Following the decision by Cabinet not to pay David Bain
The comments I make today contain some of my personal opinions and
conclusions. These are founded on my direct knowledge of matters, obtained
initially as a member of David Bain’s legal team from 1996 until the end of
the retrial in 2009, and then as David’s official representative to the
Government on his compensation claim from 2011 until the present day. Any
opinion or conclusion is sincere, honest and founded on information in my
knowledge and or possession.

1. Final resolution of the Bain case has been reached after Cabinet
ordered an ex gratia payment to David Bain of $925,000 which has
now been settled.
2. The real reason the government settled on this basis was to avoid a
further Judicial Review which would have been extremely embarrassing
for Cabinet. I take great issue with Ms Adams’ comments that the
Government were confident of the outcome, for the reasons set out
below. Other reasons for the settlement suggested by Ms Adams such
as the time involved and costs incurred are just political spin in my
3. Mr Bain for his part despaired at continuing to deal with a politicised
process where he felt the cards were overwhelmingly stacked against
him, and so decided to accept the offer. However, do not be misled –
the resolution is an anathema, an abomination to the principles of
justice and fairness. The primary point of contention is the stark
double-standard applied by Cabinet to the reports of Justices Binnie
and Callinan.
4. Mr Bain’s legal advice from senior Queen’s Counsel is to the effect that
the Callinan report is riddled with errors of fact, inconsistencies and
one-sided treatment of the evidence submitted to him. These defects
permeate every significant aspect of the report. The Callinan report
suffers from exactly the same defect of probabilistic reasoning alleged
by former Minister Collins to have been the predominant reason for
rejecting the Binnie report. These are substantial and irremediable
5. This was submitted to Ms Adams on behalf of Mr Bain. Mr Bain
contended that a fair, principled and consistent approach demanded
either rejection of the Callinan report, or at the very least a proper and
transparent “peer review” given the concerns identified. The Minister

refused such a request. As a result, and as stated by the Minister, Mr
Bain notified his intention to seek Judicial Review in the High Court.
6. A long process of negotiation then subsequently took place leading to
where we are now.
7. When Judith Collins finally released Justice Binnie’s report in December
2012 (having received it in August), she said that she had concerns
about it on receipt. However, she refused to convey to the Bain team
or to Justice Binnie those concerns and commissioned a secret report
with input from one side in order to have the Binnie report side-lined.
8. Justice Binnie is on record as saying that it was very obvious to him
that she had a prejudiced view on Mr Bain. Regarding the meeting he
had with Ms Collins after his report was filed, he has said:
“I had been flown half way round the world at the expense of the
New Zealand taxpayers for a useless 15 minute meeting that could
have easily been accomplished by a phone call. Put it another way, I
had spent more than two hours travelling for each futile minute
spent with the Minister. … The Minister was indeed ‘very hostile.’”
9. Ms Collins claims that she commissioned a “peer review” of Justice
Binnie’s report, when what she actually arranged was a secretive
report that amounted to a hatchet job. Any proper review would at the
very least have provided Justice Binnie with an opportunity to explain
his reasoning, methodology and processes, not to mention Mr Bain
who was obviously the party most affected by what was taking place.
Justice Binnie was given less than 12 hours to comment on Mr Fisher’s
report without prior warning.
10.Despite numerous requests from the Bain team she refused to say
what was going on after receipt of the Binnie report, and obviously did
not give us any opportunity for input into the Fisher process. Mr Fisher
was nevertheless provided with one-sided Police and Ministry
criticisms. Regarding the Fisher report, Justice Binnie said he welcomed
the idea of a proper peer review, and went on to say that he “did not
expect the Minister to hire a lawyer to attack my report … under the
guise of a ‘peer review.’”
11.The Cabinet supported Ms Collins actions. The Prime Minister did so
publicly. Mr Bain took court action to review Ms Collins’ actions which
were ultimately settled around 22 months later by Ms Adams when she
became Minister.
12.No other report on a compensation claim has ever been “peer
reviewed”. The instructions to Justice Binnie stated unequivocally that
the process by which he conducted his inquiry was for him to
determine. In these circumstances what took place was despicable,
and contrived, to enable the Government to continue “shopping

around” for a report with the outcome they wanted, as many in the
media have noted.
13.When announcing that a fresh report was to be commissioned, Ms
Adams stated
“It is important that any final decision on Mr Bain’s claim is durable
and withstands the close scrutiny the case attracts. The NZ public
rightly expects the government to make a decision with the full set
of facts and reliable advice in front of them”. (19 February 2015)
14.However, for a number of reasons, all submitted to the Minister, the
Callinan report fails to provide a full set of facts or reliable advice, and
does not withstand scrutiny. Two of many examples are given below.
Probability Reasoning
15.An over-arching defect with the Callinan report is one that Justice
Callinan himself confirms in his “further report”, where he states “I do
not understand New Zealand Law to require me to use or apply
Bayesian Theory or approaches, and I have not done so here.”
16.This is of critical importance, because a fundamental reason why
Minister Collins rejected the Binnie report was advice in the Fisher
report that that Justice Binnie had not applied “the Bayesian approach
to circumstantial evidence and probabilistic reasoning”. Yet, as the
above quote demonstrates, Justice Callinan himself confirms that he
approached the task on exactly the basis that Mr Fisher said rendered
the Binnie report deficient.
17.Chapter 2 of the Fisher report is titled “The required approach to
probability reasoning”. In footnote 30 to paragraph 48 it is stated that
“Bayes theorem underlies the way in which probabilities are assessed
in legal cases.” At paragraph 49, it is said that “they [the principles of
probabilistic reasoning] apply with equal force to a compensation
inquiry of this kind”.
18.Irrespective of whether Mr Fisher was correct, the above assertions
were accepted by Ms Collins, and this was the predominant flaw said
to afflict the Binnie report. In circumstances where Callinan said
explicitly that he did not apply this approach, it is a complete double
standard for the Government to accept his report, or at the very least
to refuse to commission a further “peer-review” in circumstances
where the Binnie report was rejected on this basis.
Incorrect, inconsistent, one-sided assessment of evidence
19.The bloody footprints found by the Police at the Every Street house
were considered by the Privy Council and Justice Binnie to be
extremely crucial, if not the most probative evidence available in the
case. Indeed the Crown and Police are on record as agreeing that
whoever made the bloody footprints was the killer.

