin

                    Could it be that when police began questioning him, David got scared, the penny dropped, that the police were trying to frame him as the murderer, and in his state of shock, confusion and fear said with Nativity that he hadn’t been in the rooms thinking that might save him from them? Are you prepared to accept that is a possibility or not?…Unless you are convinced that David is/was a seriously bad guy or may be highly intelligent, calculating evil man. What were the opinions of friends, acquaintances, relations, neighbours and people of Dunedin of David as a person?

                    Remember the jury and the judges all had all the evidence you cite…blood, clothes, hair, gun, residue and stuff, YET they could not find him guilty beyond doubt in the end.

                    It is hard for me to accept the contradictory final conclusion that ‘he is not guilty but yet not innocent’ as you and Collins and the lynch gang are propagating! It is a SERIOUS issue….Murder of 5 people….and a man who may be innocent of performing that crime.

                    • les

                      you can give him the benefit of so many doubts….his defence relies on that and red herrings,smearing a dead man,and a decade long PR campaign by someone who has basically made a good living from this tragedy.

                    • Clemgeopin

                      “someone who has basically made a good living from this tragedy”

                      Surely, that can’t be one of your serious reasons to consider DB did it? You are losing your arguments here.

                      Jk is irrelevant to David’s guilt or innocence or if he deserves compensation or not.

                    • Clemgeopin

                      Whoops,…correction: Naivety (not nativity!) [3rd line]

                    • tricledrown

                      Clem as i pointed out yesterday the police destroyed just about all the evidence in 1997 after all Bains appeals had been exhausted including privy council appeals.
                      The Police thought it done and dusted so threw out the container load of hard evidence.
                      As National were cutting police funding at the time.
                      The minister is aloud to use evidence from the first trial to Deny David compensation!
                      Binnie interviewed David Bain and asked many leading questions their was no cross examinations.

                    • Clemgeopin []

                      Not David’s fault.

                      Every single excuse you are stating there is someone else’s mistake, not Davids! Jail them/fine them/kick them out, instead!

                    • Tracey


                      Can you post evidence of how Karam has “made a good living” from this saga?

                    • les

                      ‘It should have been paid long ago, especially after the very expensive report from one of the most eminent, if not the most imminent, judge Binny from Canada. For a tax lawyer, Collins over ruling him was a complete disgrace.’….Binnie was out of his depth…was not an eminent criminal lawyer…sorry about that.

                • Lanthanide

                  “i think if he hadnt touched any of them the case would be made that he must have known they were dead and was cold and calculating”

                  That case could attempt to be made, but I don’t think it would hold up.

                  People react in all sorts of crazy and unexpected ways when confronted with something as shocking as he was. For example, they could simply run from the house screaming – sure David stayed in the house and called the cops himself, but it’s easy to imagine he could have furiously paced from room to room and had a panic attack, without touching the bodies or any of the blood. That would be a perfectly valid explanation for not having any blood on him, and also not having committed the murders himself.

                  Lindy Chamberlain-Creighton (the “dingo’s got my baby!” woman from Australia) was found guilty of the crime, pretty much because the jury and the police found her and her husbands demeanour to be very calm and collected after the death of their child, so they assumed that meant they had committed the crime. She was exonerated when the jacket the baby was wearing (that the police claimed didn’t exist) was found in a dingo den several years later.

                  • les

                    on that basis David Tamahere should be exonerated…the watch the Police said he stole off the Swedish tourist was found intact on his wrist when his body was discovered.

                  • Tracey

                    I know that case pretty well…

                    Mark Lundy’s brother is being pointed to by a defence as the murderer because he says didn’t go near the bodies, just rang 111…

                    All I am saying is my suggestion has some validity in terms of doubt. I can well imagine my arriving home to my home and seeing or hearing blood/gurgles and rushing to them … putting my head to their heart for breathing, looking for pulse, vomitting maybe and so on.

                    • les

                      you sure its not his brother in law?

                    • Tracey

                      I have no idea who killed the poor woman and child.

                      I also have no idea who killed David Bain’s family.

                      Can you post your evidence of the ways Karam has “made a good living” off this saga?

                • les

                  Karam Claimed 2045 hours over a 13 month period on the Bain Case
                  Information released by Legal Aid Services in relation to the 2009 retrial of David Bain: During the period up to and including the 2009 retrial Joe Karam claimed some $365,879 in legal aid. Of this $272,822 was in fees and $93,057 in disbursements (expenses such as accommodation, food and travel). From 22 May 2007 to 31 January 2008, Karam claimed 749 hours for which he was paid $75 per hour as an “unqualified legal executive” acting under the supervision of Michael Reed. From 1 February 2008 to 5 March 2009, Karam claimed about 2045 hours at $95 an hour. This amounts to around an average of 37.5 hours on a weekly basis, allowing for statutory holidaysbut no other time off, for a 13 month period. Karam claimed a further 235 hours for work during the retrial from 6 March 2009 to 5 June 2009. Summary:
                  749 hours @ $75 $56,175
                  2045.5 hours @ $95 $194,322
                  235 hours @ $95 $22,325
                  It has been suggested that any compensation awarded to David Bain would include payment for legal services to Joe karam. As you can see above, Joe karam was well-paid for his legal services – a total of $272,822 in legal aid
                  April 2012 Update:

                  • les

                    this is just part of his earnings….book royalties x 3,plus 50% of all earnings…i.e Womans Day etc.In line for 50% of any compo.

                  • Clemgeopin

                    All that is completely irrelevant. Think about it.

                    • les

                      non qualified =$95 p.hr…not bad work …if you can get it.I’ve thought about it.

                    • Clemgeopin []

                      “non qualified =$95 p.hr…not bad work …if you can get it.I’ve thought about it.”

                      Still completely irrelevant non sense argument as regards David’s guilt or compensation claim.

                  • I bet Bain thinks Karam’s $95 ph was well worth it. I know a few lawyers who charge way more and don’t have half the success Karam has had as a gifted amateur.

                    • les

                      Michael Reed was Bains Counsel.Karam wrote 3 books,long on opinion and short on facts.

                    • Bain was paid for his legal work. That’s how Legal Aid works.

                    • les

                      ever heard of a member of the public ,with no law qualifications being paid by the taxpayer for legal work?I haven’t.

                    • Clemgeopin []

                      “ever heard of a member of the public, with no law qualifications being paid by the taxpayer for legal work?I haven’t’

                      Even if you are correct, how is that the fault of Joe Karam or David Bain? We are discussing his compensation. Are you saying or implying that because of that legal aid to Karam, David should not be entitled for compensation for his 13 years in jail, even though later found to be not guilty both by the court and jury, as well as by the government instituted judicial review by justice Benny?

                    • I kinda figured you hadn’t, les! You don’t have to be a lawyer to qualify for legal aid payments.

                    • les

                      the defendant gets legal aid…te reo…I understand that.You a bit confused…’Bain was paid for his legal work. That’s how Legal Aid works.’

