Editorial: Minister errs in dismissing judge's Bain compo report

5:29 AM Friday Dec 14, 2012

It seemed apparent from the Justice Minister's tone yesterday that retired Canadian judge Ian Binnie's report into David Bain's compensation claim will do nothing more than gather dust. Judith Collins left no doubt that Robert Fisher QC's peer review of that report would hold sway when the Cabinet next considers Mr Bain's case in the New Year. Given her view, the most obvious course now is for a new judge to be appointed to resolve the compensation claim. According to the minister, all this means is "an unfortunate delay" to the decision that Cabinet will finally make.

Ms Collins would be unwise, however, to dismiss Justice Binnie's report quite so quickly and quite so disparagingly. His five-page response to Dr Fisher's review makes some especially compelling points. With some justification, he dismisses much of the criticism as academic and theoretical. It was also, he says, the product of someone with "little familiarity" with the reality of the case - a cutting reference to his year-long examination and Dr Fisher's far more recent involvement.

Justice Binnie rejects the idea that he has failed to look at all the relevant evidence cumulatively. He has, however, clearly placed considerable weight on what he considers the crucial pieces of evidence in deciding whether Mr Bain was wrongly convicted and imprisoned. This appears to be a reasonable approach given the welter of claim and counter-claim in this case. In particular, he focuses on the "luminal footprint" evidence, noting the Solicitor-General has agreed before the Privy Council that whoever made the footprints was the killer.

Justice Binnie concedes that he relied heavily on information sourced from Mr Bain. But so, he says, did the police and the Crown Law Office. And others also read much into his evidence. "Lord Bingham [of the Privy Council] is quoted as puzzling over why David Bain, if he was guilty, would have made some of the statements he did," says Justice Binnie. "Accordingly, if I am guilty of sinning, I do so in the good company of the five judges of the Privy Council."

This points to New Zealanders having become too close to the Bain case to take a disinterested view. International eyes have been cast over the case twice - by the Privy Council in 2007, when it concluded there had been a substantial miscarriage of justice, and now by Justice Binnie. In both instances, the outcome has been markedly different from that delivered by legal proceedings in this country. In that context, it should be remembered the then Justice Minister, Simon Power, appointed Justice Binnie, an outsider, precisely because of the high-profile and controversial nature of the case here.

Another of Dr Fisher's complaints is that Justice Binnie "drew an inference adverse to the Crown" in cases where, in his view, the police ought to have gone further in its investigations. But as much was probably inescapable given his scathing criticism of the police investigation. Dunedin's police had made "egregious errors" that led directly to the wrongful conviction of Mr Bain and his imprisonment for 13 years. There were, he says, "numerous instances" of investigative ineptitude and failure to respect the Detective Manual's rules and principles. The evidence established that the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence.

Justice Binnie may also have erred in going beyond his mandate. But that is of no great importance. His reasoning has enough substance to warrant more than Ms Collins' dismissive attitude. The Dunedin police were guilty of a rush to judgment. The minister should not repeat that error.

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