Rodney Hide: A pity foreign experts aren't as clever as us

Robert Fisher (at left with John Henry QC) stuck up for police during the Arthur Thomas inquiry in 1980. Photo / NZ Herald
Robert Fisher (at left with John Henry QC) stuck up for police during the Arthur Thomas inquiry in 1980. Photo / NZ Herald

That vast country, Canada, is a desolate wasteland for justice. A former Supreme Court judge of 14 years has been exposed in New Zealand as not understanding our law, of misapplying that law, of failing to grasp facts, of not knowing the rules of evidence, of not following his brief and of wrongly placing the onus of proof.

It was our own Minister of Justice who exposed Justice Ian Binnie. Judith Collins believed his errors were so glaring that she was able to spot them in a quick read of the work he spent a year preparing.

The justice-starved Canadians think Justice Binnie is good and smart. The Toronto Star described him as "one of the strongest hands on the court". The poor things know no better.

The British justice system is also flawed. Its Privy Council failed to follow the logic of our government's lawyers when they explained that the New Zealand justice system properly and justly found David Bain guilty of murdering his mother, father, two sisters and brother.

The British judges didn't get it and concluded that Bain's trial was a "substantial miscarriage of justice". That's because, in their view, "a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading".

Our own Court of Appeal followed our government's reasoning perfectly. But the wayward Privy Council overturned the Court of Appeal's judgment, quashed David Bain's multiple convictions and ordered a fresh trial.

The Government threw everything at the retrial but - juries being juries - Bain was found not guilty of murdering his family.

Police Commissioner Peter Marshall refuses to accept Justice Binnie's findings that the police investigation of the Bain murders contained "egregious errors" or any "failure to investigate the possibility of innocence".

It's true that Detective Senior Sergeant James Doyle agreed that police efforts to investigate the timings of David Bain's alibi were "amateurish"; that the officer in charge of the crime scene, Detective Sergeant Weir, described the police photographs of the scene as a "shambles"; that police authorised the house where the crime took place to be burned down without all the relevant evidence collected.

It's true that the Privy Council found important elements of the police testimony misleading and there had been a "substantial miscarriage of justice"; that the effort to clarify the DNA of the blood with David Bain's fingerprint on the rifle was described by an Australian forensic expert as an "unspeakable mess"; that police destroyed evidence five days before David Bain lodged his appeal.

The Police Commissioner accepts there were errors but declares them not "egregious". The problem, he explains, is the extraordinary scrutiny. Fortunately for the police, their work usually doesn't receive such scrutiny.

The Australian justice system is also not up to scratch in evaluating the New Zealand justice system. Thirty-two years ago, one of its retired judges headed the Royal Commission into the conviction of Arthur Allan Thomas. Justice Taylor fell short: he failed to give the police a fair go. He was so tough that the two lawyers representing the police walked out on him.

The commission concluded that "[Detective Inspector Bruce] Hutton and [Detective Lenrick] Johnson planted the shellcase, exhibit 350, in the Crewe garden and that they did so to manufacture evidence that Mr Thomas' rifle had been used in the killings".

The police never accepted the Royal Commission's finding, never charged the officers for planting the evidence and never offered an apology. Justice Taylor got the Binnie treatment.

But we have learned the lesson: Justice Minister Judith Collins has brought in Hon Robert Fisher, QC, to sort through the Bain case. As luck would have it, he is one of the two lawyers who stuck up for the police and walked out on the Royal Commission 32 years ago.

The thinking behind this is straightforward. Overseas experts come up short every time they review our justice system. Far better we get one of our own to do it. After all, we are now developing our own justice system. And we have a Minister quite capable of dispensing it.

- Herald on Sunday

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