Saturday, December 15, 2012

I find myself in the highly unusual, bordering-on-inconceivable situation of...

...feeling actual, genuine, sympathy for Judith Collins.

I was berated by various commenters at the Dim Post (including Andrew Geddis, no less) for holding the view that Ian Binnie's report on David Bain's compensation claim shows he doesn't understand "balance of probabilities," without actually having read the report.

Well, they did have a point, so I read it.  I still maintain that Binnie's conclusion (that Robin Bain is more likely to be the murderer on balance of probabilities) is all you need to know in order to conclude that he doesn't grasp the meaning of balance of probabilities, but having read the report, I feel like it's even worse than that.  Fisher went relatively easy on Binnie in his review, as far as I'm concerned.  Hence the sympathy for Collins - I'd be wildly fucked off if I was carrying the can for this decision and found the report my predecessor had spent hundreds of thousands of dollars on was a crock of shit.

Not only has Binnie failed to understand balance of probabilities, he seems to have approached the evidence on the basis that the onus is on the Crown to prove David Bain guilty (it isn't - the onus is on Bain to demonstrate that he is innocent on the balance of probabilities), and he is egregiously unfair to Robin Bain.

1.  Failure to understand balance of probabilities.
In this case, there are only two people who could be the murderer.  In working out which of them is more likely to have done it on balance of probabilities, the question is what evidence there is to suggest either one of them did it.  You've watched enough TV to know what to look for: fingerprints on the weapon?  Bloody handprints? Footprints? Blood-smeared clothes? Injuries left by the victim who fought for his life?  Evidence under the victim's fingernails?  Items left behind by the killer?  And so on. In the aggregate, which way does the evidence point?  Binnie works through such evidence produced in court - most of it implicates David rather than Robin. Of course, for each of the items implicating David, his extensive and well-funded team of legal and technical experts has a "Yeah, but..."  Accordingly, Binnie writes off each piece of evidence on the basis that the "Yeah, buts" raised make each individual item of evidence less compelling than the piece of evidence implicating Robin - the 28 cm bloody footprints on the carpet.  Unsurprisingly, Robin, what with being dead an' all, has no "Yeah, but..." to raise regarding these footprints (and there's a fucking obvious one, if he had someone to raise it, which of course he doesn't), so Binnie finds this single piece of evidence more compelling than the entirety of the evidence against David.  Which brings us to:

2. Unfairness to Robin Bain.
Binnie makes the point early on that he has to take into account that Robin Bain isn't around to speak for himself, then proceeds to ignore that point for the rest of his report.  He interviews David Bain at length, finds him intelligent and polite, concludes he's a credible witness and therefore whatever he says about the events is to be treated as true unless someone can prove otherwise.  So, if David says he didn't change his clothes that morning, we can assume he didn't unless the Crown can prove he did.

Seriously, What.  The.  Fuck.   If Robin Bain were around to be interviewed, wouldn't he also prove to be an intelligent and polite interviewee?  Wouldn't he also say that he didn't change his clothes that morning?  Would that mean the balance of probability was that neither of them was the murderer?

Along the same lines, Binnie raises and lets David rebut all the witness statements about his bizarre behaviour and possible motives for killing his family.  Robin? Yeah, not so much, what with that being dead thing.  He gets to let anything that witnesses have said about him stand.

3.  Assumption that the onus is on the Crown to prove David's guilt.
This one is another gobsmacking WTF.  As Fisher points out, Binnie takes into account the 2009 jury's verdict as being relevant to the task at hand.  Er, no.  The 2009 jury's verdict was relevant to the question of whether the Crown had proven David Bain guilty beyond reasonable doubt.  (It hadn't, and the jury found him not guilty.)  Binnie's task was to find whether David could back his claim for compensation by showing that he was innocent on balance of probabilities - in this instance the Crown doesn't have to prove anything.  This error is throughout Binnie's treatment of the evidence, ie he consistently asks whether the Crown has demonstrated guilt rather than whether David Bain has demonstrated probable innocence.

Honestly, and I write here as someone who loathes Judith Collins and has nothing but contempt for pretty much everything she's come up with in her various ministerial portfolios, I believe Judith Collins has treated Binnie's report with more kindness than it deserves.  The fact that we've forked out a shitload of cash for this annoys the hell out of me.  It's time that the government stopped throwing good money after bad and made a decision.


Nick K said...

Very well said, sir.

I saw you getting slayed over at Danyl's place and just left you on your own. I'm like that :)

Budgieboy said...

Geez Milt!!!

Balanced, insightful and very reasoned commentary!

You piss me off from time to time but you really are worthy of genuine respect for the way you shape and argue your point of view and how you do it from a principled perspective.

Way back in the day I remember being part of a cluster that got into you from time to time and how your right wing mates (Adolf I think) couldn’t understand how you were being reacted too and pointed out that how - while you are definitely left - you were well worthy of being listened to given the way you stated your case.

To be fair I woke up to that reality a long time ago (and think I have said so at some point) but kudos to you for a principled post… I’m no great fan of Collins but think you sum it all up nicely .

gravedodger said...

Well said Milt, the decision on any payment to David bain will be a political one so your last sentence sums it up for me.
Binnie's effort was nicely summarised by Iv2 at Keeping stock when he suggested Binnie give half the $400K he was paid, to Bain and Karam $100k each.
With the successful appeal to the Privy Council he recieved a 3 year reduction in custodial sentence and with the subsequent acquittal at retrial he avoided all the judicial consequences of the "life term" he received at the first trial.
Just feel lucky Mr Bain, your siblings and parents did not enjoy such good fortune.

Adolf Fiinkensein said...

Excellent post Milt.

So much for the myriad of loud commenters at Farrar's place who labeled the minister a 'failed tax lawyer' and suchlike.

You must send Judith Collins an copy of your piece, along with your invoice.

Edwin Wigmore said...

Good work Milt.

Pity the NZ Herald doesn't run this piece. Seems they are falling over themselves to compare Bain with Arthur Thomas and the like.

Anonymous said...

Well done PM. As a leftie, I am appalled at how many of the liberal left - including Andrew Geddis - have decided that:
1) the cops stuff up a lot of major cases
2) the Bain killings are a major case
3) so the cops must have messed up the Bain prosecution
4) so David Bain is clearly innocent. QED.

You have outlined well the many concerns with Binnie J's report.