David Bain (re)trial

A thread to discuss the happenings in the court case.

It has been done to death but thought people might like to add some comment about the court proceedings.

From the first day's activity alone I've heard some details I hadn't heard before. From a likelihood point of view the stuff about David having put stuff in the washing machine, as well as the lack of bloody

On the other side, the disappearing of evidence still worries me. On one hand (no pun intended) the blood on Robins or the wife's hands was washed off/discarded and not photographed (but was sketched). I wonder why it was cleaned off? Its not as if the police had time to test as to whether it was David's, Robin's or otherwise - and a record of the tests would exist if they had (too many people involved to cover that up surely?). Since David was their suspect already, according to the defence, it makes little sense that they'd get rid of evidence which they would likely support their case against him - not add clout to the Robin-did-it theory. So why on earth did they do it?

Also interested in this attempt at washing clothes thing. Even under tons of mental duress it doesn't feel like something you'd do. Although, a psychologist might be able to explain perfectly why people under tons of duress do the exact opposite of what you'd do in everyday living. But washing clothes and seemingly covering/cleaning other things does seems to show a tad more thought than pure panic.

Anyone got their theories on the police destroying the other evidence? Surely they didn't run out of space in their fridge?

(BTW, I've always thought he did it.)

I would love to discuss this, but not sure how kosher it is with the trial in progress - mods?

It's updated in the Herald every 15 minutes or so - I don't think Biggie has a worry.

I know, it's more the sharing of opinions, thoughts, conjecture, etc but if that's okay with biggie, no worries

As far as im concerned go for your life.

He's innocent.. it was the old man.

I can't believe he has to go through another trial

he did it.

he didn't do it

someone did it and I doubt we will ever know for sure who

boody entertaining though, isn't it all

beats coro hands down

Let me get this straight, if he gets found guilty again, nothing actually happens cos he has served his time pretty much yeah?

WHAT THE FUCK IS THE POINT OF THIS? What a waste of money.

My original opinion was that I'm not convinced he is innocent but there's certainly enough questions to make me think he shouldn't be convicted.

I havent been following the trial this time though.

Just giving into people who make lots of appeals isnt a good look smiley, people in prison have nothing better to do than waste tax payers money in jail or in court. But hey, it keeps lawyers busy and thats a good thing right?

No. He could, if convicted, end up doing more.

Its also important if he gets found not guilty as any potential settlement for wrongful conviction would go through the same evidence.

even worse if it's a hung jury

what's required is a realistic/dispassionate view of the case - can it be proved beyond reasonable doubt given the passage of time and the weaknesses in the case eg evidence lost, destroyed, etc?

JH just about all the evidence is available in the last judgement which led to him being released, it's not new stuff

I don't follow you

We're not commenting about anything that wasn't in the public domain well before the trial, so how can anything we say be prejudicial?

oh I thought you were responding to my last point, not my earlier point

the simple answer to your question is I have no idea what people might discuss in this thread - absolutely anything at all could be mentioned, not just evidence from the last trial ... there is no way of knowing or controlling what will be said

when you open a topic up for discussion, absolutely anything could potentially be mentioned, even evidence that has been ruled inadmissible in the proceeding (for example)

you're concerned a juror might use biggie? heh

haha, well you never know.

anyway, I don't want to overstate the point, a decision was made, the mods are obviously fine with the thread, no worries then.

The point is be that the guilt of David Bain has not been proven beyond reasonable doubt. If he is found not guilty, he will be exonerated, something that the undoubtedly hopes for. if he is found guilty through a fair trial, then the system will be vindicated, something that is quite important.

Money is not the defining value of the criminal process. If it was we would dispense with trials all-together and take to judging and executing people on the spot because its cheaper.

This trial is a joke. It is fifteen years since bain was convicted for these killing, and it is already clear that over the intervening years some of the evidence has gone missing, and memories have faded.

It is now quite impossible to conduct a fair and proper trial into what is after all the mass murder of an entire family.

Bain was found guilty at the time after an exhaustive trial. In my view this new trial, for the reasons I give above, will not improve on that verdict. Even if Bain is found guilty - which won't happen given that now after fifteen year it will probably be impossible to prove his gult beyond reasonable doubt - he only had about four years left to serve anyway.

The more likely outcome is Bain will be found not guilty. Then a man, found guilty of mass murder by his peers in a proper trial at the time, will be liable for a hefty taxpayer handout in compensation. And that will piss me off.

