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, Justice Minister, 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:
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
This was not the only aspect of the two reports where the Government adopted a double standard. 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. But Ian Callinan admits he 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 Bayesian probability theory was just an excuse to reject his report – because Binnie didn’t give the Government the answer it wanted. Callinan did give them what they wanted – so they kept his report even though it contained the same procedural errors (as defined by Robert Fisher). If not using Bayesian probability theory was the justification for throwing out Binnie’s report, then Callinan’s should have been binned as well.
3) Callinan failed to examine the evidence about motive
Callinan provides a superficial analysis of Robin and David’s alleged motives for the killings, but in the process, demonstrates a complete lack of objectivity. Quoting hearsay evidence, he describes Robin Bain as “a man of impeccable character and altruistic intent” (para 169). He completely ignores the findings of the Privy Council which heard testimony about Robin’s disturbed state of mind at the time. The Privy Council stated:
“If the jury found Robin to be already in a state of deep depression and now, a school principal and ex-missionary, facing the public revelation of very serious sex offences against his teenage daughter, they might reasonably conclude that this could have driven him to commit these acts of horrific and uncharacteristic violence…”
Finding David not guilty, the jury at the retrial clearly agreed with the Privy Council. But Callinan ignored all this and decided that Robin’s potential motive for killing his wife and children – because Laniet was about to expose their incestuous relationship – “requires analysis” (para 168). The analysis he then provides takes only two paragraphs (39 and 49) in a report of 144 pages.
But even in those two paragraphs, Callinan doesn’t actually analyse whether Robin had a motive. He decides it isn’t necessary to do so because he thinks that what Laniet told people about her incestuous relationship with her father was unreliable; she was a prostitute, “something of a fabulist” and “prostitutes may look for explanations for their way of life” (para 43). In other words, Callinan used stereotypical assumptions about prostitutes rather than testimony provided by Robin Bain’s professional teaching colleagues to determine that Robin could not have been the killer.
4) Callinan dismissed the psychiatrist’s evidence
David was interviewed by New Zealand’s leading forensic psychiatrist, Dr Philip Brinded, who concluded that David did not suffer from any kind of mental illness prior to the killings. Mr Callinan dismissed Dr Brinded’s evidence arguing that “some criminals have the capacity to charm, confuse and mislead, even psychiatrists” (see paragraph 357.)
The problem with this 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 – he was already in prison. Callinan, on the other hand, refused to meet with David, and so never tested his own assumption that David was a cunning criminal, capable of charming, confusing and misleading everyone.
In other words, Callinan seems to have entirely misunderstood the purpose of Dr Brinded’s relationship with David and then cast aspersions on Dr Brindid’s professionalism. Instead of meeting with David himself to see if he was charming and cunning, Callinan concludes that Dr Brinded was gullible and confused.
5) Callinan never bothered to interview David.
Justice Binnie cross examined David Bain under oath for a whole day, as well as interviewing two senior police officers. However, Justice Callinan didn’t seem to think it was important to interview David or any other witnesses. Callinan admits he found a number of aspects about the case confusing but then criticises David (para 402) for not providing a better explanation. Describing his confusion about why Laniet happened to be at the house on the night of the murders, Callinan says: “The Applicant has not personally attempted in any way to supplement his evidence by any further statements or otherwise”.
If Callinan was confused by any of the statements David made 20 years earlier, he should have met with him and asked him to explain. Instead, he blames David for his confusion and makes “an inference that no further evidence he could give would assist his case.” Rather than check with David, Callinan simply made assumptions about what happened – and then said he wasn’t convinced that David was innocent. That hardly meets the standard required for a thorough judicial investigation.
This is especially problematic when you consider that one of Fisher’s criticism of Ian Binnie was that he failed to give certain people mentioned in his report the opportunity to respond to his findings about them. In Binnie’s report, those concerned were all minor players in the story. Callinan, on the other hand, by failing to interview David, took this omission to a new level altogether. He did it with David Bain, the subject of his inquiry. Binnie’s omissions pale in comparison.
Judge Binnie was allowed access to all relevant materials to help him conduct his investigation. Justice Callinan, on the other hand, 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.”
Clearly, the Government did not want Callinan to be influenced by the extensive research and clear reasoning adopted by Justice Binnie. If he had read Binnie’s report, he probably would have agreed with him.
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.