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Twelve reasons to worry about the Bain case

(This article first appeared January 25, 2013 - Editor)

HIDESIGHT

Justice Ian Binnie’s report says that we would most likely know who shot and killed David Bain’s mother, father, two sisters and brother if the police had simply followed standard police practice and done their job. We don’t know the killer because of police failure.

Justice Binnie identified the following police failings:

1. “It is absolutely basic police work in a firearms case, as laid out in the Detectives Manual, to preserve and test samples from a suspect’s hands and clothing for firearms discharge residue (FDR).” The police failed to do so for David. And for Robin Bain. That one test could well have proved decisive.

2.  “Det Sgt Lodge in charge of Robin’s body not only failed to preserve possible evidence of FDR but neither he nor the pathologist saw fit to preserve the skin sample surrounding Robin’s gunshot wound, thus unleashing the debate among the experts about whether the fatal shot was close, intermediate or distant.”

3. Police watches weren’t synchronised defeating the precision timing necessary to test David Bain’s “out-of-house” alibi.

4. Police denied the pathologist entry to the crime scene for three hours, making it impossible for him to measure body core temperatures to establish more precisely the time and sequence of death of the various members of the Bain family.

5. Police failed to investigate information that Laniet had accused her father of incest and planned to expose him to the rest of the family on the weekend before the murders, despite the Detectives Manual specifically instructing police to pursue the issue of motive in their attempt to “reconstruct” the crime scene.

6. Police failed to follow up on evidence of Robin Bain’s mental instability.

7. Carpet samples subjected to the critical luminol footprint examination were not kept.

8. The DNA sample for the “blood fingerprint” analysis was found to be an “unspeakable mess”.

9. Police lost a crucial second statement by a key witness as well as an all-important timesheet.

10. Photographs taken of the crime scene were a “shambles”. The date and time function on the camera was not switched on.

11. Police destroyed crucial evidence ahead of the Bain appeal.

12. Police misled the first jury on where the lens of the spectacles was found, knowingly gave the jury the wrong time for the switching on of the computer, and did not tell the jury that they had checked a key witness’s clock and had taken a crucial second statement from her. This was critical testimony.

These are damning findings. The police response to Judge Binnie?

Police Commissioner Peter Marshall put out a press release saying he “doesn’t accept” that police made “egregious errors”. He agreed there were “some errors” but that “this is one of the most scrutinised police investigations and cases in New Zealand”.

The police denial and spin reveal the depth of the problem.

Following Justice Binnie, and the commissioner’s response, a political system determined to uphold policing standards would have seen the Prime Minister, with cabinet agreement, asking the Governor-General to sack the commissioner and establishing an international search for a police commissioner who understands the importance of proper procedure and the need to establish a professional culture within the New Zealand Police for homicide investigation.

Instead, Justice Minister Judith Collins led the counter-charge, giving both Justice Binnie and his report a good kicking even before she released his report.

The police are in safe hands. It’s just the rest of us who have to worry.

More by Rodney Hide

Comments and questions
62

Yes, shame on Justice Binney for criticising the police thus going beyond his brief.

I am sure the issue will be returned to the safe hands of the Wellington bureaucracy so the public won't be unnecessarily alarmed and will continue to have full confidence in the best funded PR system in the country.

It was a 1994 investigation. It was subjected to a thorough Police Conduct Authority investigation. Binnie waved away the PCA investigation with as little as one sentence, failing to recognise that the PCA at the time was headed by a member of the judiciary.

Rodney's column here would have had relevance if he had picked up the phone as little as once to find out what improvements have already taken place in the 19 years since the Bain investigation.

It is easy for Rodney Hide in 2013 to criticise what happened in 1994 (and for Rodney to ignore all investigations and reviews since). It is cr*p to say that "they are damning findings" without recognising the myriad of changes that have occurred in the 19 years since.

This is lazy cut and paste journalism. Not worth the keyboard time. Rodney Hide did nothing to earn payment for this column.

@ Dotcom. The original investigation was carried out in 1994 not 1894. The police knew (or should have known) exactly how to carry out that investigation in a perfectly professional manner. That they didn't (yet again), is a disgrace which should shame them as an organisation and us as a supposedly first world nation (which we clearly are not).

This situation is disgraceful. Did we not learn anything from the Thomas debacle?

Of course it is the fault of people who go looking for such incompetence, that they find it. It would be better to just sit back and ignore it, and make fun of the kid in the geeky jersey. At least until its you, or your kid that is unable to get justice, because our police ineptitude.

