Should David Bain get compensation?

[Charlie Wilkes]

Try
http://www.3news.co.nz/tvshows/3rd-degree/new-evidence-could-clear-david-bain-2013062613

(friend google works well down here)

Very interesting. I have always thought Bain was probably innocent but could never prove it. This is solid new evidence in his favor.

Someone mentioned the Bamber case, which is similar. The Jason Payne case also makes for an interesting comparison.

http://road2justice.wordpress.com/2012/02/29/the-wrongful-conviction-of-jason-payne/

 

[Samson]

Very interesting. I have always thought Bain was probably innocent but could never prove it. This is solid new evidence in his favor.

Someone mentioned the Bamber case, which is similar. The Jason Payne case also makes for an interesting comparison.

http://road2justice.wordpress.com/2012/02/29/the-wrongful-conviction-of-jason-payne/

I am becoming interested in cases where youths are alleged to commit murders for which they have not a snowball in hell's chance of getting away with if actually guilty, then profess innocence for years, and have serious advocates who find contrary evidence supporting their accounts.
hmm.
This one looks like a candidate.

 

[Samson]

Maybe this justice minister will be less excited at playing god.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11390306

 

[Samson]

David Bain must prove innocence.
LashL and Charlie Wilkes (as clearly independant observers) were interested in the clear and as I understand it, unchallenged marks that were photographed at the time on Robin Bain's thumb, that corellated precisely with ramming the cartridge of the murder weapon home. Notwithstanding that good template evidence, the police allege the marks could have resulted from a roofing repair enterprise.
LashL knows much about judge Binnie who spent months reviewing the case, and unusually, interviewed David Bain for a day, wrote the report, made a finding that innocence was probable to a threshhold he could recommend compensation.

Prior to being sacked for unrelated matters of conflict of interest, justice minister Judith Collins retained a QC to review Binnie. This Queens Council has aided the police in the review of the Arthur Allan Thomas case, a wrongly convicted man who was paid compensation.

Link:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11404684

 

[Rolfe]

As a general point, not commenting on the circumstances of this particular case, yes I do think he should get compensation.

He's far from the only person to have been freed on appeal after having his life ruined by a conviction which was later overturned. The vast majority of these people are factually innocent. Why is it safe to say this? Because it's far harder to get unconvicted than to avoid being convicted in the first place, if you're innocent. There's an interesting long article somewhere called "Unarresting the arrested" detailing the difficulties of getting the cops' talons out of someone they're determined to convict. Getting "unarrested" or even more so unconvicted after a conviction, when you're actually guilty, is not a trick many people pull off.

Nevertheless, in an attempt to prevent such people profiting from their situation, the authorities have introduced another hurdle to jump before compensation is paid. Proveing innocence beyond reasonable doubt. In some cases this can be done, for example where the cops actually identify the real culprit, or an unbreakable alibi is proved. In many cases though, it can't be done. A weak case that should never have been prosecuted in the first place is overturned, leaving some hapless soul out on the streets with nothing.

If the price of making sure that every innocent person who has had their life ruined is given proper compensation is that some money is paid out to the very occasional guilty person who lucked out on an appeal, then so be it, frankly.

(Sorry, I did start a more general thread about this on the back of an article describing a couple of different cases, but I thought I would post it here too.)

 

[Carnivore]

It's a weird and troubling case. The physical evidence has been ambiguous largely due to the botched initial police investigation - which the police insisted was "textbook" perfect. I agree they initially assumed Robin was the shooter and later flailed about looking for evidence to incriminate David.

Psychologically there is no question as to which Bain would have been initially considered more likely to snap and kill his family. On the one hand was a young man doing well at University, active in athletics and the arts with a steady girlfriend and who had recently completed an Outward Bound course. On the other hand was a depressed deeply religious former missionary rejected by by his equally religious wife and exiled from the family home. He lived in caravan in the back yard and she allegedly viewed him as an evil influence. I seem to recall (maybe from Karam's book?) that he was in hot water professionally after having hit a kid at the school where he worked and had been reading a story about someone killing their whole family. Then of course the allegation that his daughter Laniet was going to tell the rest of the family about his sexual abuse of her the night before the murders.

