Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the fallout from the Bain compensation row

December 14th, 2012

In essence, everyone in New Zealand falls into one of three camps on David Bain, and whether or not he should be paid compensation:

(a) Those who believe him guilty of murdering his family and think he should not be paid any compensation
(b) Those who think he is probably guilty but because the legal system found him not guilty, an onus rests on the state to pay him something for the 13 years he spent in jail for a crime for which he was ultimately acquitted
(c) Those who think Robin Bain was the killer and that David Bain deserves full compensation for the wrong done to him.

All along, the question of compensation has been a political decision (made by Cabinet) as to whether Bain should be paid any compensation. Full compensation for Bain has been estimated to be in the region of $2 million. So far the report by retired Canadian judge Ian Binnie has cost $400,000 and the rebuttal of his report by Robert Fisher QC has cost $100,000. A third full report on the case (which is now being mooted) would presumably have to on the scale of Binnie’s effort, and would take the grand total for legal advice to close on $1 million. This would be in order to produce an outcome that, given the signals currently being emitted by Justice Minister Judith Collins, appears likely to recommend that no compensation should be paid.

Bain, though acquitted, has no automatic right to compensation. The test for compensation is different from that for acquittal. Rather than being found guilty beyond reasonable doubt, to qualify for compensation the onus is on defendants to prove that “on the balance of probabilities” they are innocent. In this case, the public faith in the final decision by Cabinet will rest on whether they think the legal foundation for that decision has been arrived at competently, and fairly. In recent days, Collins has been insistent that Binnie’s report is seriously flawed and riddled with errors, and she places more credence in Fisher. Binnie has defended his report from Fisher’s critique in a five page response. (See footnote for link.)

However interesting it would be to go through the fine details to and fro, the political landscape seems clear. Collins has disposed of Binnie’s report, and there is a strong suggestion that a fresh report will be commissioned, and that Fisher will be hired to carry it out. That is the political outcome that Collins appears to have been engineering ever since she received Binnie’s report some months ago. That’s one reason why Binnie’s five page response is so interesting. Yes, there are a few typos here and there in an email evidently composed overnight and without benefit of him having a copy of his own report at hand for reference – Binnie has been attending a jurists’ conference in Geneva – but the response contains this compelling passage:

It is of interest that…(a) Mr Fisher was retained on 26 September…(b) he met the Minister the same day (c) and without having performed the “first stage” analysis he reports that” as we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at its own conclusions on the merits”.

This seems a very results oriented retainer. Normally one would expect him to make his analysis of my Report, and to have his analysis considered by the Minister, BEFORE a decision to have Mr Fisher do an entirely new Report “on the merits”. It seems clear the Minister had already made up her mind on Septermber (sic) 26 regarding the outcome. The only function of Mr Fisher’s “first stage” report was, according to his own recitation, to provide a rationale for a Ministerial decision already taken.

In other words, the result seems to have been decided beforehand. Now, like me, you may have to confess to having no expertise or much familiarity with the Bain trial evidence, but no worries. Apparently, that puts us both in much the same position as Robert Fisher QC. Binnie continues:

The document makes it clear that Mr Fisher has not read any of the evidence since his meeting with the Minister last September –this task (which I would have thought essential to an assessment of my Report) he reserves for “the second and final report” –an exercise apparently predetermined at the September 26 meeting –to be delivered who knows when –much of what he says about my analysis seems to arise from his lack of familiarity with the material I was asked to review, as will be discussed. The other leg to his analysis is that he might have weighed up the evidence differently than I did (although, presumably with an eye to what he expects to be the second stage of his inquiry) he says he might reach the same ultimate conclusion –or he might not.

Can one have much faith in an analysis whose results appear to have been decided in advance, and without recourse to the evidence? Regardless, Fisher does not shrink from criticizing Binnie’s approach to the evidence, which is characterised as not taking a “cumulative” approach i.e. it allegedly does not consider the evidence in the round as to Bain’s likely innocence or otherwise. Even here, Fisher is not consistent since – as other commentators have pointed out – he both accuses Binnie of not taking a cumulative approach to the evidence and then cites him doing exactly that. This tendency provoked this tart rejoinder from Binnie:

Once again Mr Fisher’s analysis raises a distinction without a difference in order to discredit a report based on evidence he hasn’t read.

