Monday, December 31, 2012

Happy new year.

Best wishes to all for the new year. To you all prosperity, good health and love with the strength to overcome adversity and find the power of self respect and respect of others. Thanks to those that have passed through here from many different countries in cyberspace - the frontier of information and compassion for those well disposed to their fellow travelers in life. We are each alike, all that estranges us is the shell we don for protection or anonymity, let that shell become transparent in the new year as best you can so that you might enjoy yourself and this changing world with all its challenges and triumphs of the soul. There are no borders here, just the chance to be truly free.

And for all those I less than generously have called hate-siters or cultists remember; I am the pink panther, and you are not. But anyway best wishes to you as well.

Is the Justice Minister a 'hangbainer?'

I have a ultra conservative friend who for many years has had no interest in the Bain case apart from the defamation issues that have arisen. Yet this friend on considering the extraordinary behavior of Judith Collins posed the question as to whether or not she might be a 'hanger.' Pretty unorthodox suggestion until one thinks about the overall picture.

In tests for compensation the Crown have taken over the role of the Courts as used in most other jurisdictions. In fact NZ may be one of only 4 countries in the world where the King (in this case a Government Minister in Cabinet) assumes the role of what would be the Courts in open democracies. In taking this role the Minister ostensibly assumes to be accepted as fair and impartial, with full regard to due process, the Law and fairness - a difficult enough task for anybody in Government effectively investigating themselves. Judith Collins was Minister of Justice at the time when David Bain applied for compensation, she was however Minister of Police when the Crown chose to retry David despite his conviction having been set aside and ruled as an actual Miscarriage of Justice - more than a foot in the camp that decided to retry David and who were soundly thrashed in their misrepresentation of a murder/suicide as a set of murders.

Procedure being what procedure is, and at this time when there are suggested calls for the Chief Justice to recuse herself from the panel of Judges set to hear the Maori dispute over water rights, we see the Minister with no such inhibitions in 'Judging' a claim against her former department charged with perpetrating a MOJ. Still holding a steady line of the propriety of that, and giving the Minister 'a fair go' we observe that she gets a report from Binnie that finds David innocent on the BOP, a report which is promptly leaked from somewhere within the Ministry and then apparently 'sat on.' Next the Prime Minister, whilst Collins is away, lets the cat out of the bag that Minister is not happy with the report. What an understatement as time would tell. She is not only unhappy with the report but is setting up it's author for a knife in the back - a Crown Minister you ask. Why yes, one who happens to also have some small experience in the Law reaching the giddy heights of being President of a Law Society Branch where ethics and propriety of practicing Lawyers can be examined.
The 'watchdog' of ethics displaying none herself but instead taking advice from the party criticized in the report and leaving out the applicant. Open Justice and due process? Not by a long way, a dictatorship or practiced communism at best that saw a secret trial where even the defendant wasn't notified.

As Collins was found out and began to splutter out excuses were included that David might not like parts of the report. Really? She was acting in David's interests to exclude him from watching being struck with a hatchet from behind by the Minister. What wouldn't be to like in a report that found him innocent. Collins has never explained that because she can't. Her every move has been treacherous to the man commissioned to investigate the application and to the applicant himself. This wasn't a neutral Minister at work, this was the destruction of Collin's reputation as a Minister of the Crown, bringing with it a blight upon the Prime Minister and the Government itself. On being told that 74 per cent of NZers supported compensation she scoffed, blaming first the pollsters then secondly saying that NZers would be unhappy if she paid out. Revealing again the politics of her position and her misunderstanding that it wasn't a lottery over which she was watching but due process in respect of the Law of this Country.

We will absorb over time that Collins decision making has far reaching implications for freedom within NZ, and access to Justice. In one quick blow Collins has shown that the sanctity of the Law doesn't exist in her world vision despite being a Lawyer herself and one who observed the conduct or misconduct of other Lawyers. She broke every rule of her profession, but as a politician she broke every freedom of every NZer. In a country where a prison inmate can challenge a smoking ban in prisons and win we have a Minister happy to turn away from false imprisonment and behead her own messengers whose news she does not like.

Is she in fact a 'hangbainer?' Yes, by her own efforts at denying him natural justice and fairness as accorded her role of holding a Ministerial warrant.

Thursday, December 20, 2012

Fisher's reasoning 'flawed' by design?

According to the following Fisher has exposed a lack of credibility in his reasoning. One could be forgiven for taking that as deliberate, just as it was a deliberate decision by Justice Minister Collins to preclude Ian Binnie from her 'concerns' about his findings culminating in keeping a secrecy operating for many months between her, The Crown, and the compliant Fisher toward the 'impartial' Minister's own ends. It is not to be forgotten that the 'bigger picture' is that Collins has moved attention away from the detail of the Binnie report, firstly by making wide generalisations which were not substantiated, despite the attacking of Binnie with insults. Fisher goes no further than the point where the Crown's failed case stalled, he looks instead to labour the public with 'reasoning' far divorced from the facts of the case, or from a logical reasoning process. To me, that is deliberate muddying of the waters, a dilution of common sense and precise reasoning of facts which neither Collins, The Crown nor Fisher can penetrate even 'off the ball.' It shows the Minister's bias, she 'crossed over' from a neutral role to one of defacto Prosecutor, that was never her role. Even the King of England had that role removed from him nearly a 1000 years ago by the magna carta. Collins steps back into the dark ages and beyond along with her followers of witch craft, lanterns and pitch forks abreast.

Analyst has left a new comment on your post "Double take here....":

Looking at the recent posts on the Bain threads on kiwiblog, it is quite clear that the majority of the contributors have no understanding of probabilistic reasoning in law.
More worryingly, it seems from Fisher's report that he also has little understanding of it. He cites Bayesian reasoning, but then gives an example of armies and gladiators which show quite clearly that he does not understand it. This lack of understanding, I assume, explains why he claims that Binnie did not weigh up the evidence as a whole - which in fact he quite obviously did.
I have reviewed Fisher's reports on other compensation claims for his decision processes in light of this, and there is absolutely no evidence of him having applied Bayesian analysis or even the principles underpinning them. He appears to have operated a far less sophisticated and less independent approach.
This is very alarming. It means that knee-jerk response is operating at the highest levels in New Zealand. Which in turn means the chance of dispassionate fairness is almost nil. This affects not just Bain, but potentially every contested case before the courts. 

