Bain compensation

December 3rd, 2012

The compensation decision must come shortly. It is astonishing that the government has been able to sit on the decision since September when the Canadian judge delivered his report.

I predict an announcement after Christmas that there will be no compensation, or that it will be confined to some nominal element. The Minister will be damned by the disappointed side, whatever she announces.

Astonishingly John Key is reported today as I read it confirming speculation that:

1) the judge recommended compensation (confirmed by inference);

2) the Minister of Justice is opposed to paying; and

3) the decision is unlikely to be released before Christmas.

Announcement after Christmas will mean that it is old news by the time eveyone is back at work. Bain supporters won't get a critical mass of the knee-jerk commentators on their side, because they are at the beach. Ordinarily, even if they agree with the decision, they would have a feast over a government commissioning and funding an independent outside report to duck political responsibility, then dismissing it.

I have no view on whether compensation is fair. I honour Joe Karam for his dedication, whatever the truth of the matter. But I think the Minister will be strengthening our "constitution" if she does refuse to go along with a recommendation. Decisions on compensation for wrongful conviction and exercise of the prerogative of mercy should allow for sentiment to prevail. By their nature they will leave intense disappointment whichever way they go. The law often cannot give an answer with the certainty that it should have, to prevent floodgates opening, given how often there is uncertainty.

It is proper that such decisions be rare, and that the responsibility be taken by someone who must answer to the people directly. The recognised uncertainty of politics and the conscience of the politician is a shock absorber for the system. We cannot leave such powers for the conscience of judges, or administrative bodies, because we do not want them to act on sentiment or prejudgement, or opnions as to who will be the most upset side. But politics is largely about reconciling the irreconcilable. An elected politician can pardon and be merciful without the result becoming a precedent straitjacket.

In other words, the Mininster may show in this case that the compensation discretion remains just that. Despite a judges inquiry, the advice of the judge has not become cemented by custom into a de facto judicial decision. Nobody will acquire a right to compensation which in a future case might outrage the community.

It was odd for Minister Simon Power to get a Canadian judge for the job. Canada's Supreme Court is known more for political correctness than intellectual rigour. It may be quite unfair to tar the judge concerned with the general sogginess of that Court, but lawyer gossip predicted trouble of this kind.

Filed under Constitutional, Criminal Justice, Politics

Comments

The compensation decission should be decided on evidence. Its been claimed all along that the murders could only of been executed by either David Bain or Robin Bain.Look at the physical evidence. It could of only of been David Bain as there is nothing linking Robin Bain to this crime.Simon Power should of had more balls!!!

I agree with Vic,up to a point. At the end of the day David Bain should only receive compensation if he is deemed to be innocent on the balance of probabilities.
If Justice Binnie has decided Bain is innocent, then I can only say his report must be deficient. With all due respect to Justice Binnie it would appear he was the wrong man for the job.
Simon Power felt obliged to go overseas so as to get an independent judge,and I can understand that. But,to my knowledge,Binnie has no experience so far as compensation claims are concerned.
Now Judith Collins has appointed Robert Fisher to review Binnie’s report. I believe she has chosen the best man for that job. Fisher does have experience in reviewing compensation claims. He would probably have been picked to review the Bain claim had Simon Power not decided that an independent overseas judge was required because of the high profile of the Bain case.

New Zealand needs to grow up and stop going overseas for so called independent reports, by doing this it is saying that experts here are not able to look at the facts independently, rationally and without a fixed agenda. We now have the case “it seems” of a report from an overseas so called independent expert that is not up to scratch. Grow up NZ.

You are spot on with: Canada’s Supreme Court is known more for political correctness than intellectual rigour. the Supreme Court of Canada disregarded procedural impropriety, compelling evidence, and well established legal doctrines that were inconsistent with the court’s decision. The decision, in my view, is not merely a collection of mistakes; it reflects a judicial attitude that inclines to a result, and is too quick to overlook law and evidence inconsistent with that result. <excerpt from Power without Law by Alex M Cameron – criticizing Justice Ian Binnies written judgement in R v Marshall (No.1)

Justice Binnie did not rise through the ranks as a judge – he was associate Deputy Minister of Justice immediately prior to his appointment to the Canadian Supreme Court. He was involved with the creation of the Charter (equivalent to our Bill of Rights) and later was accused of Judicial Activism as a Supreme Court Judge by some of his critics.

On an August morning six years ago the appelland and a companion, both Mi’kmaq Indians, slipped their small outboard motorboat into the coastal waters of Pomquet Harbour, Antigonish Country, Nova Scotia to fish for eels. They landed 463 pounds, which they sold for $787.10, and for which the appellant was arrested and prosecuted.

