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The responses to the Bain report leak

Written By: - Date published: 8:26 am, February 20th, 2016 - 47 comments
Categories: national, same old national, the praiseworthy and the pitiful - Tags: , , , , ,

The views of various commentators are starting to percolate through and range from the obsequious to the surprisingly well informed.

Obsequious is the only word available to describe this pitiful attempt by Larry Williams who is starting to write in the Herald.  He shows that he has taken the leaker’s spin hook line and sinker and says this:

The judge looking at David Bain’s compensation claim has found it doesn’t meet the legal threshold.

Judge Callinan reasoned Bain is not innocent beyond reasonable doubt. In order to meet the legal threshold for compensation, the judge had to find “exceptional circumstances” and he didn’t.

The process hasn’t been bungled at all. Judge Binnie’s review of the case was flawed, which meant that another judge had to look at it.

The basic problem with his comment is that Minister Amy Adams said the threshold was proof of innocence on the balance of probabilities.  A clearer example of shifting goalposts is hard to imagine.

Why should Bain still be eligible for compensation?  Because if he shows he is innocent on the balance of probabilities it is clear that the original conviction should not have occurred.  There is a wide gap between establishing innocence on the balance of probabilities and proof beyond reasonable doubt.  William’s suggested test, proof of innocence beyond reasonable doubt, is so difficult to meet it would only be in the most exceptional, and probably science assisted, cases that this would occur.

Williams also says that claims the report was leaked by the Government are “preposterous”.  Well someone leaked it.  The Greens are right.  There should be an inquiry into who did.

Duncan Garner’s analysis is more balanced.  He thinks that it is more likely than not that Bain committed the murders.  He then says this:

Which brings me to the compensation claim. I believe this Government is biased against David Bain. I believe the decisionmakers believe David Bain killed his family. Like every other New Zealander, these ministers have read and followed the trials for decades. It’s been impossible to ignore.

They have been unable to divorce themselves from their personal views. It’s completely unprofessional. For that reason, Bain can not get a fair and independent compensation hearing under this Government.

It’s impossible and we’ve seen that. Bain’s claim needs to be heard by a truly independent panel away from the clutches of Government. And this time the findings can’t be ignored because they don’t gel with the ministers think.

But that’s not how it works here. The decision is highly political, not legal. This Cabinet doesn’t want to pay him a cent because they don’t believe he’s innocent.

Ministers have spent millions of dollars shopping around for a report that fits their view. The indisputable fact is that Bain was found not guilty in the retrial.

You might not like that decision, but the justice system stops being a system when politicians can pick and choose the verdicts they approve of. You can’t re-try by shopping around for a judge to write the report you want.

His comments about how the process has been botched up are spot on.

For a more nuanced post Andrew Geddis has written this.  He wonders at the selectiveness of the leak.  A finding that innocence has been proved beyond reasonable doubt may mean that the new report writer agrees with Ian Binnie that Bain is innocent on the balance of probabilities.  Geddis also discusses the test to be applied.  He correctly identifies that proof of innocence on the balance of probabilities is the apparent threshold with a further requirement that extraordinary circumstances also be shown.

Proving innocence beyond reasonable doubt is one possible extraordinary circumstance.  Being the subject of a botched police inquiry could be another although this Government will never want to acknowledge that this occurred.

And if  you want a sharp spot on comment I offer you this from ACT MP David Seymour.  This is possibly the first time ever a Standard writer has agreed completely with something said by an ACT MP.  I have screen shotted it for posterity.

David Seymour on David Bain

Seymour is right. What is happening here is banana republic stuff.  We should all be very uncomfortable with what is occurring.  And the Government needs to launch an inquiry.

47 comments on “The responses to the Bain report leak ”

  1. gsays 1

    while not having a strong opinion on bain’s guilt or otherwise,
    i firmly believe it’s better to have a guilty person free than an innocent person imprisoned.
    therefore it’s better to have a guilty person compensated than an innocent person go without.

    that is if the decision makers are operating on principle rather than opinion

    • weka 1.1

      very good gsays

    • Bearded Git 1.2

      agreed gsays-well put.