JFRB - a facade of madness?

In the aftermath of Ian Binnie's decision that David Bain is innocent on the balance of probabilities there has been a shift in the pro-Robin sect, a very major one in fact. No longer is the police investigation 'copy book' or perfect. It is now the reason why Robin is innocent; because police mishandled the investigation. This is a major concession by the hate-siters but one which they denied for nearly 2 decades. So things change, but not so blindness.

Always the hate-siters have fixed on key phrases, misleading or false evidence, now they focus on a poor police investigation as their cornerstone position. What is interesting to me about this is the overall picture which shows that the hate-siters will never be capable of accepting David's innocence and that it is them as much as all else that has gone 'wrong' in the system. It is they that believed David said he hated his father and look at that misleading claim to overshadow all else. So each step of the way their intransigence has moved step by step, discarding one false 'idol' for another. Overall, this has presented a bigger problem for Justice in New Zealand, and reconciliation of the Bain case than anything else - pacifying pure, blind hatred. People have adopted Robin Bain, or at least his cause of 'innocence' to fulfil something amiss in their own lives, this appears to have given them a purpose that could possibly fill angry, sad, or lonely lives with a bonding of one another. For many years we heard the phrase 'right thinking New Zealanders' a catch cry thick with the premise that the hate-siters were right thinking and those that didn't agree with them were not.

In itself 'right thinking' implies some admirable characteristics, of fairness, kindness, compassion, a willingness to observe and search for the truth. What a rally cry that was, the police investigation was 'copy book,' David was found 'blood covered,' he was psychotic, his mother was weird, his sisters were attention seeking liars and so it goes on, not displaying a single element of what 'right thinking' implies. There was no calmness, no careful search into points made by others to the detriment of David or The Justice system, everything was accepted and rejoiced and no challenge made to the veracity of it. There was nothing to worry about  with Robin's hands being battered or bruised, - why he'd done it fixing the spouting the previous day, and yes, he wasn't very clean and would have not washed it off, or even stuck a plaster on it. Everything was peachy and rosey, because David's footprints were in the murder scene and Robin's were not, suddenly when the situation was reversed the experts were attacked. In fact anyone with a contrary view was attacked, it didn't matter how qualified their opinion was, how much the truth and sensibleness of it was shown - they were in fact 'liars' experts for hire and so the whole mess carried on, and still does.

At the moment the Binnie decision is looked at in isolation by the hate-siters. He is being fully attacked without seemingly anything from the wider picture being considered apart from the police investigation now been claimed as shoddy by those who earlier gave it applause. But the Binnie decision isn't in isolation, like the strands of the rope of the case against Robin Bain, it is another, a very binding and thoughtful one - the one to this point which shows the durability, clarity and simpleness with which the Bain case will be treated in history and how the hate-siters will and are being relegated to other extreme groups in history who burnt 'witches' and within New Zealand frothed over the persecution of Peter Ellis for crimes that didn't exist apart from in their own minds.

Where once David stood convicted  after what was later declared a mistrial the story didn't stop there. The Crown made the decision to retry David, much against the less than subtle hints from the Privy Council. The Crown went ahead using a team of 26 or so detectives for 2 years to put the case 'back together' spending deeply on 'expert' advice, bringing together a 'formidable case' that basically collapsed on day 1 during the cross examination of ex Detective Sergeant Doyle who among other things failed to run the inquiry properly, failed to gather evidence, failed to investigate Robin Bain, failed to materially focus on anything but his 'feeling' that David was guilty. A man who, as Binnie's report shows, thought the functioning of an old, unreliable washing machine was a 'key' in the case against David Bain. Much is revealed about the Bain investigation by the thoughts of Doyle about that washing machine, simple mindedness and naivety that was unable to judge the seriousness of consequences of allegations of murder. A person who thought a washing machine told a story greater than the bloodied hands of Robin Bain, hands not hidden from view, hands that didn't rely on an unreliable functioning machine, hands that bespoke murder. What ever can be said of Doyle and his commanding officer it can not be of thoughtfulness and devotion to Justice, for they denied Justice and even when their investigating errors were made obvious they held on.

Then of course the second Jury spoke, somewhat in record time but soon to be attacked by Martin Van  Beynan and his chorus of frothing mouth disciples of hate. The same disciples would quickly say they welcomed the inquiry of Ian Binnie and respect that decision, again apparently holding undue 'confidence' that they were right and sensing a reprieve from the public perception of their insanity and hate. The last few weeks have shown they would not respect that decision or any other that cast them into the role of being wrong. Being wrong is one thing but of course a vendetta of hate is another. Folks whose opinion doesn't hold don't go looking for revenge, but a hate-siter does. Nevertheless there is a tide against them now which will never be turned back. Robin's hands will never again be blood free, never again will he be held to have no injuries consistent with having been in a fight, the future will not ignore his blood found inside the rifle, his bloody footsteps about the murder scene, that he turned the computer on which held the suicide note. That tide is risen above by clear Judicial procedure, the unanimous decision of 5 Law Lords, Queen's Counsel, a Jury, and now the clear reasoning of Ian Binnie who took into account all that the hate-sites offered by way of their 'right thinking. Binnie does not stand alone, never did, nor the Privy Council, the Jury or David Bain who naively helped his captors enslave him to persecution. 

Saturday, December 15, 2012

Double take here....

Somebody sent this through as a comment. I hope Don Mathias doesn't mind me using it, I will remove it if so. It deals with the misapprehension abroad that Ian Binnie wouldn't have looked at the evidence as a complete picture, but also in isolation where in his report he put some issues aside. It would not be possible to not look at the complete 'picture' in over 10,000 pages it would have been a repetitive theme and something needed to be taken into context when considering individual points. It also highlights that Fisher did not comment on whether Binnie's decisions were right or wrong.

