Bain Compensation Denied

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#1603372 3-Aug-2016 10:00

Rikkitic:

I have seen many different articles from many different sources in the same vein in recent years. These just happen to be two of the most recent, for which the links are easily available. If I felt like searching, which I don't, I'm sure I could easily find many more.

One simply cannot make a judgement on such a complex issue based on what the media has written.

6FIEND

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#1603373 3-Aug-2016 10:01

Well, having read Callinan's report in full, my opinion is thus:

While I accept that Bain's defence counsel introduced sufficient doubt at the second trial for him to be found not guilty, it seems extremely unlikely to me that Robin Bain committed the crime. (And no third party has ever featured in any hypothetical scenario)

I can form that opinion solely on a list of "Incontestable Objective Facts" set out in the report. (it is reinforced further by the contestable facts) The list of these is: (forgive any typos, they are mine from transcription)

1. The rifle used by the murderer was the Applicant's (David Bain)

2. The silencer used by the murderer was the Applicant's

3. The Applicant used the rifle from time to time

4. Mr Robin Bain was familiar with firearms and helped sight the rifle

5. The key to the trigger lock that enabled the rifle to be fired was the Applicant's

6. There were two keys to the trigger lock

7. One key (with other objects) attached to a necklace was found in a pocket of the Applicant's red anorak in Mr. Robin Bain's van

8. The other key to the trigger lock was on the trigger lock on the floor of the Applicant's bedroom immediately after the murders

9. The bullets fired from the Applicant's rifle belonged to the Applicant

10. The key referred to in paragraph 8 was kept in a lidded pottery jar on a chest of drawers in the Applicant's bedroom.

11. The white opera gloves used by the murderer were the Applicant's

12. The white opera gloves were kept in the Applicant's bedroom in a drawer with another pair of gloves and other items of clothing

13. Stephen Bain was partially strangled as well as shot

14. Stephen Bain fought for his life before his murderer killed him

15. Stephen Bain was a fit, healthy adolescent of 14 years when he fought unsuccessfully for his life

16. One of the Applicant's bloodstained white gloves was found under Stephen's bed

17. Mr. Robin Bain had available to him leather gloves which were found in his caravan

18. Mr Robin Bain was in his late fifties, about 5'9" tall, and of slight, somewhat wasted, frail build when he died

19. The Applicant was 22 years old, 6'3" or 6'4" tall, and a fit athletic young man in June 1994

20. The Applicant's fingerprints were found on the murder weapon

21. There was a palm print of the Applicant on the Washing Machine in the Laundry

22. The Applicant's clothing on testing was found to have the blood of one or more of his siblings on it...

23. The Applicant sorted clothes for washing and caused evidence (blood stains that may have been on them) to be irretrievably lost.

24. One of the Applicant's white socks were bloodstained, one more than the other. There were blood spots on the upper part of one of these.

25. On post-mortem, Mr. Robin Bain had a full bladder, some 400mL, consistent with an overnight collection.

26. The Applicant was unable to explain the bruising to his face, although he was clear that he had not be bruised before he went out on his paper run

27. There were a number of scratches on the Applicant's body before, and at the time of his arrest and charging.

28. The Applicant had a fresh scratch or abrasion on one knee which he did not suffer on his paper run

29. The Applicant was quite emphatic to the investigating police and to others from his first interview that he had not entered Stephen's Laniet's or Arawa's rooms

30. A distorted or damaged glasses frame which belonged to his mother was found in the Applicant's room very soon after the murders

31. The Applicant had asked for glasses on the morning of the murders. He told others that he had been wearing his mother's glasses over the preceding weekend.

32. The lens found in Stephen's room was the lens missing from the glasses found in the Applicant's room.

33. There is no conceivable reason why Mr. Robin Bain would wear his wife's glasses

34. Mr. Robin Bain was a very competent operator of, and enthusiastic about, computers.

35. There were spent shells that could have been used in the rifle in the caravan occupied by Mr. Robin Bain

36. The house smelled and was an extremely dirty and untidy state

37. The family (with the exception perhaps of Arara and Stephen) was dysfunctional by reference to the standards of ordinary, educated people

38. There was blood on the light switch to the Applicant's room, as to which the Applicant was unable to offer any explanation.