Ahhhhh, the Privy Council REALLY disagrees with you on that one.

there was some talk when the trial was being set up that it's not possible to get an impartial jury because the case has been in the public eye for so long......how did they deal with this?

I have no clue whether he did it or not, but I will say that in the after 15yrs of the media going on about it, they're actually making him look like a bit of a martyr.

maybe they'll use the old

"he didn't commit the crime but he had something to do with it, therefore no compensation" argument.

Garethw is correct.

The Privy Council found that the first trial was a SUBSTANTIAL miscarriage of justice

hardly a "proper trial" - there was nothing proper about it. it couldn't have been more improper. etc!

it wasn't exhaustive. some of the most important evidence was not put before the jury.

do you want meaningful trials based on facts, or just "results?"

its all exhausting... I hate this whole affair... 15 years is too long for rubbernecking

I don't want me every waking hour bombarded by this court case nor David Bain

/rant

God, I really shouldn't answer these questions...

no - you shouldn't!

i was always fond of that court of appeal decision on the case, was trying to find a link online but couldn't find it. the one with the outline of the facts.

haven't read the pc decision.

FOND of the CA decision?

you mean the one the PC shat all over?

how can you comment if you haven't read the PC decision???

heh i just like how it set out the facts. think it was CA? my memory is hazy. there have been a few CA decisions anyway haven't there?

you mean "the facts"

yes, was quite convincing when i read it. im reading pc decision now.

good

pretty comprehensive analysis. but i still think he did it.

you ever done any murder trials?

no, but have worked on appeals from murder trials

what makes you so sure he did it? is that more an intuitive feeling? or is it based on a particular piece of evidence?

probably intuition more than anything. aside from reading pc and ca decisions i haven't spent much if any time thinking about the case.

anyway, the case is a tough all-or-nothing call for the jury, either David is a mass murderer who shot his entire family, or he is totally innocent - there is no half-way house here.

imho opinion I don't know if he did it or not, my gut feeling is he didn't.

The main thing here is whether or not they can prove beyond reasonable doubt whether he did it. I honestly don't think they can.

There are two possibilities:

Robin did it
David did it

If Robin did it, and you find David guilty, the worst you do is lock up one innocent man
If David did it, and you find David not guilty, you let a mass murderer free

Games theory would easily prove that finding David guilty is the optimum solution

what about robin shooting the others and david shooting dad when he found out? heh

how would it prove that vad?

And Blacksone's ratio says its better that ten guilty persons escape than that one innocent suffer.

I'll take the ratio over games theory, thank you.

Except Blackstone was a primitive thinker who couldn't understand net social utility if it bit him.

your net social utility idea is fucked up

because it assumes that society agrees that net utility is achieved by imprisoning more innocent people along with more "guilty" people

I'm not sure what you are suggesting re the burden of proof?

It's not fracking rocket science is it?

As per the burden of proof, we need to find the sweet spot on a curve where maximal efficiency is achieved; it's probably better to be 80% accurate if we can halve or quarter the time taken to make decisions. For individuals there will be anomalies but the overall effect on society will be greatly beneficial.

We can measure the cost of imprisoning an innocent person; but what about the costs of letting someone guilty go free?

I'd like to see a criminologist use stats to work out the likely reoffending profile of a "freed guilty" and from that we can start identifying that sweet spot.

For example we might find out that a twice convicted burglar is likely to commit four more burglaries; we then calculate whether four more burglaries is worth more or less than the sentence he might get. If it's more, we err on convicting the innocent, if it's not, we don't.

lies, damn lies and statistics eh.

vadinho I do feel a karmically fitting fate would be for you to have the experience of being wrongly charged and convicted of a serious crime

you could spend the rest of your days in a cell, masturbating over how lucky you are to be in that position, as a martyr for the greater good

none of that answers the question - you are no closer to fixing a burden of proof standard that can be applied equally across all criminal cases

btw how do you measure "cost?" are you referring to financial costs? other costs?

you can't put a price on freedom

the justice system isn't founded on utilitarian principles anyway

etc

that scenario, my dear jh, is what dreams are made of

If I'm the egg that gets broken to make an omelette, I'll be unhappy, but it's still necessity

To believe a system is wrong simply because it would make one unhappy is ridiculous. It's about the COMMON GOOD. Not whether there are occasional mistakes - which they always are

but your proposed "system" would increase the "mistakes" and the "unhappiness" which you euphemistically call it

that's not doing anything at all for the common good - only inside your own twisted brain

Here's another helpful little phrase that doesn't actually mean anything.