Bain, Binnie, Fisher, Bayes – how should judges reach conclusions?

Once again out little nation is divided over the Bain case and its consequences. The current controversy is over whether the report by retired Canadian Supreme Court Justice Ian Binnie should be accepted or whether its review by retired New Zealand High Court judge Dr Robert Fisher QC has cast doubt on its conclusions.
We have seen here recently how appellate judges on the same court can differ sharply over what conclusions can be drawn from the evidence in a case. Is there a right way to arrive at conclusions from facts?
In trials juries are given little guidance on how to reason, other than being told that the drawing of inferences is a process of using logic and common sense, something people do all the time in their daily lives. It is assumed that people have an innate ability to reach proper conclusions. This assumption must be correct. We tend to be right more often than we are wrong, but without examining why.
Judges have to give reasons for their decisions. The process of articulating reasons imposes a discipline on judicial thinking, and until that process is completed a judge may not know what conclusion is going to be reached. An echo of this is the instruction to jurors to keep an open mind while evidence is being given.
Bayesian analysis is useful in revealing or guarding against errors of logic when inferences are drawn from facts. Dr Fisher has used this in his report. This does not mean that Ian Binnie was wrong to not use it in his. Most people have no idea what Bayes’ Theorem is and they infer correct conclusions without using it. The interesting question is whether Dr Fisher has revealed any error of logic that was sufficient to make Ian Binnie’s conclusions wrong.
My assessment is that the only candidate for being an error of this significance is Dr Fisher’s claim that Ian Binnie failed to consider the evidence cumulatively as opposed to by taking each item at a time. Ian Binnie has denied, in an email to the Minister of Justice that has been published, that he made this error.
It would be astonishing if Ian Binnie had made this mistake. Judges habitually stand back after evaluating the probative value of particular facts and look at the overall picture. That is done to enable a conclusion to be drawn from the combination of the probative values of the facts. This process is what is done instinctively when people exercise their judgment.
There are all kinds of influences, revealed by psychologists, which can cause people to make mistakes. A Bayesian approach to inference drawing can counteract those, but its best application requires extensive statistical information, far beyond what is usually available in court cases.
Nearly all judicial decisions are made only on the balance of probabilities. This standard recognises that we can seldom be certain we are right, and that in the interests of finality a decision on the balance of probability is good enough. Hugely important decisions are regularly made in the courts on that basis.
It is significant that Dr Fisher has not endeavoured to decide whether Ian Binnie’s conclusions were right or wrong, but that he correctly restricted his report to Ian Binnie’s method. Plainly, if Dr Fisher were to go further in a subsequent report, he would apply the Bayesian approach. But that should lead to the same conclusions that Ian Binnie reached unless radically inappropriate assessments of likelihood were made by Ian Binnie over critical facts to such an extent as to influence the result of considering the combined probative values of all the relevant facts.
I was surprised when reading Ian Binnie’s report at how he treated the evidence of the luminol footprints. Depending on the length of those footprints, they could have removed the case from being an exercise in assessing probabilities and made this a case of direct evidence of innocence. That was recognised in the Privy Council hearing, as both sides agree. However Ian Binnie has been generous to the prosecution by recognising some doubt over the accuracy of the measurement made by the police officer of the footprints on the carpet at the scene. Whether the measurement could really have been susceptible to error to an extent sufficient to cast doubt on who left it there is a matter of judgment for those who have looked at the evidence that was given on this point.

Friday, December 14, 2012

Et Tu Judas, er....Judith.

I'm sure the news is abroad around the World, if commissioned to do work for a New Zealand Minister, Member of Parliament don't be surprised to be stabbed in the back. In a few short days Justice Minister Collins has gone from refusing to release Ian Binnie's report, into the guilt or innocence of David Bain on the balance of probabilities, to releasing it under pressure while speaking strongly about the mistakes made in the report. Reading it tells a far different story.

Surprisingly, what emerges is that the Minister has been 'unhappy' with the report for 3 months but rather than address any problems she felt the report included with the author, she went instead to one of the parties mentioned in the report, excluding Binnie and also the applicant David Bain. Of course, as commentators have pointed out that party - a combination of the Justice Department and Crown Law, are the main adversary of David Bain and part of what was described by the Privy Council as 'an actual Miscarriage of Justice' - neutral they're not. Either is the Minister plainly. she made dark threats about David Bain suggesting he might not like what was in the report, or put another way acting condescending toward him as though she were in fact 'protecting' him rather that the obvious which was denying him natural Justice and due process. We've seen in work this week why our compensation system is flawed, it relies on Politicians to be able to divorce themselves into neutrality - something the Minister failed to do in spades.

She has spoken about bias and factual mistakes in the report, but frankly in reading it there appear to be none. Why she didn't employ normal protocol and work with the author, Crown Law and the Applicant to resolve things to her 'satisfaction' shows she is far from neutral, it also shows that without immense pressure she would have hidden the report from the public because all her language was indicating that. Not only was her language foretelling her plan but also were her actions, she had launched a 'peer review' using a retired NZ High Court Judge to review the work of a retired Supreme Court Judge and internationally recognised Jurist. She was doing all of this behind Binnie's back. She made various claims about him designed to put him in a bad public light, as incompetent or money hungry. Of course because she broke protocol he spoke in return. It emerges that far from being 'incompetent' in his understanding of NZ law he had taken advice from a prominent NZ barrister. Not only had he not sent a series of reports that the Minister described in such a way as to suggest that he was under pressure and attempting to produce something to placate the Minister, but we found that he had addressed some issues raised by the Minister in September and which required only around two pages in total of changes.