As mentioned, all of this is now somewhat academic. Collins is careering down her chosen path, whatever the damage done to the reputation of our justice system internationally. One can only cringe at Collins’ repeated claim that Binnie’s findings do not accord with New Zealand law. She makes our legal system sound profoundly, mysteriously different – like some South Seas version of sharia law – and not part of the British legal tradition to which Canada, Australia and New Zealand all belong. In any case, Binnie guarded against this possibility by taking advice throughout from the distinguished Auckland University law professor Paul Rishworth. Such variations are minor, and have been observed in the Bain case. In his Privy Council decision for instance, Lord Bingham specifically notes (e.g. at para 3) relevant areas where New Zealand practice differs in minor degree from British practice.

The row that Collins has provoked can only harm our international reputation. Evidently, New Zealand is only willing to invite an eminent jurist to determine a locally contentious issue if the result matches the political will of the government of the day. The “errors” that Collins is loudly and repeatedly proclaiming lack substance – e.g. Binnie did not exceed his brief as Collins claims, since that had left him open to make a recommendation as to compensation, or not. (Whether he did or not also hardly seems a momentous matter, given that this doesn’t prevent Cabinet from having the final say.)

To many New Zealanders, Fisher’s claim that Binnie erred in regarding the acquittal of Bain as a relevant matter to his claim for compensation will seem especially strange. Yes, acquittal does not prove Bain innocent. But conversely, is it to be taken as completely irrelevant that the Privy Council re-considered the evidence, found sufficient grounds for ordering a new trial before a new jury – who then heard all the evidence in the round, and choose to acquit him? While not determinative of innocence, it seems at least, relevant. After all, if Bain hadn’t been acquitted, Binnie and Fisher wouldn’t be here doing this job.

Much the same incredulity will greet Collins response to the criticisms of the failings in police procedure contained in Binnie’s report. Let’s be clear about this. The Binnie report clearly and unequivocally exonerated the Police from any suggestion of deliberate malpractice on their part. His argument was that their incompetence weighed in favour of compensation. (After all, if the onus of proof is on the defendant to prove their innocence, yet in the interim, the same state that imprisoned him has also stupidly destroyed his means of proving his innocence, then shouldn’t the state assume some responsibility for its actions?)

In fact, there is nothing new in Binnie’s criticisms of the Police, the grounds for which had been well aired in previous court hearings, and to which the Police have been given ample opportunity inn the past to respond. Those criticisms are now part of the historical record of the case. Regardless, Collins – a former Minister of Police – has criticised Binnie for not giving those attacked in his report a right of rebuttal, even though the Police themselves came out yesterday in a press release saying that there was nothing new in his criticisms. Collins really can’t have it both ways. Yet as things currently stand, the Binnie criticisms are being treated as contentious and needful of a response on natural justice grounds, while simultaneously being old hat and no big deal!

One could go through Fisher’s report item by item – but to no point, since the political outcome seems to have been pre-determined, months ago. Did Binnie ultimately reverse the onus of proof and put it on the Crown to prove that Bain was not innocent? Here, I think it is inevitable that an element of subjectivity will enter the frame, by all concerned. Fisher is quite entitled to claim that Binnie was more subjective than he should have been in his methodology and conclusions – but that in itself, on the onus of proof question at least, is a subjective assessment on Fisher’s part. As a careful reader of both reports and Binnie’s reply, I’m pretty sure who I think has been more rigorous in his approach. I’ll leave it to readers to reach their own subjective conclusions on this point.

Speaking personally, I’m glad this conflict forced me to go back last night and read the Privy Council analysis of the Bain evidence afresh, in the light of Binnie/Fisher. To repeat : it does not prove innocence, but Lord Bingham’s conclusion was that if all of the evidence now available was put before a jury again, there were reasonable grounds for thinking that they might conceivably reach a different verdict. It was, and they did. Bain was found not guilty of a crime for which he spent 13 years in jail. Whatever we may think subjectively of his guilt or innocence – it is hard to shake the feeling that Bain is now owed some degree of compensation and means of rehabilitation from the state, on that basis alone. Even though the grounds for compensation are different than those for criminal guilt. After all, if we spend money on the rehabilitation of prisoners, shouldn’t we also spend something on those who have been wrongly convicted?

By that I mean: if the system errs at times, it is still a system worth preserving. And ducking out of taking any responsibility at all for Bain’s formal status – which is that he spent his 20s imprisoned for a crime for which he was acquitted – seems to me, to do more harm to the system than would be done by paying him. And that is so even if subjectively, we still happen to think him guilty.