                    • “Bain was paid for his legal work. That’s how Legal Aid works.”

                      Yes, sorry. Wrong name. Karam was paid for his legal work. That’s how Legal Aid works.

        • Clemgeopin

          “But they did ,he was convicted at the first trial”

          So was Arthur Alan Thomas and Jesus Christ. Just imagine if these too were hanged when evidence was not proved beyond reasonable doubts!

          • les

            not too good on theological matters but my understanding is that Jesus Christ was crucified and I doubt the measure of ‘reasonable doubt’ came into consideration.

          • NickS


            The police are human, as so prone to fuck up and fall victim to the various rich a varied flaws in human cognitive processes like the rest of us, even under optimal conditions.

            • les

              Yes all participants in this saga were or are human.5 of course are dead,the basics ,motive and opportunity point to one perpetrator of this heinous crime.

              • Clemgeopin

                You protest too much, madam! I am kind of wondering if you were the actual murderer and are now trying to pin the blame on Bain for all we know!…circumstantially speaking…

              • NickS


                Read from the slight of mind section down:

                Maybe then you’ll understand just wtf I’m talking about, but if 10 years of dealing with young earth creationists, climate change denialists etc, you’ll probably not notice the anvil and fail miserably to learn anything T_T

            • Tracey

              that is why they have written protocol… they don’t have to keep it all in their heads. It is systematic… how to deal with a crime scene etc…

          • les

            Tracey asked for details about JK’s earnings.

        • lprent

          So? If people asked me what went on inside my family and everyone else was dead, then my answer would have been the first one about what had been going on.

          Basically you’d have to be a dipshit prejudging fool to take any significance from that kind of statement. After looking at your later statements that I have already responded to, you do appear to have a problem with thinking about alternatives to your prejudged certainty. Is that a mental maladjustment?

          • les

            I cant make sense of your post at all!You think weapons residue would have been pretty convincing,I think blood evidence,especially victims blood is convincing.Whether one view is down to being a ‘dipshit prejudging fool or an indicator of mental maladjustment while the other does not, probably fits your own pre determined and fatally flawed ‘logic’.

            • lprent

              Blood evidence just means that you touched it after the event. Who found the bodies?

              Propellent residue is driven into the hands and clothes when firing a weapon, it is easy to differentiate from a contact smear.

              As I say, you are a fool. Read some material before for demonstrating it.

              • les

                No blood evidence does not fit your narrow definition at all.For instance blood spray from a shot .Look in a mirror if you really want to identify a fool.

    • Tracey 8.2

      I don’t know if he did it or not. There do seem to be only two possibilities, he and his father. BUT I wasn’t in Court for the whole trial/s. The media cannot and do not report all. They cannot report accurately nuances. They do not explain intricacies.

      I agree with Lynn. Just like Arthur Allan Thomas someone/s decided on arrival who done it, and they looked for evidence to fit that scenario. They also contaminated the collection of evidence early on.

      Now, arrive, secure evidence of scene. Collect evidence, analyse evidence, interview people… start to form a picture of opportunity and motive…

      The rules are there for police to follow to give us certainty and trust in the final outcome (guilt or not guilt) , when they mess with this chain we can no longer rely fully on the final outcome.

      • Psycho Milt 8.2.1

        Just like Arthur Allan Thomas someone/s decided on arrival who done it, and they looked for evidence to fit that scenario.

        Actually, the reverse is true. They decided on arrival that it was one of those familiar “if Dad can’t be the boss, everyone has to snuff it” shootings, but found that the evidence didn’t back that up. The switch to David as a suspect was based on assessment of the evidence, not assumptions. (NB: which doesn’t necessarily mean he did it, just that they didn’t immediately leap to the conclusion he did it.)

        • lprent

          Yes, that was the case, the evidence was weak for the father who was their initial suspect. So they moved to the son. The problem was that the evidence didn’t strongly support the son as a suspect either.

          However they were short of viable suspects and someone had to take the fall. The real issue is not who did it, but if the court in the first instance would have or should have convicted beyond reasonable doubt if they’d seen all of the evidence at the time of the first trial.

          The decision appeared to me at the time to be damn unsafe. I haven’t had to change my mind about that since.

          • ghostwhowalksnz

            Same as what happened to Kahui twins. Very weak case plus modern juries are more suspect about expert witnesses who are really just making it up.

            • les

              Yes an alternative scenario ,skilfully presented that creates reasonable doubt is the common defence strategy.Playing out in the Lundy retrial right now.O.J,McDonald,both not guilty.

    • crashcart 8.3

      As someone on the left I always felt he was guilty based upon what I saw of teh evidence. I do however understand I don’t have all the information so accept the juries findings, in both cases.

      • lprent 8.3.1

        To a large extent if he was guilty or not is of less importance (I suspect we will never know) than if he should have been convicted in the first trial. I suspect that he should not have been beyond reasonable doubt. I certainly doubted that based on what I read about it then and subsequently.

        The case against him appeared to rely on some shaky circumstantial evidence (which had alternate explanations), a prosecution theory, and little evidence to back that theory. Certainly the second trial highlighted that quite strongly.

        That is where the police and prosecution actions in and prior to the first trial come into play. In essence that is what the claim of compensation will focus on – should have the police brought such a case to court and was the decision safe bearing in mind that some of the actions by police in particular look slack as.

        • Psycho Milt

          The jury’s decision certainly wasn’t safe, the Privy Council established that. But the decision to prosecute was sound – they had a swag of circumstantial evidence against him (his rifle, his trigger lock, his ammunition, his silencer, his gloves, his fingerprints on the rifle, glasses he was using broken in his bedroom with one lens at the fight scene, his injuries consistent with the fight scene, his bloody fingerprints on the washing powder container and washing machine), as opposed to a total of zilch against the other guy. All the circumstantial evidence had alternative explanations, but that’s for a jury to thrash out – there was certainly enough evidence to build a case on.

        • tricledrown

          Lprent DNA evidence is not shakey.
          David was proven to be lying in the firsy trial.
          Re read the ODT James Mc Neishes book he sat in the trial everyday wrote a complete book pointing out every bit of evidence presented at the trial.
          The evidence presented at the first trial was so compeling New Zealand court’s threw out his appeals saying the evidence against him was overwhelminglike wise the privy council!
          The police were so sure of the Privy Councils ruling they threw out the container loaded with evidence.
          So in the second trial the police were not aloud to use the historic evidence only hard evidence.
          Had this evidence been kept Bain would have been returned to finish his sentence.
          One of his prison guards told me that when David first arrived in prison he was believed but very soon after found him to be highly manipulative.
          Who turned up for his wedding a convicted pedophile prison mate of his.That was all over the news at the time of his wedding.

          • Clemgeopin

            “Who turned up for his wedding a convicted pedophile prison mate of his.That was all over the news at the time of his wedding”.