When she released the report yesterday the 'peer' review of the report made the headlines, even earlier than the report, so do did The Press of Christchurch publish a number of one-sided facts about the Bain case which appear as a link in the previous blog here. So there was a political emphasis on the entire situation. So much so that the Minister may have hoped that the public wouldn't ask why the 'peer' review, kept secret so long from Binnie in particular, or questions as to the actual constitution of a 'peer' relegated somewhat below the person's work they're reviewing was chosen, and if it was because he would act on instructions and report what he was told to report. The most simple question, needed explanation - why were Binnie and the 'peer' David Fisher QC not invited to correspond in order to make common ground on the Minister's concerns, which we know  now were in fact the concerns of Crown Law and the Justice Department.

Ian Binnie has been treated very badly here by our 'neutral' Minister of Justice. Yet while the controversy has raged many reading the report agree with it and no 'great mistakes' are being pointed out about it. The report was said to be biased by Collins in favour of David Bain, that's not the case at all. Binnie has since replied to the 'peer' criticism of him by Robert Fisher. Mr Fisher has clearly confused the criminal and civil code standards, not only that he hasn't read the Bain evidence - how anybody could possibly fail to acquaint themselves with the evidence and then go onto to criticise a evidence based report defies all reason.

On a 'lighter' note the Binnie report 'expands' on the evidence of David being strip searched and the absence of scratches or abrasions on his chest at that time, it also looks closely at the evidence  given about David having had scratches days after the morning of the tragedy - both accounts differ wildly and some may be aware the 'evidence' of one of the 2 witnesses somehow took 15 years to emerge. A lot of stuff 'emerged after' 15 years, oddly enough - all from Crown witnesses, and oddly enough a lot of misinterpretations and omissions about the evidence emerged from a certain Christchurch newspapers, the same one that broke a story barely 2 hours before the reports were released - no connection of course.

Thursday, December 13, 2012

Van Beynen Complaint

The linked article might be Van Beynen's idea of opinion and balance but it isn't mine. I've asked his Editor to review it as below.

To the Editor.

Hi Andrew.

Assuming you are still editor.

The following is a formal complaint about a specific article.

In accordance with the Press Council requirements, I write on what I see as clearly unbalanced piece by Van Beynan titled “Compensation for Bain would be a travesty.'”

I must note that Van Beynan has an obsessive type interest in the Bain case which has resulted in not presenting both sides of the evidence for and against David Bain over a long period of time. Further to that, he has publicly displayed his bias at least twice. The first resulting in a warning from the Justice Department to stay away from Jurors of the retrial after one complained that he had harassed her. The second instance followed the International Justice Conference where at question time he inquired as to why David hated his father, deliberately misquoting evidence where David had said that ‘if’ his father had killed the family he would hate him.

Other points to note. I am unaware that Van Beynan has ever reported that Robin Bain died with blood smears on his palms, additionally, he has never reported in his many attacks on David Bain that Robin Bain’s DNA was found inside the rifle. Both significant evidence of his guilt.

In his opinion piece, Van Beynen lists the following as evidence against David Bain.
1/ His fingerprints on the rifle. Yet he does not refer to trial evidence that fingerprints can last for many years on such surfaces and could simply have been there in a ‘carrying position’ rather than a ‘firing position’ for some time before the killings. There was evidence to this effect during the trial which Van Beynan would have mentioned should his intention have been to provide balance.
2/ The lens ‘that were useful to him but not his father were found in his bedroom.’ Van Beynen cannot possibly be unaware of the controversy surrounding the lens yet he mentions none of it – not least the fact that a police officer admitted to the Jury to giving misleading evidence on the lens, nor that the police officer had sued Joe Karam over a matter related to the lens and lost.
3/ He says inconsistencies with David’s various accounts but mentions none of them or what responses there were regarding them.
4/ ‘His brother’s blood on his clothes.’ Here he gives no details of the blood, some of which was aged and none of which was spattered as would have been expected in Stephen’s room by the amount of spatter on the walls and floor.
5/ ‘A 20 to 25-minute delay’ in ringing the police. Again he gives absolutely no details of the defense raised against this and the evidence that David may have blacked out, or would obviously have been in shock.

He goes onto raise reasons why Robin wasn't the killer in his ‘opinion’ and each of his reasons is flawed compared to the evidence and certainly not balanced.

1/ He asked how the ‘cadaverous’ Robin fought of Stephen and sustained no injuries. The evidence showed there were injuries to Robin’s hands consistent with punching. Of course, Robin also held a rifle and Stephen had been largely incapacitated by a skelp wound. Evidence was given that Robin was 17 kilos heavier than his son, a considerable weight advantage. The use of the word ‘cadaverous’ was taken from evidence known to Van Beynen, the word was used not to describe Robin’s physical condition, but rather that ‘he was dead behind the eyes.’ Something else Van Beynan twists to his favour of bias.
2/ He asks why Robin put on gloves. However, that is not a question for David Bain to answer. The fact Robin wore gloves is supported by the blood smears on his palms which Van Beynan has deliberately held silent on.
3/ He asks why Robin changed clothes. That also is not a question for David Bain. But any brief research by Van Beynen would reveal that people committing suicide do sometimes change clothes, putting on something that was a favourite for them to wear or which reminded them of a favourite time. Van Beynen mentions none of this, again underpinning his bias and focus at being one-sided.
4/ He asks why none of Robin’s fingerprints were on the rifle. Yet he ignores various records, including testimony offered at the trial, that the fingerprints of a user are often not found on firearms because of the nature of the surface, oil, and other reasons. One of which would be obvious that Robin is alleged to have worn gloves. He entirely ignores that there were many prints lifted from the rifle that couldn’t be identified or excluded as having been Robin’s, or that those fingerprints were destroyed despite that they might have been able to exclude as being David’s or Robins.
5/ He asks why did Robin wait for David ‘to be just about bouncing through the door’ before writing the suicide note. Again David Bain can not be expected to offer an explanation for something he doesn’t know about. On this point, however, Van Beynen could have expanded his one-eyed piece to include the fact that the Crown eventually conceded the very important fact – that David wasn’t home when the computer was turned on. But no, he chooses only to show complete imbalance and bias in his piece in order to mislead the public.
6/ He asks another inane question if Robin had cleaned up why did he still have spots of blood on his hand. The answer is obvious: from his suicide, as is the answer for the blood smears on his palms partially washed off – the murder of his family.
7/ He returns to an old ‘favourite’ the full bladder of Robin Bain. Yet the evidence regarding the bladders of older men indicated that his bladder may not have been full and that the amount of urine retained was not ‘remarkable’ for someone Robin’s age.
8/In his next question relates to why Robin set his alarm and collect the paper if he was so disturbed he had decided to kill his family. I’m unaware of any conclusive evidence that indicates that he did either of those things, but they’re insignificant compared to issues such as the injuries to Robin’s hands, his blood on the laundry towel, blood smears on his hands, recorded spatter from his wound excluding anybody else being present in the room at the time he shot himself and so on.
9/ He asks how come David was scaring the family which was contested evidence. He might have also asked why Robin had been threatening children at his school allegedly striking one. He might even have gone into the reasons for Robin’s alleged motive.
I look forward to your response to this. I hope that you treat this matter seriously. Van Beynen has been a vocal critic of Peter Ellis as he is now of David Bain, in both situations he forwarded on one side of the story as he has done here. This piece is deliberately one-sided, in particular, because Van Beynan knows the other side to all the allegations he makes. I believe this piece has been intended to be destructive against David Bain, the reason for Van Beynen only giving a one-sided argument.
Yours faithfully