Under the circumstances I would want fairly convincing physical evidence implicating David in the murders and excluding Robin before I would feel comfortable that his conviction was safe. We seem not to have that evidence. It's still a credible possibility that Robin was guilty. Given that the flaws in the investigation and trial have been public for so long and given the clear reluctance of anyone in the NZ Justice system or Government to honestly address them for almost as long, I think that David Bain should be given compensation. He might be guilty, he certainly didn't get a fair go.

 

[The Atheist]

Some people changed their minds when they saw the photograph of Robin Bain's thumb showing a pressure groove and stain that matched the cartridge case.

Only if they were the type of people likely to be influenced by utter cherry-picked nonsense.

The failures with the thumb theory are legion, and blingdingly obvious:

1 If you look at Robin's hand in your own link, he has an identical mark on his index finger. They are clearly older marks with ingrained dirt.

2 I've pushed in thousands of rounds and have never had a mark left on my thumb.

The idea is straw-grasping by Joe Karam and was seized as "evidence" by the same media that showed its colours when the revolting Wendy Petrie famously gave a fist pump when the absurd not guilty verdicts were brought in.

Very interesting. I have always thought Bain was probably innocent but could never prove it. This is solid new evidence in his favor.

Where is that?

I've examined the evidence from both sides and my opinion is that David Bain is guilty and that the jury in his re-trial should be taken out and flogged*. There is no evidence to implicate Robin and an enormous amount to show that David did it.

The failure of the police to preserve evidence is a disgrace, regardless.

*I will grant that they may well have been moved by compassion for him already having done a dozen years, as long as most murderers have seen bars for anyway.

It's a weird and troubling case.

...

Under the circumstances I would want fairly convincing physical evidence implicating David in the murders and excluding Robin before I would feel comfortable that his conviction was safe. We seem not to have that evidence. It's still a credible possibility that Robin was guilty. Given that the flaws in the investigation and trial have been public for so long and given the clear reluctance of anyone in the NZ Justice system or Government to honestly address them for almost as long, I think that David Bain should be given compensation. He might be guilty, he certainly didn't get a fair go.

If you haven't seen compelling physical evidence to both implicate David and exonerate Robin, then I don't believe you've looked at the evidence very closely.

Not only is there no evidence to implicate Robin, there is a wealth that exonerates him, no matter how attractive a perpetrator he might have made.

David, on the other hand, is implicated to his blood-soaked hands.

The question of compensation is going to prove interesting for Key & his pals.

A A Thomas got a mio in 1979, so the inflation rate says Baino should get somewhere around $20,000,000,000 but I'd say they'll look at $6,000,000.

I have no doubt he'll get compensation.

 

[Samson]

Only if they were the type of people likely to be influenced by utter cherry-picked nonsense.

The failures with the thumb theory are legion, and blingdingly obvious:

1 If you look at Robin's hand in your own link, he has an identical mark on his index finger. They are clearly older marks with ingrained dirt.

2 I've pushed in thousands of rounds and have never had a mark left on my thumb.

The idea is straw-grasping by Joe Karam and was seized as "evidence" by the same media that showed its colours when the revolting Wendy Petrie famously gave a fist pump when the absurd not guilty verdicts were brought in.



Where is that?

I've examined the evidence from both sides and my opinion is that David Bain is guilty and that the jury in his re-trial should be taken out and flogged*. There is no evidence to implicate Robin and an enormous amount to show that David did it.

The failure of the police to preserve evidence is a disgrace, regardless.

*I will grant that they may well have been moved by compassion for him already having done a dozen years, as long as most murderers have seen bars for anyway.



If you haven't seen compelling physical evidence to both implicate David and exonerate Robin, then I don't believe you've looked at the evidence very closely.

Not only is there no evidence to implicate Robin, there is a wealth that exonerates him, no matter how attractive a perpetrator he might have made.

David, on the other hand, is implicated to his blood-soaked hands.

The question of compensation is going to prove interesting for Key & his pals.

A A Thomas got a mio in 1979, so the inflation rate says Baino should get somewhere around $20,000,000,000 but I'd say they'll look at $6,000,000.