20.The Callinan report commences its Conclusions section at paragraph
387 on page 138. Paragraph 392 is the conclusion on the bloody
footprints. In rejecting that they were made by Robin Bain, thereby
proving David’s innocence, the primary point stated is:
“There were too many differences in the various measurements
made under different circumstances of the sizes of Applicant’s
stockinged feet.”
21.“The Applicant” of course is a reference to David Bain. The assertion
here is that various measurements were made in different
circumstances which contained too many differences of David Bain’s
stockinged feet. This could not be further from the correct position.
There is in fact no evidence, anywhere, that David Bain’s “stockinged
feet” were measured. I know as a matter fact that to be the case.
22.David Bain’s bare right foot was measured (2009 trial notes of
evidence, page 3259 lines 22-26) and that measurement is
uncontested and uncontroversial. However, that was the only
measurement, which obviously means there could be no “various
measurements” made under “different circumstances” containing “too
many differences”.
23.So, on what is arguably the most important piece of forensic evidence
in the entire case, Mr Callinan cites evidence that does not exist, that
never happened, that he has invented out of thin air, and does so as
primary basis for his conclusion. This alone, surely must show that the
Callinan report should not be relied upon or at the very least have
been peer reviewed.
Other deficiencies in Callinan Report
24.The above error in relation to the footprint evidence is an example
from a catalogue of critical errors appearing in the report in relation to
almost every important issue. Other striking examples of invented
evidence, incorrect evidence, and misrepresentations of submissions
made on behalf of Mr Bain occur in relation to all of the primary issues
including the alibi, time of death, marks on Robin Bain’s thumb
consistent with loading the magazine; Robin Bain’s bloody hands, and
the blood on his shoe that proves that he cannot have been kneeling
when he died.
25.In regard to the marks on Robin Bain’s thumb, for example, Dr
Dempster, the Police pathologist and witness for the Crown at both
trials, swore an affidavit in support of David Bain which was submitted
to Mr Callinan. This affidavit completely destroyed the contentions
made by the Crown on the issue, but is not mentioned in the Callinan
report at all, despite the Crown conceding that it was “difficult to
reconcile” with their evidence. Justice Callinan paid scant regard to the
evidence presented on this matter by Mr Bain, but recited the Crown
submissions in full in the report: Callinan report page 74-82.

26.Further, Justice Callinan did not interview David Bain or anyone else,
despite making many findings adverse to David on matters that were
not put to him – another criticism said to damn the Binnie report with
respect to criticisms made in the latter regarding steps taken by the
Police. However, Justice Binnie cross-examined David Bain under oath
for a whole day, as well as two senior police officers, DSS Doyle and DS
Weir. Arthur Wells, a highly qualified expert, provided an affidavit for
David. His views were dismissed on the basis that he had been
charmed and manipulated. So too the evidence of New Zealand’s
leading forensic Psychiatrist, Dr Phil Brinded: see paragraph 357.
27.All of the errors identified in the Callinan report were respectfully
notified by Mr Bain’s legal team in writing to the Minister, coupled with
a submission that it was at least highly arguable that the Callinan
report was sub-standard and could not be relied upon. It was
suggested that a peer review ought to have been commissioned to
assess the alleged defects, as former Minister Collins was so ready to
do in circumstances when the previous report was favourable to Mr
Bain. Yet that was flatly refused. One wonders why the doublestandard?
28.In the end, what practical alternative did Mr Bain really have outside of
the present outcome? The only alternative was to go to Court to
challenge the decision by the Minister not to reject or seek a peerreview of the Callinan report. That process would in all likelihood take a
further 2-3 years, and, even if successful, would result in the claim
being back in the hands of a Cabinet that it seemed to us, was
squarely opposed to playing fair on the application.

29.Then there are the Cabinet guidelines themselves, which in my view
are without legal foundation, perverse, contrary to natural justice and
international conventions as well as constitutional and common law
30.Millions of dollars of taxpayer’s money have been spent to deny David
Bain compensation in circumstances where there is no doubt at all that
he was wrongly convicted and wrongly imprisoned for 13 years.
31.It is a myth that the criminal justice system is infallible and could not
have got it wrong. The refusal to acknowledge that underlies the
grudging inadequate settlement which Mr. Bain has reluctantly but
pragmatically accepted; it does no credit to the present government or
the criminal justice system in New Zealand generally.
32.The whole compensation regime is in need of a complete makeover, so
as to de-politicise the process and make it fair and even for all and
ensure that no repeat of this nightmare is visited on some other
unfortunate individual.