From the 1980 Royal Commission on the Wrongful Imprisonment of Arthur Alan Thomas. Paragraph 483, P114. -
"At our hearings there have often been repeated statements about whether Mr Thomas can be proved innocent. Such a proposition concerns us. "Such a proposition is wrong and contrary to the golden thread which runs right through the system of British criminal justice, namely that the Prosecution has the duty to prove the accused guilty and until so proved he had to be regarded as innocent .... just as a Court would acquit him, and the community thereafter accept his innocence, so we believe we are entitled to proclaim him innocent and proceed accordingly. Mr Thomas, has always asserted his innocence."

It is time to hear such a statement from Ms Collins.

David Bain can not prove himself 100% innocent, because of Police incompetence. They made no attempt to investigate that possibility.

Compensation must be paid. If Judith Collins has money to spare, then it is time she spent it on solving the obvious issues that every so often result in innocent people being wrongfully imprisoned, due to inadequacies in our Police force.

Correct Rodney, incredible incompetence, but I also believe there are very good reasons we should worry about Justice Binney and his report. Don't you?
By the way Rodney, you don't happen to know how much we paid Justice Binney do you? Cheers.

The police did their job properly. Compensation must not be paid for five simple reasons - the reasons being that David Bain shot Robin, Margaret, Arawa, Laniet and Stephen Bain. Anyone who has closely studied the evidence knows this to be so. In correspondence with me, Rodney Hide has said to me that he knows little of the evidence of the Bain case.

Binnie (like Rodney Hide) expected of a 1994 Police investigation, 2012 FBI-standard forensics. Well guess what, not even the FBI had 2012 FBI-standard forensics in 1994, let alone little old Dunedin police. Police did a terrific job in 1994 in this case, when measured in 1994 terms. Policing has changed a lot since then for the better. It is stupid to think that we haven't learnt anything since, as Rodney Hide's column wants to suggest.

Binnie was also sucked in by the well-documented phenomenon known as the CSI-effect (Wikipedia it). It is taught in universities these days, as it is by our own Institute of Judicial Studies (judges' own training). So don't knock it.

The CSI-effect is a serious new problem, and the problem is reflected in the Hide article above. Wikipedia reports (with citations) that "the most commonly reported effect is that jurors are wrongly acquitting defendants despite overwhelming evidence of guilt". The 2009 Bain jury were simply not convinced by the 1994 facts of the case. It is common today to read that a case provided "no evidence" when what the writer really means is there was "no physical or forensic evidence". Today, four people seeing something happen and testifying to it, apparently no longer counts unless there is digital photo of it, and a computer record of the phone call that followed. It is a very dangerous development, which is going to see more and more dangerous criminals walk free.

Dotcom:
Thank you for expressing your anonymous subjective conclusion based on your research. Please don't try to fool anyone that it is anything more than a subjective conclusion, though. The only people who might be able to definitively say what happened are David Bain and his deceased family. The rest is speculation.

And speculation along a wide continuum, due to the failure to collect and preserve a large amount of relevant (but still circumstantial) evidence. Who, in your opinion, should have been charged with the assessment, collection and preservation of evidence if not the police?

Thank you, Rachel, for you equally anonymous reply. Sorry, but you are wrong. The facts listed below are not speculation. They are facts. Check out the CSI-effect on Wikipedia for an appreciation of what is and what is not "evidence". We have entered a dangerous period as a result of CSI programmes, the result of which is many criminals being acquitted in spite of overwhelming evidence to convict, but just not forensic evidence. Just ask Anna Macdonald what she thinks about the CSI-effect. We have discarded the ability to apply reason and logic. We want computers to be the jurors. And more and more criminals will walk free. It is already happening. Not just my opinion, the phenomenon is recognised at universities already.I hope it doesn't happen to you, or to Rodney Hide. Circumstantial evidence IS evidence.

Any one of a dozen pieces of evidence would enable a person used to dealing with the real world to see where the truth most likely lies. For each of us our whole world is speculation. It's a model in our minds. That's why people can look at the same facts and come to such different, often contrary, conclusions. Some people have good "instincts" and make sound decisions, other don't. Some people succeed, some fail.

Maybe you (or your continuum) could explain to me how Robin managed to hold the suppressor to his left temple (at a good angle) without leaving prints on it and not smudging Stephen's pristine prints found there? How likely is that? Or was it just a random lucky shot, like winning Lotto?

How come Robin had spatter from the left temple wound on the left index fingernail, the hand Reed QC showed the jury was used to pull the trigger? The likelihood of this occurring is approaching zero.

I invite you to find one normally healthy (for age) man of the same age on this Earth who can do what Robin is accused of doing - and retain an overnight load of urine. A struggle to the death with Stephen and he didn't p*ss his pants? Washed up and changed his clothes and didn't take pee? It's preposterous. No, it's madness.

Totally agree Rodney.