Footnote: Links to the Binnie Report, the Fisher report, and Binnie’s remarkably well argued response to Fisher can all be found here. Unfortunately, the version of the Fisher Report listed there does not have the appendix containing Fisher’s terms of reference, which can be found at the back of the version available here. The Privy Council judgement on the Bain case is here.

ENDS

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    1. 20 Responses to “Gordon Campbell on the fallout from the Bain compensation row”

    2. By Rich on Dec 14, 2012 | Reply

      What about (d) those who have no idea if he did it or not and realize that as a result of the police destroying and tainting the evidence, we’ll never know.

    3. By Pete George on Dec 14, 2012 | Reply

      I’m more or less in the same category as Rich. Different parts of the eviidence and absence of evidence swing me one way, then the other.

      Unless David did it and one day convincingly confesses I don’t think we will know for sure.

      So the legal process comes down to whether the politicians deem Bain to be deserving of compensation in a perpetually divided environment of uncertainty plus certainty based on uncertainties.

    4. By Rose Taylor on Dec 14, 2012 | Reply

      How can Binnie say that Robin Bain shot his family and then himself? Whatever you think of the evidence against David the evidence against Robin is even more scant.

    5. By mike e on Dec 14, 2012 | Reply

      Gordon I’m sorry but I loath Collins as much as anybody but on this case she is right Binnies interview with Bain is highly unprofessional no hard questions asked such as how did your fresh blood skin hair and woollen jersey particles end up under Stephens finger nails!
      or how did your socks get sprayed with your fathers blood and brain particles if you were on your paper run.
      The only way that spray pattern could have ended up on David’s socks is if he was hiding behind the curtain with his feet under the curtain.
      Gordon get your facts right before you condemn

    6. By donna on Dec 14, 2012 | Reply

      Heck, I’d be happy if Ms Collins just coughed up the $2 million and David Bain and his merry band of supporters went away.
      I don’t know if he murdered his family and we’ll probably never know for sure. But he has been found not guilty at a retrial and maintaining confidence in the system (something the Minister has never been worried about before, that I can recollect) means putting at least some of this wrong to right.
      As Gordon said yesterday, this is banana republic stuff. If National’s supporters aren’t embarrassed, they should be.

    7. By Don Franks on Dec 14, 2012 | Reply

      What Mike e said.

      Plus:

      Binney did not do the actual job he was paid nearly half a grand to do.

      David, who would not front up on the stand in the second trial snowed Binney in a patsy interview.

      Karam’s books are self serving rubbish.

      The case for Robin doing the killings has no foundation.

    8. By Bernard on Dec 14, 2012 | Reply

      Can it be true? A tax avoidance/evasion consultant colludes with a another venal member of the legal profession to besmirch the reputation of New Zealand. Birds of a feather flock together. No one would ever accuse the New Zealand Justice Minister of displaying any skerrick of compassion, mercy or empathy. Running true to type. Dignity is meaningless to some of us.

    9. By Henare on Dec 14, 2012 | Reply

      I cannot say one way or the other whether Bain is innocent. What I do know is the Privy Council said he deserved a new trial and a Jury of my peers heard the evidence and judged him not guilty. Collins appears to be shopping for a decision based on political expediency rather than what is right. She has treated Binnie and Bain poorly, without the good manners I expect from a Minister of the Crown. Fisher is now to some extent tainted by his involvement and finding another local official to do the second review is going to be difficult. I agree with the writer Collins is unsuited to be the PM.

    10. By John Macdonald on Dec 14, 2012 | Reply

      Following the trail of Ms Collins over recent years I thank goodness we abolished hanging some time ago

    11. By Ian O on Dec 15, 2012 | Reply

      Alt option: Robin killed the family, David killed Robin. It seems from some of the high profile cases in the past, that things go manky when the police latch onto a scenario then only seek evidence that will support that supposition. Even to the point of ‘adjusting’ evidence that doesn’t fit. I’ll concede that if they had to explore in depth, every possible alternative, policing would get even more expensive, but it is a problem that needs to be kept in mind.

      Put me into the camp of “we’ll never know, too much evidence has been destroyed or never gathered.”