Wednesday, December 12, 2012

Minister doesn't like the truth.

If we ever needed to learn what a crock the Compensation Process in New Zealand is then Judith Collins is giving the country a panoramic display of why the Law and Politics should not be mixed. The Minister, herself a lawyer without distinguishing note, and a long time politician has the chance to play 'The King' in New Zealand's antiquated approach to  addressing Compensation. An approach long ago left behind by the English Law on which our system is based.

If ever the country was looking like bumpkins from down under the Minister has achieved that in short order, possibly more so when the reasoning of our own Court of Appeal on the Bain case was shredded by the Privy Council. The same dullards that elevated themselves to Judge and Jury status are getting their own back, a chance to vindicate a faulty prosecution and recover the high ground on an actual Miscarriage of Justice. Well, it may not be that bad - but it's easy to argue that is the direction the Bain case has suddenly taken. But it is the petulant Minister who undermines the process and transparency because of her behaviour. What has she done, well she is angry nothing plainer to see than that, she is also defensive and making outrageous attacks on the author of the Binnie report. The decorum - less Minister is all at sea, juggling politics and the reputation of herself it seems now, and two Governmental departments.

Why on earth's name the Minister went public with an attack on Binney but holds his report secret is bewildering on the surface while the obvious mechanics of it simply do not make sense. She has said that the report 'appears' to have been based on incorrect facts and showed a misunderstanding of New Zealand Law, lacked robustness in it's reasoning and so on. She has since called for a 2nd report or a 'peer' review of the report from previous High Court Judge Robert Fisher. No doubt Mr Fisher is more than capable of assisting the Minister but a High Court Judge couldn't be fairly described as a 'peer' of a Supreme Court Judge - the position Binnie held at the time of his retirement. On further reading it is revealed that the report is not being reviewed in full but rather the way Mr Binnie reached his conclusions. When that is concluded....hold on to your hat, yes Mr Binnie will be consulted on Mr Fisher's review. I guess it rugby terms Mr Binnie will be seen to out of the 'sin bin' by then and competent to look at the review where earlier, before his time in the 'bin' and his public thrashing by the Minister he wasn't competent - in fact he didn't understand NZ law or even know the facts of the case. On that issue David Bain's lawyer has pointed out the highly relevant question as to what Ms Collins would know about the bloody case anyway (the bloody word is mine, not the QCs.)

Nothing personal of course from the Minister in lambasting a highly ranked Commonwealth Judicial Officer, but then she reveals that he sent her additional 'reports' unsolicited which she wasn't going to pay for, giving a perception that Binnie was overcharging or some other such nonsense. I wouldn't be surprised if Ms Collins rather than receives a bill has delivered a summons for damages. For a moment just reconsider that the Minister is meant to 'acting' in the role of a person holding a neutral interest in the outcome of the Compensation application, yet she now admits that she sat down with Crown Law and had them look at the report. Crown Law itself played a significant and active role in the Miscarriage of Justice perpetuated against David Bain and it was they who 'chose' to have a retrial when the Privy Council has signalled that they had the 'choice' to decide a retrial wasn't necessary. They went ahead anyway, spending millions only to see the Jury return in record time with not guilty verdicts. Think they might be 'hurting' a little and wanting to get their own back? Think, they like the police, might be in a bit of a 'tizzy' over what Binnie has said about their conduct in rail roading an innocent man into prison. By all reports that's Mr Binnie's view: that David Bain is innocent on the balance of probabilities yet the 'inane' Minister requires Bain to jump through hoops as though he were a prisoner in one of her prisons, and not a free member of the public who has been wronged by the state, accused of killing his own family when  the evidence (that which was hidden or left unanalysed by the police and Crown) clearly show Binnie's decision as correct - David's innocence.

Throughout all of this, another abuse of process from the Minister - not consulting with David's lawyers, giving him a copy of Binnie's report or discussing her concerns about the report and therefore the Application for Compensation. That situation has finally reached the point that David Bain has been forced to go to the Ombudsman's Office for a release of the documents. In the Minister's snarling put down's of Binnie, and his apparent lack of ability to 'comprehend' a Miscarriage of Justice, she also took a shot at who? Why the defence for daring to ask for an overseas person to review the application. I guess that implies that if they hadn't asked then everything would have been fine and the Minister would have got a report that she liked, and that those she consulted with - Crown Law, 'liked as well.'