The knee jerk reaction of both the Police and then the Government to absolve themselves reveals the depth of the problem. I would add to your desire for a new Police Commissioner the need for a new Police Minister as Ms Collins has proven herself incapable of the necessary detachment from Police interests to represent the interests of the people who voted for her..

Totally disagree. If Binnie were tasked with investigating the quality of the police investigation, then police would have had the opportunity to respond to the accusations levelled against them.

The Binnie report on the other hand, was a travesty of justice for police, because it took essentially Karam' s books as its source, then didn't even give police an opportunity to respond, then went to town on our cops. Even cops are entitled to negative the accusations levelled against them. There is nothing more basic than this in any form of natural justice.

It is for this very style adopted by Binnie, that our Justice Minister has quite rightly flung the Binnie report where in belongs, in the rubbish binnie.

@ Dotcom. Absolutely nothing is stopping the police from responding to Binnie at whatever length, depth or breadth they wish. The real problem is that Binnie has listed their undoubted failings in excruciating detail and I doubt if they could easily explain those failings away.

The reason David Bain cannot prove himself innocent is because he refuses to take the stand. Do not lose sight of the fact that the privy council did not find him innocent rather that he be re tried for the same crime.

The Privy Council found a substantial miscarriage of justice and ordered a retrial. The retrial found him not guilty. It's only the cabinet who demand he prove his innocence. No citizen in a free society should have to do that. Likewise, no free citizen should be compelled to take the stand. It's up to the Crown to prove their case. They failed to do so to the second trial jury's satisfaction.

Your making a fundamental mistake here, Rodney. You're correct in that at the *trial* he must be found to be guilty "beyond reasonable doubt" and that it's a case of innocent until proven guilty.

But it is a *different* test for compensation - that's a test of "on the balance of probability". People don't get compensation because they can't be proven guilty. They get compensation because it's more likely they didn't do it than they did but they suffered hardship.

And that's very shaky ground in this case.

The rogue juror who went public allowed us to learn that the 2009 jury thought that David Bain probably killed his family.

If a jury finds that someone "probably killed", then the law says these two truisms arise.

(a) Someone who "probably killed" is entitled to a "not guilty" verdict.
but
(b) Someone who "probably killed" is not entitled to compensation.

What is disgraceful is that Justice Binnie does not seem to have done his homework
Here are some examples.
In the Binnie/Bain interview Page 6 Binnie asks Bain if his father was going to have a room in the new house.
Bain said his recollection was that his father was going to have a room and that his mother had labelled his father's name on one room.
But at trail Bain said his mother had made her plans and they didn't include his father. He said his mother felt that the marriage was over and she wouldn't have settled to have his father living at the same address.
In the same interview Page 8 Binnie asks Bain if there was a locking door to the lounge and that did he have a key to it to control access.
Bain said he didn't recall any locking doors and that the idea of him controlling access was an absolute fabrication.
In her interview on TVNZ ON June 14 2009, Kirsten Koch said that when she visited the house one day to see her friend Arawa, the door to the front room [lounge] was locked and that Arawa had to go in to David's room to get the key to open it while she kept a lookout for David.
On page 17 Binnie asks Bain about a witness who said Laniet had told her when she met up with her on the way to work on the Sunday prior that Laniet had told her that David was freaky and that if she didn't go to a meeting at home he would come and get her,kicking and screaming. [Laniet actually said that she didn't want to go to that family meeting but that David said he would take her to it "kicking and screaming" if he had to.]
David told Binnie that there was no truth to that comment from his point of view. Then on the next page he says that he thought there was another witness in that group who said that Laniet was actually quite excited ,looking forward to coming over.
There was no such witness.
On page 18 Bain explains to Binnie that he couldn't drive because he didn't have his glasses and then he says he drove down to get fish and chips.
Page 24. Here we have Bain telling Binnie that he wasn't wearing his mother's glasses that weekend.,yet he told his aunt and his lawyer and co-counsel that he had been wearing his mother's glasses that weekend. Bain then tells Binnie that he watched a video on the Sunday night and that he was able to do so without glasses because he sat in a big chair closer to the TV. At trial he said he wore his mother's glasses when he watched TV if his were unavailable.
Those a just a few examples .

How does this change what Rodney said? It is up to the Police to do their job and in this case they didn't. Whether he did it or not becomes moot if the Police fail in their role. Such is the way our system is meant to work.

Not to brush the incompetencies under the carpet because a Minister "knows" better.

What has all that waffle got to do with the fact there was serious mistakes and omissions in the police investigation, that if performed correctly, would mean the majority of things on your list, wouldn't exist or have been proven otherwise?

Sorry Shane, my comment was meant for Michael Stockdale. I agree with your comment. How many reports, how many times do we have to have these same conversations over police ineptitude?

