My report on Fisher’s Report on Binnie’s Report on the David Bain case

Judith Collins would have you believe that clever lawyers, like herself and Fisher, can see fundamental flaws in the Binnie Report.

From what I’ve read so far Fisher doesn’t demonstrate any flaws other than his own.

Here’s Fisher’s explanation of one alleged flaw and an example of the alleged flaw…

84. Differently expressed, there is an assumption throughout the Binnie Report that an item of evidence should be disregarded entirely unless it is established that on the balance of probabilities, that item of evidence would be incriminating in itself. That is the ultimate effect of his approach. No room is allowed for the possibility that something which is consistent with innocence in isolation might nevertheless increase the odds in favour of guilt.

85. Take David’s fingerprints in blood on the rifle. It is common ground that whoever he was, the murderer was engaged in a struggle with Stephen, that much blood was spilt, that some of that blood is likely to have finished up on the murderer, and that the murders were carried out with a particular rifle. Most people would think that in those circumstances evidence that David’s fingerprints were found in unidentified blood on the very rifle in question would increase the odds that David was the culprit. Yet Binnie J dismissed that item from further consideration. His explanation for his dismissal is that “[o]n a balance of probabilities I conclude that the prints are not in human blood and that David Bain is entitled to succeed on this issue as well”

And here are relevant excerpts from the Binne Report…

293. Dr Geursen, the defence expert, tested part of the blood sample obtained by Dr Harbison’s laboratory and concluded that “the only reasonable explanation is that the DNA extracted from the fingerprint on the rifle is not of human origin.” The Crown says Dr Geursen was inadvertently provided with contaminated material and therefore his tests were not valid.

299. The 2009 jury eventually heard all the evidence, as envisaged by the Privy Council, including cross‐examinations. An acquittal followed. I agree with the Court of Appeal’s observation that David Bain’s fingerprints – if they had been shown to be in human blood – would have been highly probative of David’s guilt. However, the DNA testing is inconsistent with that conclusion.

302. I find it inexplicable that the defence expert Dr Geursen was provided with a contaminated sample on which to do his work. We will never know what Dr Geursen’s test would have shown had he received an uncontaminated sample.

303. The evidence of Dr Harbison and the Victoria Forensic Science Centre is the best we have. Despite its frailties, Dr Harbison’s work in particular, holds that no human DNA was detected in the actual fingerprint blood. The fact her second test was compromised is not David Bain’s fault. I must rely on the best evidence I have. On a balance of probabilities, I conclude that the prints are not in human blood and that David Bain is entitled to succeed on this issue as well.

How stupid is Fisher?
Binnie had to decide what this gun blood print evidence actually is “on a balance of probabilities” because according to the Crown’s own testimony this evidence was handled incompetently by the Crown.

Furthermore, Binnie’s argument is very different from Fisher’s claim that “there is an assumption throughout the Binnie Report that an item of evidence should be disregarded entirely unless it is established that on the balance of probabilities, that item of evidence would be incriminating in itself.”

Fisher’s formulations – elaborately knitted together like a bad Bain Jersey

I think you will find the fundamental flaws are in Fisher’s formulations – elaborately knitted together like a bad Bain Jersey.

But don’t take my word for it. Read the reports. Binnie’s report is well written, it’s long (193 pages) but it’s straight forward. Fisher’s report is also long (80 pages) but it is not straight forward – you will need to check the context of his quotations.

My challenge for you, the reader, is to find one serious flaw that Fisher identifies in Binnie’s Report.

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9 Responses to My report on Fisher’s Report on Binnie’s Report on the David Bain case

  1. Mark Hubbard says:

    Interesting post Reed. I hope you have some take up your challenge. I’ve created a link to here from my own blog on the Binnie report, or more precisely, Collins behaviour in this matter..

  2. Mark Hubbard says:

    By the way, what’s your opinion on the three lawyer comments (for Fisher) on this Kiwiblog post:

    http://www.kiwiblog.co.nz/2012/12/three_law_professors_on_fisher_v_binnie.html

  3. reed says:

    Having read both reports, Prof Henaghan said a main issue of concern with Justice Binnie’s report was whether it relied on the onus of Mr Bain proving his innocence, rather than the Crown proving his guilt.

    ”In this case, it is not a criminal trial. If you are asking for compensation the onus is on you to prove you deserve it and that was one thing Robert Fisher was worried most about in respect of Justice Binnie’s report.”

    He thought Dr Fisher’s recommendation to have a revised report drafted and opened for feedback from all involved was sensible, and anyone preparing such a report could at least benefit from Justice Binnie’s ”thorough” compiling of data.

    Does Prof Henaghan think Binnie violated Fisher’s main issue of concern?

    I don’t know, I’d have to ask a lawyer.

  4. reed says:

    Mark
    JC is trying to tell you that you wouldn’t understand – leave it to the lawyers.

    Part of my aim is to get people to think about the situation themselves, to read the reports for themselves and not surrender to professional opinions.

    Can you identify any fault with Binnie’s report?

    I can’t, even after reading the lawyers’ opinions.

  5. Mark Hubbard says:

    Jeez, given the blog I was thinking JC was Jesus Christ. Judith Collins … yeah.

  6. Richard says:

    Latest on the Bain case – Bain lied over crucial evidence, says lawyer

    I don’t think I’m going to get around to reading Binnie’s report. I read some reports a few years back, e.g., the Court of Appeal report. I’m all Bained out. :-(

    I struggle to understand how Bain can go from being “guilty beyond reasonable doubt” to being “innocent on the balance of probabilities” on the basis of … what? (I think he did it.)

  7. Richard says:

    I don’t know, but I suspect, that Bayes theorem is the key to the Bain murders.

  8. reed says:

    Richard
    Just read a random few pages of the Binnie Report and critique those.

  9. Pingback: Robin Bain is innocent | Eternal Vigilance

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