    • Carl 1.3

      When all bar one member of a family is dead by the hands of one of those family members which one did it?

    • aerobubble 1.4

      Yes, the question is for me the principle was Bain provided a fair trial. Any case before the courts thirteen years late is likely to be thrown out, similarly a civil case, for want of credible evidemce, witness recollections etc.Bain can not be held accountable for the justice system failing to provide a quick fair trail. And they did finally, a judge found there was enough evidence for a jury to convict and the jury found Bain not guilty. This idea that courts are ideal, or not, is nonsense. The court had to also ask the question is there enough of a case to answer. That however does not immediately mean Bain is civil liable as it seens to be suggested.

      So its really perplexing, the only way i can figute it, is Key alledgely promised a doner not on his watch. Bain would not get compensation.

      As otherwise Key is buying into the belief that courts are perfect, and when they aren’t poltics and opinion should take their place siding with the state, police, prosecutor s, judges, etc all failing; the holes in the swiss cheese lining up and nobody is found wanting, not for the murders, or for the fiasco that sees an individual lose their liberty. Nobody looks good so why can we hold Bain to any standard, standards were broke.

      The state does not get to go over and over, fishing, it waste resources when cases and prosectors can just kick the ball downthe way coz guilty nviction is unrepealable.

  2. Richard Christie 2

    Quality journalism in NZ is dead.

    Why anybody reads or takes seriously the endless opinion pieces of journalists is beyond my understanding.

    Once, when they had the resources to undertake analysis and research the situation may have been different. Now the publications are so padded out by opinion crap that there is little of news value in what remains.

    Journalistic standards are so low opinions are now no more valid than anybody else’s, in addition, because there are obviously political agendas in play by the publishers, opinions are probably less valid than most people’s.

    I stopped reading the opinions of Sullivan, Armstrong and the throng of their associated want-to-be colleagues years back. I suggest more of us do the same.

    ( Not disagreeing with MS’s post, just tired that people take the Garners of the world etc seriously)

  3. Grey Area 3

    “And the Government needs to launch an inquiry”.

    Yes it does. But it won’t because they are the problem. This is just one more thing to add to the growing list of actions by this “government” that deserve to be investigated but won’t be.

    • Manuka AOR 3.1

      “And the Government needs to launch an inquiry”.

      No. There needs to be an entirely independent inquiry into the government handling of this legal case. As Nicky Hager showed us, there is need for the establishment of an Independent Commission against Corruption in NZ. (In this instance, to investigate the handling of this case. ) I wonder if any Party would commit to establishing such a Commission.

      • belledejourNZ 3.1.1

        yeah independent inquiry, bring it on. Cos I heard it was the other side that leaked.

    • Mosa 3.2

      I reckon John Key leaked it
      Has his M O all over it

  4. wyndham 4

    Why hasn’t Key had the guts to follow the example of National Party PM Robert Muldoon In the Thomas case and come out with a firm decision to compensate Bain and have done with it. The matter is now completely politicised, has become farcical and Justice deserves better than that.

    Whatever one’s feelings are about David Bain, the New Zealand I believe in requires that he be treated with compassion and decency. He will have suffered his personal hell over those thirteen years; before and beyond them. That Key is a political animal to his fingertips has no place in this matter; his poll driven decisions do not apply.

    • belledejourNZ 4.1

      yes Key should step up and draw a line under it. Only thing is, he knows who did it and it was not Robin. Tell Bain to go sing opera for his supper – no compo ***ever**** to the killer of 5.

      Police did not stuff up. Just because Karam said it does not make it true. I mean Karam is denying that his side leaked too, isn’t he?

      • aerobubble 4.1.1

        A citizen walks into thei home to find their entire family murdered and it looks like they’ve been framed. Police did not investigate fully in my view because eveyone could see Bain did it.

        Two recent cases. Father kills son when he cant pay him back, and brother kills his young brother. Older people have made more mistakes, Bains’ motive? Insanity?

        • aerobubble 4.1.1.1

          Bain did not get the house, or assets. Bain however did get incarcerated. An insanity verdict ould not have meant incarceration, but treatment.

