Myth Making

Complaint about Bain article by Martin van Beynen, June 20, 2009

Thank you for replying to my complaint. I respond as follows:

1) you said: Martin van Beynen’s article on the outcome of the trial of David Bain was, as it was clearly labelled, one man’s view of the verdict, based on having conducted considerable research into the background of the case and having sat through almost all of the trial.

It was, in other words, van Beynen’s opinion based on a solid foundation of observation and fact. There is nothing to the complaint you have made and certainly no breach of any Press Council or other journalistic principle.

--I accept that the article by van Beynan was labelled as opinion. However, whether it was merely an opinion is doubtful, and if it truly was an opinion ought not to have been published without substantial explanation given to the 'other' side, being the defence or in fact the interests of the Jury. Not least as those being most likely harmed by the article.

It is my understanding that one “journalistic principle” is to provide a balanced view. This article failed to provide that balance. It is one thing to summarise evidence favourable to van Beynan's view and ignore evidence which is not, but most notably the assumption that any person reading the article would know the evidence generally is a dangerous precedent. Probably many thousands read the article and assumed it was a complete assessment of the evidence when it is clearly not.



2) you said: It appears that the substance of your complaint is that you dislike what van Beynen saw occurring in the courtroom and disagreed with the conclusions he drew about it. Van Beynen obviously raised questions about the verdict and about the jury’s conduct, but in doing so he was accurately reporting what he saw and heard, and recording his own opinions on it, as he was wholly entitled to do.

--You rightly note that I 'dislike’ what van Beynan said he saw, and my reason is because it is an uncorroborated claim, harmful to all involved. You say he accurately reported what he saw, but I repeat there is no proof of what he claims he saw contained in his article. He simply may have misinterpreted normal things for his own reasons or mistakenly.



3) you said: It was not, of course, incumbent on him to do anything about what he saw – it was all in plain view of the judge and court officials who could see it for themselves. In any event, the fact that he did not report it to anyone does not detract from the fact that he has accurately reported what occurred. No-one apart from you has questioned the accuracy of van Beynen’s account.

--I note that your response does not touch upon the source of van Beynan's claim that he received second hand information from another member of the press about the apparent comprehension abilities of one member of the jury. Of course if were true, that he did have such information, and had researched it to a reasonable level, it may have been something he could or should have brought to the authorities attention. Because he didn't, along with his 'observations' of the jury it renders his judgement and credibility questionable, something that would have best been placed under a disclaimer that no information that van Beynan printed was corroborated by any official of the trial.

Regardless, even if the rumour about the single member of the jury were true, van Beynan ought properly, short of naming that Jury member (obviously then becoming a Contempt of Court issue or worse) not to have mentioned the matter at all because the damage to the credibility of all the jury members.

van Beynan did not disclose anywhere in his article that his claims about the jury were not corroborated nor indeed supported by the administrators of the trial. To have done so would have been more balanced for any reader reading the claims about the jury, as would (as I have said in my earlier letter) an observation that juries do converse with one another (it's part of their job,) pass on information and may share jokes or disquiet.



4) you said: The article did not attack the defence’s right to make applications to seek orders for the dismissal of the case before trial. It merely pointed out that comments by a Bain supporter that he was always confident that a jury would acquit were at odds with the several attempts the defence made to try to prevent a jury hearing the matter.

--If this is the case, then van Beynan ought to have balanced his opinion by mentioning what the applications were, to give any reader a balanced picture rather than the one-sided implication contained in his article. A good example to have provided balance might have been the application decided on March 2nd 2009 where the COA appeal noted that some prosecution evidence had been obtained through illicit means.

If all the information regarding the various applications was unavailable to van Beynan, that alone should have prevented him making uninformed comment on matters which, as mentioned by him, were likely to cause disquiet and be poorly founded. If van Beynan had made mention of the visit by a detective to Victoria as described in the Judgement the March 2nd 2009 many readers may have been very concerned that due process had been ignored since the Privy Council decision. One might assume such information would have negated the single view van Beynan apparently intended to advance.



5) you said: I reject your allegation that the article was unbalanced in its presentation of the evidence. Van Beynen summed up a very long trial meticulously, putting the cases both for and against Bain succinctly but fairly.

--In my original complaint to you I noted that van Beynan did not offer the defence's case in any of the 'critical' pieces that apparently confirmed van Beynan's view. Your letter reconfirms this but does not point out where in van Beynan's article 'summed [it] up…meticulously, [and] fairly'. You use the words, but there is no evidence of that in the article. I would stress that van Beynan's suggestions about what various other juries may have made of the evidence is emotive guesswork and as such is unsupportable.

To provide specific examples:

· 'Bain won the lottery.' How is that be a carefully researched opinion? On the contrary, it is an emotive drawing of a poor comparison.

· 'What is a little surprising is not a single person out of the 12 in this, Bain's second Jury, was prepared to argue strongly for a guilty verdict with such a [damning] case in front of them.' The adjective 'damning' serves only to emphasise the bias in van Beynan’s opinion. Clearly the Jury didn't think the evidence was 'damning' and reached a decision. That is their domain, not that of a reporter in haste to conduct his own trial in the media.

