Ian Callinan is a retired High Court judge from Australia with a controversial background. He had close links with the Queensland Government and, in his first case as a judge on the High Court, he was forced to stand down because of perceived bias towards the Government’s position in that case – see About Justice Ian Callinan.
Nevertheless, Amy Adams appointed him to conduct the second review of David Bain’s compensation claim. Callinan conducted his review of the case but never bothered to meet with David as part of his investigation. He submitted it to Amy Adams who announced the Government’s decision in August 2016. She announced that the report said:
“The applicant has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th June 1994” (para 407).
Ian Callinan’s report was superficial and riddled with factual errors. Often there was little logic to his conclusions. After documenting some of what was known about a particular issue, with no legal analysis whatsoever, he would conclude with a vague statement such as “I am not convinced about this”. Here are some of the main deficiencies in his report.
1) Callinan misunderstood crucial aspects of the evidence
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 footprints was the killer. The bloody footprints were ‘developed’ with luminol from impressions in the carpet. They led to the computer alcove (where a cryptic message was typed on the computer by whoever was the murderer) and were also present elsewhere in the house.
The footprints measured 280mmm – too short to have been made by David Bain’s feet which were 300 mm – but fitted Robin Bain (270mm without socks). Callinan addresses this issue in Paragraph 392 of his report. He says: “There were too many differences in the various measurements made under different circumstances of the sizes of the Applicant’s (David’s) stockinged feet.”
In fact David Bain’s stockinged feet were never measured. The trial notes indicate that David Bain’s bare right foot was measured at 300mm, (page 3259 lines 22-26). That measurement is uncontested. So, on what is arguably the most important piece of forensic evidence in the entire case, Mr Callinan cites evidence that does not exist, and measurements that never happened. In other words, he was confused about whose feet the different measurements referred to. This totally undermined the integrity of his investigation and his conclusions.
Compounding this critical issue, three weeks after the murders the police allowed the house to be burned down destroying everything, including the carpet with the killer’s footprints. Judge Binnie said this act of destruction made it impossible for David to ‘prove’ his innocence.
2) Callinan failed to apply Bayesian probability reasoning
The main justification that Judith Collins used to reject Ian Binnie’s report was advice by Robert Fisher that Justice Binnie had not applied “the Bayesian approach to circumstantial evidence and probabilistic reasoning.” Chapter 2 of the Fisher report is titled “The required approach to probability reasoning”. In footnote 30 to paragraph 48, he states that “Bayes theorem underlies the way in which probabilities are assessed in legal cases.” In paragraph 49 he says: “they (the principles of probabilistic reasoning) apply with equal force to a compensation inquiry of this kind.”
However, Judge Callinan did not apply Bayesian probability to the case either and disagreed with Robert Fisher that it is even helpful. In para 357, Callinan wrote that Bayesian theory “provides an unsatisfactory basis for fact-finding.” He goes on to state: “I do not understand New Zealand law to required me to use or apply Bayesian Theory or approaches and I have not done so here.”
Judith Collins accepted Fisher’s dubious argument that Ian Binnie’s report had to be thrown out because he had not applied Bayesian probability theory in reaching his conclusions. The problem is – Ian Callinan didn’t apply it either. So his report should have been thrown out as well.
The reality is that Fisher’s allegation that Binnie didn’t use Baysesian probability theory was just an excuse to reject his report – because Binnie didn’t give the Government the answer it wanted. Callinan did – so they kept his report even though it contained the same errors.
3) Callinan’s approach was one-sided and lacking in balance
- Justice Callinan was told not to read Ian Binnie’s report (para 21). He writes: “I may take into account any information which logically bears on the question of whether the applicant can prove himself Innocent of the charges of which he has now been acquitted. (However) I am not to consult or receive any information or submissions about the report made by the Honourable Mr Binnie.” How extraordinary that Mr Callinan was able to take into account any information except that provided by Justice Binnie.
- Callinan was also not allowed to read Robert Fisher’s report. This meant he had no way of knowing that (according to Fisher) he was supposed to use Bayesian probability theory to assess whether David Bain was innocent. Since nobody told him, no wonder he made the same ‘mistake’ that Judge Binnie was alleged to have made. This was unfair even to Mr Callinan, let alone to David Bain – akin to allowing him to read just one side of the story.
- Mr Callinan did not take the opportunity to interview David Bain or any other witnesses, despite making many findings adverse to David on matters that were not put to him – another criticism said to damn the Binnie report. On the other hand, Justice Binnie cross examined David Bain under oath for a whole day, as well as interviewing two senior police officers.
Mr Callinan also dismissed the evidence of New Zealand’s leading forensic psychiatrist, Dr Phil Brinded arguing that “some criminals have the capacity to charm, confuse and mislead, even psychiatrists”. (See paragraph 357.) The problem with that statement is that David received counselling from Dr Brinded for some years – to help him adjust to life in prison, and the loss of his family. With thoughts of suicide running through his mind, David would have great difficulty displaying any charm – as well as nothing to gain by doing so. Mr Callinan never met David and seems to have entirely misunderstood the purpose of Dr Brinded’s relationship with him. He then cast aspersions on Dr Brindid’s professionalism suggesting he was gullible and confused.
These are just some of the issues in Ian Callinan’s report that David’s legal team were going to contest if the Government had not paid him out. In the end the Government gave him $925,000 if he agreed not to pursue further legal action. David accepted the offer rather than drag the claim out any longer.