Tapu Misa on current affairs

Tapu Misa is a Herald columnist focussing on Pacific affairs

Tapu Misa: Second opinion on Binnie makes sense

Whatever one thinks of Collins, her actions in this case have been reasonable, says Tapu Misa. Photo / NZPA
Whatever one thinks of Collins, her actions in this case have been reasonable, says Tapu Misa. Photo / NZPA

You'd expect Joe Karam to rail against Justice Minister Judith Collins' handling of Justice Ian Binnie's report into David Bain's compensation claim.

But a miscarriage of justice? Let's not get carried away.

Whatever one thinks of Collins, her actions in this case have been reasonable.

While her criticism of Justice Binnie's report as "fatally flawed" may break with convention and go too far (Binnie's understandable response is equally unusual; judges don't engage in public slanging matches in defence of their decisions), it seems a bit rich to blame Collins for going public.

Having responded to the clamour to make Binnie's report public, and to criticism from the Bain camp and opposition politicians that she was shopping around for a more politically palatable opinion, Collins was required to explain why she felt the need to peer review his decision.

That review, from former High Court judge Robert Fisher, may have reinforced Collins' own view, but it seems unfair to suggest that she underhandedly engineered it.

That insults Fisher, described by Auckland University law professor Bill Hodge as the very best person for the job. Fisher is "the sharpest knife in the drawer", says Hodge, and nobody's patsy.

His previous decisions have been "straight down the middle".

New Zealanders have strong views on the Bain case, as Binnie has acknowledged, so deciding whether Bain is due compensation of at least $1.3 million was never going to be easy.

Collins is navigating a political minefield, and while self-preservation can never be discounted in a politician, it's hard to see what else she could have done.

She was handed a political hot potato - a report recommending what was bound to be a highly contentious course of action: compensation for Bain, whom Binnie had determined on "the balance of probabilities" to be "innocent".

Given the history of the Bain case, that conclusion needed to be solidly buttressed.

It's clear Collins didn't like the report, but whether or not she's acted properly depends on whether she was driven by legitimate misgivings on the soundness of Binnie's conclusions, or political expediency. Collins' actions seem consistent with the former.

It's hardly surprising that she sought the advice of the Solicitor General - Crown Law being the usual first port of call for anyone in government - and that she handed the report to someone whose track record suggested he could be trusted to give it the critical scrutiny it required.

One could quibble about when the Bain team should have been given access to Binnie's report, but given the inevitable publicity and criticism of Collins, I think she was justified in seeking a peer review before publicly releasing the report. Without it, her concerns would have been dismissed as purely political.

I'm not a lawyer, but I've been privy to too many legal stoushes to consider legal opinions and judgments beyond challenge.

I've also been in the position of receiving an expensive but inadequate legal opinion from an experienced QC. In that case, a superior second opinion was provided by a less senior lawyer who was more familiar with the territory.

Former Justice Minister Simon Power's decision to appoint an overseas judge has been criticised as demonstrating a lack of confidence in the integrity of our homegrown legal brains.

A fresh view can be helpful, as Bill Hodge told Newstalk ZB, but "sometimes those fresh views carry a little bit of ignorance with them".

That Binnie is an accomplished and distinguished jurist should not be in doubt. The 73-year-old sat on the Canadian Supreme Court from 1998 to 2011, having never served as a judge in the lower courts.

Collins could certainly have handled the challenge to his professional judgment with more sensitivity.

But the suggestion that she should have accepted his report without question is ridiculous.

Judges, even very good ones, are fallible.

This is an important decision. It should withstand the most searching scrutiny.

The Otago University law professor, Kevin Dawkins, told Radio New Zealand last week that he agreed with Robert Fisher's criticism that Binnie failed to consider circumstantial evidence and the way we in New Zealand approach it.

Professor Dawkins said Binnie's dismissal of individual pieces of evidence was problematic and "corroborates the Minister of Justice's conclusion that the finding in the report is not supported by robust reasoning and analysis".

He also agreed that Binnie incorrectly imposed the burden on the Crown to prove Bain wasn't innocent, when the onus of proof should have lain with David Bain.

Bain is either innocent, and no amount of money can ever adequately compensate him for what he has suffered.

Or he brutally murdered five members of his family, and any compensation would be a travesty.

Only David Bain knows for sure.

Justice Binnie is right that New Zealanders, whatever our views, want Bain's compensation claim dealt with in "an even-handed and fair process".

Whatever the final outcome, we need to have confidence that it was the result of fair and rigorous consideration.

We need a second opinion we can trust.

- NZ Herald

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