As Rodney says, we all need to worry.

and this excuses the police conduct how?
- 12. Police misled the first jury on where the lens of the spectacles was found, knowingly gave the jury the wrong time for the switching on of the computer...
if the police are lying in court then we're all screwed.
Now that is disgraceful.

The whole affair has been a disgraceful mess.
And Collins' ducking and diving is adding to the clear impression that the govt is more concerned with saving pennies and achieving a surplus than with delivering justice; in this they clearly have their priorities wrong.
For goodness sake, give the man his due and stop the charade!
liberte

Nothing to do with money at all. The difficulty is, if finding David Bain has established his innocence, then the govt, by default, are finding Robin Bain guilty. There is ample evidence to in fact prove he is innocent.

The Government will go to great lengths to protect the perceived integrity and reputation of the police and judiciary, even if it means the innocent languish in jail and/or, where a compensation pay out will (by default), undermine the power of the State over the people.

The control of the masses trumps the rights of an innocent man who has had his freedom denied by the State, and the State will never be in a hurry to investigate itself and/or, make ammends

This is a bit of a joke. Rodney Hide casting his critical eye over what someone else wrote about the police investigation. Why doesn't he do his own first hand investigation of the facts including the alleged facts promoted by the Bain defence? There he is likely to find a lot more than 12 things about the Bain case that should be cause for worry.

Tell me Kent Parker, did you conducted your own investigation of the facts before you started publishing rubbish about the case? I note that at when you started, you admitted you had never seen the trial transcripts. Are you sure you are not guilty of using second hand sources as well? Seems a bit hypocritical of you to admonish Mr Hide, when that is exactly what you have done on both your JFRB facebook page and at your CS site?

Yes, I have conducted my own first-hand investigation, not only of the trial transcripts but also of some of the witnesses.

a quick Google of Justice Binnie revealshe has some problems at times hearing and understanding evidence and quite simply going the evidence glaringly wrong. An article on a Canadian Justice site reveals the learned judge allowed himself to be 'captured' by an activist wanting to alter sex education to concentrate of homosexual activity to the detriment as all other lifestyles. Finally going so far as to call a teacher who wanted the curriculum as written to be taught, homophobic when in fact the teacher had been active in getting gay teachers into schools. Binnie J in writing his judgement where evidence was not available simply made it up. His actions would have sat well with the 2001 Court of Appeal, they did the same.

Rodney, you have not come up with one good reason why the taxpayer should pay someone who very likely murdered his family and a likely motive was a sizeable inheritance. I am struggling to find your motive. Did you have some sort of disagreement with Judith? Judith has had to clear up the mess Simon Power left her. It was Simon’s job to recommend a referee. It is not fair as you suggested to expect Judith or anyone else in Cabinet to check out Binnie the Ninny.

Binnie is a liberal political activist judge and deserves no respect. If he had any self-respect he would offer a refund - but how often do you hear a judge or politician admit they made a mistake.

http://www.driveforjustice.com/2012/12/17/drive-for-justice-26-our-ermine-clad-masters-decide/

Binnie did not have any experience in criminal law and it took Richard Fisher to point the obvious. If you are investigating if someone is innocent on the balance of probabilities you must assume they may be guilty and not just accept their word as Binnie did. I say this from reading his interview of David Bain which is online.

We got someone from overseas who had not heard of the case. That did little good as one of the first things Binnie did was to ask for Karam’s books. From then on he did not want to interview anyone with a view contrary to Karam’s. One example was the jury on the second trial who it appears was unhappy feeling obliged to vote not guilty although she felt David was guilty on the balance of probabilities. That is the test Binnie should have applied properly.

I accept many of Rodney’s points are valid but they are not relevant. The police made some bad mistakes but who would not do things differently in hindsight. Judith correctly pointed out it would be a travesty of justice if some won spent 13 years in prison for a crime they did not commit but it would be an equal travesty if they were in fact guilty and got rewarded by the taxpayer.

What I really find strange is that in the past Rodney thought that people in desperate need for medical treatment to save their lives or that of a loved one should depend on donations rather than money from the taxpayer.

This is the second article Rodney has written on this subject. I suggest if he feels so strongly on this he get together with Bob Jones and a few others and start a fund for poor David. I can think of a lot better use for my taxes like funding some lifesaving drugs for a few unfortunate people.

If guilty, David Bain has paid his penance (well almost). We can speculate all we, like but only David knows the truth. The key thing for us as a society is to learn from it, and put in place procedures to ensure it never happens again. But of course it will, because to err is human. The Government should pay compensation to Bain, STFU and move on. Sick to death of my hard earned taxes been wasted on arguing who is still responsible for systemic FU’s by various Government agencies that happened a generation ago. Collins et al need to get pragmatic and quickly

Paul, I can understand people who genuinely believe that David is almost definitely innocent expecting him to get compensation. However, your view that if he was guilty of cold-blooded, calculated mass murder motivated at least in part by money he has paid his penance there is something wrong with your thinking. That is less than three years per life.