On an earlier August morning, some 235 years previously, the Reverend John Seycombe of Chester, Nova Scotia, a missionary and sometime dining companion of the Governor, noted with satisfaction in his diary,”Two Indian squaws brought seal skins and eels to sell”. That transaction was apparently completed without arrest or other incident.

So begins the judgement of Justice Ian Binnie, writing for the Supreme Court of Canada in the case of R v Marshall (No.1).
–abridged–
But while gracefull and evocative, Justice Binnie’s opening paragraphs contain a significant mistake.

Reverend Seycombe’s purchase of eels violated Nova Scotia law. He should have been arrested and charged. In fact one of the expert witnesses in the case testified that Reverend Seycombe broke the law. Already the decision is suspect.

One would reasonably suppose that the treaty right to catch and sell eels implied by Justice Binnie would have its foundations in evidence – perhaps extensive evidence – of a lawfull historic trade in eels. In fact there was no other evidence of any eel trade between natives and non-natives. This mistake is noteworthy for what it portends. The court decision in Marshall (No.1) exhibits a worrisome inattention to historical and legal detail and to fundamental constitutional detail.

In Karam’s book Trial by Ambush, he asserts that the man that the nurse saw just before she saw DB, at 6.40, must also have seen DB. The converse also applies, DB must have seen that unknown man. But DB has never said anything about it. Because, probalby, he had come up that part of Every St some ten minutes earlier, to hide in the alcove…. and turn the computer on afterwards, then run down the road til the car approaches. Alibi established. It fits. But neither the courts nor Binnie heard any of this. Conjecture? But supported by DB’s silence. It fits. SF is to be congratulated for the OP’s thoughtful analysis.

Very interesting case. The point is, it would seem that David Bain’s case for compensation fails on several levels. How on earth can he prove, on the balance of probabilities, that he didn’t commit the murders? There is no forensic evidence suggesting that he is innocent. Secondly, he doesn’t meet the criteria, of having his conviction quashed without a retrial. So, therefore, what are the extraordinary circumstances? That some people in a foreign land made a somewhat arbitrary decision to order a retrial? It is interesting that Justice Binnie would request a copy of book that had nothing to do with the evidence of the trial. What on earth was he thinking? He of all people should have known to stick to evidence. Apparently not. So, Judith Collins is quite correct to request a review. I would suspect that a member of the New Zealand judiciary perhaps more familiar with the evidence would have easily come to an accurate and speedy conclusion, and probably saved us a lot of money.

Compared to Susan Couch, the compensation cannot be more than 1%. ie, 3G.

I would have to agree with Kay, as it seems to me the compensation to Susan Couch was miserly, as she had clearly suffered a massive wrong. In terms of predictability and preventability of significant reoffending, one could never be absolutely certain that anybody involved in criminal offending or mental ill incidents, won’t. Anybody in those categories, a huge proportion of the population is somewhat less resilient and more fragile, and it is little more than stating the obvious to recognise that and realise that except in the most exteme cases like Bell and Burton is not really possible to predict risk- except to say people over 35 are generally cooler and more likely to think twice and that IQ and Income are relevant factors.
My own view is that Bain is clearly guilty, that the prosecution was not hard and clear enough in pressing its case, that Bains motive is obvious- he was a pretentious failed student of modest ability who was appalled by his louche, corrupt immoral family. Essentially Bain was an angry, very average young man. The real defence Karam makes is a form of sharia law justification. The Canadian judge in heavily relying on Karams books was hardly relying on evidence regonisable under NZ or British law. Karam is no legal authority, or even a lawyer.
Certainly I am prejudiced against Karam- as to take a populist stand, Karam committed near treason by switching to league in 1976, leaving the All Blacks without any sort of credible fullback to face the springboks in the 76 test series. Mains was too slow and Fawcett a fickly club player. Without Karam in the back line, what should have been a great sporting contest was turned into a farce and ruined. It would be churlish, but I will suggest that Karam was simply too gutless and determined to preserve his hide to want to face the Bok loose forwards under the high ball. Without doubt he would have taken a ferocious assault, probably unmatched in test history, but I still think his actions a form of betrayal.
As for Simon Power all his moves were an attempt to move away from the British concept lawyer in favour of law determined by judges, police, social workers and popular opinion.

Merry Christmas Stephen, I have not looked at your blog for a while. When I looked today I thought at first you decided to stay clear of this issue until I scrolled down. It is great I can comment here unlike the Herald who cherrie pick what they will let through. I wonder if they would let you comment about Rodney’s Op Ed in the HoS. I am waiting for a response why they will not publish mine.

I would be interested in your view on Fisher’s review as well as the soft ride Fisher gave David. I wonder if he pasted him tissues.

