Leaked David Bain report will lead to 'witch hunt' – lawyer

David Bain

Gary Gotlieb talks about the David Bain compensation report becoming public before it should have

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The former president of the Criminal Bar Association is “surprised” a confidential report on David Bain’s compensation bid has been made public, believing there will be a “witch hunt” to find the leak.

In March last year, Justice Minister Amy Adams appointed Ian Callinan, QC, a retired judge of the High Court of Australia, to conduct a new inquiry into Mr Bain’s compensation suit.

The cabinet had earlier decided to set aside all previous advice relating to Mr Bain’s claim and conduct a fresh inquiry, with Mr Callinan asked to advise whether he is satisfied that Mr Bain has proven that he is innocent of murder on the balance of probabilities and, if so, whether he is also satisfied Mr Bain has proven he is innocent beyond reasonable doubt.

Details of the report were today revealed by the New Zealand Herald, which reported Mr Bain had not been found to meet the beyond reasonable doubt threshold, in a blow to his compensation claim.

Ms Adams today confirmed she has received the report from Mr Callinan but is not commenting on “media speculation” about what the report might say.

“In accordance with the agreed process, parties now have an opportunity to provide any further information they wish me to consider in respect of the report,” she says.

“I will not begin consideration of Mr Callinan’s report and the advice I will take to the Cabinet, until I have that information.”

The former president of the Criminal Bar Association, Gary Gotlieb, tells NBR Radio he cannot believe the report was ever made public, saying there will likely be a “witch hunt” to find out who leaked it.

“Something’s become public before it should become public and we don’t know if that, in fact, is what the new report is meant to be saying.

“It may not be a completed report and it may not be accurate of what’s being said.”

He says Mr Bain’s compensation bid appears to have become “a bit political,” saying the government seems to be “shopping” to get a report which suits it.

“To me, the test is innocence on the balance of probabilities.

“This is talking about innocence beyond reasonable doubt, which is almost an impossible test.”

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14 Comments & Questions

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Yet another sign of how NZ is becoming more corrupted by this current Government's laissez faire attitude to integrity.

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This just has to stop, where the taxpayer is being parlayed as the munificent benefactor to the Legal Profession, in this government's singular determination to get the outcome it wants.

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For the good of your blood pressure, you might not want to see the Crown Law's legal bill from the plethora of Kim Dotcom legal actions ...

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I know what you're saying, but if it's the money being paid to lawyers you're worried about this is a tiny drop in very large bucket compared to ToW.

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Agree 100%

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This matter is degenerating into farce. Whatever one's views of Bain's guilt or innocence, the fact of the matter is that a court has declared him not guilty, in which case he should receive compensation for the years he (supposedly wrongly) spent in prison. Refusing to do so makes a mockery of the justice system.

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One things for sure. There's too many solicitors in parliament, who like exploiting other peoples money.

While some Lawyers do some good, most are parasites and feed off each other. They are adverserial by nature, and have a tendency to milk clients.

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Anyone capable of an analysis of complex issues would find the narrative "Robin did it" preposterous. He got up and shot the family without having a pee. Yeah, right! Shot the family to silence them about sex with daughter Laniet but left David. Yeah, right!

Binnie decided David was a nice boy and then decided the bloodied sockprints belonged to Robin. Well, where are Robin's? Actually it was David who walked around the house with bloodied socks, Robin didn't have others' blood on him. How dopey can you get, Binnie?

David admitted wearing the glasses obviously broken in the fight killing his brother stephen. How dopey can you get, Binnie?

Robin shot himself in a contorted position yet left no fingerprints on the rifle. How dopey can you get, Binnie?

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My understanding of our justice system is innocent until proven guilty. In this case large amounts of taxpayer money have been invested to get an outcome that says not proven innocent. The implications are sinister. Could someone in the legal profession clarify?