            Jeez man! Your bias is coming through so well. A pity.

    • Who knows. The defence has a credible theory of the crime because these “family annihilation” crimes are almost always committed by the father under some stressor – that is what was alleged here.

      As for David Bain killing his family for money, it would have been odd and out of character for him to do so. The idea that he had a brief psychotic episode is just armchair psychology.

      I guess that short of a deathbed confession we’ll never know.

      • les 8.4.1

        How do you assess the character of a 22 y.o man with a paper round,a liking for guns,and a history of bizarre behaviour.The computer message that he was the only one who deserved to stay is hard to reconcile with the achievements of his dead siblings.

        • Clemgeopin

          Parents can overtly or covertly be partial/loving to a particular sibling for any reason, not necessarily because of their ‘achievement’. Come on, les, you are now sounding too ‘staunch’ in your determined guilty view. Be a little more objective.

          I do not KNOW who did the murders. No one knows! The point to me is that, the LAW put Bain in jail for years and has now found him not guilty. The rest is academic and piffle.

          • les

            the word used was ‘deserved’ …not debating how you define that..was responding to Tom Jackson who confidently states that it was ‘out of character ‘ for DB to kill his family for money.How on earth would Tom know?

            • Tracey

              the same way you are sure robin didnt do it i suppose, it suits the argument you are both making.

              les are you 95 to 100% certain d bain killed his family?

              • les

                from my assessment of the evidence presented and all the relevant factors ,personally 100% convinced he is guilty.

                • Tracey

                  Were you at the trial every day (genuine question cos I suspect the answer is yes)?

                  Did you know the family?

                  Did you know Robin Bain?

            • Tom Jackson

              David Bain doesn’t fit the profile of a mercenary familicide. As far as I know, he has not been diagnosed with psychopathy or narcissistic personality disorder, nor had he ever exhibited the kind of mercenary behaviour that people who would do something like this purely for gain would have done.

              If David had committed the crime, he would have been a very rare bird indeed. Almost all these sorts of crimes are committed by the father.

              • les

                give yourself an uppercut for totally unqualified assumption and generalisation.

                • Tom Jackson

                  The generalisation is absolutely true. Crimes of family annihilation are inevitably committed by the father under some sort of stressor.

                  Here’s one of the rare ones in which a son kills the family (the Amityville Horror case):


                  Note that this guy was already notoriously violent. He’d also previously staged a robbery in which he and a friend stole 20K from his family. Bain comes across as a milquetoast. The best people can do is some shit he talked as a teenager and other unsubstantiated rumours.

                  David Bain doesn’t fit the profile. Hence my claim that if he had done it, it would have made him a rare bird among criminals.

                • Jeeves

                  “How do you assess the character of a 22 y.o man with a paper round,a liking for guns,and a history of bizarre behaviour.The computer message that he was the only one who deserved to stay is hard to reconcile with the achievements of his dead siblings.”

                  “give yourself an uppercut for totally unqualified assumption and generalisation.”

                  and while you’re at it give yourself a big wedgie for being a bigger hypocrite than you are a prejudiced arsehole.

        • Tom Jackson

          The answer for David being the only one left is pretty easy, if Robin was the killer. David was the strongest person in the house. Whoever the killer was had trouble with the other son, who was much smaller and weaker. They would have been in real trouble had they accidentally roused David and had to fight with him.

          The simplest explanation is that Robin waited for David to leave the house and then committed the murders. It seems mad to me to claim that David left a blood soaked house full of corpses, knowing that his father might well enter at any time he was out and that his father would have to walk through same house to reach the room in which the staged suicide occurred.

          Were I David Bain wanting to frame Robin, I would have killed the family, and then dispatched the father in the outside caravan with a printed suicide note.

          But that’s all supposition, because we’ll never know.

          • les

            ‘simplest explanation’!What a joke..there is NO evidence Robin killed anyone…his clothing not contaminated explained away by JK..with the ludicrous …he must have changed his clothes to meet his maker!Stephen was strong alright,where do you think DB got his injuries?All that blood of Stephens on DB’s clothes.No fingerprint evidence implicating Robin.The ludicrous reinactment in court of how Robin was supposed to shoot himself in the head beggars belief.Karam jumped up and helped them show how a contortionist could have done it.

            • Tom Jackson

              Now you’re just reaching.

              It’s entirely possible you are right. Problem is, that it’s not possible beyond reasonable doubt.

              We may well just have to chalk this up to being one of those rare cases which just can’t be solved either way without reasonable doubt.

              Why do you care anyway? Bain already served 13.5 years that he ain’t getting back.

      • tricledrown 8.4.2

        Tom Jackson mass family anihilation crimes are more likely to be carried out by the oldest male child who is the oldest child.
        David fits that profile another book written by a retired policemen who travelled to the US UK Australia found this fact out.That large family murders it was always that way.
        With the oldest son denying the murdets even under compeling evidence always blaming the father as well.

        • Tom Jackson

          Rubbish. Oldest sons are the next most likely after fathers, but fathers are by far the most common offenders.

          • tricledrown

            In family murders but when it comes to larger mass murders.
            Then another factor those left living have a 90% chance of being the murderer!

            • Clemgeopin

              “Then another factor those left living have a 90% chance of being the murderer!”

              The reasons to claim David Bain ‘DID it’ are getting stupider and stupider.

              • tricledrown

                I have studied police crime statistics and psychological profiling.
                Stats from around the world show that those left living in family murder have a 90% pobability of being the murderer.

    • Richard Christie 8.5

      I for the life of me cannot see anyone other than David having killed his family.

      … I know that there are lots of arguments on both sides – and, at the end of the day none of us will ever know for sure what happened that terrible day.

      non sequitur

      • tricledrown 8.5.1

        Richard escaping from the argument i help write a book on the Case we had all the coury notes from the first trial.
        Its obvious that hardly anyone on the post has read beyond a few headlines.
        Read the ODT daily court repory Mc Neishes book which was thoroughly researched so thorough Karam couldn’t sue him.
        Before you make any more pathetic sumations

        • Tracey

          I agree that only people who were

          a. in the house before or immediately after the murders (Bain family) and;
          b. people who attended every day of trial and so heard and saw evidence as well as the tone of voice and demeanours can truly assess the merits or otherwise of the verdicts.

          I do not count myself as being in a or b.

    • Jeeves 8.6

      “Honestly – Like a lot of people I have followed this, not overly closely, for a long time. I for the life of me cannot see anyone other than David having killed his family.”

      For gawd’s sake man! Speak clearly….

      ” Like most people I haven’t followed it closely and therefore cannot see..”

      “I know that there are lots of arguments on both sides – and, at the end of the day none of us will ever know for sure what happened that terrible day.”

      No there aren’t- there is the Crown prosecution based on a very very shoddy police hypothesis, and then there is the defence.

      “What interest me is that (from reading the blogs) is that a lot of the left seem to think he is innocent, and a lot of the right seem to think he is not.”

