Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on Judith Collins’ handling of the Bain compensation report

December 13th, 2012

Presumably, we are only days away (at most) from learning the contents of the report on the David Bain compensation case prepared by the distinguished retired Canadian judge, Ian Binnie. [Update: The report is expect to be released today.] Whatever the Binnie report says, nothing in it will change the Mickey Mouse handling of this episode by Justice Minister Judith Collins – who managed to simultaneously attack Binnie’s findings and reasoning abilities in public, while claiming privilege (and thus binding him to silence) against releasing the evidence to back up her assertions. As Binnie delicately put it yesterday:

Whatever else New Zealand law states, it is certainly well established that it is most improper for “a client” — especially a legally trained client — to attack publicly a lawyer’s advice while simultaneously claiming privilege to protect from disclosure the advice that is being attacked. I would expect that the Minister, as a former Auckland tax lawyer, would be well aware of this principle.

It gets worse. In the process, Collins also showed an unfair predisposition to consult with the prosecution. Collins sought “advice” on the Binnie report from the Solicitor General – whose office spent the best part of two decades maintaining Bain’s guilt. She is, of course, free to consult anyone she likes, but it is reasonable to expect she should do so in an even-handed fashion. Instead, she (at the very least) discussed the contents of the report and sought advice on it from the prosecution, while denying Bain’s defence team anything like a similar courtesy. She also hired Robert Fisher QC to provide a “peer review” of Binnie’s report – but, as Labour justice spokesperson Charles Chauvel has pointed out on RNZ this morning, Collins either doesn’t know or won’t tell us what Fisher’s terms of reference are, and what level of documentation he has been given to enable him to conduct, within a mere matter of days, a meaningful evaluation of Binnie’s report.

What we do know is that Fisher is not new to this kind of exercise. In 2009, Fisher reviewed the case for compensation made by Rex Haig, acquitted of murder after serving ten years in jail. Fisher found that no compensation should be paid to Haig on the civil test grounds that, as the Fisher report says, “I am satisfied that Mr. Haig has failed to show that on the balance of probabilities he is innocent of the crime with which he was charged.” The ‘balance of probabilities’ being the lesser test available in compensation cases, as opposed to the “beyond reasonable doubt’ level required for a criminal conviction.

According to Binnie, he met with Collins on September 13, to this effect:

[Her] press release states that the Minister raised “concerns” about “some aspects” of the Report at our meeting on September 13. The press release then says she subsequently received “unsolicited, two further versions of his Report”.

In fact, as Binnie told Mary Wilson last night on RNZ – and this Checkpoint interview is essential listening there were not “two further versions of his report” at all. Instead, he had forwarded two minor responses to questions that Collins herself had raised (i.e. she had solicited them) at the September 13 meeting. Although Collins has since said that Binnie’s report contains errors of fact and betrays a basic misunderstanding of New Zealand law, she apparently did not raise those concerns about his reading of New Zealand law with Binnie at the September 13 meeting. (In compiling his report, Binnie took advice from a prominent New Zealand lawyer to guard against that possibility.)

As Binnie laconically says in his own statement:

Of course if she did not want a response to her “concerns” raised on September 13 she should have said so. My previous experience at the bar since 1967 is that when clients raise questions they want responses. The minor changes I made to the original document occupy no more than a couple of pages of a lengthy Report and are identified in the two accompanying letters to the Minister. The Minister seems to have a curiously one sided view of “confidentiality”. She feels free to criticize my Report while claiming in the same press release that the Report is covered by solicitor client privilege and, therefore, I am not to disclose the obvious responses to her criticisms by releasing the Report. (My own view is that the privilege was waived but that is not an issue I care to pursue.)

This is banana republic stuff from Collins. Would any international justice in future be willing to step into the firing line for the kind of treatment that has been meted out to Binnie? Hardly. Yes, the Bain case does still polarizes the New Zealand public and almost everyone in New Zealand has fixed views on the case – which is why an eminent international figure was brought in by Collins’ predecessor Simon Power, to arbitrate the case for compensation. It does Robert Fisher QC no favours to be cast in the role of Collins’ saviour, as she apparently shops around for a second opinion that might absolve the Crown from the politically divisive decision to pay a significant amount of compensation to Bain. (By most estimates, Bain could be liable for about $2 million.)