    12. By Simon Johnson on Dec 15, 2012 | Reply

      “The Thick of It”s Malcolm Tucker would be proud of Judith Collin’s set-up of Justice Binnie. Everyone else should be ashamed at her political meddling in semi-judicial processes.

    13. By Tiresias on Dec 15, 2012 | Reply

      I don’t know who killed the Bain family. The only person who knows if David did it is David himself and anyone who pontificates on his guilt or innocence is a self-appointed fool.

      What I do know is that we have to trust the legal system to get it right for the alternative is revenge/utu, rough justice, vendettas and vigilante hangings. We must also recognise that the law isn’t always going to get it right but must do what it can to correct any mistakes and mitigate the consequences of getting it wrong. This is does with such concepts as a presumption of innocence, a high standard of proof of guilt and a lengthy process of appeal and review.

      That system has been followed exhaustively and has aquitted David Bain. To still believe him guilty as Collins evidently does – for clearly she is not concerned simply with saving taxpayer’s money – is the ultimate arrogance of a politician, that of believing their personal views and wishes transcend due process and the checks and balances the constitution places on their power.

      When a Minister of Justice believes the law is hers to manipulate towards the ends she desires we are truely in banana republic territory.

    14. By Marty Harris on Dec 16, 2012 | Reply

      Guilty or not? Deserves compo or not? A pointless debate because so many people have an entrenched belief by now and are reluctant to rethink their assumptions.

      More to the point is the behaviour of Collins, especially in light of Binnie’s withering destruction of Fisher’s so-called criticisms.

      Mainstream media must imagine this story is either too arcane or too dull to pursue, but I’d like to see someone take a decent look at Fisher. His “peer review” (as if a local QC is a peer to a Supreme Court judge in a far larger country) is mostly junk. He did not feel the need to familiarise himself with the trial evidence, talked to no one, got help in his critique from Crown Law and the police and delivered an instantly shredded report that gave a result favourable to Collins, and for which he was paid $100,000.

      Fisher was the QC brought in to assess Rex Haig’s bid for compensation. He said no and concluded Haig either carried out the murder or was an accessory. Here’s an interesting extract from an Otago Daily Times report in September.

      “The December 2010 report by Prof Joseph, a School of Law professor at the University of Canterbury, criticised Mr Fisher’s findings as legally and factually baseless.

      “Fisher’s finding of probable guilt was based on a hypothesis that was entirely novel and untested. Furthermore, Haig had no opportunity to rebut or challenge the hypothesis,” Prof Joseph said.

      “Mr Fisher went outside the parameters of the initial Crown and defence cases. He played no part in the proceedings leading to Mr Haig’s conviction or the subsequent quashing of it, did not personally interview witnesses, was not involved in gathering evidence and did not attend the trial, he said.

      “He was, for all intents and purposes, a casual bystander. Yet Fisher could be confident that he, and only he, really knew what happened on the boat when Roderique was murdered. Such prescience is truly admirable,” Prof Joseph said.

      Fisher, lest we need reminding, was the High Court judge who quietly faded off the bench once the public storm had died down about his being caught watching adult movies on his work computer.

      That he regularly pops up as the Justice Ministry’s go-to QC (he’s been doing it for years so it’s clearly not a ministerial preference) disturbs me.

      Though I’d have to say it’s a relief a legal mind such as his no longer sits on the High Court!

    15. By e-clectic on Dec 16, 2012 | Reply

      Gordon – it would be really interesting to find out the process by which Binnie was selected for the job.
      The “blame” for this mess is easily laid at the feet of Judith Collins who didn’t make the call on who should do the review. If she had appointed Binnie then I think the criticism against her would hold a lot more weight.
      Once the $2m+ is paid there is no recourse. I welcome her diligence in ensuring that there is a robust case for paying compensation.

    16. By Ross on Dec 17, 2012 | Reply

      Gordon,

      Have you actually read Binnie’s report? It is not the sort of work I would expect from someone in his positionand with his experience. He traversed all of the evidence before interviewing Bain, and likely concluded that Bain was innocent before that interview. But I invite you to read that interview. Bain contradicts himself and seems to lie more than once. Why would an innocent person lie? Binnie, of course, draws no negative inferences from any of this.

