Justice Ian Binnie’s background

From 1982 to 1986, Ian Binnie served as Canada’s Associate Deputy Minister of Justice. He was appointed to the Supreme Court of Canada in 1998 where he served until his retirement in 2011. But his reputation extended well beyond Canada. In 1984 he was appointed to practice before the International Court of Justice and, in 2003, became a Commissioner of the International Commission of Jurists.

Following Judith Collins’ public criticisms of Ian Binnie’s report, Robert C Brun, QC, President of the Canadian Bar Association, released a statement to the Herald on Sunday:

“He is held in the highest esteem by both the legal community and the judiciary for his integrity, skill, and experience. He is praised for his honesty and intellect, and his reputation extends well beyond Canada’s borders.

“(As) an elected member of the International Commission of Jurists, he has appeared before the International Court of Justice and various international tribunals in governmental litigation matters, and has acted as Canadian representative in high-profile disputes involving France and the US.”

Mike Hosking’s interviews with Ian Binnie

  • After Judge Ian Callinan’s report was leaked to the media on 18 February, 2016, radio talkback host, Mike Hosking, rang up Ian Binnie in Canada to get his comments. Listen here.
  • After Callinan’s report was released in August 2016, Hosking spoke to Binnie again. Listen here.

Ian Binnie’s interview with David Bain

As part of his investigation into David Bain’s compensation claim, Justice Ian Binnie interviewed David at Auckland’s Copthorne Hotel over a single day in July, 2012.  The murders occured on 20 June 1994 and this interview took place 18 years later. David had difficulty remembering certain aspects of what he saw  and did when he got back to the house  and found his entire family had been shot and killed. Justice Binnie noted:

“According to the psychiatric evidence the shock of finding his mother dead was profound and would have had a powerful effect on his short term memory.  Defence experts at the 2009 trial testified that David Bain suffered post‐traumatic stress disorder (PTSD) which frequently causes partial memory loss of the traumatic events that induced it…  [Nevertheless] I found David Bain to be a credible witness.  His recollection of the relevant events, while not complete, is consistent with the circumstantial evidence.”  

The following are brief extracts from David’s conversation with Ian Binnie that took 113 pages to record.  See the full interview here (Tab G pages 84-197).

Question: Did you notice anything up to the 20th of June [1994] that would indicate to you, even with the benefit of hindsight, that there was some sexual relation between your father and [your sister Laniet]?

David: If I look back and see the stress signs, see the, the fact that you know, Laniet even went out to live with you know, Dad at Taieri Mouth. Um, the fact that Dad would actually go to, um, to her flat where she stayed and paid her rent, you know.

He supported her in those, in those instances. There weren’t things I was aware of or ever really paid any attention to at the time but – so if you think, asking in hindsight, yes I can see some of those things that might be indicative.

Question: It was said that she [family friend Joanna Dunn] would relate that your mother, this is some 25 years earlier, had been concerned that your father’s mental state was such that he might get a gun and shoot everybody. Does that anecdote ring a bell? Were you ever to hear such a thing?

David: It doesn’t ring a bell and I mean I’m surprised that anyone would say that of my father because, I mean, contrary to, you know, how things have proceeded through the trials and so on, I’ve respected my father. I still do and the man that I knew, not the man that committed these things, but the man that I knew, would never have harmed his family. I mean that’s a strong statement to state, to say right now in this sort of a situation knowing that, you know, my innocence, it depends on proving my father actually did commit these crimes…

Question: And can you just briefly describe what you saw?

David: I saw [Margaret Bain] propped up [inaudible] several pillows, I wouldn’t say it was a sleeping position, it was just – she was slightly elevated and, um, ah, I just remember the, you know, there was blood on her face, um, just purple in this, in the eye, well, of the eyelid.

Question: The pathologists say it is more likely they were closed?

David: It, it, it’s that image I have is only through trauma and I believe because now I’m sorry the images that I have of my family are so distorted that, as in, you know, I sometimes if I’m recalling a scene, I see a photo from the evidence, other times if I’m recalling a scene, it’s something that has come from a dream that I’ve had.

Q. Why did it immediately strike you [Robin Bain] was dead?

David: Um , I don’t know other than – sorry I’ve gotta go back into that place in my memory. On entering the room, I – was only the, the impressions that I have now is that I mean it was, he was still, also, I don’t even have a picture in my mind of what I saw.

Q. Would you – there’s no compulsion to make a statement. I just want the – you to be clear that the opportunity is there should you wish to say something.

