David Bain: The NZ Compensation System is broken.

Back in the 1990s The New Zealand Law Commission made a recommendation for compulsory compensation to be paid in false imprisonment cases. However, the Government of the day and the Justice Minister of the time not only ignored the advice, they also refused to sign a United Nations mandate making compensation mandatory and introduced a set of Cabinet rules for compensation. This set of rules requires an applicant to prove on the balance of probabilities their innocence. In the case of David Bain it makes no difference that he was found not guilty by a Jury at a retrial following an earlier trial determined to have been an actual Miscarriage of Justice. With some 13 years between the trials in which David was held in prison his life had been forever altered because of a Miscarriage of Justice orchestrated by the same officials, or their successors, later given the opportunity to assess and comment on a process many would accept they have no right to be involved in - having disqualified themselves for in fact being responsible for the false imprisonment.

When David Bain applied for compensation the Government chose an international Jurist, Ian Binnie, to conduct an inquiry into David's guilt of innocence. Simply, the Government started off a process under their own rules, rules which ignored the whole Judicial process of trial by Jury - choosing to engage in a Trial by independent inquiry, indeed holding up their model of a process that falls short of international standards and which ignored a recommendation by its own Law Commission. In doing this they generated a bizarre situation where a person found not guilty by a Jury had to prove his innocence. There is no plausible grounds upon which to ignore the Justice system whilst in tandem applying Justice for which no one is accountable, that is in itself unjust, breaches Natural Justice, due process and the protection of the Human Rights Act. David Bain must have thought he had no other remedy when he went to the Government that represented earlier Governments in power when a Miscarriage of Justice was perpetrated upon him for crimes the Government has never been able to prove against him.

One could argue, as I have in the past, that David Bain should simply have sued the Government rather than take part in a process that defies common sense and International standards of automatically paying compensation for false imprisonment. The whole compensation process in NZ is self protecting, a deliberate act by Government to control what the Government may or may not be liable for - in fact a standing that may not only transgress the rights to access to the Courts for remedy, but a process that is open to political manipulation.

When David made his application he was, because of the HRA and Natural Law, entitled to have his application treated fairly and in way consistent with due process and the Law. That never happened. The details of the Bain compensation bid are well known and on going, the critical point is that the Jurist the Government itself appointed, recommended David be paid compensation but the Government refused to do so, thereby breaking a deal earlier made with the Bain team, but also revealing the callousness and misuse of Prerogative Power in such a way that is most likely unlawful.

Without going further into such breaches in detail, I would just point out that David has been disqualified from a process in which he had no control of the rules and those making the rules presented no accountability for what they would do or not do. On this point I think he should simply sue the Government for deliberate false imprisonment by its agents Crown Law. Susan Couch did this against the Justice Department for placing herself in danger of harm from a paroled prisoner who severely injured her and killed 3 others. While that case was eventually settled, whether intentionally or not, Susan trail blazed a passage in precedent that dented the self-indemnity our Governments hide behind. David Bain has an excellent chance of doing the same.

I would like to point out here the way this Government and its predecessors have never taken steps to clarify a key issue in the Bain case. That is the situation where some in the population, who one would say are relative ordinary people (not speaking about the hate groups here of course), concerned that the dead, in this case Robin Bain, cannot defend themselves. While a lot of bad feeling is generated over this, no Government has clearly stated that for the Law to do its primary role - determining guilt or innocence, it must allow all evidence to be tested during a trial and that any accusations made against a dead victim (conditional use of that word) are defended by the Crown. I have written about this before, Robin Bain was defended by the Crown against accusations that it was he, and not David, that killed the Bain family. It's in the public interest that be made clear to those that struggle with the situation, the message from the Government that the Crown undertake to speak for the dead. At least in part because that message hasn't been made clear, despite it being fairly obvious, the Government benefit with their meddling in matters of Compensation, by some in the public, incensed with the idea that nobody 'speaks' for Robin Bain.

