Wednesday, December 12, 2012

Justice Binnie responds

Justice Ian Binnie has responded to Judith Collins' decision to have his report on the David Bain compensation case peer-reviewed. You can read the full text of his response here, but here's a portion:

1. No, I was not forewarned that the Minister intended to issue the press release and had no advance notice of its contents.
2. The press release refers to "robustness of reasoning" which seems to be code for "reasoning" that supports the Minister's preferred disposition of the Bain claim.

3. The language of the press release shows it to be a political document which, given that the Minister is engaged in a political exercise, is not surprising.  David Bain is seeking a discretionary payment from Cabinet and Cabinet is a political body that makes political decisions. However I expected the Minister to follow a fair and even handed process leading up to that political decision. She is, after all, the Minister of Justice. The purpose of this email is to give people the facts to enable them to determine for themselves whether or not the process has been even-handed.

4. The press release states that my Report was referred to the Solicitor General for "advice”. This makes it sound as though the Solicitor General is some sort of independent official whereas, in fact, his office  attempted for almost 17 years to uphold a conviction of David Bain that New Zealand’s highest appeal Court decided in 2007 was a miscarriage of justice -- a conclusion reinforced by Mr Bain's acquittal  by a Christchurch jury in 2009. The Solicitor General was and remains part of the prosecutorial team. The opposing parties in the compensation inquiry were David Bain and the Crown Law Office. At a January 2012 meeting held at the Ministry of Justice for me to obtain the views of the Crown Law Office as to how the inquiry should proceed (a similar meeting was held with the Bain people) I was introduced to the then Solicitor General, David Collins, who had unsuccessfully argued the case against David Bain before the Judicial Committee of the Privy Council. He was not, and did not pretend to be, independent. For present purposes the Solicitor General is equivalent to the Crown Law Office.

It would seem from the tenor of his statement that Justice Binnie has a very strong view about the Bain case. For a supposed neutral, it is an extraordinary response. 

If anything, Justice Binnie's response reinforces our initial conclusion that Judith Collins' decision to have his report peer-reviewed to ensure that its contents were factually and legally robust was the right call.


  1. Edward the ConfessorDecember 12, 2012 at 7:27 AM

    Look, it's obvious Collins doesn't want to pay Bain compensation. Why doesn't she just rule it out on the basis that she thinks he done it instead of trying to find some spurious pseudo-legal justification?

    Thought she was all tough and all. Coming across as slimy.

  2. KS thinks Bain did it, so supports Collins in her attempts to hide the fact she thinks Bain did it, too. Neither has any relevence to uncorrupted process, it is straight, I think therefore it is, style thinking. Then KS interprets factual information by Binnie on a chronology of events and explanation of roles and conflicts of interest to be Binnie trying to hide that he thinks Bain didn't do it. I agree with edward, why not just come straight out and say you're bias one way or the other? Oh right, that'd have you face facts that you aren't morally pure. Oh the shock.

  3. @ Walrus - my thoughts on the Bain case are no secret. I think he got very lucky in 2009.

  4. KS - agree with above, Bain sure did get lucky. I believe the media helped him to get lucky, and if Joe Karam had never become involved, of course the original verdict would still stand. I feel for the first jury, what was the point?

    If Bain does get compo, what a travesty, especially for the memory of his murdered family.

  5. Walrus - examine the evidence closely and look at common sense.
    There is so much of it.
    Joe Karam was looking for a cause.
    Does David Bain ever mention his murdered family at all?
    Is Robin Bain here to speak for himself or defend himself?
    Who did the media run through the mud the second time around?
    Look who the media backs now, especially the Herald, with wanting Bain to get compensation.
    The bias is on the other side.
    Judith Collins has made the right call.
    Lets await the outcome.


  6. So here is a slightly different take on this. Please forgive me if it takes a while.

    I was not in NZ when the Bain family were killed. I have no understanding of what the reaction to the killings was like in NZ or what it meant to people. I have no strong feelings about David Bain.

    So that said I understand that

    The Privy Council reversed the Court of Appeal decision. The council effectively said to the Court of Appeal that an error was made.

    Then David Bain has another trial and is found not guilty.

    Then David Bain asks for compensation.

    The problem is really that this Privy Council decision in the UK does not go down well with the NZ Justice system. It is a significant slap in the face to everyone involved on the prosecution side of this case. Perhaps there is something systematically wrong with the NZ system. I hope not but we must not rule it out.

    So the next step is to ask someone not from New Zealand to give an opinion of what should happen.

    It looks like the integrity of this final step has been compromised. It is now unlikely that any person from outside New Zealand jurisdiction will ever help with this type of situation after what has happened to Justice Binnie. (A little more subtlety from the Minister might have been useful.)

    So we have a Privy Council decision that said there were errors after the New Zealand system said there were not.

    Now we have help from a foreign judge who has formed an opinion (right or wrong) about the New Zealand Justice system.

    In terms of who will be given the most credence and gravitas by observers outside NZ it is clear that Justice Binnie will carry the day.

    It is important to keep in mind that David Bain is well known around the world as being unjustly imprisoned. It is also important to consider the fact that perhaps the New Zealand system can no longer deal fairly with David Bain.