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The position of the Justice system is you need to be proven guilty beyond reasonable doubt and until then they proceed with the idea that you are innocent (which actually means they need to prove you guilty in order to punish) it is rather complex as this involves both the Judiciary and the Police (executive) branch of government

it get much more complicated with Bain as the presumption of innocence is lost once you have been found guilty beyond reasonable doubt and must now prove innocence on the basis of probabilities to get your conviction overturn, or that there was an error in the application of the law - which results in a re-trial

David Bain was retried as their had been an error in the application of the Law, the court of appeal acted outside of the scope allowed according to the privy council in deciding that evidence would not have affected the decision of a jury as it would not have effected their decision - when they should have ordered a re-trial (according to the privy council)

Hope you are still following. this then lead to a re-trial a number of years after the original sentence where the jury were not able to find David Bain guilty beyond reasonable doubt - here is where it becomes more complicated as while they can not prove him guilty beyond reasonable doubt now they have previously meaning they need to investigate whether he would be guilty on the balance of probabilities - there is no presumption of innocence at this stage, there is also technically no presumption of guilt. the problem for Bain is that practically he needs to prove his innocence in order to get compensation or that there were exceptional circumstances (such as planted evidence in Arthur Thomas's case) which lead to a miscarriage of justice. This is an high hurdle - it is not quite the innocent beyond reasonable doubt - as it has multiple factors.

The Justice Binnie report made error in how the process worked in NZ and came to conclusions that were outside the scope allowed by the report - extremely complicated, and if you want to understand read the justice Fisher report on the problems with the Binnie report

The practicality is unless Bain can prove the miscarriage of justice then they assume that the he was guilty when it comes to compensation - regardless of whether he is able to be found guilty now. This is because the Justice system has both a criminal arm where it is guilt beyond reasonable doubt and civil which is on balance of probabilities - the criminal prosecution is beyond reasonable doubt yet compo falls under civil actions which is balance of probabilities, and just because it does not meet the threshold for criminal does not mean that it meets the threshold for compo under the civil system

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Thank you for explaining. Hope I never have to encounter a Justice system that is so subjective.

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This is yet another magnificent example of the legal ( not justice) system in NZ. From the inept Plods to the inept lawyer class to the inept politican class all seeking to out do them selves to be judge Wally of the Year and also so deserving of the prize. Sigh. None could organize a booze up in a brewery.

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I have no idea why my comment should have been suppressed. What about explaining?

It points out rightly, that whoever left that note on the computer about you being the only one who deserve to live, needed to hide their handwriting.

There would have been no need for Robin Bain to do this, nor is it likely that a man pretty desperate to go to the toilet would turn on what was then a very slow computer, wait for it to warm up, and then type this.

I wonder if the police even had the sense to fingerprint the computer - even to check if any fingerprints had been wiped off?

If Robin Bain had decided to kill his family and then himself, he would have grabbed a biro and paper and scribbled that note. He would not have needed to hide his handwriting...

Given all the evidence that David Bain was very much involved...e.g. in his brother's bedroom, and subsequently putting his clothes in the washing machine, it beggars belief that he was ever found innocent. Were the prosecution asleep in the second trial?

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I can not comment on his guilt - personally I think he killed his father - but this is due to owning and understanding .22LR's - but that may in it self be excusable and repressed by his mind due to what happened, therefore his claim of innocents can still be both correct for him and legally - what actually happened he may know, or it may have been some-one else (meaning he has no idea), I am open minded - there are issues with the claim the father killed the family and committed suicide, but it is a possibility.

The prosecution in the second trial were capable but after so long and with less evidence as some had been lost of destroyed (such as the house) the burden becomes higher - please always remember in a trial innocents is assumed and guilt must be proven beyond reasonable doubt (which makes it subjective as to what value different evidence is given)

The police and prosecution must be able to prove to a court that some-one is guilty beyond reasonable doubt (not all doubt but reasonable) this is a subjective measure and in high profile cases were there have been mistakes made in the past calling into question a previous verdict it is a much higher burden of proof (as any person approaches it with more skepticism)

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