      That’s because a lot on the right, would rather not follow overly closely anything that needs a bit of impartiality- they like to take sides, you see. And they tend to take sides with people who tend to take sides.

  9. Essentially Bain is asking the Crown for compensation because the justice system improperly took away his liberty for an extended period of time.

    Sure. Thing is, the law doesn’t provide for compensation on that basis. A person isn’t entitled to compensation for time spent in prison just because a retrial finds them not guilty – for compensation, they have to demonstrate their innocence on the balance of probabilities, which is a much higher hurdle to get over than being found not guilty beyond reasonable doubt. If a wrongfully-convicted person can’t clear that hurdle, their case gets filed under “Them’s the breaks, kid.” We might have opinions on the fairness of that requirement for compensation, but it nevertheless is the current requirement.

    Collins then urgently sought a critique of the report by former New Zealand Judge Robert Fisher without telling Bain and then used this report to publicly attack Binnie’s credibility.

    Collins should have told the Bain camp, sure. However, Binnie’s report was a failure even at a cursory initial reading, so it’s not surprising Collins urgently sought its review, or that Fisher (and a bunch of other respected lawyers) agreed with her that it had serious problems. Alone, the fact that he’d misplaced the burden of proof would have been enough for Collins to bin his report, regardless of what else was in it. Accepting it and paying compensation would have compounded the waste of taxpayers’ money involved in commissioning this useless report.

    By the end of the process they would have blown well over $1 million in report fees and this does not include the Police’s or the Crown’s legal fees or the costs of defending the judicial review.

    Again, sure. However, compensation could go as high as $10 million, the claimant hasn’t demonstrated his innocence on the balance of probabilities, and won’t be able to given the available evidence. The government’s right to seek not to pay it – it would have been better if they’d just rejected the claim without seeking any reports, but governments often do make expensive bad decisions.

    • mickysavage 9.1

      I have been careful with the way I have expressed things and I have not made any comment about the merits of Bain’s claim. TBH I have not delved into that side of things. I think the process adopted however is totally flawed.

    • Richard Christie 9.2

      or that Fisher (and a bunch of other respected lawyers)

      I don’t respect Fisher.

      He is a go-to establishment toadie. He already proved his reliability as such by recommending that Rex Haig be denied compensation.

      Furthermore, as he was once caught accessing pornography on a Dept of Courts computer whilst at work I don’t understand why anybody mentions his name without the automatic description “disgraced” applied before the words “former High Court Judge”.

      • Tracey 9.2.1


          • les

            so what…you ever seen porn?

            • Richard Christie

              so what?

              are you for real?

              Bearing in mind his occupation and position, do you think Robert Fisher exhibits good judgment watching pornographic movies on his employers equipment, during work hours at his employer’s premises?

              I assume the taxpayer also paid for the laundering of his robes.

              • les

                Is your position that watching porn clouded his legal judgement?

                • Richard Christie

                  The Stupid runs deep in you.

                  • les


                  • the pigman

                    It must run deeply in me too, because I do not see how you could possibly believe that watching pornography invalidates Fisher’s career as one of the top legal academics in New Zealand and author of some of its most authoritative textbooks.

                    • Richard Christie

                      I agree, it must run deep in you too.

                      Since Fisher stood down from the Bench soon after the incident it seems that he too understood the ramifications of his behaviour, even if you and Les fail to do so.

                    • the pigman

                      What a small, tunnel-visioned comment. Quite ironic given all the discussion about people twisting facts to fit their own conclusions.

                      Ever thought that Fisher might have retired because he can make more money in private practice for much less time spent? (Oh but that’s just extra time for him to watch porn at home too, right?) Think Fisher is disgraced? That would explain why he still writes/edits the leading textbook on relationship property law in NZ right?

                      To misquote Pam Corkery, you work in [something other than the legal profession] you puffed-up little shit!

                    • Tracey

                      using a work computer funded by the taxpayer, while being paid by taxpayers to consider issues of justice is an error of judgment. MANY employers are being issued written warnings or dismissed for using facebook or just visiting any site during their work time and accordingly many work computers are monitored.

                      Do i expect a higher standard of behaviour of High Court Judges? Yeah, actually I do, that you don’t means we disagree but it may mean even more than that.

                      I don’t consider it invalidates his work as a jurist but it shows clouded judgment, which is possible after a long time siting on the bench having paraded before you people of blue and white collar with appalling ethics… and makes his appointment following to decide whether a fellow jurist was up tot he mark a little baffling.

                    • Richard Christie

                      Think Fisher is disgraced?

                      Of course he was. He was hopelessly compromised in the role. It was an appalling act of poor judgement from someone whose profession is to “judge”. The behaviour, if acceptable, brings the Bench into disrepute.

                      You might be happy to have those sitting on the bench watch porno in their chambers when you expect them to have their mind on the job that they are handsomely paid to perform, but very many are not.

                      Fisher is an establishment toady, that Collins went straight to him for an opinion reads volumes as to how predictable any forthcoming opinion from him would read: tailored to the cut of Collins cloth. Read the post for evidence that the outcome of the process involving Fisher’s review was predetermined before the process even started.

                  • Tracey

                    If Fisher had prouduced the report which had said bain should get compensation, I wonder what Les’s responses here would have been to Fisher’s watching of sex videos while on the clock for the taxpayer.

  10. Blue 10

    The handling of this matter wasn’t great, but to be fair, Binnie’s report was a lemon and it placed the Government in a very difficult position.

    They commissioned him to do the report, he botched it and they were stuck with something that could have been written by Joe Karam himself strongly advocating for Bain receiving compensation. It was horribly embarrassing and there was no real way out.

    • lprent 10.1

      I think that the report was only a “lemon” if you were looking for a particular result as it appears that Collins was from her subsequent actions.

      She commissioned a hatchet job on it, which the government paid for, and which was done without any real awareness of due process of natural justice.

      I can’t believe that you are trying to defend that abortion of process.

      BTW: I am of the view the people who use the phrase “but to be fair” are invariably are about to start doing anything but. What they are about to do is to spin a line when what they are about to say is probably indefensible. The purpose of the phrase appears to be to try to promote the person doing it as being a person on balance as they make a highly partisan statement.

      I have seen people from all parts of the political spectrum do it, and across a range of businesses. To me it is code for “I’m about to lie”.

      • Blue 10.1.1

        I think that the report was only a “lemon” if you were looking for a particular result as it appears that Collins was from her subsequent actions.

        I disagree. Binnie’s report was flawed and you don’t have to be a passionate supporter of Bain’s guilt to see that. In fact, I think you would have to be a passionate supporter of Bain’s innocence to argue that the report was sound.

        Collins didn’t follow the proper process and that’s not in any way acceptable. It is essential that a decision like this be made as a result of a robust process. I just have some sympathy because she got handed a poisoned chalice and dealing with it was always going to be messy.