39. There were faint traces of blood on Mr. Robin Bain's hands

40. There was no blood detected inside the Applicant's new running shoes

41. The daily newspaper was on a table in the hall when the police arrived and it had not been put there by the Applicant.

42. The Applicant told more than one person that he hated his father and that he wanted him out of the house, indeed out of his family's lives

43. The possession and use of the chainsaw was a recurrent source of friction between the Applicant and his father.

44. A small minority of the children whom Mr. Robin Bain taught had written gruesome stories which were published in a school publication.

45. There was reason for Mr. Robin Bain to be unhappy.

46. The Applicant's parents were estranged.

47. The Applicant at his first trial gave a different version of his movements after he returned home from those he had given to police officers in interviews and to others, among other things: of Laniet gurgling; of entering his sibling's rooms; and of his affection for his father.

48. The Applicant was unable to account for his movements for a period of about 20 minutes before he called emergency services

49. There were instances of unusual behaviour by the Applicant before and after the murders.

50. There were no fewer than five, indeed six bloodied footprints in the house of varying sizes and states of completeness

51. The Applicant did not say that he saw or felt any blood or bloodstains before he entered his mother's room.

52. There was a note typed on the computer on the morning of the murders which read "sorry, you are the only one who deserved to stay"

53. The Applicant particularly wanted Laniet to sleep at home on the evening before the fatalities.

dejadeadnz

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#1603387 3-Aug-2016 10:23

MikeB4:

One simply cannot make a judgement on such a complex issue based on what the media has written.

Regardless of what basis he came to his views, objective reality tells anyone who isn't wilfully blind that, in this instance, this process has been at best highly inadequate and frankly in my view nothing short of a disgrace.

1. You have a compensation process that isn't laid down in legislation but rather cabinet guidelines. Countries like the UK have separate judicial bodies that are entirely above the political fray handling these claims -- these are created by a statute of Parliament, thus giving them genuine democratic legitimacy; they are also separate from the normal judiciary.

2. Judith Collins' "contributions", of which I have already previously detailed.

3. Even if Judith Collins' "contributions" didn't exist, you have members of the executive branch of the government -- who are inherently susceptible to the winds of political opinion -- appointing the individuals responsible for making the various assessments. Robert Fisher QC's judgement is certainly not entirely beyond criticism, given he is the previous judge of the High Court known for having the incredible judgement of browsing porn in his judicial office/chambers. Justice Callinan's conduct whilst in private practice has also been seriously controversial (and I have the background and actual knowledge to assess this) -- a decent summary of Callinan's past "issues" are here: http://www.radionz.co.nz/news/national/269239/australian-judge's-colourful-past. The judicial finding against Callinan is extraordinarily damning in my view.

4. Even if one didn't care about some of the blotches in the above jurists' pasts (I readily acknowledge that reasonable opinions can differ), given that their appointments were made by two people not above the political fray in a highly charged case, whatever conclusions they came to were never likely to gain the kind of acceptance that a decision reached by a body that is seen as apolitical.

5. Despite considerable reservations about the current compensation process (and I've already detailed Sir Geoffrey Palmer's views -- he also discussed previous Law Commission recommendations in his interview with Catherine Ryan), this government continues to refuse to even consider the UK approach, let alone adopt it.

6. Did you know that Cabinet can decline to accept the recommendation given by the jurist they appointed? This is precisely what happened when Justice Binnie (whom I will add, purely based on his previous post on the highly regarded Canadian Supreme Court and general judicial reputation, is far better known and regarded by most lawyers than certainly Robert Fisher QC and most likely also Justice Callinan) reached a decision that, in the eyes of Judith Collins, was flawed. But you can surely see why people aren't convinced, right?

I know it's fashionable to act like the media can never be trusted. But unless you are Einstein or spend every waking minute of yours researching everything for yourself, you will need to filter things through what is presented by (reputable) media outlets at least. Whilst some of the things I detailed here are only known to actual lawyers, most of the points have been more than adequately covered by the media.

