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.

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. 

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?

Posted on December 15, 2012 by Don Mathias

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.

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.

Van Beynen Complaint

http://www.stuff.co.nz/the-press/opinion/8075386/Compensation-for-Bain-would-be-a-travesty

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