        Ultimately, I think the right decision has been reached to disregard all previous advice and start again.

        • Richard Christie

          Binnie’s report was flawed and you don’t have to be a passionate supporter of Bain’s guilt to see that. In fact, I think you would have to be a passionate supporter of Bain’s innocence to argue that the report was sound.

          Another claim that Binnie’s report is flawed without any supporting citation.

          Binnie is one of the most respected jurists in the Commonwealth. To argue that any layperson can easily gainsay his opinion is risible.

        • Tracey

          the minister of justice, lawyer and former deputy of the law society didnt know the process so very publicly vilified the man SHE chose

    • Naturesong 10.2

      Herald – Friday Feb 20, 2015: Law expert slams Government inquiry

      University of Canterbury’s dean of Law Dr Chris Gallavin said the new inquiry made it look as if ministers were “shopping around” for a decision they wanted.

      … Speaking on NewstalkZB this morning, Dr Gallavin said: “It just looks like they’re shopping around for a decision that they actually want.

      …Dr Gallavin acknowledged that the idea a new report was needed in order to safeguard the integrity of the case fell back on the previous Justice Minister.

      “They talk about integrity…well, the only reason the integrity has been impeached, I would say, is because of the actions of Minister Collins. In the sense, they create the rain and then complain it’s raining.”

      …Dr Gallavin said the situation had turned into “a fiasco” and acknowledged that Justice Binnie’s good name was also being dragged through the mud.

      “I just don’t like the continued disgraceful conduct of casting a shadow over the report of Binnie. It has been criticised and he hasn’t been given an opportunity to reply to those criticisms and it wasn’t given to the Bain camp in the first instance to be able to comment on as well.

      “I don’t think the quality of the report is that bad. He’s done exactly what he was meant to have done. He’s an international jurist of international standing, retired Supreme Court Justice of Canada and this just carries on and it’s quite shameful.”

      I’m with the lawyers on this one. The Govt, and specifically Collins behaviour has been disgraceful. She tried to trash Binnie, but the result was making New Zealand look like a banana republic.

      • Murray Rawshark 10.2.1

        It’s ridiculous that Whalespew’s BFF, Gusher Collins, should be able to trash anyone’s reputation. It really is banana republic stuff. The Key regime has turned us into a banana republic where the institutions and safeguards of our “democracy” count for nothing.

  11. John 11

    How can anyone now actually go over the case again in a “robust” way as the police destroyed evidence years ago before the appeal, knowing there was one pending. The Bain matter is fast approaching the other botched and fabricated investigation of Arthur Allan Thomas in which it was proved beyond any doubt that the police planted evidence and were caught out.

    Maybe the fastest way Bain can get compensation is to take civil action against the police for the gross incompetence etc.

  12. Treetop 12

    Are there more than three options.

    The Privy Council making a ruling on whether or not Binnie followed the terms of reference?

    Bain suing the government because of ministerial interference?
    (crazy because cabinet make the final decision)

    Forget appointing anyone in NZ.

    Does anyone know if the terms of reference were different in the Binnie and Fisher reports and if a third report has a change in the terms of reference?

    Bain was jailed during his most productive years. By the time his case is as resolved as it ever could be, half of his life would have been spent seeking justice.

    Regardless of what Collins has to say, her actions have resulted in Bain not being given a decision on being paid compensation or not being paid compensation. Adams has not mucked about and she comes across as being genuine and sincere when it comes to final decisions being made.

    I would be interested to know what the terms of reference for compensation was for other high profile cases which were awarded compensation?

    • Treetop 12.1

      Collin’s is blaming Bain for some of the delay, saying that had he not taken a judicial review, a delay of two years would have been avoided.

  13. Sable 13

    What surprises me is anyone expected this process to be anything other than a cock-up.

  14. Ennui 14

    I have no opinion on whether Bain did it or not. To me that’s not the issue.

    What we have is Cabinet telling an acquitted person to prove their innocence. They are in effect saying that they are superior to the highest courts. Be very fearful. There may be legal intricacies but don’t doubt the attitude. Pure authoritarianism.

    Worse still the Cabinet are in effect denying their responsibility for a system that saw a not guilty man lose 13 years behind bars. The legal system is part of our state; it failed in the case of Bain. Yet those with overall responsibility deny that the system failed and deny compensation for denial of liberty.

    Under Cabinet rules anybody could be ill advised to rely on fair application of the laws of the land when dealing with the State. Big Sister Amy.

  15. Brendon Harre 15

    My feeling is that all is not well in the State of New Zealand. That our civil society, our institutions are sick.

    I see this as part of a wider problem that New Zealand has lost touch with its egalitarian reforms.

    We have a particular polite/genteel kiwi version of corruption, that protects itself while leeching off the rest of us.

    That somebody like Judith Collins can become our Justice Minister and behaved so appallingly just exposes our sickness to the rest of world. http://thestandard.org.nz/bains-compensation-claim/ For god’s sake after how we treated Justice Binnie we will never get a high standard independent judge to come to ‘Banana Republic NZ’ again.

    The David Bain enquiry is not a one off. Peter Ellis is an appalling injustice that implicates all the major institutions of Christchurch’s/New Zealand’s civil society – police, justice system, the feminine movement, Helen Clark’s government including Phil Goff and so on. Don Brash as recently as last December was calling for an enquiry http://www.stuff.co.nz/national/crime/64348591/Peter-Ellis-inquiry-bid-led-by-Don-Brash

    The problems lie with both sides of the House. We need a circuit breaker. Something that will start us back on a path towards our egalitarian roots. I believe for the wider sickness of the State of New Zealand we need something like this http://thestandard.org.nz/we-may-as-well-kiss-democracy-goodbye/#comment-891415

    I think the housing crisis and the associated crony capitalism/captured political process is part of this sickness.

    Some people are saying that John Key will lead a multi decade administration, if that is the case then something will have changed in New Zealand society because no conservative government whose only purpose is to protect the status quo has survived longer than 3 terms. New Zealand has had longer governments but they were the egalitarian reforming administrations of the 1890/1900s Liberal government and the 1930/40s First Labour government.

    I have grave fears that NZ is heading in the wrong direction.

    • thatguynz 15.1


    • les 15.2

      ‘For god’s sake after how we treated Justice Binnie we will never get a high standard independent judge to come to ‘Banana Republic NZ’ again.’…surely you jest at the going rate of 4-500,000K,that will never be an issue!

      • Brendon Harre 15.2.1

        Les are you saying that Judges who have crafted a lifetime’s career out of impartially judging cases only care about money?

        That if they are paid enough they will come, presumably so they follow the hints and give the answers the State treasurer pays them for. Is that what you are saying?

        Because we surely will not get judges who question the evidence and give contrary judgements. Not after the way we treated Justice Binnie.

        Les it is attitudes like yours that proves not all is well in the State of New Zealand.