The situation that follows from this is modern day farce and tragedy which sees the Government benefit from the disquiet about no one 'speaking' for the dead in the Bain case. Something which would never arise in say the Peter Ellis case, someone also denied compensation for false imprisonment, despite an almost universal opinion, that he is innocent of the crimes he spent a long time in prison for. So stepping back a little, a Government with a self-appointed power to rise above the Courts on matters of Justice, at least in the Bain case benefits from an opinion abroad that nobody speaks for Robin Bain. Of course there is no argument about nobody speaking for the other victims, Margaret, Arawa, Laniet and Stephen, some of whom are in fact attacked by one group seeking to uphold Robin's 'good' name. How does that practically work when taken to its natural conclusion?

Here's how, David Bain cannot argue his innocence without a group of New Zealanders saying that he shouldn't be allowed to accuse his father of the mass killings. So in this process of open Justice, and fairness in righting wrongs, the Government encourages (by its silence) a group that don't want David to have the right to defend his innocence for a second time, not in the Courts but in a public arena where the Government 'Judge' apparently on behalf of this group of people using 'rules,' breaking promises and, and as I've argued above, the Law. This whole process of compensation is now revealed as a sham, the Government give undertakings then renege on them, the Government does not obey the Law, but makes Law of its own for matters arsing out of Lawful or Unlawful application of Statute. The Bain case arises from the Judicial system, the place in which it must be put right, not pulled away to a secret Cabinet meeting, but dealt with out in the open, in Court where every man and woman has the right to take a grievance to either put right or be denied under due process and the Rule of Law. That's where the Bain case should go right now, breaking new ground as Susan Couch did, giving access to the Law back to those affected by it - time for Justice to be seen to be done.

Joe Karam is not by nature a ditherer, above all else he a defender and fighter of the highest calibre. I hope he liberates himself from the downward pressure of the bloody silly 'rules' of compensation and takes it to the Courts where has had incomparable success in not only having 5 murder convictions overturned but that decision endorsed by a Jury of David Bain's peers. Time for Joe to get back in the ring where he is master of unpicking deceit or obscure logic and reasoning. Joe may have found David Bain locked away unlawfully and rescued him using the truth. That truth is even more strongly based now than it was at the retrial, and there is no reason in my opinion to wait while on a Government likely to change the rules again, a Government perhaps shopping for a decision it wants rather than the truth. Waiting compounds the pressure because the wait in this case has no certainty of direction, on the other hand the Courts are bound by Law and processes many centuries in the making,  not off the cuff cabinet decisions reminiscent of the times before the Magna Carta was enshrined to take 'King like' powers away an elite and return Justice to its natural home, the Courts.

The Crown case against Mark Lundy limps into week 3.

First of all a correction. It does appear that Mark Lundy may have individually marked his own tools with orange paint. Many engineers and those working in heavy industrial workshops mark their tools in this way, but still a surprise that a kitchen bench seller would do the same.

From all reports the Lundy trial is not generating much interest, has not really to this point captivated a wide following. Perhaps the reason for that is not only have the Crown dramatically reversed away from their earlier version of what they claimed they how the murder happened in the 1st trial, yet that they are still presenting the same evidence, at least in part for the murders to have now taken place at a different time. There was always going to be trouble with this, locking a man up by saying he committed a crime in a particular way and then backing away from that claim. In some respects I'm surprised the Court have allowed this to happen. Though in a country where appeals are often successful because a witness has been found to have misled a Jury, hidden or even planted evidence not only do no charges follow, but the individuals, if police or professional witnesses - give evidence again at a retrial. Hiding evidence, or misleading the Court is an offence which is not routinely pursued in NZ - hence the public disquiet, even after nearly a quarter of  a century, with the Thomas case.

