Collins versus Bain: Time for Compromise.?

A few weeks have past since David Bain sought a Judicial Review of the handling of his application for compensation for wrongful imprisonment. In that time the Minister has released various communications under the Official Information Act which includes police submissions regarding the content of the Binnie report. In reading those submissions two thing becomes apparently clear, the first thing is the ambiguous position police have to take following acceptance by The Crown of the suicide features shown in the death of Robin Bain. To me it is a major concession from which there is no real chance of 'escape' by The Crown. Secondly that ambiguous position is 'supported' in the police submission with 'facts' that simply don't matter to the overall merit of the Binnie report.

I'll list a few here, para 18 that Binnie declined to interview David's first counsel Micheal Guest. While that is true it takes the case no further ahead for The Crown. Ian Binnie addressed the situation with Micheal Guest in some detail pointing out that the issue was resolved by the 2003 COA judgement which determined that Margaret Bain's glasses were not shown to have been worn during the killing spree. That was independently offered in evidence by Sanderson who didn't think the 'mystery' lens had been recently used. Nevertheless, the argument goes to credibility of David Bain. Ian Binnie said that he believed that David had worn the glasses the weekend preceding the killings whilst David said he had not - raising a question of credibility, but not significant enough to overcome a finding of innocence on the BOP. Anybody with normal experiences in life would assume that David, who had co-operated fully with police at the outset - even submitting to a strip search before he was charged or had spoken to a lawyer, might well have seen the way the wind was blowing, that he was being 'framed.' For him to remain 'truthful' about the lens after that point might have had nothing to do with 'truthfulness' and everything to do with trying to survive what became ruled as a Actual Miscarriage of Justice. Evened out, the glasses mean nothing, they didn't put the blood on Robin's palms, nor did they figure in the close contact upward shot The Crown have since said were characteristics associated with suicide.

The police in para 32 take exception to the view that  it would be 'remarkable' that David would incriminate himself by saying he was the only one with access to the trigger lock key. The Privy Council held that view and a compensation application ought not to be a review of a Privy Council decision. In para 48 the police object to luminol evidence regarding footprints in the murder scene, however that contrasts with the reality that the evidence was fine with police at a point when Robin's feet had been 'measured' by actually measuring one of his old socks and not his foot, again something already litigated. In para 54 the police take contest with a claim they 'rushed' to Judgement on the case, the facts are that the public know that David was charged before the forensic test results of early samples and specimens were finalised, while indeed it is also widely known that police didn't bother investigating the no 1 suspect's alleged motive, test the red 'material' found under his nails or the blood on his hands - that's rushing toward a desired result in anyone's language and not something which will ever advance the police case. In para 85 they point out that Binnie said that Stephen was shot 3 times in the head and that is wrong, of course it is. However, it doesn't advance the case one way or another. In para 90 the police make a truly ambiguous statement that it is likely that other family members knew the location of the rifle and ammunition, that claim doesn't help the Crown at all nor does it diminish the Binnie report - particularly after the fact that 'only David knew' where the trigger-lock key was, a mainstay of the police case for 15 years. Something is also made of the 'newspaper' evidence, who brought it  in David or Robin, again a point that either way doesn't diminish a finding of innocent.

Para 171, was a new revelation to me, or one that I must have overlooked - that the Crown discarded it's position that David called the 'family meeting.' Something else significant in the MOJ that David 'got' the family together in order to kill them all. Herein The Crown and police are at odds, yet it is The Crown who prosecute, not the police. In para 326 the police submit rightfully that the witness Kleintjes was not a police employer - really hard to understand why such mundane and unimportant issues are raised. In para 512 police take exception with Binnie's finding that police prematurely destroyed evidence, yet that was evidence given by their own ex police member, Doyle, who admitted destroying samples without notifying the defence, yet in another instance in the same case did so. Little point in labouring the obvious there as in paras 530 - 533 where once again police attempt to make a case that David wasn't a suspect, despite that he was under guard and stripped searched looking for injuries, tested for recent sexual activity and so on flogging a dead horse. Of course they say soon afterwards in para 535 - 539 that David's examination was 'thorough.' So the police objections contradict themselves, and from another point of view make a lie of the hate-siters claims that David wasn't searched or that he wasn't properly searched.

I've already written about The Minister's objections to not releasing the Binnie report because of the claim that various people might have wanted to object or even have it reviewed. We now know that to this point none of that has happened despite the Minister releasing the report. On that matter there are several Crown witnesses who would possibly fall into that catagory: Jones, Hentschel and others, yet the problem for the Minister's objection remain - that these witnesses gave evidence in public and the evidence and cross examinations are all public records, not something 'new' and otherwise, but for the report would be unknown.

In summary there is nothing in the police submission that couldn't have been resolved under 'best practice.' What has been 'best practice' in the Binnie report until it was filed? Keeping all parties in the loop, informed and able to raise any matters what so ever. It's fairly clear to me that The Crown themselves were in the best position to deal with a number of the matters raised by police, arguing for the removal of some and proceeding with a resulting list sent on to the Minister, Binnie and defence with a view that they be arbitrated in some way. At the very least for matters not able to be agreed upon, police might well have been satisfied that some of their objections were included in the report whether accepted by The Minister, The Crown, Binnie or the defence, or even accepted by some and not others. I'm writing about being pragmatic, looking to have had meetings called which were necessarily attended by all parties - even the issue raised about Binnie's approach (which from all the correspondence between he and Simon Power) looks to have been exactly on track. Such objections, perhaps tasked by The Crown or by The Minister could, and should have, been resolved again with all parties involved.

What begins to get lost are the basic points of the case, the lounge in Every Street on the morning Robin's body was found there. The plain evidence showing in that scene and on his body, the methodology used by Binnie in weighing up the evidence, then stepping back and taking in the overall picture, not who was in the police and who wasn't. Something following The Crown's concessions, that Robin may have turned the computer on, that Robin's body and wounds had characteristics of suicide, that David hadn't called a meeting to get the family together, should have worked upon. This has been a 20 year conflict and needs to be resolved, The Crown have moved, I'm sure current police can be moved on from the objections raised about the investigation that took place nearly 2 decades ago. The Bain case is more fully understood than it has ever been yet still evidence of the probability of Robin's guilt and David's innocence continues to come to light, that's the way it is and will always be. It think the High Court will at the very least recommend (whether or not it can make an order remains unclear) further dialogue between the parties with a view to settling without disturbing Binnie's approach or reasoning. Of course there is a whole range of constitutional restraints and freedoms given life by David's application for Judicial Review whether they take full breath in this application, isn't really the point (and certainly can't expected to be as a point to be 'made' by David Bain) but the fact will remain, yes they do breath in our Law now.