    • Dorothy Bulling 4.2

      But Muldoon’s action in the Crewe case is exactly the problem here because he made that decision unilaterally in the political sense to gain some popularity, so it was a political decision.

  5. Richard Christie 5

    “Aussie judge who”d previously been investigated in connection with abuse of Court processes”

    Shouldn’t surprise, after all NZ’s go to for patsy opinion (Haig, Bain) has been ex Justice Fisher, who resigned from the Bench because he was caught looking at pornography on his work computer.

  6. The Government needs to launch an inquiry?

    I’m sure the PM could frame terms of reference which would scrupulously get to the bottom of everything. Setting the right lines for inquiries is his thing, a particular skill he has.

    In this case he’d come up with something like:

    1 Determine whether there was a leak of a confidential document.
    2 Determine whether in the event of there being a leak that the wider public opinion became roused.
    3 Determine whether the Minister of Justice Amy Adams is doing a fine job.

    Time for final report:
    During the Olympics, the day that Mahe Drysdale wins a medal, one of our Sevens teams plays its semi-final, Lydia Ko plays her final round and Valerie Adams competes.

    Media release of final report:
    The draft media release has already been prepared thus:
    “A full, deep and inquiry has found no evidence that the office of the Minister of Justice was involved in the leak of a report about Bain compensation. There was wide public interest roused by the early release of parts of the report. The Minister of Justice Amy Adams is doing a fine job. A bloody good job in fact. C’mon Mahe! C’mon Val! C’mon Lydia! Bugger SBW.”

    • Draco T Bastard 6.1

      Yeah, that was my immediate thought as well. Getting this government to inquire into itself is an act of futility as they’ll ensure that the inquiry will find them innocent of any wrong-doing never mind the fact that it’s obvious that they’ve been engaged in massive wrong-doing.

    • Tautuhi 6.2

      What another Inquiry, when has an Inquiry ever found anything here in NZ, the outcomes are often predetermined?

  7. Sacha 7

    That there was a leak at all shows the out-of-control factionalism in the Nat caucus. A competent opposition might skilfully exploit that ..

  8. b waghorn 8

    So Seymour points out that the Nats are crooks and yet he’ll continue to support them.??

  9. Andre 9

    To steal a sentiment from John Oliver, if we’re parsing the minutiae of where the threshold for compensation exactly lies, we’ve already done something very very wrong.

    To those who are dead-set against paying compensation to David Bain, I’d like you to put aside for a moment your views on his guilt and ponder for a while the ramifications of this possibility: what if David is in fact innocent?

    • McFlock 9.1

      And what if he actually did it?

      • Andre 9.1.1

        It’s abundantly clear the cops bungled their job so badly it cannot now be determined with any reliability whether Robin or David did it.

        So if David actually did it but gets a payout, he will have served most of his sentence and then been handed a winning lotto ticket by the cops that totally bungled their job.

        Which is an injustice to the victims to be sure and a (trivial) injustice to the taxpayers that funded the cops screwing up. However, that’s minor compared to the enormity of the injustice of being wrongly convicted, wrongly tossed in the slammer for years, then told “suck it up”.

        • McFlock 9.1.1.1

          So basically you’re telling everyone who lost a friend or a relative in that incident to “suck it up”.

          • Andre 9.1.1.1.1

            I’m saying to those that lost a friend or relative that the cops screwing up is definitely responsible for the horrible situation we have now. But there’s a reasonably good chance that David was not responsible, as determined by disinterested experts with access to all the evidence. And we now have no way to fairly determine the truth, since the cops screwed up.

            So to take a substantial risk of perpetrating further injustice on David, who may in fact be the biggest living victim of all, for the sake of holding someone accountable, is morally wrong. If their anger and grief needs an outlet, the appropriate target is the cops that screwed up.

            • McFlock 9.1.1.1.1.1

              So, basically, suck it.

              “Reasonably good chance” is not good enough to “compensate” someone who is equally or almost as likely to in fact be the perpetrator.