But the real reason for the lack of interest is that the public, at least until recently and probably even now, have thought that Mark Lundy was guilty. Suddenly the retrial is upon us and evidence is lacking. The motive might be that the Lundy's were under financial pressure according to the Crown yet they call witnesses to that end who say under cross examination that the prospects of the business were good and improving. The wine venture on which the Crown seem to hedge their money came and went anyway as things in business usually do. A police search of Lundy's car reveals a necklace that nobody knows the owner of, a sceptic would say that it was deliberately left there to curry indignation against Lundy for perhaps having an affair, or entertaining a prostitute other than the one he hired the night he stayed in Wellington. But what does it all add up to total, nothing it seems at this point.

Which leads me to wonder if The Crown are holding the testimony of the prison inmate as their ultimate proof. A man who will say that Lundy told him that 'he had' to kill his daughter Amber because the daughter happened along on the murder of her mother. Being sceptical again, and not just about a prison stoolie singing for their supper, the last card in any weak prosecution case - but didn't the Crown earlier claim that Lundy was dressed in a disguise, one in which he was seen running away from the family home. The Crown have said that Christine and Amber were killed by something similar to an axe or tomahawk, yet there is no evidence yet that Lundy had either of those things. In fact one witness gave evidence saying that Lundy borrowed her axe to open the packing on his sink orders. Will the stoolie conveniently be able to fill the gaps on that part of the mystery as well? Will a Jury who have already heard evidence that Mark Lundy was a doting father, be able to accept that a prison inmate with some psychotic disorder is to be believed rather than grandparents who witnessed the relationship between father and daughter - I'm having to say at this stage I don't think so. Subject to the Crown having some startling new analysis of dna earlier said to be too downgraded to reliably test, a fact hidden from the first Jury - the case looks in deep trouble. Whose dna was under Amber and Christine's finger nails. How did their dna end up in the boot of Christine's brother and also his bathroom? Doubt everywhere here, while it appears the Crown simply whistle.

What is going on with the Lundy case?

I don't know about other observers but the Lundy retrial is distorting out of perspective. On day one defence counsel revealed that test of material taken from under the nails of the deceased Christine and Amber Lundy indicated dna from two other persons, probably male. Those tests, as unbelievable that it may seem, were only conducted last year - thank goodness those samples had not been dumped as in the Thomas and Bain cases. Whether Mark Lundy is guilty or not all the evidence pertinent to the case must be considered, the dna evidence is highly pertinent. On day 2 when Christine's brother, Glenn Weggery, was cross examined by defence counsel lead David Hislop QC, more dna evidence emerges in the form of Weggery, who found the bodies. The dna, of a probability in the 70 to 80% region, as that of belonging to the 2 deceased was found in his car boot and his bathroom. There of course may be an innocent explanation for that but Glenn was unable to provide that explanation. Draw a parallel to the downgraded dna found on Mark Lundy's top, argued to have been planted in the first trial, and a successful point on appeal and the case takes new shape - even putting aside the scrapings taken from under the nails of Christine and Amber.

On day 3 the Crown called retired police computer expert, Maarten Kleintjes, who gave essentially new evidence that a computer found in the house showed no signs of having been manipulated, whereas in the last trial he said it had - inference that Lundy had interfered with the computer in order to fit his alibi. Now that the Crown have a 'new' time scenario Kleintjes appears to have had 2nd thoughts. Some readers will remember that Kleintjes evidence in the Bain case was an important reason in having David Bains convictions overturned and will most likely be an important reason why David Bain will be paid compensation. Furthermore, Kleinjtnes did not clone a lap top found in the house despite police notes showing that he was asked to do so. He couldn't 'recall' being asked, even though he was a member of the police and there specifically as a computer expert. Hislop put it to him that he, Kleintjes, had found evidence on the lap top, which didn't fit the Crown case.

The Crown say the Lundy marriage was a bad one, while the late mother of Christine and late father of Mark say it was a happy marriage and that Mark was devoted to the bright, charming, 7 year old Amber. There is sinister talk about a new insurance policy and of course the public will soon hear from the prison inmate who will claim that Mark told him why he had to kill Amber. This case is looking like an attempt to scrape a barrel that has already been scraped clean of any evidence that supported the last Crown case, let alone the new one that appears to have been invented in the last 2 years and which contradicts the first to the point that some 'experts' from the first trial are now irrelevant to the Crown cause whereas formerly they were key components.

