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.