The idea that someone who is highly likely to have murdered five people getting compensation because the police made a few mistakes I find repugnant. It is comments like yours that makes me have doubts about the jury system.

I would most certainly oppose compensation for David Bain. There was, and still is, a mountain of evidence against him and none against his father. Anyone who witnessed the ludicrous 're-enactment' (Karam's hypothetical idea) of Robin Bain's so-called suicide (right-handed man shooting himself in the left temple with silencer on the end of the gun - AND leaving no fingerprints on the weapon whatsoever) would have to question how it was that David Bain (whose fingerprints were on the gun - in blood) was ever found not guilty by the second jury. Add to that the abrasions on David Bain's face and the scratches on his chest as well as his bloody palm-print on the washing machine (which had finished its one-hour cycle before the police arrived about 7.30am) and the 25-minute delay between Bain arriving home from his paper run and calling 111...... well, one could go for a long time. I suggest, Rodney Hide, that before you begin your next anti-police, anti-Judith Collins column, you research the true facts behind this case and then perhaps you will understand why the majority of the public are so dead against David Bain receiving one solitary cent.

Binnie asked Bain how accurate he thought his estimate of 2/3 minutes was to cover the distance from Heath Street to home .
Bain replied it was not accurate because he has since walked it and it took quite a bit longer. A police officer walked it in 2m15s. I reckon Bain should be asked to go down to Every Street so he can be timed over that distance. He also said the dog slowed him down because she wasn't as fit as his previous dog. He said she wanted to stop and rest. The dog was only five years old and it went on that paper round six days a week,so she would obviously be fit.
What's more, David never mentioned anything about the dog slowing him down when he was interviewed by the police in 1994.
Bain seems to be confused as to what pair of shoes he was wearing that morning. He said at trail he took his shoes off in front of the cupboard. There is a photo showing an odd pair of shoes in front of that cupboard. Those odd shoes had blood on them,.
Bain said he wore his Lasers. By the time that blood was found on that odd pair of shoes the deposition hearings had closed. The police asked David's lawyer if they could be included as evidence but his lawyer turned them down. Those shoes were then destroyed.

4 of the commentators above are involved in a campaign against Bain and in support of the police inquiry regardless of its exposure as contributing to a miscarriage of justice. Part of the campaign is to attack any body who doesn't share their views. Rodney is the latest, before him was Binnie, a Jury and so on it goes. Rodney's article highlights concerns that we should all harbour whatever personal views are held on the Bain case. I look forward to more from Rodney, he has researched the case after showing the ability to be able to be persuaded that he had overcome a 'deeply held' prejudice against Bain. However, of greater public importance, he lays bare reasons why this 'activity' by Collins is a threats to the rights of us all.

I agree with this commentator. Collins and her attack dogs are in full flight. One may understandably have a view about whether Bain was rightly found not guilty but that is no excuse for the rabid attacks by this lot on anyone who does not conform to their political agenda. Collins has shown her true colours now time and again. It now reflects poorly on the PM and National Party to continue to tolerate this embarassing person. Collins pretty much will singlehandedly cost National another term in Government.

The arguments can rage, but the fact is that David Bain never took the witness stand; his relatives think he is guilty; his father's so-called mental stability was cooked up by a witness who was later found to be totally unreliable; and, most crucially, whoever turned on that computer and wrote that message was doing so in order that he didn't have to supply his handwriting, which would be recognised.

Why would his father do that? if he was going to kill himself,there was no need to disguise his handwriiting.

And how many of you men, coming into the house with a full bladder, would wait to turn on the computer, wait again for it to warm up (slow in those days) and then type a message before going on to kill your family?

It is nonsense. A full bladder is its own imperative, and this man was killed before he had a chance to do anything about it.

What a massive piece of propoganda.
Twelve reasons? Let's take your first one as an example.
The police should have taken a gun residue sample from David Bain? Why?
It was clearly undestood that David had carefully washed his hands AND his clothes, so taking a sample would have been an utter waste of time-totally pointless, and if you didn't know that you are a fool, and if you did know that you are being disingenuous.

That's police spin. They accepted David's word that he had washed his hands. They still should have tested. And certainly Robyn hadn't washed his hands!

Yes Rodney, David's word is to be accepted when it suits the police and at all other times he is a liar. Furthermore, as you point out, Robin's hands were not tested and it can't have been because he told them he'd 'washed up.'
All power to you for calling it fairly and pointing out the larger picture that threatens us all. Prerogative powers should be used rarely if at all, but when they are - then with all the principles and openness of transparent Justice.