I have no doubt he'll get compensation.

I would certainly be interested in any links that discredit the thumb evidence. You have followed the case more closely. Do you know if there is proof Robin Bain set his alarm clock for 6 30? Without going back through the thread, is there an attempt to explain how David Bain did not report a gun shot as he walked up the garden path. The timeline for R Bain turning on the computer, typing the message, then shooting himself around 6 45 am is the most difficult thing for me to grasp in the innocence theory. As all that had to happen in less than two minutes?

 

[The Atheist]

I would certainly be interested in any links that discredit the thumb evidence.

That photo is all there is, Robin having been incinerated.

You have followed the case more closely. Do you know if there is proof Robin Bain set his alarm clock for 6 30?

Obviously, proving who set an alarm clock and when is impossible.

Without going back through the thread, is there an attempt to explain how David Bain did not report a gun shot as he walked up the garden path. The timeline for R Bain turning on the computer, typing the message, then shooting himself around 6 45 am is the most difficult thing for me to grasp in the innocence theory. As all that had to happen in less than two minutes?

Not only that, Robin shooting himself at the angle he is supposed to have shot himself is virtually impossible. Again, thank the cops for screwing up and not preserving the evidence.

David wouldn't have heard shots as a silencer was used.

The most compelling thing to me is the bloody sock prints, measured at 280 mm long. Now, I know for a fact that when I leave wet footprints, they are never as long as my foot. Robin's feet were 270mm and David's are 300mm. Only one of them could have left the footprints, and it wasn't Robin.

How those stupid old Pommy gits on the Privy Council could not see that I have no idea. It seems to me the Privy Council looked for ways to overturn the verdict rather than look at the facts.

 

[Charlie Wilkes]

Only if they were the type of people likely to be influenced by utter cherry-picked nonsense.

The failures with the thumb theory are legion, and blingdingly obvious:

1 If you look at Robin's hand in your own link, he has an identical mark on his index finger. They are clearly older marks with ingrained dirt.

2 I've pushed in thousands of rounds and have never had a mark left on my thumb.

In the video I watched, investigators exactly replicated the marks shown in the crime scene photo. The marks are distinctive and unusual. You offer no reason to accept your claim that they were "clearly older marks with ingrained dirt."

 

[Samson]

That photo is all there is, Robin having been incinerated.



Obviously, proving who set an alarm clock and when is impossible.



Not only that, Robin shooting himself at the angle he is supposed to have shot himself is virtually impossible. Again, thank the cops for screwing up and not preserving the evidence.

David wouldn't have heard shots as a silencer was used.

The most compelling thing to me is the bloody sock prints, measured at 280 mm long. Now, I know for a fact that when I leave wet footprints, they are never as long as my foot. Robin's feet were 270mm and David's are 300mm. Only one of them could have left the footprints, and it wasn't Robin.

How those stupid old Pommy gits on the Privy Council could not see that I have no idea. It seems to me the Privy Council looked for ways to overturn the verdict rather than look at the facts.

Atheist, the troubling aspect for me is that David Bain could not realistically expect to perform a quintuple homicide and leave a crime scene that was ambiguous. Logically, a perpetrator will prefer to die immediately, suicide, or under police fire. It seems so extremely unlikely that anyone would expect to pull the wool over the eyes of a police force.... but if the perp is deceased, who cares?

 

[Rolfe]

I find attempts to retry the case in the context of an application for compensation to be entirely misguided. If someone has been acquitted on appeal, give them the compensation. This probably risks giving a genuinely guilty person compensation, but not often, considering how difficult it is to win an appeal.

The alternative is to retry every acquitted person to a much higher standard of proof (innocent beyond reasonable doubt), and then brand them "bloody lucky to have got away with it", turning them loose to cope with the ruins of their lives, if they can't meet that standard.

 

[The Atheist]

In the video I watched, investigators exactly replicated the marks shown in the crime scene photo. The marks are distinctive and unusual. You offer no reason to accept your claim that they were "clearly older marks with ingrained dirt."

Oh, the old "I saw it on TV". yeah, that works.

I'm sure it's easy to duplicate marks when you try very hard to do so.