Rikkitic

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#1603394 3-Aug-2016 10:31

All of this is second-guessing the verdict, which is what has been going on ever since it was determined. I think it is dangerous to try to fudge something like this. I don't see how you can say someone is not guilty, but we think he might be anyway so we will let him go but we won't give him compensation. That doesn't make sense and it is dishonest. If the legal process says he is guilty, then lock him up. If it says he isn't, then compensate him for a miscarriage of justice. If that doesn't 'feel' right, too bad. Sometimes the system gets it wrong, but it should at least be consistent.

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frankv

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#1603410 3-Aug-2016 10:52

Rikkitic:

All of this is second-guessing the verdict, which is what has been going on ever since it was determined. I think it is dangerous to try to fudge something like this. I don't see how you can say someone is not guilty, but we think he might be anyway so we will let him go but we won't give him compensation. That doesn't make sense and it is dishonest. If the legal process says he is guilty, then lock him up. If it says he isn't, then compensate him for a miscarriage of justice. If that doesn't 'feel' right, too bad. Sometimes the system gets it wrong, but it should at least be consistent.

Agreed. If something doesn't 'feel' right, then it could very well be that the 'feel' is wrong. That after all is the point of he law, to be objective and not decide someone's innocence or guilt based on arbitrary subjective feelings.

As I said before, the law is there to make decisions.

If you need to (or can) second-guess the law, then the law is inadequate.

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#1603494 3-Aug-2016 12:36

Rikkitic:

All of this is second-guessing the verdict, which is what has been going on ever since it was determined. I think it is dangerous to try to fudge something like this. I don't see how you can say someone is not guilty, but we think he might be anyway so we will let him go but we won't give him compensation. That doesn't make sense and it is dishonest. If the legal process says he is guilty, then lock him up. If it says he isn't, then compensate him for a miscarriage of justice. If that doesn't 'feel' right, too bad. Sometimes the system gets it wrong, but it should at least be consistent.

But he has NOT proved his innocence. And never will.

He doesn't meet the criteria for compensation.

As put earlier, the law is the law like it or not.

mattwnz

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#1603565 3-Aug-2016 13:54

dickytim:

Rikkitic:

All of this is second-guessing the verdict, which is what has been going on ever since it was determined. I think it is dangerous to try to fudge something like this. I don't see how you can say someone is not guilty, but we think he might be anyway so we will let him go but we won't give him compensation. That doesn't make sense and it is dishonest. If the legal process says he is guilty, then lock him up. If it says he isn't, then compensate him for a miscarriage of justice. If that doesn't 'feel' right, too bad. Sometimes the system gets it wrong, but it should at least be consistent.

But he has NOT proved his innocence. And never will.

He doesn't meet the criteria for compensation.

As put earlier, the law is the law like it or not.

IANAL. But this is the way I understand it. Under our legal system, you don't have to prove your innocence, they have to prove your guilt. So by default you are innocent until proven guilty. I don't believe there are different shades of innocence under NZ law, you are either innocent or guilty. He was not found guilty in the second trial, therefore he is innocent. In the first trial it was shown that there was a miscarriage of justice by the Privy council,, so it was quashed. So he had spend 13 years in prison for a conviction that was quashed due to a miscarriage of justice. So should he have got compo or an apology for for that?
The payment he received was probably about what he would have got if he was successful with his compensation claim, if you compare it with the other recent compensation payout for someone who was in prision for far longer. But apparently to get compo, you have to prove your innocence, which in many cases is impossible to do, and then that is subjective too. In this case a professional judge did show that he had proved his innocence. But this was peer reviewed and disputed. If you watched Mike Hoskings yesterday, he basically explained that the amount that was paid out, was essentially a compensation payout. It is a life changing amount, and is the sort of amount that many people only dream about having, when they buy their $1 million lotto ticket each week. But I think the bigger thing than the money, is getting an apology for being in prison for 13 years, when the Privy council showed there had been a miscarriage of justice. To my knowledge there hasn't been any apology. I would certainly want an apology.

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MikeB4

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#1603571 3-Aug-2016 14:03

dejadeadnz:
MikeB4:

One simply cannot make a judgement on such a complex issue based on what the media has written.