As Binnie says, the decision whether or not to pay Bain compensation is ultimately a political decision, and not a legal one. In that sense, Collins has already achieved the miraculous – even for those who continue to have doubts about Bain’s innocence, this kind of shameless ducking and diving by the Justice Minister is creating sympathy for Bain even where none may have previously existed.

In his report, Binnie has evidently made a recommendation for compensation. He is not alone in his reading of the case. The Privy Council, in the first instance, had overturned Bain’s conviction and laid the foundation for the new trial that finally acquitted him. That Privy Council decision, as Binnie has pointed out, was authored by Lord Bingham of Cornhill who was by general consent the greatest judge that the British legal system has produced in the past 60 years. Binnie too, is widely respected in Canada. It doesn’t make him infallible, but it does lend weight to his findings.

In the past few weeks, Collins has been mooted by Parliamentary insiders as the most likely replacement for John Key as leader of the National Party if Key (a) got hit by a bus or more likely (b) got sufficiently tired of his job as PM to call it quits. By her appalling handling of the Binnie report, Collins has surely torpedoed any claim that she may be fit to lead the country anytime in the near future. All she has done in this instance is to bring New Zealand, quite unnecessarily, into disrepute. Even the NZ Herald has weighed in against the way Binnie has been treated:

[Binnie] makes a further point that raises a larger issue of public interest. He is the sixth “external” judge, after the five on the judicial committee of the Privy Council, who have rejected the arguments of the Solicitor-General and the Crown Law Office in the Bain case. He notes that when the Privy Council reversed the Court of Appeal’s decision that no miscarriage of justice had occurred, the Solicitor-General had argued on the same terms Ms Collins cited on Monday: incorrect facts and a misapprehension of New Zealand law.

He said, “People are free to disagree with my views [as they are free to disagree with the views of the Privy Council and the 2009 Christchurch jury], but it is no disrespect to the able Hon Robert Fisher QC to note that the minister is keen to repatriate the Bain case to her home turf.”

Home turf, and the chance for a hometown decision. What a travesty from our “Justice” Minister. In the same week, Education Minister Hekia Parata has been found by the High Court to have acted unlawfully. Both Ministers retain the confidence of the Prime Minister.


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    1. 13 Responses to “Gordon Campbell on Judith Collins’ handling of the Bain compensation report”

    2. By bob on Dec 13, 2012 | Reply

      None of the above changes the fact that there is still a lot more evidence connecting David Bain to the murders than Robin Bain.

    3. By Bob on Dec 13, 2012 | Reply

      If you were to take a piece of paper and draw a line down the middle, write David Bain on the top of the left column and Robin Bain on the top of right column then start listing down all of the evidence that tends to suggest the identity of the killer. It is important to allocate some degree of weight to each piece of evidence as every piece is not necessarily equally probative. Once finished, stand back and consider what is revealed before you. The first striking fact that you will notice is that you will have run out of paper in terms of the David column. The second fact is that the relative weighting results between the two looks closer to the game score of a match between the All Blacks and Finland.

    4. By Tiresias on Dec 13, 2012 | Reply

      We have a legal system in New Zealand. It does not always get things right. It might or might not have arrived at the correct conclusion in the case of David Bain.

      You have an option. Even if you think it wrong you can accept the outcome as the consequence of a process which, in my view quite correctly, assumes innocence and sets a high bar for the establishment of guilt. Or you get into the world of mob justice and vigilante hangings.

    5. By Delia on Dec 13, 2012 | Reply

      What I would really like is for one of these learned people to prove to me who did this- if not Bain. Preferably prove Robin Bain did it. I always felt the first trial got it right and that has not changed for me. Despite the media blitz for years and the fan club.

    6. By Thomas on Dec 13, 2012 | Reply

      Tiresias, I accept the jury’s verdict as the result of the legal process. That is a world away from saying that he is innocent.There is a world of difference between vigilante justice and paying someone who most reasonable NZ citizens believe is guilty of the crime.