He put the bloodied clothing in the washing machine. Of course he'd washed up. Probably had a shower too.

David had blood in the crotch of his shorts that had most likely soaked through from the pants he had been wearing and put in the wash. Where was the blood on his hands? Of course he washed.

You don't know what was done to Robin's hands, a slight smear of blood on the left hand that is consistent with the palm being wiped yet there was a spot of blood spatter on the index fingernail.

Who's "Robyn"?
You know nothing about this case, Rodney.
Stay out of it. You are way out of your depth.
You are doing a lot more harm than good.

Justice Binnie seems to belong in that line of judges who feel that their mere presence and absolute brilliance puts their work above normal scrutiny. Fortunately, we have lawyers in this country who can read and understand what is put in front of them, and, much as it is fashionable to dislike Judith Collins, there is no doubt that she is one of them. The fact that Binnie read Karam's books "to get context" shows that he lacked the capacity to assimilate and understand the raw evidence. However, it is a fatal flaw in reasoning to support a conclusion solely on the basis that there was a coherent story behind it.

His emphasis on the sock prints shows he really does not understand even the basics of forensic science - depending how wet the sock is, the print could be almost any size, but more often smaller than the foot wearing it than not. Stick to fingerprints and the fact that Robin had a full bladder at the time of death, despite, allegedly taking his final shower before meeting his maker.

I would side with Karam’s opinion any day, over some two-bit lawyer or judge, who spend the majority of their lives sitting behind a desk all day long, listening to some sanitised bullshite. Cheeses, most of them couldn’t even weld a spanner, let alone have the analytical skills/intellectual capacity/motivation (or the time), to investigate the nuances of complex issues. On one occasion, I even had to take the time during a recess at a Court of Appeal hearing, to guide and instruct both an eminent lawyer and a barrister, through issues that were beyond them

Govt has probably spend more money avoiding having to pay compensation than what the compensation would have cost in the first place.
Lawyers and consultants don't come cheap...

So some commentators feel that even though David Bain almost certainly murdered his family he should be paid for doing it because the police made a few mistakes. I'm not buying it.

There are some major fundamental problems with the conduct and function of the NZ Police - almost a law unto themselves; very very scary

Judith Collins has taken the courageous path,in my opinion.
Because she saw/suspected that the process by which Canadian judge Ian Binnie reached his conclusion was flawed, she exersised her ministerial prerogative to get a second opinion because the buck stops with her in terms of what gets recommended to cabinet. Her integrity is the only thing keeping this issue alive. She could have taken the soft option of saying "The commissioned report from Justice Binnie recommends compensation, so that is what I will recommend to Cabinet".
She didn't do that.
I say "Hats off for Ms Collins".

Of course the the police make mistakes, but there is a mass of evidence make no mistake about that. Let's look briefly at this list:

1. Firearm discharge residue. David had washed or showered and a suppressed subsonic .22 may not leave enough FDR anyway.

2. Even if it were agreed the wound was close contact it does not prove suicide because there were other close contact wounds that morning and they were not suicide.

3. It's not the time on the computer that's the difficulty, it's the time-estimating of the witness who saw David. It's an "alibi" of a minute or two at most. (He'd talked about using the paper round as an alibi earlier.)

4. Measuring the core body temperature. The sooner done the better but the police thought initially they were dealing with suicide and the crime scene was so extensive they didn't even have enough plastic sheeting to cover the floor.

5. Laniet moved into the schoolhouse with her father, she had been working as a prostitute. Robin then took a lodger. Does that sound like someone having sex with his daughter? What did he want, a witness? A menage a trois?

6. Robin's mental state. Robin was functioning okay. He had an appointment that morning and he had just won an argument with David to take the chainsaw to school. It was in his van.

7. Carpet. A partial set of incomplete sock prints that showed up with luminol. It is agreed the killer made them but if you can't be sure what you're looking at or measuring what use are they? Hentschel measured them as best he could and gave an opinion: David's. Robin had no blood on his feet or socks.

8. The police showed David's clear fingerprints on the rifle and people want to believe they were rabbit's blood or whatever. Nothing ties Robin to the rifle, no prints, nothing. All that killing and no forensics.

9. No doubt the police in little old Dunedin were a little overwhelmed all those years ago. Nevertheless, they collected enough to get a conviction. Had the "incest" witness been heard (the judge did not allow it) and discredited (he had to be arrested to appear) the Privy Council would probably not ordered a new trial.

10. The police got this photo of David, showing bruises he can't explain.
http://static.stuff.co.nz/1236722664/605/2251605.jpg

11. The police released the property back to the family once they had collected the evidence and David agreed the house be burn down. Maybe there was a book somewhere, describing where to shoot to kill, the killing was fairly expert.