        • les

          Be that as it may…thats life in our world.You only need to look at the ‘experts’ lined up with completely opposing views at some trials.Perception and reality.Do you really think there would be a problem getting judges to take these roles.Judges are flawed human beings just like us all.There are many examples of just how ‘noble’ some are.

          • Brendon Harre

            Les you are using the Dirty Tricks defence. It will probably appeal to the the small minded person out there who likes to think badly of everyone.

            For them it is obvious that.

            All judges are biased. All politicians act like Judith Collins and John Key. In fact they probably respect John even more for not getting caught. The Standard is as bad as WhaleOil. And so on, that is the Right’s cynical take on the world.

            We cannot think better of our fellow man, we can’t hope for better. This is as good as it gets. We may as well stick with the status quo.

            • stever


              And it all goes with the latest research (sorry, science stuff!) into the conservative psychology and, amazingly, physiology. Basically, conservatives have a negative bias towards the world…”it’s out to get you”, it’s hostile.

              Along with this is:

              “the idea that the economy exists for a specific purpose: to reward the good and punish the bad. It’s a moral arbiter; simply having great riches indicates you deserve them because the economy loves you the best. Thus, it follows that poor people deserve to be poor and we can know this because they’re poor.”

              Good article…read it and the references.


            • les

              you can hope all you like,you can paint a picture of noble ethics and morality too,as they say the road to Hell is paved with good intentions.Keep in mind though,that 5 people were murdered and the perp sticks out like a sore thumb.If you get the chance have a look at the DB team,especially Karams reaction when the verdict was announced.They thought they were goneburgers,moved for mistrial 3 times during the course of the proceedings.Bain got lucky,should move on.

            • Tracey

              ^^^^^ THIS except for blaming the

              Feminine movement”. I presume you meant feminists? Your broad brush dealing with them in a very glib and offhand part of your post is a little beneath you judging by other posts you make.

              What about the “homosexual = paedophile” movement of which you won’t find many/any feminists belonging

              • Brendon Harre

                Tracey I already apologised for a poor explanation. I was trying to explain about the hysteria and climate of fear regarding sexual abuse in the early 90s that centred around, abuse claims, counselling/ psychology, interview techniques and ACC. This infected all sorts of liberal and conservative institutions and the particular Peter Ellis injustice has never been remedied. http://en.wikipedia.org/wiki/Peter_Ellis_(childcare_worker)

                Going off key is a problem with singing a song of reform, it is so new that it is easy to hit a bung note and then the whole song sounds wrong…. Whereas those old conservative songs everyone knows…..

      • lprent 15.2.2

        Yes you can get the best misjustice that money can buy. But would it be credible?

      • Tracey 15.2.3

        so jurists will do anything for the money les? That must include Fisher at the behest of Collins?

    • DoublePlusGood 15.3

      You were on track there until you decided to blame ‘the feminine movement’ as being responsible for the Peter Ellis debacle.

      • McFlock 15.3.1

        Sounds like an issue with the sewers of unisex toilets…

      • NickS 15.3.2

        Oh lordy…

        Yeah, from memory it was more due the recovered repressed memories of sexual abuse via hypnosis stuff that blew up during the late 80’s. But was ultimately a load of shite as the methods used to recover these memories were found to be highly suggestive and lead to confabulations more often than not. Not to say hypnosis can’t be a useful tool, but it has severe limitations that if ignored risk causing serious ethical problems…

        Mixed into this also was the emerging sexual abuse coverups done by the Catholic Church and other Christian organisations/churches and sexual abuse in public schools, in which males were the primary abusers. Driving suspicion of males in roles that brought them into contact with children, and leading many parents in a state of stress were they were oft feed bullshit on signs of abuse, leading to some cases of false positives. And ultimately a significant loss of male preschool and primary teachers from the stress.

        • Brendon Harre

          Yes I could have worded my ‘feminine movement’ bit better, but it was already too long….. Sometimes what I try to say doesn’t come out quite right.

          Lynnely Hood discussed in The City Possessed that some dubious research at the time showed some extraordinary amount of men were abusers of women got huge amount of publicity and had created a climate of fear. Some high profile women contributed to that climate of fear.

          That is all I meant. In general I am in favour of gender equality.

    • Murray Rawshark 15.5

      We are going backwards under a reactionary bunch of fools.
      Your comment could have done without the remark about the “feminine movement”, though. I’m not even sure what you mean by that, and I probably don’t want to know.

  16. Treetop 16

    I do not think that Binnie thought his report would be peer reviewed, had he known this.

    Would he have done anything different e.g. set some conditions?

  17. The problem that Bain had and will always have is that he and his family lived in Dunedin for a very long time and many many people knew them and knew him. And we are then able to make up our own minds. Yes, the Police screwed up but the paramedics did not. Their evidence I found to be compelling.

  18. jay 18

    For the purposes of enabling people to make their own minds up, I urge everybody to take a look at the link below which sums up all of the evidence far better than I ever could.

    Once you’ve had a good read then you may understand why the government don’t want to pay David Bain compensation if they can help it.


    Be interesting to hear peoples thoughts once they’ve read the actually evidence, as opposed to being fed spin and half-truths.

    • One Anonymous Bloke 18.1

      It doesn’t change a thing in my book: either the Crown convicted an innocent man, and should pay, or they fucked up an open and shut case, and should pay.

  19. jay 19

    For those who think that Bain should be compensated owing to the fact he was found Not Guilty (regardless of whether or not he is able to prove his innocence), consider the implications of this on our justice system if i was how our justice system were to work.

    Basically the rule of law would collapse. Those who were acquitted would be successfully claiming money for time spent remanded in custody, for time spent on bail, for time spent in Court etc… Consequently government would prevent the Police and other prosecuting agencies from charging anyone with anything on the off chance the defendant might be acquitted. It would bankrupt the country.

    In my experience of Court (which is considerable), very few people who truly are innocent are ever charged with anything. Most of us can perhaps relate to this, since most of us have never been charged with a crime we didn’t commit, we can maybe conclude that the Police aren’t running around framing people willy-nilly.

    Domestic violence offenders for example are routinely acquitted because their victims either change their story, or refuse to come to Court to give evidence. Should the defendant be paid money for this? What about drink drivers acquitted because they were given 9 minutes and 40 seconds to think about whether they wanted to provide a blood sample, and not ten. The list goes on.

    The reason you must prove your innocence on the balance of probabilities to be paid compensation rather than just be acquitted, is because our system recognises that guilty people are often acquitted. The system is weighted heavily on the side of the defendant to help ensure that as few innocent people are convicted as possible, while at the same time accepting that this will mean that a lot of guilty people will walk.

    Remember that Beyond reasonable doubt is a very high standard of proof. The Judge or jury must be very sure of guilt before they find someone guilty. The jury in the Bain trial may well have found that he “probably” murdered his family. That however would not be sufficient to convict him. Not Guilty certainly doesn’t mean “Innocent”!