              ‘oh, we’re preeeetty sure we gave the cash and apology to the right person’ is no basis for distributing compensation. We should be damned sure that we’re not just giving an incentive for long-term detainees to keep pushing the appeals process as far as possible on the off-chance they’ll get lucky.

              • Andre

                That’s a view I find astonishingly callous towards the damage done to an individual that is wrongly convicted and imprisoned by the state. So now I’m curious, what’s your view on capital punishment?

                • McFlock

                  Against it.

                  There are many shades of “wrongly convicted and imprisoned”. There’s “completely innocent but the cops fabricated evidence”, there’s “completely guilty but on appeal a good lawyer got a key piece of evidence thrown out, or a witness couldn’t be located for the retrial”, and there’s everything in between.

                  One end of that continuum deserves millions in compensation. To give “compensation” to the other end is a slap in the face to everyone who lost a loved one.

                  You think Bain is innocent, therefore deserves compensation. Fair enough. Personally, I think that the likelihood that he’s a quintiple murderer is at least 50/50. I’m not comfortable with a payout at that rate.

                  • Andre

                    Actually, when it comes to David’s guilt or innocence, I don’t think my opinion is worth shit. I don’t think I’ve seen enough of the evidence to develop a worthwhile opinion. So I have trust the opinions of the experts that have. Ie, the Privy Council, Binnie and so on.

                    The opinion I’m willing to get behind is that the cops appeared to decide very prematurely that David dunnit, and discounted or ignored evidence that pointed to Robin. I feel reinforced in this opinion by the cops’ apparently closed-minded reaction to the possible gun loading markings on Robin’s hand that was pointed out a couple of years ago.

                    Since the dodgy police work failed to follow up and/or subsequently destroyed evidence that may have have conclusively shown Robin to be guilty and thereby maybe exonerated David, it seems to me that convicting and imprisoning someone on the basis of that kind of dodgy work is an exceptional circumstance that justifies compensation. Even though the experts with access to all the evidence only say “balance of probability” rather than “beyond reasonable doubt”.

                    • McFlock

                      The initial police impressions of David might be incorrect. But when the medic tells you that someone who is supposedly in catatonic shock is listening to your conversation, it can be difficult to overcome some preconceptions.

                      Since the dodgy police work failed to follow up and/or subsequently destroyed evidence that may have have conclusively exonerated Robin and thereby shown David to be guilty…

                      That’s the other half that you like to skip over.

                      Like I say: against whom was the injustice committed? If the police investigation were more thorough, would he never have been charged, or would he still be in prison? In the first case he deserves compensation. In the latter case he should count himself lucky with the current result.

                      You like Binnie’s evaluation, even though he excluded evidence with a strong filter. That’s nice, and if the next report says the same and Cabinet pays out on a weak “balance of probabilities”, that’s the process done. And I’ll suck it up. But I still won’t have any indication that he deserves a single red cent of it. “Balance of probabilities”? Toss a fucking coin and be honest about it.

                    • Andre

                      It looks to me like the cops thoroughly followed up any scrap of evidence incriminating David, but ignored evidence incriminating Robin. Apparently Robin’s hands were not tested for gunpowder residue. Apparently allegations that David had talked about planning rape and murder were thoroughly investigated, but incest allegations against Robin were dismissed with a “meh, unreliable witness” and no further investigation, to give just two examples. So I think the equivalence you’ve presented as a false equivalence.

                      Convicting and locking someone up is such a horrible thing to do that we rightly demand a very high standard of proof before we actually do it. If it subsequently turns out that that the actual proof was a long way short, to the point of not even meeting “balance of probabilities” so the initial conviction should never have happened, to then refuse compensation because “well, maybe you did it anyway, so count yourself lucky we let you out” makes an absolute mockery of the idea that conviction and imprisonment should only happen after proof beyond reasonable doubt.

                      Plenty of criminals “get lucky” because of poor investigations. That’s a result of the standard of proof we require and the resources we allocate to police, and as a society we seem to be ok with that. We should view the compensation of David the same way, that he may have just got lucky if he’s actually guilty. Because the awfulness of what we’ve done to him, if he’s actually innocent, vastly outweighs the cost of paying him compensation.

