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.”
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.