Regardless of what basis he came to his views, objective reality tells anyone who isn't wilfully blind that, in this instance, this process has been at best highly inadequate and frankly in my view nothing short of a disgrace.

1. You have a compensation process that isn't laid down in legislation but rather cabinet guidelines. Countries like the UK have separate judicial bodies that are entirely above the political fray handling these claims -- these are created by a statute of Parliament, thus giving them genuine democratic legitimacy; they are also separate from the normal judiciary.

2. Judith Collins' "contributions", of which I have already previously detailed.

3. Even if Judith Collins' "contributions" didn't exist, you have members of the executive branch of the government -- who are inherently susceptible to the winds of political opinion -- appointing the individuals responsible for making the various assessments. Robert Fisher QC's judgement is certainly not entirely beyond criticism, given he is the previous judge of the High Court known for having the incredible judgement of browsing porn in his judicial office/chambers. Justice Callinan's conduct whilst in private practice has also been seriously controversial (and I have the background and actual knowledge to assess this) -- a decent summary of Callinan's past "issues" are here: http://www.radionz.co.nz/news/national/269239/australian-judge's-colourful-past. The judicial finding against Callinan is extraordinarily damning in my view.

4. Even if one didn't care about some of the blotches in the above jurists' pasts (I readily acknowledge that reasonable opinions can differ), given that their appointments were made by two people not above the political fray in a highly charged case, whatever conclusions they came to were never likely to gain the kind of acceptance that a decision reached by a body that is seen as apolitical.

5. Despite considerable reservations about the current compensation process (and I've already detailed Sir Geoffrey Palmer's views -- he also discussed previous Law Commission recommendations in his interview with Catherine Ryan), this government continues to refuse to even consider the UK approach, let alone adopt it.

6. Did you know that Cabinet can decline to accept the recommendation given by the jurist they appointed? This is precisely what happened when Justice Binnie (whom I will add, purely based on his previous post on the highly regarded Canadian Supreme Court and general judicial reputation, is far better known and regarded by most lawyers than certainly Robert Fisher QC and most likely also Justice Callinan) reached a decision that, in the eyes of Judith Collins, was flawed. But you can surely see why people aren't convinced, right?

I know it's fashionable to act like the media can never be trusted. But unless you are Einstein or spend every waking minute of yours researching everything for yourself, you will need to filter things through what is presented by (reputable) media outlets at least. Whilst some of the things I detailed here are only known to actual lawyers, most of the points have been more than adequately covered by the media.

I agree with this. I should have said 'what was written in the soap opera media'. The are a few good media sources but they are hard to find.

Lastman

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#1603733 3-Aug-2016 17:19

I think some of the logic behind the "proof of innocence" requirement is whether or not the state was reasonable in the way it conducted it's investigation and prosecution. In many cases where compensation is given, serious flaws in state in the investigation have emerged.

Rikkitic

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#1603759 3-Aug-2016 17:59

According to the Canadian judge, police incompetence ruined some of the evidence, making it impossible for Bain to prove his innocence. That doesn't sound very reasonable to me.

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#1603761 3-Aug-2016 18:07

Rikkitic:

According to the Canadian judge, police incompetence ruined some of the evidence, making it impossible for Bain to prove his innocence. That doesn't sound very reasonable to me.

The police wanted him, they had to have caught the killer, and they planted evidence. Its hard to imagine a crime like this not being able to be fully solved. Its so closely located, all in one place.

dejadeadnz

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#1603774 3-Aug-2016 18:31

tdgeek:

The police wanted him, they had to have caught the killer, and they planted evidence. Its hard to imagine a crime like this not being able to be fully solved. Its so closely located, all in one place.

Damn right. To me, the far more important question than whether Bain committed the murders or not (I think anyone who hasn't sat through the entirety of the second trial especially cannot even begin to come to a view -- and even then it might be hard to be definitive) is the misconduct of the police, as well as all the steps that Bain had to go to to get a second trial. And it's concerning that ultimately it was a bunch of English Law Lords that gave him his due. And good on Joe Karam -- lots of people are great at blowing their own trumpet about caring about the weak, vulnerable and human rights (and dare I say this includes a considerable number of lawyers) but few have ever accepted the kind of personal costs that he has to help vindicate a stranger's rights.