This case is very disquieting now. Suddenly for some observers, in a trial which has polled opinions as high as 70% guilty against Lundy, there will be some concern, even alarm that the 'system' fights to save face rather than impartially present all the relevant evidence and provide no investment or opinion one way or the other. The Lundy case demonstrates in graphic detail how in NZ the Crown may get it wrong, deliberately hide facts or evidence, even plant evidence and be allowed to 'give it another go.'

When did the Crown decide they were wrong about the Lundy case?

Mark Lundy's retrial began today with the surprising news that the Crown essentially admitted they were wrong in details of the prosecution of the first trial which they bitterly defended until 2013. Clearly in one of the pre-trial procedures The Crown informed The Court that they wished to drop the original claim of the time of death of Lundy's wife and daughter and shift it further hours into the following morning. On the face of that, it is a risky move. The Crown are clearly saying that Mark Lundy is guilty but that the circumstances of the murders are different to those to which they persisted were correct throughout the original trial, appeal hearings right up until the 2013 Privy Council hearing where, among other things, The PC accepted a defence submission that it could have been 'bad science' that linked Lundy to the crimes and that a new Jury ought to consider those details.

While there appear to be risks for the Crown to change course after some 13 years they clearly consider that dropping the much doubted return trip in a limited time from Wellington to his home, to commit the killings, and then back to Wellington is not significant because they now know something different all these years later. Add to that, one of their witnesses who pin pointed the time of death to fit within the parameters of the drive either has a new time of death or has been dismissed from the case, along with the witness who claimed to have seen Lundy running from the house dressed as a woman in proximity to the former calculated time of death. Some critical observers will react with scepticism that the witness who backed up the incorrect time of death with a physical sighting of Lundy running away, clear enough for The Crown's satisfaction, had not manufactured her evidence for some reason to fit the what now must be seen as a manufactured original time of death. Furthermore, it must be noted that a NZ pathologist had said that DNA found on Lundy's shirt some time after the murders was degraded to the extent it should not be used to convict Lundy as the risk was too great. That advice was hidden from Lundy's defence team in the first trial by The Crown who went onto use a Texas expert whose methods scientists later said were impossibly flawed. Moreover, the defence say, that anyway - dna being found on a spouse's clothing is consistent with day to day living together.

The Crown in their opening address  persisted that the DNA was of a sufficient standard to be identified as that of Lundy's wife Christine. Not only that, they now have, beside their new scenario of when the murders happened, a prison inmate to say that Lundy told him that his daughter Amber was killed because she had witnessed the slaying of her mother. They argue that Lundy and Christine were running an insolvent business, didn't have a good relationship and that was the reason for Mark Lundy killing her. The strong emphasis on the marriage purportedly being in a bad way when according to the defence that was not the case, is troubling, when considering that The Crown are having another bite at the cherry having once stuck with their fairly implausible time scenario for over a decade. While The Court gave permission for The Crown to take a new tack it nags away that the Crown were once adamant about a high speed return trip, an eye witness, an expert witness determining the time of death only to now abandon them. It must have been a closely run decision for Justice France to allow The Crown to depart one case and start another, particularly if the issue of 'bad science' remains alive.

The defence have an apparent problem with paint flakes found on the victims which were a match to tools belonging to Mark Lundy. However, there are no tools produced  that are painted as solitary items, only as a manufactured run of thousands - most always in the same colour representative of the maker. On the other hand the most significant, and apparently fatal news for the Crown in today's openings was the assertion by defence counsel that in a test of scrapings taken from the nails of both mother and daughter, but not tested until last year,  it was disclosed to be the dna of two unknown individuals. Somehow the dna of the prime suspect, Lundy, was not found under the nails of his wife or daughter, but that of 2 unknown individuals was. Having written about 'prison stool pigeons' before, notably in the Watson case, the new direction The Court has allowed The Crown to take is one thing, but dna of 2 unknown individuals found under the victims fingernails, having been untested for a dozen years is quite another. A 'theory' of a high speed trip, and Lundy identified 'in drag' running from his house in apparent disguise despite being a very large and unfit man, now being abandoned, is not  giving confidence that the Crown have suddenly found the truth from the mouth of a prison inmate singing for his supper.