      When evidence detrimental to David’s case was cited by yBinnie, David would typically say that he had no memory of the event in question, or would criticise the witness or raise doubts about the accuracy of their evidence. Binnie seemed unconcerned by this. He seemed to accept the veracity of his answers. He didn’t ask David if Laniet was scared of him. Three witnesses testified at his retrial that Laniet had told them she was scared of him. David told Binnie that Mark Buckley had committed a sexual act on a goat. Presumably if that allegation was false, it would raise serious doubts about David’s credibility. Binnie didn’t try to verify that allegation, but seemed to accept it as true.

    17. By Ross on Dec 17, 2012 | Reply

      Yes, Rose, the probability that Robin was the offender is extremely remote, so remote that David cannot possibly be expected to receive compensation.

      It is likely that Robin had stayed in bed and listened to the radio for some time (the radio was still on when police inspected the caravan) – as apparently was his custom. If Robin entered the house at, say, 6.40am, which is being generous to David because Robin apparently often entered the house later, it means that he was in the house at or near the same time as David. In other words, Robin would have committed four murders before shooting himself at roughly the same time that David was present in the house. That seems exceedingly unlikely, even more so when one allows for other factors, such as Robin needing to find the trigger lock, needing to find the gun and ammunition, locating David’s opera gloves (for the killer most likely wore those gloves), and of course putting bloodied clothes into the washing basket, washing himself, putting on fresh clothes, and writing a note on the computer. Most importantly, if Robin had begun shooting his family at 6.40am or thereabouts, he risked being interrupted (and stopped) by David.

      Why didn’t Robin set his alarm clock for earlier than 6.32am, the time that was set on his clock, if he was intending to commit mass murder (assuming that murder was not a spontaneous decision upon waking)? By not setting his alarm clock to wake him at an earlier time, he risked sleeping until 6.32am, thus giving himself little time to do what he wanted to do.

      Leaving aside the issue of when Robin went inside the house, it seems most implausible that Robin would wear gloves (David’s gloves no less) to commit the murders. What would be the purpose? David has said that Robin owned a similar pair of gloves – why didn’t Robin wear these? It would also be unlikely that he would change clothes and wash himself before changing into fresh clothes. Also, why would he turn on the computer (at about 6.43am) when David could walk through the door at any second? (Indeed, David may already have been home by 6.43am.) Why would he risk being interrupted when he could go to his caravan and simply write a suicide note before killing himself? A hand-written suicide note would have the added advantage of identifying Robin as the killer. The available evidence, taken cumulatively, does not suggest that he was the offender, but instead was the victim.

      Binnie’s theory comes from another planet, but he is happy to criticise the prosecution theory!

    18. By Matador on Dec 17, 2012 | Reply

      Perfect points, Tiresias , I would have called them a “full stop” in this debate.
      But I see Collin’s cloven hoofed minions are robustly unreasonable.

    19. By Roy on Dec 17, 2012 | Reply

      I agree with Ross that the case against Robin is preposterous. How could a 58 year old man, so thin he was described as ‘cadaverous’ wrestle with and overpower a strong teenage ruugby player (Stephen) without getting a single scratch or bruise on himself? Robin Bain did not kill Stephen, could not possibly have killed Stephen. David, on the other hand, had scratches and superficial injuries he could not account for, and as mike e has pointed out, David’s DNA was in tissues under Stephen’s fingernails. Identify the killer of Stephen, who fought desperately for his life, and you have the killer of the rest. QED. David should be thankful that a gullible Joe Karam has got him out of prison a couple of years early, and should now just shut up.

    20. By digo on Dec 17, 2012 | Reply

      ” The test for compensation is different from that for acquittal. Rather than being found guilty beyond reasonable doubt, to qualify for compensation the onus is on defendants to prove that “on the balance of probabilities” they are innocent. ”
      This implies that there is some fixed procedure for awarding compensation. In reality the government is not bound by any rules or procedures but holds all the cards & gets to say on an ad hoc basis if & under what circumstances they will pay compensation. They declared in this case a balance-of-probabilities test would apply, though the fair thing would be to ask: should we imprison people who can’t be proved guilty? If not, then there must be a penalty for doing so, & compensation for the victim or else this notional limit on government power is meaningless, along with any protection of the rights of the innocent

      http://gordoncampbell.scoop.co.nz/2012/12/14/gordon-campbell-on-the-fallout-from-the-bain-compensation-row/

    21. By Ross on Dec 17, 2012 | Reply

      “the fair thing would be to ask: should we imprison people who can’t be proved guilty?”

      But he was proved guilty, that is why he was imprisoned!

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