· 'The fact is that Bain defence team did everything it could to prevent the case going to the jury and, when it was, it tried to prevent the jury giving a verdict.' This comment obviously lacks balance: a reader is left unable to judge the details of those various applications and form their own opinions of the merits of them. I note again, for example, the issue above of the evidence apparently being gathered on the pretence of a non-existent court order.

· 'I doubt whether Bain will apply for compensation because he must be aware, even if his legal team is not, that he is extremely lucky to get the verdict he did.' This is mind reading and has no place in journalism: van Beynan cannot claim to know what another person is thinking. Moreover it carries a clear and unequivocal implication that Bain ‘got away with murder’.

· 'At least half of NZ now believes he murdered his family, whereas before they might have been prepared to give him the benefit of the doubt.' I have all the published poll results, including those when the 'secret evidence' was revealed and none reflect this claim. Is this a spurious claim? If not, what was his source?

· 'Bain's clear and recent fingerprints on the murder rifle' van Beynan omitted to mention the evidence also given that the fingerprints were not 'clear and recent', nor in a firing position. Again this is neither a balanced or well-researched view.

· 'The bruises on his face and torso.' There were no bruises found on David Bain's torso on the morning of the murders/suicide. Balance would have mentioned that fact.

· 'no use to anyone else.' Here van Beynan is referring to the glasses. If he had left the word 'else' out it would have conveyed the true picture that the glasses were of no use to anyone, including David Bain, because they had no lens at all. In addition, the evidence about the glasses was so questionable that ‘balance’ would require at least some recognition of that ambiguity.

· 'We know this by the amount and quality of urine in his bladder.' This contradicts the pathology expert testimony - again, lacks balance.

· 'and then got up around 5.50am' This in respect of Robin Bain, whereas in fact there is no evidence of what time he got up or if he'd even slept.

· 'belying a frame that was described as cadavarous' Speaking here of Robin Bain, this is misrepresenting comment rendered by a professional who knew Robin. The ‘cadaver’ description was in fact of Robin’s emotional state, not his ‘frame’. If your reporter misreports to this extent, how can you claim his view was balanced or well-researched?

· 'but no underpants' This relates to the clothes worn by Robin when found dead, if somehow the fact that Robin wore no underpants is evidence against David we are beset by a disaster, this accepted fact is preceded by 'To meet his maker' and goes on to list what Robin was wearing, surely rather that proving anything against David it merely shows the haste and disarray Robin was in that morning. Objectively, it is evidence helpful to David but van Beynan turns it against him without a thought.

--The above are points which van Beynan, to use your own words, did not 'put the cases both for and against Bain succinctly.' In fact van Beynan is wholly silent on every point as to what the defence or its witnesses or even the Judge said in summing up. There are many other examples, but these make the point soundly. Importantly, van Beynan also totally ignored that blood was found inside the rifle when examined by Guersin - one of the most significant points indicating David Bain's innocence.

6) you said: It is regrettable if websites have used The Press’s article to generate hate but The Press has no control over those sites and you should complain to them.

--Your observation that the it is regrettable if websites had used The Press's article to generate hate is correct. I also accept that The Press have no control over them. However, it is as the source of the misinformation that they wave to justify themselves that is my concern in having written to you, and for the reasons pointed out above. A lot of harm has resulted from this one-sided, unbalanced, opinion hastily brought to Press. While I may well formally complain to the Press Council, I feel it is important to respond to what I think has been a short of the mark return to me.



Yours sincerely,


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Bloggers Note:

The foregoing is correspondence with the Editor of The Press. This was written prior to both the events of Joe Karam suing the hate-site personnel, and the news that van Beynan had been warned off further contact with any Jury member by The Ministry of Justice. It is also noteworthy that despite van Beynan's feelings about what David Bain might not do about compensation, we now all know that that the definition of an application/settlement of some sort is being considered with advice given by Lawyers from the Minister's Department.

Some might agree with my opinion, and to my knowledge, that attacks on the Jury, witnesses, a Trial Judge and counsel are unprecendented in NZ history. My own opinion is that the article of van Beynan is probably Contempt of Court in that he maintains that the Judge was unaware of what was 'really' happening in his own Court where as a paper-back writer saw and understood all, even things he did not attend (such as discussions in chambers) nor read about. More significantly, the 'article/opinion' piece and van Beynan's apparent contact with hate-site members (see Kent Parker's posts on Counterspin and Facebook - if you can get in!) leads to an irresistable inference that van Beynan's piece only sought to sensationalise events which had simple explanations for which van Beynan found (or what it pre-orchestrated) a beying pack on hate-sites ready to disseminate his 'thoughtful work.' Perhaps, one may assume, that in the fullness of time the van Beynan article/opinion might be held up for students of the media as a regulatory piece of one-sided nonsense more notable for what it didn't disclose and its lack of insight.