It would be great if the insist on David was forced to appear before Cabinet and it was televised let the Grand Jury in the US.

Stephen says:
“I predict an announcement after Christmas that there will be no compensation, or that it will be confined to some nominal element”

Agreed, and that is because it is blindingly obvious what happened . David Bain slew his family.

I am sure that Bain did the killings. My only concern is that Bain spent around 13 years in jail between the trial that convicted him and the one that acquitted him.

Given that the second trial simply included evidence that the Privy Council finally said was improperly exluded (in the first trial) that retrial really should have been held many years ago. I consider that this unusual timescale is quite exceptional so some modest compensation, nothing like $2.3m, is due to Bain on that ground alone.

Bain and the rope analogy
A report on the Bain case, written by Binnie J for the Minister of Justice, Judith Collins, concluded that David Bain was innocent. Dr Fisher QC has been critical of this conclusion.

When David Bain was on trial, the jury was presented with a comparison between pieces of evidence and the strands of a rope. However, the rope analogy is unsuitable as an explanation where guilt or innocence is the subject of an enquiry for the very good reason that evidence is measured in probabilities and the combining of probabilities is a multiplicative process and not one of addition as used for combining the strengths of fibres in a rope.

Dr Fisher agreed with Panckhurst J in the summing up of the 2009 Bain re-trial, and wrote in his response that “the usual analogy is the strands in the rope explanation: each strand of evidence gains strength from the other, so that whilst an individual strand may be insufficient to support the load (in this case proof of innocence) the combination of them may be enough.” He continues the explanation by writing: “the effect of combining them (probabilities) is not so much a matter of adding the various strands in the rope as multiplying them; the whole is greater than the sum of its parts”. The context of the word ‘multiplying’ in Dr Fisher’s response is the same as that used by the mythical Noah when he sent the animals forth from the ark to go and multiply after their own kind. The operation of multiplying probabilities is quite different. It is a well-defined mathematical operation and not a synonym for ‘increasing’. In fact, when any number of probabilities other than 1 or zero are multiplied together the product is always less than any one of the individual probabilities (not greater than as in the rope analogy) and in this process the added reference to “the sum of its parts” is meaningless.

The probability of any event has a value that lies in the range of 0 to 1. If an event can not occur then its probability is 0 and if the occurrence of the event is certain then the probability is 1.

The use of probabilities is simplified in the Bain case, when by agreement between the parties concerned, it was established that the crime was committed only by David or Robin and by no one else. This relationship can be expressed by assigning ‘p’ as the probability of innocence of David and ‘(1-p)’ as the corresponding probability for Robin, since the two probabilities must add to 1 as a certainty. David’s relative probability of innocence, P, can be defined as p divided by (1-p) and can have a value between zero and infinity. There are many events (or pieces of evidence), x = 1, 2, 3, etc. and each has a relative probability of innocence for David, P1, P2, P3, …etc.. and the product of the Px ‘s is equal to P, which on interpretation, provides the solution to the request of the Justice Minister. Only if P lies above 1 is David proven innocent. Where a probability of a particular event can not be determined, then justice demands that the two suspects have equal probabilities of innocence and the Px for that particular event is 1 which has no impact on P. Binnie J recognised these particular events where Px is equal to 1 and correctly discarded them on the proper basis. Dr Fisher criticised Binnie J on this discardment, believing that these events should have had some weight as they would have had in an additive process.

In the evaluation of David’s innocence, there is a requirement to provide estimates of all Px ‘s and even though these will be subjective, one can obtain a product P with calculable limits. In the next phase, one might select, as did Binnie J, the piece of evidence which is associated with the maximum estimated value of the relative probabilities (say Pm ), and ask the following questions in a process that aligns well with any careful scientific endeavour.
1. Is Pm greater than 1? If not, then David is not innocent and the case is closed. However, if Pm is greater than 1, then further questions need to be asked.
2. Are there pieces of evidence with Px less than 1 ? If not, then the overall product of the probabilities, P, is greater than 1 and David is innocent and the case is closed.
3. If no solution is obtained in clauses (1) or (2) then a more general approach is required as follows. The number of items of evidence is rather large and because the relative probabilities associated with these items are subjective, the values of Px near or equal to 1 can be set aside to reduce confusion without affecting the outcome. Can the remaining Px’s, being fewer, lead to a value of P of significance?

Binnie J followed an argument of the type expressed in clause (3) and found, if expressed mathematically, that P, the product of all the relative probabilities, was greater than 1. This procedure of considering the evidence piece by piece and independent of each other is a fitting approach. In contrast the assessment of innocence using the rope analogy has no hope of a logical conclusion. Whereas a rope has two ends, the rope analogy in the justice system has only one – abandonment.