Which brings us to the unsatisfactory position it puts David Fisher in. If all else is unclear to Mr Fisher one thing isn't - the Minister doesn't want any of this 'innocence' stuff. No no no. Let's also consider the paucity of logic in the Minister's actions in another way. What sort of idiot considers that a man or woman with 50 years of Law administration behind them at the highest level wouldn't possibly be mindful of the change of Jurisdiction and therefore Law when reviewing a case in a Country not their own - one answer to that a very dumb idiot. There is no depth to Ms Collin's protests other than to cover up and keep things secret. Nobody could expect that if Mr Binnie's report is so flawed that he should be asked for his opinion on another report that doesn't cover the full breadth of his own.

There are many questions as to credibility brought alive by the Minister's actions. She has made one very public - that Binnie has contacted her and the department in the last few months since September. He says she hasn't, he also says (despite what Collin's has told the public) that she hasn't voiced any concerns with him about the report.

A few months ago Collins looked like a Prime Minister in waiting, someone comfortable in the Minister of Justice's chair - now she looks like dog tukka.

Thursday, December 6, 2012

That person whose name I forget.

I think he's forgotten his own name as well.

Looking at the first two links above compared to the third by The Press there is a noticeable lack of objectivity that is similar to the person whose name I can't remember but who could likely be the 'unknown' author of this opinion piece that I'm likely to complain to the Press Council about in the future. When I use the word similar, the 'award winning' reporter of the Bain case also had a distinct ability to miss important things out and to generally  be seen as anti David Bain without editorial fear or favour.

Some will remember that he was the expert that forgot to tell the NZ public that David Bain was strip searched on the morning of the murders and no recently bleeding injuries were noted by the police Doctor and certainly no injuries to his chest. In fact the award winner writer went onto take purchase of 'unexplained scratches' on David's chest to imply his guilt, never once to my knowledge admitting that they couldn't have possibly have been contemporaneous with the murders because they simply were not there when Dr Pryde examined David. Nor did the mystery man tell us that David had invasive swabs taken as would be routine in finding a survivor in a house with 3 dead women, two in fact being teenagers. Of course in award winning fashion the journo forgot to tell the public if Robin had the same types of test which one would assume were an absolutely necessity. But just as this journo ignored the fact that gun residue tests weren't taken from either man it seemed the direction was set at the outset to starve the public of the truth but feed them absolute untruths such as 'scratches from the fight with Stephen,' 'fingerprints in blood on the rifle' that David said he hated his father.

So attractive to the reporter was that last prejudicial lie that he could not but help ask David at the Perth International Justice Conference why he had said he hated his father. Look and see, that what David actually said in response to a question from a detective was 'that he would hate is father if it proved true that he had killed the family.' Objective and balanced reporting or something from a reserve of hate and willingness to spread lies about a falsely imprisoned man. I know what I think, and the answer isn't difficult. But perhaps what is now difficult is for the award winner to put his name to his continued attacks against Bain, particularly now that he has been 'outed.' Not only for his reporting but for Jury stalking, the result of one Juror complaining to the police of being harassed by him. The unknown author calls the compensation a 'tough issue,' which, if he is the person who unreliably reported the evidence, is entirely true because he put his reputation on proclaiming Bain's guilt and tailoring his reporting to suit. Tough? Well tough bikkies I say.

As can be see by the first 2 links and various others which are abroad there is a lot of dissatisfaction on the Minister apparently ignoring a report and looking for another that might suit her 'needs.' I still don't think that is the case, I think she is under pressure from within her own Department for potential statements within the report to be 'unfair' in that the worried folks don't have a chance to reply. It could go further than that, it might be that the comments would in fact be sub judice on the basis that charges might follow and the prospective defendant's argue that their right to justice and fairness would be prejudiced. Unless the Crown is sued and a private settlement is reached, the public should, as the Minister has indicated, see the report, and by assumption the second as well. On the other hand Hutton was afforded no such protection when he was named as the evidence planter in the Thomas case in the late 1970s so I could be wide of the mark.

On the question of suing the Crown, Susan Couch has had a remarkable victory, no doubt at great personal cost, in finally prevailing over the Justice Department who now wish to settle with her to 'save money.' She of course sued the Justice Department for their lack of due care in supervising a parolee, allowing him to work in a situation where he presented a danger and in fact killed 3 of her workmates and all but killed Susan herself. It's a significant and common sense victory, soured a little by the fact the Crown fought long and hard against Ms Couch in a 10 year battle to have accountability of the Crown recognised. In many ways the victory will go beyond Susan, and again in my disrespect of the idea that The Crown should ever be involved in judging itself, we've seen the Courts as the best place for impartial and progressive Judgement by an independent Judiciary.

At a time when the Judiciary have been under undue pressure, and a sitting target for those that don't understand their role I see it as a step forward that Judiciary allowed Susan Couch to sue The Crown. The warning goes out that a Government who holds each of us responsible for what we do or don't do now is on notice that they own what the do or omit to do, not just by Judicial Review but by tort for damages. In the meantime among all the speculation about the Bain case a step closer has come for David Bain to sue for remedy.

Tuesday, December 4, 2012

The worm turns: two explanations
" .to show extraordinary circumstances: in those cases one would normally
expect to see proof of innocence beyond reasonable doubt, which is a very
difficult thing to show; or perhaps abuse of authority by the police or
prosecuting agency or something very special of that kind."
"I don't doubt that [Binnie] was very thorough in investigating every avenue
before he came to his conclusion."

Robert Fisher, QC, who has been commissioned to 'review' Binnie's report, has previously spoken respectfully about Binnie.
The media seem to think it is the amount of compensation that Binnie recommended that is being questioned, although Key has refused to answer that. The media have seized on the figure of $2 million as a probable payout, but there are no grounds for that figure. If we use the amount Arthur Allen Thomas received as a starting point (as we should as it's the only real precedent in NZ), plus the fact that it was a much worse crime that David was accused of (more people, his own family), plus the public opprobrium David has had to suffer, then it seems likely Binnie's recommendation will have been for substantially more than $2 million. That is something which it would be wise to get a local opinion on, and to do so does not necessarily suggest any discredit to Binnie - not a thing that Collins is likely to do lightly.
If Binnie has reasoned his calculations, then Fisher will be checking that reasoning.
We wait...