12. Whatever confusion there was about the lens, David agreed before the trial he was wearing his mother's spare glasses, as he usually did, but changed his mind. He couldn't account for them being broken. The Privy Council think this is important evidence. Binnie waved it away. Binnie was a politician appointed to the supreme court with no prior experience on the bench.

I, too, have prepared a list, it may be incomplete as it's off the top of my head, but it's 12 plus a couple of clinchers:

1. We are asked to believe a man wakes up and strangles Stephen in a violent struggle, shoots the others, all the time with a normal overnight load of urine. Probability?

2. He does this because Laniet is going to spill the beans about incest. So why doesn't he just kill himself? He spares one. Probability?

3. There is testimony David habitually locked the family out of the lounge/computer alcove. David is the one he would choose to stay. Probability?

4. Robin types an immature message on a computer that explains nothing but praises and exonerates David. He is a schoolteacher with pen and paper. Probability?

5. He puts the bloodied clothes in the laundry and puts on old clothes to meet his God, but wears no underpants. Probability? (David washes the clothes without noticing the blood everywhere. Even the hand-knitted jerseys Mum does not allow in the machine.)

6. Robin shows no signs of the tremendous struggle to strangle Stephen, who was fighting for his life. No bruising, no scratching. Probability?

7. He chooses an unusual way to shoot himself, and has a spot of blood on the left index fingernail. It got there despite his left hand at the trigger and the wound in the left temple. Probability? ~ 0.

8. Robin has soil on his hands from gardening the day before so he didn't wash up. He has no others' blood on him because he puts the bloodied clothes in the laundry and puts on old clothes to meet his God, but wears no underpants. Probability?

9. Reed QC showed the jury he was killed over by the curtains where the spatter is, but his body looks like it slumped out of the beanbag, over a metre away. He didn't drop down like a piece of meat, and stay there, as you would expect. Probability?

10. Robin must grasp the suppressor with his right hand to guide the suppressor accurately to his temple. He leaves no fingerprints. He does not even smudge the two pristine prints of Stephen found there. Probability?

11. There are prints of David on the rifle but he "might have picked the rifle up" innocently. Probability?

12. Close by Robin's right hand is found a spare ammo clip, on its edge, under a table. He couldn't have dropped it there, the probability of it landing on its edge is 0 and he needed that hand to grasp the rifle. He placed it there? It's a metre away from where he was supposedly sitting on the beanbag, he would lean out and put it UNDER the low table? Probability?
http://davidbain.counterspin.co.nz/evidence/the-rifle-magazine-appeared-to-be-planted-next-to-robin-bains-body

13. After the first trial, David said: "THE JUDGE WAS VERY KIND TO ME." A man protesting his innocence. Probability?

14. When asked if he killed them, says: "IT IS MY CORE BELIEF I WAS NOT THERE." Probability?

Further to your lists Dennis Horne, here is the most simplified list I can produce. It speaks for itself.

David owned the murder weapon.

David owned the bullets.

David’s fitted the silencer to the murder weapon.

David owned the ammo clips.

David owned the killer’s gloves.

David had the trigger lock key.

David’s paper run provided the time frame.

David trackpants were worn by the killer.

David left blood on the washing machine.

David had the $600,000 sole inheritance motive.

David initiated of family gathering.

David’s fingerprints were found on the murder weapon.

David’s room is where trigger lock was found.

David’s room had blood in it.

David’s shorts had Stephen's blood on the crutch.

David’s sweatshirt had blood marks.

David was the only one who deserved to stay.

David was the scholarly numbskull and 22-y-o paper boy.

David wore the all-important glasses that weekend.

David’s room is where the bent/mangled glasses were found.

David said they’re all dead, before he’d have seen any of his siblings.

David washed the killer's clothing.

These are the easy ones, there are just as many pointers to David, but which require more than one line to explain.

Nothing points to Robin having killed anyone.

I have never read such utter nonsense in all my life. It bears no resemblance to reality.

What this case needs is not more lawyers and another report but a team of psychiatrists and psychologists. Maybe some sociologists.

The legal system is a costly circus and no other organisation or profession would get away with these cock-ups. It's an utter disgrace.

At the very least there should be a "Not Proven" verdict available to juries starting TOMORROW.

Then a move to an inquisitorial system, at least for the investigation of serious crime. Examining magistrates and tribunals of judges with some laymen as a safeguard.

Remove the right to silence, with some protection. Questioning by judges only, no cross-examination unless agreed by defendant.

Never mind the monkey business and duping juries. Get to the truth, or at least most likely description of it.

