Brian Rudman 's Opinion

Brian Rudman is a NZ Herald feature writer and columnist.

Brian Rudman: Second opinion on Bain a desperate measure

David Bain. Photo / NZPA
David Bain. Photo / NZPA

Mrs Collins has pulled the hot potato back into the local political arena. Her political colleagues won't thank her. There's an air of desperation in Justice Minister Judith Collins' decision to refer the David Bain compensation to former High Court judge Robert Fisher QC for a second opinion.

Obviously she disagrees with the conclusion of former Canadian Supreme Court judge Ian Binnie, who was commissioned by her predecessor Simon Powell to give an independent assessment of Bain's claim for compensation for wrongful conviction and imprisonment.

But what's her game plan if Mr Fisher agrees with Mr Binnie's leaked conclusion that Bain is innocent and should be compensated. Will the Justice Minister then hawk the problem off to yet another retired judge and another, until she gets the decision she craves?

What, for that matter, will she do if Mr Fisher gives the thumbs down to the Binnie recommendation. Does the opinion of a retired New Zealand judge trump that of his Canadian counterpart?

It seems fair to surmise that "Three Strikes" Collins is reluctant to accept the New Zealand constabulary could finger the wrong man and then convince the justice system to incarcerate him for nearly 13 years. And that she doesn't want to hand over $2 million in compensation. If that's the case, Prime Minister John Key should give the job to someone who is willing to administer justice fairly.

On June 20, 1994, when five members of the Bain family were shot dead at their 65 Every St, Dunedin, home, there were no CCTV cameras monitoring the scene, recording when David Bain came back from his paper round, and whether he, or his father or some third party, committed the massacre. No eye-witnesses have come forward. It's the classic whodunit, dividing New Zealanders ever since.

In June 1995, David Bain was found guilty of murdering the rest of his family and sentenced to 16 years plus. In December 2002, the Court of Appeal agreed to hear an appeal, but subsequently concluded any reasonable jury would have found the case against Mr Bain proven beyond reasonable doubt.

In May 2007, the Privy Council concluded a substantial miscarriage of justice had occurred, quashed the convictions and ordered a retrial. In June 2009, a Christchurch jury acquitted Mr Bain on five counts of murder.

In March 2010, Mr Bain filed a claim for compensation. In November 2011, Justice Binniewas retained to provide advice. He spent months reviewing the case, including interviews with Mr Bain, at a reported cost around $400,000.

Mrs Collins received the Binnie report in September and said a decision would be made before Christmas. On Monday, Mr Key revealed Justice Binnie had delivered "a recommendation she [Mrs Collins] doesn't agree with, or at least has concerns about". Mr Bain's understandably irascible lawyer, Michael Reed QC, responded: "What on earth does Judith Collins know about the case to be able to disagree with anything other than the fact that perhaps she doesn't like the result. It's very unfair."

Mr Fisher has experience in the field, recommending to the Government last year that a man wrongfully jailed for rape should receive compensation. In that case, the man spent over two years in prison before the Court of Appeal quashed his conviction. DNA testing excluded him as the offender. The man received just over $350,000.

In another case, Mr Fisher decided that a man seeking compensation after his murder conviction was quashed had probably participated in the crime and should have his claim refused. It was.

In September, following the delivery of the Binnie report, Mr Fisher told TV3 that David Bain could receive compensation under an extraordinary circumstances clause. "It's done out of a sense of humanity," he says. "These are discretionary payments. There's no right that anybody ever has to compensation in this circumstance."

Mr Bain's case falls outside the 1998 Cabinet guidelines for compensation because the Privy Council ordered a retrial, rather than just quashing the conviction. However, in making the guidelines, "Cabinet reserved the discretion to pay compensation to an applicant who was not eligible in extraordinary circumstances, where it is in the interests of justice".

This requires the applicant to be able to "establish innocence on the balance of probabilities" and also show there is an aspect of the case that is "extraordinary".

The 1998 rules say that unlike claims within the guidelines, there is no requirement that the claim be considered by a QC; however, a QC's assistance can be sought. The eminent jurist from Canada was brought in to fit that bill. But there's no mention in the guidelines of calling in a QC to second guess the first advice.

Mr Binnie was retained at great expense because former Justice Minister Simon Power sensibly reckoned that everyone in New Zealand - lawyer and politician and the great unwashed alike - had an opinion on the case. Like the Privy Council, which concluded "a substantial miscarriage of justice has actually occurred," the Canadian jurist came to the case untainted.

But instead of appreciating her predecessor's smart move, Mrs Collins has pulled the hot potato back into the local political arena. Her political colleagues won't thank her.

Nor will those of us just seeking a just end to this drawn-out saga.

- NZ Herald

Brian Rudman

Brian Rudman is a NZ Herald feature writer and columnist.

Brian Rudman's first news story was for Auckland University student paper Outspoke, exposing an SIS spy on campus during the heady days of the Vietnam War. It resulted in a Commission of Inquiry and an award for student journalist of the year. A stint editing the Labour Party's start-up Auckland newspaper NZ Statesman followed. Rudman decided journalism was the career for him, but the NZ Herald and Auckland Star thought otherwise when he came job-hunting. After a year on the "hippy trail" overland to London, he spent four years on Fleet St with various British provincial papers. He then joined the Auckland Star, winning the Dulux Journalist of the Year award for coverage of the 1976 Dawn Raids against Polynesian overstayers. He has also worked on the NZ Listener, Auckland Sun, and since 1996, for the NZ Herald as feature writer and columnist. He has a BA in History and Politics.

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