By the time of the 6 oclock news last night the Prime Minister had clarified that an opinion was being sought on some of the recommendations (s) included in Justice Binnie's report. That plural is very important because whilst Binnie was asked to appraise whether or not David Bain was innocent on the obviously single point from which more issues arise such as police or prosecution misconduct. Analyst above has given a scenario that might be relevant to what Fisher might be required to look into and of course procedural misconduct is another. However for the hate-siters who were crowing all night in the belief that Binnie had somehow disqualified his opinion by reading one of Karam's books will certainly have no respite from their hangovers of the Bain case when they become acquainted with the link above and in particular the measured statement by Fisher regarding Binnie's decision.

Judith Collins indicated in recent months that the police couldn't act in the same manner as the criminals they put in prison. In the case of ex DS Milton Weir he has admitted under oath misleading the first Jury. Another detective admitted not being truthful about the computer turn on time in trial - pivotal evidence which showed Bain had not been home when the computer was started. At the second trial a detective gave evidence 15 years late when he claimed that David had asked for 'his' glasses on the morning of the murders. Of course this was when the Crown case was floundering, the glasses were known not to be David's (unlike at the 1st trial where that information was withheld,) that his vision was 75% normal without glasses anyway, that he was hardly likely to ask for glasses that weren't his own, were broken and of no use to him or linked to the crime. These are all matters that Binnie's attention must have turned to, remembering that he in fact interviewed Milton Weir as part of his investigation into the guilt or innocence of David Bain. It's unlikely that Binnie would not have given a summary of how the Miscarriage of Justice occurred and who he saw as involved beyond those mentioned here. Those people of course have 'rights' to defend themselves and I think that is at least part of what Fisher might be inquiring into. Judith Collins may be mindful of her own duty to not ignore crime within the police ranks, and also to give proper consideration to how to deal with it in this report.

Bob Jones and Michael Reed have justifiably come out swinging saying that there is a cover-up, I'm reserving my opinion on that if only because any cover up will be pulled apart in this case, nobody from Joe Karam at the core will retire from that for numerous reasons, one being what has happened in the Crewe case. People are unwilling to let things float off into the distance with promises of how procedures have been changed or disciplined tightened. If it was good enough to break the law to put David Bain in prison then it is good enough for the law breakers to taste prison time. Whatever the situation Judith Collins should have kept the applicant informed - all the way down the line.

Monday, December 3, 2012

Faced with this -

There have been a couple of negative reactions to the above news from correspondents this morning. On the bare face of things it seems that this may not have even been related to David or Joe Karam. That of course would not be the greatest surprise, foremost because of the fact that the defence at least of recently hadn't received a copy of the Binnie report.

It's hardly a secret that there were rumours that the Justice Department itself had problems with the report that I think fairly could have only been as the result of criticism of the department in the report. Criticism set down in the first instance by the Privy Council when they quashed the convictions of David Bain and left it up to the New Zealand authorities to decide on whether a retrial should take place. Whilst the Privy Council ordered a retrial they were clear in pointing out in the judgement that it was the decision of Crown Law whether to proceed with one or not. I've been told that the original application was in fact seeking a retrial, possibly that would be seen now as a mistake, although of course when the application was filed various things would have been in the mind of the defence, the least of which would have been a retrial. So goes the conservative inches rather than miles approach. I doubt any of the Lawyers involved would have anticipated the thorough and searching response from the Privy Council, not as a reflection on the Privy Council but because our own Court of Appeal had botched the case so badly.

However first of all though, the 'delay' in acting on the Binnie report is a surprise, just as we don't know the content of the report we also don't know the reasons for the stated re-evaluation of the report. No doubt Justice Binnie was unlikely to take any prisoners in analysing not only the reasons for determining his reported finding that David Bain was innocent on the balance of probabilities, but he would certainly have been justified in condemning The Crown for not only deciding on a retrial but also for 'happily' allowing 'recovered memory' evidence from some police officers. In particular the officer who had 'not wanted' to be criticised for handing David a pair of glasses on the morning on the killings and so claimed that as reason for keeping 'damning evidence against David Bain secret for over a decade. If that continued to show the propensity for police and Crown to withhold evidence it seemed lost on them in this later attempt when all evidence regarding the significance of the glasses had already been shredded  I guess they needed something to justify retrying David. This belated 'evidence' was another frantic effort to place the glasses of Margaret Bain back in the picture and the 'effort' to explain the planted lens would not have been lost of Ian Binnie that the Crown, 15 years after perpetrating a gross Miscarriage of Justice, were simply carrying on in the same fashion. Within the Justice Department and the police force there are many with reputations lost over the Bain case when the overall picture is collated. None of that is a direct influence on this application but the reputation of the Crown and police is. So until the public are told nobody apart from within the Justice Department and police are aware of how much effort, threats to sue and other issues have raised their heads.

I don't recall his name at the moment but there was an ex Deputy police commissioner who took over The Department of Corrections some years ago. When Judith Collins clashed with him she would not express confidence in his leadership of the department. This guy however did not back down a single inch and the Minister blinked mightily. The man involved was actually doing a sterling job by all reports but some were looking for his head to roll over the Burton case I think it was. Obviously Collins had no stomach for the fight and her 'target' had conducted his role in the department professionally and with distinction. I mention this to remind others that there will be some in the police and legal profession pushing hard for their own rights, perhaps not to be 'exposed' publicly with criticism they've been unable to answer. If any of this is the case it can immediately be seen why there are reasons for strong criticism on what is essentially a 'controlled' investigation into the false imprisonment of David Bain. Although Binnie's investigation is in fact impartial, the screening of the his finding is far from being so. First indication of that - David Bain doesn't have a copy of the report, while on the other hand drums are beating about the criticism in the report of police and The Crown. Judith Collins is essentially representing the Crown, the diagonal opposite of what refinements the Magna Carta brought into English Law. One could argue that any criticism of The Crown is criticism of her. Why on earth legislation for the protection of New Zealanders should ever have been enshrined in 'God's own Government's' interpretation of it's powers as 'King' remains as baffling as the silence on this report, or even the need for David Bain, or any others like him, to go cap in hand to the entity that falsely imprisoned them beggars belief.