Why do we stick with this anachronistic lawyer-serving system? If science and technology had operated this way we'd all be eating a meagre meal by candlelight after a 14-hour day in the fields behind a horse.

Collins is a pillar among pillocks.

Something I have always wondered about is why all the discussion centres around whether it was David or Robin - and no other possibilities ever seem to be considered.

There are at least three other possibilities:

1. David and Robin did it together - with Robin then either killing himself or more likely David killing him

2 Robin killed the family, David came home and killed Robin

3 A third party was involved - either completely independently or in conjunction with either David or Robin.

These may be remote possibilities but then neither of the alternatives (David or Robin) explains everything either.

There was something very odd about that family but most likely we'll never hear the truth.

Us lot are all welcome to conclude whatever we like about David Bain and whether or not he did it. Fact is, though, that he was found not guilty. After this fact Binnie was invited in. His report was not supposed to be a retrial. These personalised attacks on him and comments made by those wanting to use him as a scapegoat to vent their frustration at the outcome are, bluntly, classless and unwarranted. Worse still is Collins, who sees political mileage in attacking Binnie to play for public brownie points by indulging this misdirected national bloodlust.

What personalised attacks are you referring to? His reasoning was defective and he accepted David's word as gospel, despite the fact that David was and is the main suspect! That displays a breath-taking naivete. Binnie was meant to get to the truth re David's alleged innocence but it seems he'd reached a view before he even spoke with David. Binnie interrupted David many times and put words into his mouth. His report isn't worth the paper it was written on.

Yes, second time round he was found not guilty. That's fine, and he didn't go back to prison.

But since then David has claimed compensation and there is law attached to this process. Part of this process requires that to get the compensation he must prove he didn't kill anyone. He has not proved this anywhere, any time. A not guilty verdict is not a declaration that he didn't kill, down to the "beyond reasonable doubt" clause.

We must not shortcut the law for David Bain, just for convenience, any more than we should shortcut the law for anyone else. If you don't like the law, change it for next time. This time, the law that applied at the time of the murders is what must be applied.

Stick to dancing, Mr Hide, your mental agility is no match for your clumsy footwork.

http://marzuka.x10.mx/trademe/javascript/bain%20sim%201.06/bain%20sim.htm

You are right, Rodney. There is a heap to worry about and that includes complete ignorance about the evidence that implicates Robin, motive, blood and bruising on his hands and a much larger window of opportunity than David. The literature suggests David could be the only family mass murderer we know of who didn't kill himself when he had ample opportunity to do so.
Robin's sad situation is he fits the near universal pattern perfectly.
Many of the commentators display a complete ignorance of logical principles.
The more bizarre or extreme the portrayal of a killing the more readily people accept the improbable.

What blood on Robin's hands? After being told he washed up and changed his clothes, how did he have blood on him hands?

What bruising on Robin's hands? You mean the bruising the pathologist report is days old and consistent with his repairing the guttering?

What motive? The poisonous rumours of incest? Why didn't he just kill himself? Why kill Arawa, who was doing exceptionally well, and leave the 22-year-old paperboy, who habitually locked him out of the lounge/computer alcove?

What about the sworn evidence David had threatened the family with the rifle before? One occasion Stephen woke up to find David at his bedside pointing the rifle at him, going bang, bang. It was dismissed as a dream. Practice, more like.

No, it doesn't fit into the pattern of murder-suicide at all. It fits exactly into the pattern in every way of murder and faking suicide to blame someone else. It's so obvious it is impossible to have any doubt, not once you hear:

"The judge was very kind to me." Protesting his innocence?

"My core belief is I was not there." Is that a no or a don't know?

Just look at photographs of Robin's hands and head and evidence presented in the second trial regarding his mental state. "Bang bang, practice more like"? Give us a break!
If you start with the presumption of guilt based on some primitive biblical view of good and evil, you will inevitable cherry pick the "incriminating evidence".
The literature on this kind of tragedy, which you are obviously ignorant of, clearly shows the same pattern, including a pathetic final attempt to salvage some relic of honour with the hand washing and computer message. Many mass murders do so, as we know from valedictory and justificatory messages left on the internet in recent times.

Rodney, I always knew you had it in you to be an uncompromising advocate of justice once you walked away from those ACT Party idiots.
You have, haven't you, Rodney?
Now apply the same uncompromising intellect to climate change.

There is an independent party who knew the truth, Casey the dog, and he trotted along with David as if nothing had happened. Anyone who has the faintest acquaintance with dogs would know Casey would have been out of his tree if David had killed anyone that morning. In fact, the report of the dog barking corresponds exactly to David's return to the house.

Kaycee the dog a witness. Yep, beats the paper round alibi and "suicide" message typed anonymously on the computer. Barking, you say?

Congratulations, you've out-manoeuvred me on that one.