    From the view of the Privy Council the New Zealand system did not operate correctly and the result of the errors was it convicting David Bain. When those errors were corrected David Bain was acquitted by the New Zealand system.

    The only outcome from what is happening now is that judges, lawyers and justices from overseas will not help sort out the next time the New Zealand system is possibly compromised.

    1. You're right, Hamish..... it did take a while.

      With fine words about "credence and gravitas" and your (immigrant's?) misgivings about the NZ Justice system, it seems that you would have this country abandon principle to the dictates of international opinion. I'm opposed to that. The decision on any compensation for Bain is a political one, not a legal issue, and should be addressed as such.

      Incidentally, your comments indicate that you believe an acquittal is a declaration of innocence. If you come to understand the difference between those two terms, you will be closer to understanding Collins' dilemma in determining that Bain is innocent "on the balance of probabilities".

  7. Sorry KS but I see no such thing. I see a jurist, used to having his careful weighing of the facts and reaching of a conclusion based solely on those facts (which is, after all, the role of a judge) insulted and aghast that he was clearly drawn into an exercise designed to produce only the answer the government wanted to hear.

    Whether or not Bain is guilty (and I've said before, I don't know enough to comment) is irrelevant.

    Here we have an exerienced senior judge who has had access to the facts (and to the prosecution and defence views of those facts) and has reached a conclusion.

    The government is perfectly within its rights to dissent from his judgement, but not to seek to cast doubt and aspersion on his competence in the way that Collins has. It's disgraceful, shabby treatment of a respected jurist which will do NZ's reputation in the northern hemisphere no good at all.

  8. I disagree Rex. Collins has alleged that Binnie J went beyond the Terms of Reference given to him by the Minister who engaged him. She is also starting to detail what she says are errors of fact and law made by Binnie.

    But when you say that Binnie has access to both prosecution and defence scenarios, why did he lean so heavily on the defence's version, eg reading Karam's books, but not that of James McNeish?The issue now is not whether David Bain is guilty or not; the issue is whether Justice Binnie's report is objective, impartial and factually and legally robust. It is essential that concerns are addressed.

  9. Rex, Collins did not make any sort of personal attack on Binnie. She said that there errors of fact and law in the report. This came in response to an onslaught of criticism directly attacking her her integrity when it was learned that she had requested a peer review. She responded to those criticisms and as the matter spirals, she has let more info out. Her comments focus solely on the issues over which she has concerns. Not so her critics.

    Those criticisms paid no heed to the possibility that the report was flawed in some way nor did they pay any heed to the scope of Fisher's brief. Collins said that the report did not necessarily help Bain. If Bain received compensation based on a flawed report the hoohaa would never die down.
    Collins was responding to an ad hom attack. She addressed the problem in response. Binnie has come back with an ad hom attack. His role was that of advisor not independant adjucicator. He didn't like being questioned. He should have remained quiet.

    For all you know Collins' brief to Fisher may have been something like this

    "Dear Rob. Here is the report. I have underlined the bits of concern. Knowing the division over this matter, you and I both know that there will be hell to pay if we make a payment in reliance on these issues. Have a look at it please and let me know first, if they are errors and second, if so, whether they undermine the report? As you know I have put this passed Finlayson and Heron, both of who agree that there is an issue."

    It would be nice if people could reserve judgment rather than switch to nasty mode as the default reaction.

    Collins has been condemned when the facts are clearly equivocal. But then, that seems to be the NZ way in politics, doesn't it?

    Reserve judgment. You might be right about Collins. You may fall flat on your face. At least you would be adding some dignity to the process.

  10. Excellent comment Nookin. Perhaps the Binnie report and the Fisher review should now be released into the public domain, and I suggest that Judith Collins' concerns will become immediately evident.

  11. The New Zealand justice system, after being prodded by the Privy Council, found David Bain not guilty. This means he was wrongly imprisoned. The New Zealand justice system and all the associate people took 13 years to get to this conclusion. I do not know if David Bain is innocent. I have know way of knowing this.

    Justice Binnie was asked to determine whether David Bain should get compensation. He has it seems reached a conclusion. We shall see this afternoon what it is.

    Judith Collins has done what she has done. Justice Binnie's comments are those of a very well respected supreme court judge. He may be right or wrong. As I said previously perhaps the New Zealand system can no longer deal rationally with David Bain. Perhaps it never could.

    The process of engaging non New Zealand jurists is important simply because we need to know if there is something wrong with the New Zealand justice system. Cases like David Bain's are one way in which we find out.

    @Siena thanks for your interest in my origins. Is my immigration status relevant to this at all?


  12. You make a very fundamental error Hamish; the Privy Council most certainly did NOT "find David Bain not guilty". The Privy Council agreed that there were grounds for a retrial, and that was all. The Privy Council did not even order that Bain be released from prison.

    Anyway, we will all find out what the fuss has all been about in a couple of hours.

  13. @KS I made no error - I did not say the the Privy Council found David Bain not guilty. (I have just re-read the post.) I wrote "The New Zealand justice system, after being prodded by the Privy Council, found David Bain not guilty."

    That is the Privy Council directed the NZ system. When the NZ system did the trial again David Bain was found not guilty. A New Zealand trial with a New Zealand jury found him not guilty after previously finding him guilty.

    Binnie's report is good reading. The review of it is also really good reading.


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