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#1604112 4-Aug-2016 10:11

I haven't read all 5 pages, so forgive me if I'm repeating what others have already said. But here is my opinion (note: I have no opinion one way or the other whether he committed the crimes or not):

We live in a society with a justice system built on the premise of "innocent until proven guilty". The Privy Council threw out his conviction and the Crown could not prove his guilt beyond a reasonable doubt, this means that from a legal standpoint he was wrongly convicted (regardless of whether he actually committed the crime).

I believe it is wrong that on order to gain compensation for this wrongful conviction that the rules are turned upside down and he has to prove his innocence.

The burden of proof should always be on the Crown to prove guilt, not the other way around.

Should we be happy about the the prospect of potentially guilty people receiving compensation? No. But that isn't the point.

Imagine the case of someone who was wrongly convicted (not just from a legal standpoint, but someone who was actually innocent). They spent years in prison for something they didn't do. Their conviction is finally overturned, but for compensation they need to fight another legal battle all over again.

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#1604120 4-Aug-2016 10:20

Paul1977:

I haven't read all 5 pages, so forgive me if I'm repeating what others have already said. But here is my opinion (note: I have no opinion one way or the other whether he committed the crimes or not):

We live in a society with a justice system built on the premise of "innocent until proven guilty". The Privy Council threw out his conviction and the Crown could not prove his guilt beyond a reasonable doubt, this means that from a legal standpoint he was wrongly convicted (regardless of whether he actually committed the crime).

I believe it is wrong that on order to gain compensation for this wrongful conviction that the rules are turned upside down and he has to prove his innocence.

The burden of proof should always be on the Crown to prove guilt, not the other way around.

Should we be happy about the the prospect of potential guilty people receiving compensation? No. But that isn't the point.

Imagine the case of someone who was wrongly convicted (not just from a legal standpoint, but someone who was actually innocent). They spent years in prison for something they didn't do. Their conviction is finally overturned, but for compensation they need to fight another legal battle all over again.

Tenia Porter just got given compensation because it was entirely proven he was innocent. In that case I have no issue with compensation.

I disagree that because a conviction is vacated that this means the person is actually innocent, and I think ACTUAL innocence should be the standard for compensation.

Don't forget, if he committed the crime, and a technicality allowed him out of prison then he has effectively committed a crime with minimal punishment compared to what was originally handed out. Most people who had committed a crime and got away with that would probably consider themselves quite fortunate.

Paul1977

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#1604129 4-Aug-2016 10:34

networkn:

Paul1977:

I haven't read all 5 pages, so forgive me if I'm repeating what others have already said. But here is my opinion (note: I have no opinion one way or the other whether he committed the crimes or not):

We live in a society with a justice system built on the premise of "innocent until proven guilty". The Privy Council threw out his conviction and the Crown could not prove his guilt beyond a reasonable doubt, this means that from a legal standpoint he was wrongly convicted (regardless of whether he actually committed the crime).

I believe it is wrong that on order to gain compensation for this wrongful conviction that the rules are turned upside down and he has to prove his innocence.

The burden of proof should always be on the Crown to prove guilt, not the other way around.

Should we be happy about the the prospect of potential guilty people receiving compensation? No. But that isn't the point.

Imagine the case of someone who was wrongly convicted (not just from a legal standpoint, but someone who was actually innocent). They spent years in prison for something they didn't do. Their conviction is finally overturned, but for compensation they need to fight another legal battle all over again.

Tenia Porter just got given compensation because it was entirely proven he was innocent. In that case I have no issue with compensation.

I disagree that because a conviction is vacated that this means the person is actually innocent, and I think ACTUAL innocence should be the standard for compensation.

Don't forget, if he committed the crime, and a technicality allowed him out of prison then he has effectively committed a crime with minimal punishment compared to what was originally handed out. Most people who had committed a crime and got away with that would probably consider themselves quite fortunate.

I am not suggesting that when a conviction is overturned that they are necessarily actually innocent. But from a legal perspective they are NOT GUILTY.

I disagree with the precedent of having to prove innocence as it runs contrary to the rest of out justice system that requires proof of guilt.

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