The problem is that in the real world, when people load that type of rifle, you do not end up with marks on your thumb.

I'm not making any claim about the ingrained dirt - you can see it for yourself in the only photo - the one that was linked above. If the marks were left by loading the magazine, why is there an identically-ingrained mark on his index finger?

The bullet/thumb mark is nonsense to anyone who's ever handled a .22 semi-auto and/or seen pictures of Robin's hand.

Atheist, the troubling aspect for me is that David Bain could not realistically expect to perform a quintuple homicide and leave a crime scene that was ambiguous. Logically, a perpetrator will prefer to die immediately, suicide, or under police fire. It seems so extremely unlikely that anyone would expect to pull the wool over the eyes of a police force.... but if the perp is deceased, who cares?

I don't think he tried to leave an ambiguous scene - he worked out a way to frame Robin and went about his business of killing everyone. The cops helped him by screwing up.

Also, I meant to say earlier that David needs to be looked at in the light of a 23 year old guy who was living at home with his parents and whose only paid job was a paper round.

He was not your "normal" young bloke, that's for sure. It doesn't have any great bearing on the guilt or not, but needs to be seen against claims of what a wonderful life David was giving up by going to jail.

I find attempts to retry the case in the context of an application for compensation to be entirely misguided. If someone has been acquitted on appeal, give them the compensation. This probably risks giving a genuinely guilty person compensation, but not often, considering how difficult it is to win an appeal.

Distasteful as it is, I agree, and in Bain's case I'm pretty sure he will be being paid for murdering his entire family.

If you're going to have attempts at justice, they at least need to be consistent.
_____________________________

Anyway, if anyone thinks the Bain case is fun, there's an even better one going on right now in Mark Lundy. Another whose conviction was quashed by Privy on the back of some shockingly inept police work.

When Lundy is acquitted at the trial, he will no doubt also plead for compensation. Being paid for smashing his daughter so hard with an axe that he left his silhouette in the blood spattered all over the wall.

Outstanding.

 

[fuelair]

Rats. I thought it was David Blaine, in which case the answer would have been, "Hell no!"

True that!!!

 

[Roger Ramjets]

I find attempts to retry the case in the context of an application for compensation to be entirely misguided. If someone has been acquitted on appeal, give them the compensation.

I agree. Whether the accused is actually guilty or innocent is irrelevant. In most cases we will never know the full truth, so legally we have to accept the findings of the court. No matter what our personal opinions, we must accept the legality of a Not Guilty verdict the same as we do a Guilty one.

If someone is initially found guilty but later acquitted then it is effectively the same as if they were not guilty in the first place, so they should receive compensation for any wrongful incarceration - whether they are actually innocent or not. If they are legally innocent then it is the same thing as far as the law is concerned, just like it was legally OK to lock them up without compensation when they were legally guilty (even if factually innocent).

If it were otherwise then the police could simply manufacture and/or suppress evidence to make every accused look guilty (because they are, so who cares whether the evidence we have is true or not?) resulting in a 100% conviction rate. Any prisoner could then try to get their conviction overturned - but without compensation unless they can present compelling proof of innocence, because we 'know' that they are guilty!

 

[Rolfe]

That's kind of what actually happens, isn't it?

 

[Samson]

I find attempts to retry the case in the context of an application for compensation to be entirely misguided. If someone has been acquitted on appeal, give them the compensation. This probably risks giving a genuinely guilty person compensation, but not often, considering how difficult it is to win an appeal.

The alternative is to retry every acquitted person to a much higher standard of proof (innocent beyond reasonable doubt), and then brand them "bloody lucky to have got away with it", turning them loose to cope with the ruins of their lives, if they can't meet that standard.

Yes, your suggestion (maybe it was on your thread) that being retried and acquitted is such an unusual achievement, that a rule of thumb would be for everyone to agree to disagree, and take the liberal view, better 100 guilty men go free than imprison one innocent, and pay up. The challenge could be to find a case in history where a retried and acquitted person has (re)offended. If there is no such case, then society can expect to be engaged in no contingent danger.
On the above basis Knox and Sollecito would be now definitively free as is David Bain, I might note, and I see no societal risk from any of those three.

