Editorial: Only fair that Bain report made public

5:30 AM Thursday Dec 13, 2012

Justice Minister Judith Collins needs to release Justice Ian Binnie's report on David Bain's compensation claim as soon as possible. Her statement on Monday, explaining why she is getting it "peer reviewed" by Robert Fisher QC, has made it necessary that both legal opinions are made public.

Ms Collins clearly stung the retired Canadian judge when she said his report "appeared to contain assumptions based on incorrect facts", "showed a misunderstanding of New Zealand law" and "lacked a robustness of reasoning". Justice Binnie replied strongly yesterday, describing the last phrase as "code for 'reasoning"' that supports the minister's preferred disposition of the Bain claim".

"However, I expected the minister to follow a fair and even handed process," he adds, "She is, after all, the Minister of Justice." He has taken the trouble, by email from an international jurists' gathering in Geneva, "to give people the facts to enable them to determine for themselves whether or not the process has been even-handed".

We are not accustomed in this country to judges engaging in open combat with a politician and making their case to the court of public opinion. Justice Binnie makes a strong case. He points out that by referring his report initially to the Solicitor-General Ms Collins was consulting a Crown Law Office that had been instrumental in David Bain's conviction and had fought to uphold it for 17 years.

She was effectively consulting his prosecutors while keeping the contents of Justice Binnie's report from Mr Bain and his counsel. He will not be alone in finding this unfair.

He 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."

From his vantage point, New Zealanders clearly seem too close to the case to take a disinterested view. Few of us could deny that. The case has attracted such intense interest for so long that it became almost mandatory to come to a personal conclusion one way or the other, on evidence presented at trials, appeals and in books. Most of us long ago took positions we are reluctant to change.

In the end a New Zealand jury found Mr Bain not guilty of the murder of his family and a previous Justice Minister, Simon Power, referred the question of compensation to Justice Binnie, whose career in the Canadian Supreme Court Mr Power described as "distinguished". Ms Collins received his report in September but revealed on Monday that she has not yet put its recommendation to the Cabinet.

It was her decision alone to have it "peer reviewed" by a New Zealander. Justice Binnie finds it "most improper" of her to have criticised his advice while claiming client privilege to keep it confidential. He calls her "a former Auckland tax lawyer".

Meanwhile, Mr Bain waits and, with heightened concern now, so do we all.

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