    • lprent 19.1

      Remember that Beyond reasonable doubt is a very high standard of proof. The Judge or jury must be very sure of guilt before they find someone guilty. The jury in the Bain trial may well have found that he “probably” murdered his family. That however would not be sufficient to convict him. Not Guilty certainly doesn’t mean “Innocent”!

      In this case that is exactly the point. Based on the published evidence in the first trial it is hard to see (actually nigh well impossible) how the jury could have been convicted him beyond reasonable doubt. Yet he was and he rotted in prison for what looks like a miscarriage of justice. Certainly a second jury did not find him guilty on essentially the same evidence. Nor did a overseas judge (the archetypal outside observer) called in to look at the compensation claim.

      So Collins called in a critic, Fisher, who did their entire criticism based on the procedural issues. Perhaps it’d have been better to have had that emphasis on procedure when the crown was prosecuting the first time.

      So now we go through the process for a third time. It is going to have to be a hell of a decision about who conducts it because after watching Collins scew that criticism with extremely dubious processes, I’m in the mood to dig into the next person’s CV with a razor and an attitude.

      • One Anonymous Bloke 19.1.1

        ^ this

      • Tom Jackson 19.1.2

        I can’t think of anything to add to lprent’s summary, which seems to me the only attitude a reasonable person can take to this unfortunate case.

      • Psycho Milt 19.1.3

        Based on the published evidence in the first trial it is hard to see (actually nigh well impossible) how the jury could have been convicted him beyond reasonable doubt.

        I don’t find it difficult to see it. There was a big pile of circumstantial evidence pointing to him having done it, and none pointing to the other potential candidate. His defence had alternative explanations for all that evidence, but if all these unlucky circumstances did befall David Bain, he is one seriously unlucky motherfucker. If we accept it’s possible to convict on circumstantial evidence only (and our legal system does), it was possible to convict David Bain.

      • les 19.1.4

        and of course… Based on the published evidence in the second trial it is hard to see (actually nigh well impossible) how the jury could have acquitted him beyond reasonable doubt. Yet he was and now he and his devoted business partner want $$$$$$.

      • tricledrown 19.1.5

        The first trial had DNA evidence which meant only David Bain could have murdered his family.
        As I pointed out yesterday that evidence could not present it at the second trial because police threw all the evidence bar the gun out in 1997 after the privy council declined his final appeal.
        National party cost cutting.
        The blood and brain paticles in the same droplet spray pattern as was found on the curtains and carpet were on the top surface of David Bains socks that he was wearing when the ambulance carried David to the hospital so the socks would not be contaminated.
        That pattern of Robin’s brains splatter could only have got on Davids socks if he was in the room behind the curtain with his feet sticking out from under thethe curtains.
        When the gun was fired.
        The fresh blood,skin,hair and wool fibre found under stephens fingernails was David Bains no one else’s.
        Found on the floor in stephens room was a bit of fresh skin aprox the size of a 10 cent piece.
        DNA in it was Davids when Police examined Davids body they found a piece of his skin missing from his inside thigh matching the bit found in stephens room.
        Lprent Facts.

        • Clemgeopin

          Then HOW COME the jury and the judge found him NOT GUILTY? You are smarter than all of them that had all the evidence (and probably more) that you point to?

  20. Jay 20

    Les and psycho milt are spot on. There is a pile of compelling evidence that makes it clear David was the killer. I know we all like to root for the little guy but in this instance it’s misplaced. David Bain is nzs oj Simpson.

    I challenge anyone capable of weighing up evidence to take a look at the evidence set out on the link I provided, and come back to me still thinking Robin did it.

    Even Brian Edwards thinks David is guilty!

    • Tom Jackson 20.1

      Let’s be honest. Most people thought he was guilty because of that horrible jumper.

      • tricledrown 20.1.1

        You ate trying to bag Collins not interested in the evidence.
        The DNA found under stephens fingernails wad fresh skin blood hair fibres belonging to David.
        DNA doesn’t lie.
        DNA on top of the Socks that David was wearing when taken from the house proves David is the murderer no one else.

  21. Jay 21

    There’s other interesting evidence that was never heard. Two reliable witnesses came forward after the murders. One said that David had confided to him a plan to rape a girl, using his paper round as an alibi

    Another said that Arawa had confided to her that the family was frightened of David because he had been pointing his rifle at them.

    Jury never got to hear about either. First was deemed too prejudicial, second was hearsay and so deemed too unreliable, and since Arawa was dead she of course couldn’t give the evidence herself.

    Of course David Bains legal team fought tooth and nail to have it all excluded. . .

    These two bits of information will be weighed up in his claim for damages. Even without all the other evidence, do we still think he’s “probably innocent”?

    • Richard Christie 21.1

      Oh, a dollar for every fwit who sings the “you don’t know about what the police know but aren’t allowed to present”, or its variant: claiming the existence of stuff that’s just altogether too damning to be allowed into the court room.

      • les 21.1.1

        Binnie put the ‘alibi’ witness allegation to Bain.His response as I recall was that particular person had an ax to grind with him.Supposedly that individual had been seen by DB having sexual relations with a goat…believe it or not.Bringing sex into the mix is a common defence tactic that became very widespread.Not forgetting the innuendo the DB defence tried to ferment re incest by Robin.No holds barred by these guys.

        • Clemgeopin

          “Supposedly that individual had been seen by DB having sexual relations with a goat”

          You don’t know that did or did not happen, but you are thoroughly biased (because you have judged David guilty anyway even though he has been exonerated of the murders.)

          The truth about the goat is only known to that individual, David and the goat, not you.

          • les

            I didn’t claim to know the veracity of the tale,I ‘m not even sure if it was a nanny goat or heaven forbid a Billy!

            • Clemgeopin

              Read your post again. You implied that David was lying.

              • les

                We know Bain is a liar.One newspaper splashed it large on the front page.

                • Clemgeopin

                  “We know Bain is a liar”

                  Do we? Who is ‘we’?

                  A newspaper slashing it is neither here nor there.

                  I am struck by your single minded crusading zeal against David Bain. Do you have some axe to grind or are you connected in some way ?

                  I do not know for sure and no one really knows (except the murderer who may be David or someone else), who did commit the heinous murders. I still have an open mind. The courts had all the evidence, including circumstantial evidence you describe.

                  I also do not think that Joe Karam would be so dishonest/unethical/evil or callous to save a killer if he was the real killer.

                  • les

                    not connected.Karam views it as a money maker imo.Ex footy player on $95 per hr as Bains advocate,racked up 100,s of thousands.In one interview when asked how he made a living,JK replied…’I get by’.BTW how would Karam know if he was the real killer?

                    • Clemgeopin

                      Do you really think that Joe Karam when he initially realised or thought that David was innocent, took the onerous task of helping him in order to make money?

                      I don’t think so. I feel he was more heroic than reckless.