                    • McFlock

                      It only “vastly outweighs the cost” of paying a guilty person “compensation” if we ignore the injustices against five dead people, their relatives and their friends.

                      At least have the courtesy of ensuring that compensation is paid to the right people with odds estimates that are better than a drunk betting on the favourite in a horse race.

    • belledejourNZ 9.2

      The evidence says that is not a possibility. Simple

      As for the leak, who has been running a massive PR drive on the back of this leak?
      not the Govt, in case you hadn’t noticed.

  10. Paupial 10

    [MikeySavage: A typo in the third paragraph before the Seymour quote, you have; “Gaddis also discusses…” instead of “Geddis”. Delete this comment after fixing if you want to.]

    [Ta. Now fixed – MS]

  11. Molly 11

    How difficult would it be to release copies of sensitive material that has hidden characters, or in the case of pdfs – small punctuation changes to keep track of who has released a document?

    You would think this would be basic practice when sharing sensitive documents.

  12. Draco T Bastard 12

    The first trial found him guilty and he got sent to prison.
    Appeals found the first trial to be faulty and thus ordered a retrial.
    The retrial found him innocent.

    All this means that the 13 years he spent in prison was an injustice and that he should thus be compensated. The government refusing to compensate is continuing the injustice.

    Really, it’s not friggen hard.

    • John Shears 12.1

      DTB It’s not hard for you or me and a lots of others ,
      but none so blind as they that cannot see?

    • Richard Christie 12.2

      More than that.
      The system in these cases deliberatly makes the issue of compensation to be all about the wrongfully convicted, i.e. he/she could still have done it.

      It shifts focus away from the system’s own errors and culpability.

      It’s a confidence trick.

    • Chooky 12.3

      +100 DTB…I always thought he was innocent and it was a setup…either through incompetence or to cover up something rather big…

  13. McFlock 13

    It seems pretty simple to me:

    If the legal sysem finds that someone screwed up enough to quash a major conviction, you’d better be damned sure exactly who was the victim of the injustice, because “compensating” the wrong party simply increases the injustice.

  14. Tautuhi 14

    This has been a very weird case from start to finish, and the level of professionalism by all parties has been substandard, right from the start with the Police securing of the crime scene?

    • aerobubble 14.1

      Agreed. No cop, no prosecuctor, no defence lawyer, no judge has lost a thing. Low standards, and no cost. Bain lost his home, his family, his inheritance, his liberyy for over a decade, and all he has to show for is a not guilty conviction. Had he been declared not guilty first atleast he could have been sued civilly years ago. Even thats denied him. Its a very bad outcome that the system can walk away unscathed and an not guilty citizen gets to whether those costs outlined above.

  15. Brigid 15

    It is hardly David Bain’s fault that the prosecution chose not to gather sufficient scientific evidence to prove his guilt or innocence and the defence were denied the opportunity.

    If he is not not guilty enough to be awarded compensation, doesn’t that mean all those found not guilty since the passing of this latest legislation (determining a persons right to compenation) are just as likely, guilty.
    Our justice system is a farce.

  16. linda 16

    i think david bain and rest will need to wait for change government
    there is no justice from a corrupt entity

  17. Tautuhi 17

    This Government does not want to pay out, they would rather fund some more reports and Inquiries, what a shambles, however it gives the media something to write about to put in their rubbish rags.

    Admire Joe Karam for his patience and tenacity.

  18. Jollo 18

    I used to be fairly ambivalent on the whole affair until I was reading a report by Sir Thomas Thorpe, IMO the most brilliant legal and justice Judge we have ever had. He examined in great detail all the alleged miscarriages of justice at the time, and found at least 19 wrongful convictions.

    David Bain wasn’t one of them.

    He examined both sides in excruciating detail and his conclusion was that without a doubt, David had murderded his entire family. So while there were mistakes in the police investigation, we would have a situation where someone has committed a brutal mass murder, not just walking free after only 13 years but becoming a multi millionaire to boot.

    Hes already won one lottery in walking free.

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