Meanwhile, Justice Binnie speaks out.

Some extracts and then the link:

Justice Binnie said he stood by his report and had been surprised at Ms Collins' response. He was called to travel to NZ for a 15-minute meeting with her in September 2012, soon after he delivered his report.
"It was very clear at that time that the minister was furious with the conclusion I had reached. So I left Wellington knowing my report was dead on arrival."

Justice Binnie said he did not know Ms Adams, but the issue had gone through two justice ministers before her - Simon Power and Ms Collins.
"From 10,000 miles away, it looks like a familiar pattern lawyers encounter. It's not uncommon among clients to keep going through lawyers until they find someone who agrees with them."

Justice Binnie also wrote to the editor of the Herald to defend his findings, describing Dr Fisher's review as "very partisan (not 'peer')".
He took exception to Dr Fisher's claim that he had failed to weigh up the totality of the evidence both for and against Mr Bain. He said he had considered all the evidence appropriately.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11406156

 

[Charlie Wilkes]

Oh, the old "I saw it on TV". yeah, that works.

I'm sure it's easy to duplicate marks when you try very hard to do so.

The problem is that in the real world, when people load that type of rifle, you do not end up with marks on your thumb.

I'm not making any claim about the ingrained dirt - you can see it for yourself in the only photo - the one that was linked above. If the marks were left by loading the magazine, why is there an identically-ingrained mark on his index finger?

The bullet/thumb mark is nonsense to anyone who's ever handled a .22 semi-auto and/or seen pictures of Robin's hand.

???

It happens I own a .22 semi-auto, with a slightly different magazine cartridge, but it loads the same way, and I see the point exactly. I have had those marks on my own thumb and index finger.

They didn't "try very hard." They merely demonstrated what happened when they reloaded the magazine after shooting the gun.

Asserting that something is nonsense does not make it nonsense.

 

[Rolfe]

Yes, your suggestion (maybe it was on your thread) that being retried and acquitted is such an unusual achievement, that a rule of thumb would be for everyone to agree to disagree, and take the liberal view, better 100 guilty men go free than imprison one innocent, and pay up. The challenge could be to find a case in history where a retried and acquitted person has (re)offended. If there is no such case, then society can expect to be engaged in no contingent danger.

Yes. The corollary to the attitudes we're seeing with the Bain case is that people who are almost certainly innocent, and indeed in some cases I'd say cetainly innocent, are being tossed out of prison on to the streets with no support and no compensation for their ruined lives and lost earnings. (Apparently people released on appeal don't even get the support given to convicts who reach the end of their sentences.) All because some tribunal says, well, you still might be guilty as far as I can see.

People who should never have been convicted in the first place are falling foul of this, simply because their acquittals merely recognise this, rather than producing some big reveal showing someone else did it, or that the accused had an alibi all along.

If giving Bain compensation (assuming he really did it) is what it takes to ensure these people get some recompense, so be it.

 

[Roger Ramjets]

Distasteful as it is, I agree, and in Bain's case I'm pretty sure he will be being paid for murdering his entire family.

I am leaning towards guilt, but I don't know all the facts (does anybody?) so I will accept the court's decision. The only people who had a right to determine his legal guilt or innocence were the members of the jury. If David Bain gets compensation it's not for murdering his entire family, it's for the police not doing enough to ensure that his conviction was safe. It has nothing to do with actual guilt or innocence.

Yes, if he did it then compensation is distasteful. But the rule of law must be applied fairly and evenly, not subjected to the whims of 'taste'. In cases like this there is always a large group who 'know' that the accused is a monster, and another who are 'certain' he is an innocent victim. Where the actual truth lies is indeterminate, and none of us has a monopoly on the facts.

I have been on a couple of juries and in both cases I thought the accused was guilty, but I was careful look at the evidence dispassionately, not follow my gut feeling. I am glad I did so because I now have nagging doubts about one of those cases. If the accused managed to get his conviction overturned I would not blame myself for making a wrong decision, because I know it was the best I could have done with the evidence before me. I would blame the Crown if it had fed me misleading or incomplete evidence.