                      Also, you did not address the other points I made in my last post.

        • Tom Jackson

          It’s the South Island. I believe the goat story.

      • the pigman 21.1.2

        RC, I think both those parts of the Crown’s evidence that were ruled inadmissable were widely reported as soon as the not guilty verdicts were returned.

        Unfortunately, most above seem to be either misunderstanding or disregarding the distinction between not guilty beyond reasonable doubt vs. innocent on the balance of probabilities.

        There is a huuuuuuuuuge chasm between proving those two things. And I agree that the excluded evidence presents a pretty big mountain for David to climb in proving he’s innocent on the balance of probabilities.

  22. the pigman 22

    Micky I think your argument that Cabinet/the executive should disqualify themselves from making a decision on the compensation because they have an interest in it is flawed. Cabinet may control the purse strings to some extent, but it isn’t their cash… I think their actual interest in how that money is spent is pretty remote.

    Taking the logic one step further, the judiciary should also disqualify itself from making any decisions regarding compensation by the state, since they themselves are funded by the state. Any money paid in compensation is just less money to go around and pay judges’ wages, after all.

    See the problem?

  23. Clemgeopin 23

    “heres some more background on the 2nd trial…some jurors behaviour is concerning… http://www.stuff.co.nz/the-press/opi…-jurys-verdict

    Says,… PG not found!

  24. tricledrown 24

    Yes clem Bains groupies should have been banned from court.
    Also the juror that went to Bains aqquital party should have been tried for contempt of court and a retrial orderd immediatly.

  25. Jay 25

    I’m pretty sure that’s why the government would rather spend millions on fighting it rather than capitulate. Cause it’d be just plain wrong.

    Most people who either don’t care or who think he’s innocent, in my opinion haven’t actually looked at the evidence. His acquittal was an outrage.

    • Clemgeopin 25.1

      It does not matter what you or me or anyone else THINKS.
      The law, the courts, the jury and the judges found him NOT GUILTY. Period.
      What right do we or the cabinet have, in fairness to justice to second guess and make our own decision of guilt or innocence or compensation or not based on OUR own thinking, our own whims, fancies, reasoning or bias?

  26. tricledrown 26

    Luckily 57% of New Zealanders don’t think Bain should recieve compensation only 27% Think he should.
    Even David Bains own family say he is a coniving murderer.
    Who is trying to malign his murdered father to get away with murder.
    David was obsessed by the rock band queen momma i just killed a man and many other queen songs refer to murder.
    As I pointed out yesterday Joe Karam was interviewed by Bill Ralston on a sunday night arts program about what it takes to be a successful Author,Karams reply verbatim was to take an issue can close to NewZealanders hearts and drive it for everything you can get!

    • Tom Jackson 26.1

      If enough people believe it, it just must be correct.

      • tricledrown 26.1.1

        Tom so what do you think of the DNA found under stephens fingernailsand and on top of the sock he was taken away in.
        His obsession with queen.
        Another one bites the dust.
        I want it all.

  27. tricledrown 27

    Tom you haven’t read the transcript of the first trial second trial or judge binnies pathetic leading questions to david.
    Some of which binnie answered himself.
    Read all the trials and come back to me and say your not just out to bag Collins i’ve seen your comments on KB.
    NO evidence in any comments you have made here.

  28. KJS0ne 28

    Bain probably murdered his family. We cannot prove it beyond reasonable doubt, his first trial was a mockery, and the police bungled the investigation. The acquittal was probably the best move.

    But In order to receive compensation, the idea is that one must really be able to prove ones innocence, rather than the prosecution not being able to prove your guilt. In practice, one QC, usually from a distant country, weighs up the probabilities of innocence, and decides whether it is probable that you are innocent.

    I couldn’t believe the first QC found in favor of Bain. The evidence against him is overwhelming. It leads me to think the process is flawed. I think we should probably have another jury trial, in say the UK where we are more likely to find an impartial jury (the retrial jury was heavily biased in favor of Bain, despite the evidence). There, Bain would have to prove beyond reasonable doubt, his innocence.

    I do not think that is possible.

    If you still think Bain didn’t kill his family, and believe it was either Robin, or the Police, please read the following article by a press reporter who sat through the entire retrial. It is by far the most convincing account of what played out in that court room 6 years ago:


    Hopefully, you will arrive at the same conclusion I did. But even if you don’t, and you still tenaciously cling to the view that he didn’t murder his family, you must at least concede that reasonable doubt runs both ways, and unless we can be sure of someone’s innocence, we probably shouldn’t be handing them out cash.

  29. Jay 29

    Thanks kjsone that’s very helpful.

    • KJS0ne 29.1

      I think this National government is one of the worst we have seen for this country, but this is one of the few things I believe they have done right. I would much rather see my tax dollars going to fighting against Bain receiving compensation than see my tax dollars go to someone who I believe we cannot prove did not murder his entire family.

      Of course, I would much rather all this money was spent on something constructive such as our own child poverty issue, or our ailing Healthcare system, but if Bain has the stones to push for compensation, so be it.

      Our legal system must be consistent, so I will say it again, reasonable doubt runs both ways.

  30. Jay 30

    I really feel for the remaining family who know David is the offender, and have had to endure David’s defence team slandering Robins name to build their defence

    For David to now be given millions would be a further indignity and slight on the memories of the victims. Sadly though David has now become the victim in the minds of many, which I guess proves that people will believe anything as long as you repeat it often enough.

  31. tricledrown 31

    Well said jay and KJSone.
    New technology in forensic developed since the Bain murders should be brought in and used in Amy Adams review.
    Such as splatter technology (developed at Otago university used world wide)which proves exactly where Robins murderer was standing when he was shot.
    Huge advances in DNA testing where mitcondrial DNA can be gathetered from minute samples.
    Members of the Bain family could have areas tested again.

  32. les 32

    I would love for DB to agree to a polygraph test.If he passed ,no problem with compensation.

    • Clemgeopin 32.1

      Is that (a) legal (b) foolproof (c) fair?

      If yes, why doesn’t the legal process allow it? Would you also then be prepared to put everyone involved,– the judges, the jury, the police, the witnesses, the experts and the lawyers from both sides to also take it–to make it fair?

      As well as the tax lawyer, Judith Collins and the cabinet ministers that sit on the compensation judgement?

      Why not have this polygraph test for every kind of civil and criminal case everywhere, every time? Why single out David Bain alone for it?

  33. les 33

    just wishful thinking…hey, if he volunteered it would tidy things up for everyone.No chance of it ever happening of course.

    • Clemgeopin 33.1

      Hey, if all the people I mentioned volunteered, it would tidy things up for everyone. No chance of it ever happening of course.

      Ha, one law/wishful demand for David, another law/free pass for everyone else?

    • Jeeves 33.2

      Would you put your house on it ??
      You seem to be really really sure about yourself on this- why not offer your house to David if he can pass a polygraph.

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