All the prosecution evidence I've read so far just sounds like circumstantial bull shit. Sure some of it is odd and makes me questions David's story but nothing that even comes close to removing reasonable doubt.

Dear NZ Police unless you have some incredibly damning evidence that has not already been aired in the last fifty thousand hours of court hearings please stop wasting what little of the tax payers money NZ has left on this farce of a case.

...common good...

Looking at some of the evidence presented of late i can see why the police might have drawn the (premature) conclusion that David did it and how that could follow on to the original trial.

So far I'm left feeling suspicious of Bain, but that's all

I haven't seen anything individually or cumulatively yet that convinces me of his guilt

he has shifty eyes and doesn't smile much

obviously has something to hide

seriously... there is nothing I've seen that convinces me of anything except I am tired of having this trial dominate our media, once again

?!?! Hardly. If I have to kill 100 people to save 101, the common good is served.

The defence has proposed it is Robin. Have they proved beyond a reasonable doubt? No. The only OTHER possibility is David, therefore by a Holmesian process of deduction, it is obvious David is guilty.

don't be a fool

there is no onus on the defence to PROVE that it was Robin

the defence only has to get the jury to harbour a doubt that David was the killer i.e. that the killer MAY have been Robin

your so-called Holmesian deduction is absurd and misleading

oh dear

There are only 2 possibilities: Robin or David.

If the defence do not prove beyond a reasonable doubt, then by elimination, David has to be guilty.

It's pretty basic :>

I'll give you an analogy... imagine 3 people go into a room, 2 people come out. The 3rd is in there with a bullet through his head and his hands tied. Forensics proves it can't be suicide.

You can't have both those 2 found not guilty, because it's completely logically impossible for there NOT to have been a murderer. If neither was guilty of the murder, then the murder didn't happen (an act cannot happen without a causal agent)

of course it is possible in your example for them both to be found not guilty even though one of them must have done it. see kahui.

absence of legal proof is not correlative to factual impossibility.

in a way you are right

however you don't seem to understand the criminal legal standard of proof

Ahh, so you AGREE that the criminal standard fails the basic laws of logic like mutual exclusivity?

no

ponder on this: if there were no eye witnesses, no confessions, no determinative forensic evidence - it may be impossible to independently prove who the murderer was in your example

it would remain a mystery

that is not the same thing as saying that nobody committed the murder, or the murder never happened, etc

it's simply that we can't prove who did it

Snap. was going to mention this case. One or more of them did it, yet are all walking around free.

In the Bain case - wasn't the evidence of the past few days showing basically Robin couldn't have killed himself? (distance of gun from head etc). I only caught a quick sound-bite of it all.

no

not impossible - just unlikely, strange, etc according to certain expert testimony

what you are also ignoring vadinho, as JH has already pointed out, is the cardinal rule of criminal law that the defence does not have to prove anything. The burden and onus of proof is on the prosecution. The rule is a reflection of presumption of innocence and a practical consequence of inequality in arms between prosecution and defence.

we can but try, BG

we can but try .......


I'd like to think someone with a PhD could grasp this ......

I really would!

That's the thing, I just can't understand how the retrial is even justified if they can't produce any new damning evidence.

I mean hasn't some evidence actually been destroyed since the last trial? Combined with the fading memory of witnesses etc they don't stand a snow balls chance in hell anyway.

Which means that you can have illogical results.

I understand it precisely, BG, I'm simply pointing out how absurd an outcome it results in.

As for the Kahui case: we know one of them did it; we don't know which one; in the absence of any other evidence they are all equally responsible and as such should be convicted. Perhaps divide the sentence by the number of people to keep it fair.

so your proposed system convicts and punishes people for crimes they did not do, because we can't be exactly sure who did!

now that's illogical

let's apply it to a hypothetical scenario

some people are drinking at a house, 4 guys and one girl

the girl complains that she was sexually assaulted by one of the guys but it was dark, she was so intoxicated etc she can't definitively say who it was, doesn't remember.

all 4 should be convicted and punished because one of them must have done it?




so illogical, so stupid, so unjust, that I don't know why you bother posting such shit

Well there are 2 answers
If they are tried sequentially, and the first 3 are found not guilty, then the 4th should be convicted by process of elimination (basis deductive logic - once the impossible has been eliminated, whatever remains must be the truth)

If they are tried simultaneously, and it appears that there is some attempt by them to cover it up, then yes, sentence them all.

