Full Text of Police Letter to Minister of Justice in Relation to Binnie's Report


To: Minister of Justice

This memo outlines key points Police wish (0 raise regarding the Hon Binnie's compensation report

  1. There appears, from a Police perspective, to be an inaccurate description of the scale of the errors identified by the Hon Mr Binnie. The tone of the report suggests Police errors were significant (egregious), many and severe in nature. A closer examination of the facts and the evidence produced to support these assertions does not, in the view of Police, support the comments.
  2. Some events that the Hon Mr Binnie asserts contributed to the miscarriage of justice, appear to have had no impact at David Bain's 1995 trial. It is difficult to follow the logic that these "errors" by Police led to a miscarriage of justice. These include:
  • Events that took place after the trial such as the ESR sample contamination and the destruction of (previously examined) exhibits.
  • Criticism of material which was accepted by Defence at the trial as beIng helpful to their defence strategy e.g. the luminal footprints. the Laney statement.
  1. There is significant weight given to David Bain's  evidence, in the absence of independent corroboration, when Bain is the only person left to speak. There appears to be an acceptance of David Bain's evidence as a default position without any real attempt to test the evidence or seriously consider other conflicting evidence. The dismissal of the evidence by family members on the basis of David Bain's view that they had aligned themselves against him seems very odd.
  2. The failure to interview significant parties to this review that are directly or implicitly criticised.
  • The Hon Mr Binnie has taken excerpts of cross examination and used that to criticise the evidence of Kim Jones and Peter Hentshel. He refers to the 'pretty odd" evidence of Maarten Kleintjes. These experts have no opportunity to respond.
    • The Hon Mr BinnIe criticises the PCA report as "essentially a Police advocacy document" without speaking to any of the PCA or Police staff involved in its preparation.
    • The Hon Mr Binnie makes comment regarding Mr Guest, Defence Counsel at the first trial in a manner that must be read as critical but has not interviewed Mr Guest.
    • The Hon Mr Binnie comments on the evidence of the Bain and Cullen family members, who have a cenlral role and very personal interest in these events and essentially dismisses their evidence as being partial because of views expressed by David Bain


  1. There appears to have been an over reliance on the detail of the Detective Manual as the process for the conduct of an investigation. The manual is only ever a guide. It provides advice for staff involved in an investigation. There are valid criticisms of individual errors but taken as a whole this was a well structured investigation, with clearly understood investigation disciplines following an established and well understood process. Police absolutely reject the assertion that many of the Manual's most basic instructions were ignored. Police also reject the assertion that staff had tunnel vision, were poorly briefed and did not have relevant background.
  2. Much of the criticism of the scene coordination is ill-informed. The responsibility for this is laid at the feet of Detective Sergeant Weir. The Detective Sergeant was entitled, based on established investigative practice, to rely on the advice of experts, be they scientists, computer analysts, pathologists or photographers, on how evidence should be recorded and how best preserved. He took that advice and acted upon it. His scene examination was thorough and complete.
  3. Police note factual errors contained in the report as follows
  • Paragraph 57 - Police aulhorised the burning down of the property. Police had released the property to the family. The destruction was a family decision, one to which David Bain apparently consented. Police did not object to the destruction but they could not authorise.

          .•       Paragraph 85 - Stephen was shot once in the head and one bullet creased his scalp. He was not shot three times in the head as stated in the Hon Mr Binnie's report

  • Paragraph 90 - The Crown assert that only David knew where the key lock was kept. No such assertion was made regarding the rifle and ammunition
  • Paragraph 143 - The assertion that Professor Brinded said David Bain had no predisposition to murder. This is not found in the notes of evidence
    • Paragraph 259 - 265 - reference to blood "blow bacl<" and blood near the end of the barrel of the rifle attributed to Mr Hentshel - this reference does not appear in the notes of evidence
      • Paragraph 265 - footnote 142 asserts that the failure by the Pathologist and Police to cut out the skin around Robin Baln's head wound was "in violation of the Detective Manual ... D This assertion is based on a question from Mr Reed QC in cross examination, which was not supported by the witness testimony In response. Mr Reed QC and the Hon Mr Binnie are factually incorrect. The Detective Manual did not in 1994, and does not now, contain that direction.
      • Paragraph 326 - Marleen KleintJes is a Police employee, not ESR
      • Paragraph 587 - adopts a Privy Council comment ra Laney evidence that the "defence did not know her clock had been checked by Police" This information was in the Laney statement disclosed to defence In 1994


  1. Police also have concerns regarding the manner in which the terms of reference have been interpreted and the scope of the Hon Mr Binnie's report. We have not provided comment on those issues and other legal matters on the basis that advice will be sought from experts on these issues.
  2. A detailed analysis of the report, identifying the points Police believe are inaccurate, or which appear to mischaracterise the evidence, is attached.


Malcolm Burgess

Assistant Commissioner: Investigations



Going beyond the Privy Council Decision.

A most illuminating memo.  In any case Binnie went further than the Privy Council.  As I recall it, the later found a miscarriage of justice based upon The supression of Dean Cottle's evidence at the first trial.  The police investigation had uncovered that evidence and supplied it to Michael Guest.

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