Ian Callinan and the balance of probabilities.

There are many who believe that the Bain family murder case is one of New Zealand’s most enduring mysteries, and I must admit there are fascinating aspects of the case that sets it apart from other murder cases, for instance there were five killed and five separate murder or death scenes, all the dead were found in separate rooms so five entirely individual crime scenes, the first fascinating fact is that there is absolutely no forensic or circumstantial evidence whatsoever that puts Robin Bain in any of the murder rooms apart from the room where he died in yet David Bain’s defence team say Robin Bain murdered his family members.


As I said in the previous paragraph there are fascinating aspects of this case but “mystery” I don’t believe so. I believe the first jury got things right, they had the chance to look at the clear evidence in the case before it was obfuscated, but then this is the way the justice game is played, it is not necessarily about establishing what is the truth of the matter, but mostly about winning, you don’t get any medals for losing a case, you are deemed to be successful as a defence lawyer if you get your client off the charges, even if you have a nagging doubt about the innocence of your client you must put that aside and go for the win that’s the way the justice game works. A good example of what I am talking about is the fact that David Bain’s first lawyer Michael Guest defended David Bain well and still supported him in 2005 in Brian Bruce’s documentary “A Question Of Justice” Michael Guest also made no negative comments of David Bain when he was found not guilty at his second trial in 2009 “but” when Judge Ian Binnie said in his 2012 report for compensation that David Bain was innocent on the balance of probabilities and should be paid millions in compensation for time spent in prison all of a sudden the nagging doubts Michael Guest must have been harbouring for years came to the surface in an email he sent to the then justice Minister Judith Collins, in that email he states that David Bain “specifically lied” about wearing the glasses the night before the killings. Guest also says “referring to Binnie’s report” {maybe there is something in the judges report that sheds some different light on this evidence but in my opinion it “shatters” any suggestion of innocence.} Guest also states in the email {a finding that he is innocent is not a correct conclusion}.


So the above facts seem to suggest that David Bain’s lawyer was comfortable enough to support David’s bid to be found not guilty in a court of law but not so comfortable about findings by Ian Binnie that suggested David was actually innocent and should receive millions in compensation, this clearly was a bridge too far for Michael Guest.                                                                      


At this date 17th July 2015 retired former Justice of the High Court of Australia Ian Callinan is currently at work on a report into whether David Bain is innocent on the balance of probabilities. I for one am willing to stick my neck out and say “that there is no way in hell that Ian Callinan can possibly come to the conclusion that David Bain is innocent on the balance of probabilities” Why? Simply because if David Bain is found to be innocent on the balance of probabilities it means by default Robin Bain is guilty on the balance of probabilities, and as we all know there is not an iota of evidence of any kind putting Robin Bain in any of the 4 separate murder scenes, the same certainly cannot be said for David Bain, Chris Patterson an Auckland lawyer in his Blog puts it this way [quote] Take a piece of paper and draw a line down the middle, write David on the top of the left column and Robin on the top of right column then start listing down all of the evidence that tends to suggest the identity of the killer.  It is important to allocate some degree of weight to each piece of evidence as every piece is not necessarily equally probative.  Once finished, stand back and consider what is revealed before you.  The first striking fact that you will notice is that you will have run out of paper in terms of the David column.  The second fact is that the relative weighting results between the two looks closer to the game score of a match between the All Blacks and Finland.


What we have to remember is that the retired Canadian Justice Ian Binnie has already written a report in which he came to the conclusion that David Bain is innocent on the balance of probabilities. 
We all now know there were many errors and incorrect assumptions in that report . What we have to hope is that retired Australian  Judge Ian Callinan writes a report that does not contain any such errors and incorrect assumptions.  Providing he does that then I will agree that there is no way he can come to the conclusion that David Bain is innocent on the balance of probabilities. 

I try not to remember the silly conclusions Binnie came to Mike, and I see no reason why anybody should take into account what he had to say, doing that is similar to taking into account what people once said about the world being flat, that theory is now totally irrelevant and so is Binnies.

You may not want to remember those silly conclusions that Justice Binnie made but the problem is it appears many uninformed New Zealanders appear to believe his conclusions were correct, so as far as those New Zealanders are concerned his conclusions are not irrelevant to them. 
Many of those New Zealanders appear to be of the opinion that the reason why Binnie's report was discarded by Judith Collins is because the government did not want to pay David Bain compensation.  We know that was not the reason, but it appears we are in the minority, at least at this point of time. Hopefully that will change once Judge Callinan's report is published. 

I don't honestly believe we're in the minority Mike but then it depends on which groups you are talking about if we are talking about the countries lawyers and people involved with the law in general informed-educated people I am sure most of them believe Binnie was wrong and that David is guilty, but at the end of the day Callinan is the man who counts at the moment, but I believe if he comes up with another incompetent report as Binnie did then his report could also become irrelevant. I am sure the vast majority of lawyers an judges Law professors etc in this country were laughing there heads off at Binnies crazy conclusions and just how much luck David Bain has had.

According to the latest poll Bill, we are in the minority, which is where we have been for the past few years.  But, as you say, Callinan is the man that counts and from what I have heard of his reputation he will come to a different conclusion from that of his Canadian counterpart.