If they are tried simultaneously, and it appears that there is no attempt at conspiracy (unlike the Kahui case), then they should STILL be sentenced. Why? Because although there will be three cases of individual injustice, the overall social utility gain will be positive.

Collective punishments WORK. I can cite chapter and verse to you.

How does society benefit from 3 innocent people being in jail and one serving only 1/4 of what he should have.

Perhaps the girl should be jailed also in case she made it up?

There is nothing illogical about it when you remind yourself of the question. The question is, did the accused commit the crime beyond reasonable doubt? That is the ONLY question the law is concerned with. The rest if for God, or Allah, or Buddha, or whatever.

If the answer is no = acquit, if yes = convict.

err, no

if there is poor evidence, or little or no evidence, of an alleged crime, simply trying suspects sequentially does not make it any more likely that the alleged crime occurred; nor does such a system bring anyone closer to the truth of what happened.

please do!

because I really don't think you could find any statistical or scholarly support for your "if in doubt, convict em all/collectively punish" approach to criminal justice

Hah! Syrian retaliation against insurgency, 1970s. It's in Van Creveld's latest - something Marne in the title?

Or I could refer to Alexander the Great and certain Mongols threatening to slaughter entire cities unless they surrendered - believe me, they surrendered, and if they didn't, the next city did.

Exactly, whereas a philosopher would ask "did the accused commit the crime"

If X = accused and X' = everybody else and we find out that it can't have been X'...

right

don't quite know what to say to that one!

When it comes to life, I have a much bigger playbook.

And given equal skill, the side with more options always wins.

that's just an indirect way of saying that X must have done it, because nobody else possibly could have

which fits with orthodox legal principles anyway, assuming you can prove the above beyond reasonable doubt

you're going round in circles and not making your point at all clear

a pretty irrelevant playbook to the task at hand, I might add

Who cares what a philosopher would ask? The law is not philosophy!

Logic = philosophy
law != philosophy
law != logic

Law = system of rules (Hart) and principles (Dworkin)

Back OT.

I herd there was evidence that proved it was impossible for Robin Bain to have killed himself?

But even so that wouldn't prove that David had done it right? Unless you use Vadz exclusion policy.

one expert thought it was impossible

the others accepted it was possible, but thought it awkward, unusual, unlikely etc

no doubt when the defence gets its turn, it will lead evidence that suicide was possible and not too difficult

where does that leave the jury?

remember the crown has to prove the case beyond reasonable doubt. the crown also has an advantage with expert evidence because it has a bigger budget than the defence.

defence scores some significant points today

sockprints almost the exact same size as Robin's foot

defence to lead evidence that David's 300 mm foot could not have left a 282 mm print

Why don't they, in these situations, fly someone in from Aus/US who is an expert and get them to look at it afresh?.. I mean, the very first pathologist to look at it said he shot himself based on the gun being against the head detail. Everyone since has said that there is no way the gun was against the head... they even did tests with pigs to duplicate their version - which showed they are likely right.

Why not get someone? I mean, both sides of the case could go out and find an expert to counter the other.. do they rank these guys? Or say this expert has 25 years ex and this one has got 5 - type thing?

Seems like a relatively simple thing to clear up if you want to ensure you don't wrongfully convict and innocent person or let a murderer go free.

the defence will be using an English pathologist apparently

it's not simple, that's the problem

otherwise you wouldn't have the difference of opinion

If the sock does not fit
You must acquit

exactly!

So, what you're really saying is the defence and prosecution will be able to find an expert who will pretty much give evidence which support their story - despite it being pretty likely here that a fresh set of impartial, expert eyes may just laugh at one of them and ask how he could possibly come to such a retarded conclusion?

I mean, do they each have to line up the list of knowns and then why it means x or y so it is apparent where they deviate from each other's path?

If the gun evidence was as the prosecution guy says there basically can't be any other result than David did it (excepting unknown outside persons). If it is as the defence says then it pretty much must have been the old man...

Sorting this one aspect of the trial out would pretty much sink one side right away.

but all the expert witnesses called so far would say they are independent and impartial, you see

Still sounds like they are a hundred miles away from presenting anything that will lead to a conviction.

I really wonder if they had any sort of case to begin with.

I'm not saying I know who did it, I just don't think there's enough concrete evidence for a conviction and there never will be...unless they are saving the best for last? It would have to be a bombshell though.