    7. By MrSmith on Dec 13, 2012 | Reply

      Thomas said: “There is a world of difference between vigilante justice and paying someone who most reasonable NZ citizens believe is guilty of the crime.”

      Thomas have you spoken to all these so called reasonable NZ citizens? No you haven’t! so there you go your a liar and should we take a known liars word on this matter?

    8. By Matador on Dec 13, 2012 | Reply

      Collin’s style is that of a bull in a china store. Crash and bash.
      Most of NZ’s most reasonable think Mr Bain is innocent, hey thats just not as important as the fact that Collin’s would rather spend more money and time (funding the continued indelicate international noticed injustice) than she would to quietly compensate Mr Bain for the injustice he suffered.

    9. By Kat on Dec 13, 2012 | Reply

      It just reinforces that from Key up, this National govt, once the ‘brighter future’ lie was exposed, is a complete PR disaster.

    10. By Elyse on Dec 14, 2012 | Reply

      @ Thomas
      “There is a world of difference between vigilante justice and paying someone who most reasonable NZ citizens believe is guilty of the crime”

      Who are these reasonable NZ citizens? Kiwis I’ve spoken to joke that he must have been guilty to wear those jumpers.
      Most Australians and NZers (myself included), aided by media hints that she didn’t appear to be grieving, believed that Lindy Chamberlain was guilty, too.

    11. By mike on Dec 14, 2012 | Reply

      Nice analyses. So many arguments today have no distinction between formal and informal logic. This particular issue is all over the map when one considers that the formal and deductive parts have spoken (beyond reasonable doubt,not guilty) yet the compensation claim needs a lower standard that is inductive (balance of probabilities, compensation) All this in a context where many think that Bain has not even passed the deductive test yet! But the jury and Privy Council have spoken, this particular issue is not about public sentiment. Collins has a duty to keep this high level, which Binnie is attempting to do.Collins’ outcomes before process approach makes our great country a laughing stock and is blatant politicking. Poor.

    12. By JohnM on Dec 14, 2012 | Reply

      When it comes to crime and punishment societies around the world often take leave of their senses. In particular, how so many people can be so certain of guilt or innocence of a complete stranger on the basis of emotion and a cursory examination of the trial. My own observation is that no-one can ever fully know the thinking of another person, even if you’re married to them, if they’re your family, or you”re their psychiatrist. We are all capable of keeping the deepest secrets, and hiding the truth of ourselves from others. History proves that people do this all the time.

      That being so the matter is brought to a very simple premise. Bain was convicted, with some important evidence of the original trial now being demonstrated as inadequate and wrong, to life imprisonment. He has always protested his innocence. It was a major trial and the subject of much public interest, such trials often the turn out to be miscarriages of justice, as the police and prosecuting authorities seek retribution on behalf of the public. He has now been found not guilty by another jury, on their examination of all the evidence.

      Bain therefore has been unjustly imprisoned. He is entitled to compensation, not only because he has been found not guilty, but because the state has manifestly failed in its duty of care to get things right the first time. I find the actions of Collins and her cabinet colleagues in trying to avoid what is obviously to them an action too painful to contemplate, compensating David and risking the wrath of so many New Zealanders and their self-righteous certainty that David is guilty, not just appallingly inept but nauseatingly cowardly.

      I wouldn’t though expect anything different from this present administration. If they can’t even be bothered to look after the planet’s interests, what likelihood they’d bother looking after David Bain’s?

    13. By Frank on Dec 16, 2012 | Reply

      For a government that professess to be big on “law and order”, Collins has trampled over all concepts of justice.

      Her shocking treatment of J Binnie was apalling and unnecessary.

      No doubt she’ll be trawling around for and “review” – this time one that meets her views?

      As for those above who still maintain David Bain’s guilt – it’s a shame they never sat through the entire trial like the Jury did. They might learn something.

    14. By Ivor on Dec 17, 2012 | Reply

      Judith Collins has set a precedent ..

      Forget about the rule of law in NZ .. because it has already been trashed by Collins .. Well we all know what we can expect in the future .. no one will be safe from Government irrespective what ANY court of law may say.

      She is seen to have acted dishonestly .. she is seen to have been concealing Binnies report and seeks to further vindicate her view of the evidence .. she is a disgrace!

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