If this were the hand of David Bain instead of his father, Robin.

http://i.imgur.com/2CPr9Hi.jpg

 

Click on the above for a photo of the deceased Robin Bain's hand. If you look at the enlarged copy you will see what is most likely blood wash in the large creases of his palm. This material to my knowledge was never tested, said to have been too small amount. Of course we can go elsewhere for confirmation - the fresh blood found on a towel in the laundry the morning of the Bain family murders. Blood which for many years was assumed (how dreadfully tragic that in a murder case, assumptions are made on items which are capable of being sources of hard evidence) to have been David's blood but which finally on being tested was found to belong to his father Robin. The blood was fresh and the laundry in the household was done daily. Even putting aside the possibility of Robin's nose bleed the morning of the murders and the cuts to his hands there was blood found on the laundry towel, fair assessment that the red material found under Robin's nails by the forensic team and that shown as visible in the creases of his hands was as the result of him having washed or wiped his hands either directly following the killings or before turning the computer on. I am unaware if, and how finely examined, the computer key board and switches were examined, they may not have been more that superficially screened because by then the focus was on the message left on the computer. Would there be any surprise that the computer had not been tested for blood or observed closely for a colour matching that found on Robin's palms. The answer is no when we reflect on police failing to test the towel in the laundry for over a decade and in fact throwing out blood samples taken from Robin's trousers but keeping the trousers.

 

However, what is clear is that Robin washed or wiped his hands before his death. As any fisherman or fisherwoman knows blood is hard to remove even without the pressure of pending discovery. With all other factors taken into account, including of course other blood found on Robin's hands in particular, it is safe to say that the creases more than likely held blood wash - significant by any degree. But what the photo also shows, rather dramatically in fact, just above the forefinger, is on the BOP gunshot residue. Again this was never tested. Followers of the case know that Robin's hands were not 'bagged' in order to be later tested for GSR. Many will also know that GSR unlike blood is entirely fragile and deteriorating from its form soon after in conception.

 

Going back to the towel and the blood wash found on Robin's palms (let's be generous for a moment and call that blood wash dirt - as the sisters so often plaintively cry, to do this we have to ignore is colour and corroborating evidence in order to bring the gsr to its most simple helpful exposure,) after Robin had washed his hands, or simply wiped them on a towel leaving creases of blood (or dirt) something fragile and which would disappear in hours presents itself in this photo. If it was gsr it would soon be gone, if it was dirt or grease of some other durable material it would have been seen and hopefully recorded in notes even hours after the crime discovery when Dr Dempster was 'allowed' to examine the crime scene, having been kept outside for hours police despite being the most experienced forensic examiner in Dunedin. But it was in fact gone or left undiscovered until I understand quite recently in photos taken on the day of the murders. Some readers will also recall that Dr Dempster when reviewing the file prior to the retrial found photos that showed further blood wash on Robin's palms and released them to both the Crown and the defence. Plainly, this is Robin's right hand, that which would have been used in loading the rifle or removing the magazine with the jammed round stuck above the spring lift.

 

I imagine this photo along with others, and possibly that indicating Robin had a nose bleed that morning exhibited by a red substance showing in his moustache and a blood trail across his chin that did not appear possible to have come from his temple, will form a valuable part of the reconstituted petition by David Bain for compensation for false imprisonment. As the Bain case has continued the evidence against Robin has continued to grow, even though it could be argued that the above photo was enough to prove he was the perpetrator. In the continued search for hard evidence against David before his retrial there were something like 27 detectives employed full time to find that hard evidence and failed. What they needed was evidence such as this photo but of course this photo is of the hand of the real culprit, the man who fired the gun and not the son.