David: The only thing I can reiterate is that these five members of my family were my life. They were part of who I was. We were extremely close. We all loved each other dearly. The last thing that I could possibly have done is to take their lives. I find it difficult hurting an animal, but to take a person’s life, let alone my own family’s life is unimaginable and not only have I served 13 years in prison for doing this, I’ve also served the so-called sentence of being labelled a convicted killer and a murderer and you know, a monster, and being told on a daily basis that I’m a psychopath and I was psychotic and all these various, horrible, you know, psychiatric issues and all this … I’ve had all of this to deal with and so the pain and the anguish that I have felt has been, you know, from the original mourning has been compounded time and time again. I want to assure you that the last thing I could have done if we strip away all those immaterial aspects of things and all the names I’ve been called, the last thing that I should be called is a murderer ‘cos I did not kill my family.

Ian Binnie’s Report

Here is a link to the 137 page copy of Canadian Justice Ian Binnie’s report & recommendation to Cabinet.  Some of the key points from the report are listed below:

From the Executive Summary:

Para 27: It is my recommendation that David Bain receive compensation for the wrongful 1995 conviction and the consequential 13 years in jail. Although his factual innocence has not been established beyond a reasonable doubt, I conclude that it is more likely than not that David Bain is factually innocent according to the lower civil standard of “balance of probabilities. Having regard to the terms of the Cabinet’s “extraordinary circumstances discretion” set out in the Minister’s letter to me of November 10, 2011, it is my opinion that the egregious errors of the Dunedin Police that led directly to the wrongful conviction make it in the interest of justice that compensation be paid.

Para 35: Setting aside the more exotic theories of the case, the Crown’s theory is not consistent with the physical evidence collected by the Police on June 20. It is more likely than not that the murders were committed while David Bain was out of the house on his paper route.

Para 39: In the various attacks on David Bain’s credibility the explanations consistent with innocence are more plausible I think, than the inculpatory interpretations put forward by the Police (and obviously rejected by the 2009 Christchurch jury that acquitted him.)

Para 41: The initial Police theory was that David Bain had killed all five members of his family during a killing frenzy in the so-called “missing twenty five minutes” between his arrival home around 6:45 am and calling the emergency services at 7.10 am (the “trance theory”). This theory was abandoned by the Police as it was concluded David Bain could not possibly have murdered five people in different parts of the house and performed a botched clean-up within 25 minutes.

Para 42: The second (and continuing) Police theory is that David Bain killed four members of his family in the early hours of 20 June, then left about the usual time to do his newspaper route (5.45 am). He made sure he was seen by customers along the way to have them available as future alibi witnesses, then returned home around 6:45 am to kill Robin (the “four before one after” theory).

Para 43: It strikes me as inherently implausible that David Bain, however incompetent, would kill four people, then take time out to do a paper route in clothes smeared in blood (albeit covered in part by a red sweat shirt), anxious to be seen by customers along the way, leaving the scene of the massacre open to discovery by Robin before his return. Robin was often up and about the house soon after his alarm went off at 6.32 am. Occasionally Robin was up earlier. He sometimes used a downstairs door to come in from the caravan. This would have led him directly to the scene of the murders. Had Robin done this on the morning of 20 June, he would immediately have discovered the carnage while David was out, and called the Police before David got home.

Para 44: Such a mindless “four before one after” plan attributed to David, a university student, is just not credible in the absence of (i) any expert evidence that David suffered from an abnormality of the mind or (ii) possessed sub-normal intelligence. Neither is the case.

Para 45: Despite Police efforts to come up with a plausible motive from 1994 until the eve of David Bain’s eventual acquittal in 2009, no plausible motive ever emerged. In the end the prosecution was obliged to argue that motive was simply irrelevant.

Para 471: In response to the Minister’s Mandate letter I conclude that it is more likely than not that David Bain is factually innocent.

Para 486: The judgment of the Privy Council dated 10 May 2007 is, in my view, an unmistakable if politely worded condemnation of many aspects of the 1994 Police investigation and the presentation of evidence at the 1995 trial. Too much that the Police ought to have done was left undone and, of even greater concern, too much of what they did discover was not provided to the jury and thereby the jury was misled, according to the Privy Council.

Ian Binnie’s Recommendations

Para 630: I recommend that compensation be paid to David Bain in an amount to be fixed by the Cabinet in the exercise of its discretion with respect to ex gratia payments.

Para 631: I do so on the basis that the state, through the acts and omissions of the Dunedin Police, played a significant role in his wrongful conviction.

Para 632: In my respectful opinion these acts and omissions constituted so marked a departure from the requirements of the New Zealand Detective Manual of the day as to amount, in terms of the Minister’s letter to me of 10 November 2011, to ‘serious wrong-doing by authorities’ in ‘failing to take proper steps to investigate the possibility of innocence’.

“Compensation would express the Government’s disapproval of such a cumulative failure by the authorities to take proper steps to investigate the possibility of innocence. It would be an acceptance of some responsibility by the state for the shame and stigma of a wrongful conviction and 13 years in prison for crimes which, in my view, David Bain is unlikely to have committed.”