David Fisher 's Opinion

David Fisher is a senior reporter for the NZ Herald.

David Fisher: Bain report shines spotlight on police mistakes

The hurdle which Justice Ian Binnie struggled to get over is not whether David Bain is guilty, but the events which led him to be charged in the first place.

His finding of Bain's "innocence" is not as devastating as Justice Minister Judith Collins seems to feel it is. There is plenty of room to refuse payment of any money to Bain.

He says early in the report: "Although his factual innocence has not been established beyond a reasonable doubt, I conclude that it is more likely than not that David Bain is factually innocent according to the lower civil standard of 'balance of probabilities'."

Instead, Justice Binnie has scraped away 18 years of history to focus on the way police investigated the 1994 murders on Every Street in Dunedin. It seems the only solid conviction to emerge from the report was the belief mistakes made by police right from the outset answered question about compensation.

In this he is clear, stating "it is my opinion that the egregious errors of the Dunedin police that led directly to the wrongful conviction make it 'in the interest of justice that compensation be paid"'.

Binnie was clear in the report - compensation was not his decision to make. He supplied footnotes to underpin his findings: "This reflects the fact that my job is to recommend not decide."

But he was not shy about offering his opinion. In his follow up email to Collins, he stated "it is surely the case that an incompetent and one sided investigation by the police will lead forseeably and consequentially to a heightened risk of conviction".

"In my view this is what happened here."

In this case, everyone has an opinion over whether Bain did it or not. It was a point underlined by Collins' early advice to Binnie that he should drop his report off on the way to the airport. Instead, the judicial insight and might of Binnie has narrowed to the investigation which led to police laying charges.

Our Governments have never capably handled harsh judgments against our police. And, it must be said, such claims of incompetence should not be casually made. Law and order in our society is underpinned by faith and trust in the police and the way they do their job. Almost exclusively, they do it well. We should be proud of what they do.

But when they don't do it well, those who run the police and the ministers who sit over them struggle to respond.

It is an extraordinary 32 years since the Royal Commission of Inquiry into the conviction of Arthur Thomas found the police had planted evidence. In this case, too, it was a judge from another jurisdiction who led the inquiry. The police faced criticism then, too, and have never moved to accept the failings identified.

The opportunity is here, again, to confront the occasional crushing failings which will bedevil any police force. Ignoring them invites repetition, and reduces the faith and trust the police need to do their critically important job.

I have interviewed members of both juries - those in 1995 who convicted Bain and put him away for 13 years and those in 2009 who set him free. They were 12 ordinary men and women. The overwhelming impression left from talking to those on the second jury was their anger and simple upset over the conduct of the police force.

They had always considered the police above reproach. They found they were wrong.

- NZ Herald

David Fisher

David Fisher is a senior reporter for the NZ Herald.

David Fisher was named best reporter at the Canon Media Awards 2013 for a portfolio of investigations, including the revelations of air force failures following the fatal Anzac Day Iroquois crash; an exclusive interview with Kim Dotcom; the donations to John Banks' mayoral campaign; and a report on the huge ACC privacy scandal. PGP Key here.

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