As it is, we have on the face of it, Collins now searching for a Queens Counsel to address something already addressed by the Law Lords of the Privy Council,  successfully defended in the New Zealand Courts by not 1 but 2 Queen's counsels, and, if the reports are true, confirmed by an internationally acclaimed Jurist and retired Judge as innocent.  So where it the due process? Certainly not with the applicant being informed of the report, but rather left in disdain along with his lawyer a Queen's Counsel. If there is any reason for not having a Ministry looking into itself Judith Collins needed to look no further than her experience with the previous head of Corrections, she looked to pass judgement on him during a political storm, make him a scapegoat and it backfired. To this point David Bain has had no similar chance to address any 'issues' with his application because nobody has told him there are any. Now the Minister apparently talks about not reporting to Cabinet until the new year, very luxurious indulgence by her of David's.

The Prime Minister has spoken about the public interest in this case, and noted that it is important to be fair. That again could be assumed to be those with reputations at stake because David Bain has nothing to lose - everything possible as already been taken from him. I hope there is some loud banging on doors happening at the moment, but regardless of that David Bain will not go away until he has Justice. As other observers will know there are many legal opportunities for remedy before him, perhaps one as simple as duty of care, or reasonable expectation of being safely and lawfully treated by the Crown's agents that has allowed Susan Couch the opportunity to sue the Government because of danger she and others were put into by the Justice Department. Similar to the type of danger arising from police charging somebody before they have or understand evidence at hand, then lie and omit it at will.

Saturday, December 1, 2012

28th Maori Battalion: a day to note.

Today the last survivors of the Country's greatest fighting Battalion will close the chapter on a piece of New Zealand's living history. Rather than 'fade away,' because the Battalion never faded away in battle or in life, the last members have decided to 'retire' the Battalion while they're still capable of the task in a last tribute to those fallen by war or time.

The Battalion formed in 1939 at the outbreak of World War 2 though it's beginnings could be traced back to the World War 1 and the Maori Pioneer Battalion who had been first told they could not fight 'in a white man's war' but who nevertheless when casualties were high were called in to fight with distinction a Gallipoli where they were noted for not only their raw bravery but their physical prowess. A time now to reflect on the young soldiers who had left their homes for the first time to travel abroad and one can consider that many of them felt humiliation that they, young warriors, were 'not good enough' to fight for their own Country despite half a century earlier giving the English and domestic forces, both greater in number, logistics, and weaponry a number of humbling defeats.

In 1939, as it had been in the years 1914 through 1918, Maori volunteered mostly along tribal and family lines. Robust young men and often hardly more than boys from the rural heartlands many of whom 'lied' about their ages in order to be part of the Battalion that was comprised wholly of volunteers. As a child I grew up living near many Battalion veterans, played rugby with their sons, went to school with them and had many a street fight with and against them as the prosaic of war continued to  reverberate in unsettled lives of the returned soldiers and those of some of their off spring. Living in neighbourhoods replete with ex serviceman and their families no name was more intimately recalled than that of the Maori Battalion and even it's great song that was never further away than guitar strings and an upturned beer crate. Of course none my age were able to comprehend the gravity of war and even years in Army Cadets really gave no lasting impression of who and what the Battalion had been or what war had been for them and other veterans. It's the names I remember, the sons rather than the fathers, who seemed strangely out of focus, captured in a song and the ever present impression of bayonet charges and war cries from men since fallen silent, drinking and working hard, still no doubt, trying to piece together what they had lived through and what they had lost to the country's gain.

Names such as Knox, Baker, Rewai, Cox, Manahi, Shelford, Moore and the list goes on filled with traditional names and the Anglicised versions that were equally common. Many years later it would seep into my consciousness of how little preciousness those names were held by descendants of both The Pioneer and Maori Battalion. In a sense pride was lost by children and grandchildren of the aging soldiers, disrespect was paid, unconsciously it seems now for great warrior names were no more - plundered by the young eager for their own wars. Men of the 28th still marched with pride on Anzac Day, giving an impression of not only pride buy jubilant spirit on a day they could remember mates, foe and beautiful Italian women alike. No where was writ bitterness that they may have come home to a land that didn't truly appreciate them, who still saw them, at least partially, as from a marginalised part of an evolving society. Men who shifted to the  cities for work but who could not enter a bar for a drink despite having often paid in blood for the privilege.

Slowly it would seem some were beaten down by a strange, unaccepting society where family roots were less strong and alienation was common away from traditional homes, language and land. No least part of that could have been the first aftermath of war, yet jubilation and sadness is replaced by a grim panorama of 'real' life where the fruits of victory were not necessarily equality, as economic and social margins that no war could have ever imposed on such great warriors found home. Yet time has already instilled them greatness even before the last Battalion member takes final breath because they are in the consciousness of the land they fought to protect. No battle took from them their pride though a good few cities of their homeland may have entombed much of their expectation to rights of equality.

So today the survivors bring down their flag in their own chosen time, salute once again uncles and aunts who blessed them with safety in their quests to war, they remember also no doubt those lost far a field and since. They know no other Battalion will ever forfeit them their honours and that no other will truly understand their loss or pride and that like all the country's soldiers they will never be forgotten even in centuries yet to be reached.

Haera ra to the great ones large and small
haera ra to the feathered cloak that kept you warm
the taiaha that kept you safe.
Farewell also to the dishonour we brought to your name
when we knew not what we had or what we had lost.
Farewell to the cliff of time that can no longer keep us apart
in foreign fields of war, or suburbs where we have at times become unknown to one another.
You took the honour of the people with you, and yes you did fight fight fight to the end,
bringing that honour home again, enduring now for all time for those you loved
and who did not always love you by return.