Joe Karam: This injustice almost as bad as the first one

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Joe Karam, David Bain's long-time advocate and supporter, writes exclusively for the Weekend Herald on the furore surrounding the Government's response to Justice Ian Binnie's report on whether Bain should receive compensation

Bain advocate Joe Karam. Picture / NZPA
Bain advocate Joe Karam. Picture / NZPA

Around 12 months ago, the Government, led by Prime Minister John Key, appointed former Canadian Supreme Court judge Ian Binnie to advise on David Bain's compensation claim. Thursday night was a long one reading and digesting the various reports that had been hidden from the Bain team for months by Justice Minister Judith Collins.

At the outset, David, myself, and his legal advisers, Michael Reed, QC, and my barrister son, Matt Karam, agreed that proving his innocence 17 years after the event would be a tough ask. Various commentators around the country said it would be virtually impossible. However, we were grateful for the opportunity of presenting the case to such a distinguished overseas expert, and decided we would accept Justice Binnie's opinion on the matter whether favourable or otherwise. We entered into the process in good faith on that basis.

Justice Binnie had two questions to answer according to the instructions issued by the Government. He was first to inquire into and report on whether in his opinion David Bain was factually innocent on the standard of proof known as balance of probabilities.

And second, to report on matters that may take the case outside the ordinary run of cases that are overturned on appeal, what the Government refers to as "extraordinary circumstances".

On the first he declared that David is indeed factually innocent on the balance of probabilities. The reasoning and evidential analysis supporting his opinion occupies 120 pages broken into some 400 paragraphs.

On the second he found, as one example of extraordinary circumstances, that the original police investigation that led to David's miscarriage of justice in 1995 and 13 years of false imprisonment was a tragic example of police "tunnel vision" and also that it was inept and amateurish in many significant ways. This finding was hardly surprising given that both police officers interviewed by Justice Binnie admitted as much. Justice Binnie also condemned the joint review by the Police and Police Complaints Authority in 1997 as an "advocacy document that missed a valuable opportunity to get to the bottom of some of the serious problems with the Bain investigation."

Justice Binnie records that at the time of his appointment he had never heard of the Bain case. He allowed both sides to the claim, David Bain and Crown Law, to put forward any and all evidence that was considered relevant. We were invited to nominate any persons we wanted him to interview under oath. Both sides were privy to all that he read and saw. In short, it was a transparent, fair, and extremely exhaustive process. In all, he had something like 10,000 pages of documents put before him by the Crown and Bain teams.

This transparent and just approach ceased from the day Justice Binnie's report was tendered to the minister on August 30 this year. What occurred after that date, in my view, is an example of injustice almost as extreme as that inflicted on David at the Dunedin High Court in 1995.

Why? Because it has been all that justice is not supposed to be. It has been secretive for a start, which is improper in itself in my opinion. Misleading and in some cases incorrect information has been disseminated to the Bain team and to the New Zealand public.

The upshot is that the case is now back in the land of scandal and controversy, exactly where it should not be according to the John Key Cabinet which appointed Justice Binnie with the proclamation that his appointment was made "to bring finality to the case."

On August 21, 2012 I wrote to the Ministry of Justice seeking confirmation that Justice Binnie's report would be provided confidentially to the respective Crown and Bain representatives as had been the agreed procedure with all documents previously.

On September 3, 2012 the minister issued a press release confirming that the report had been received, stating it would not be released "until any decision was made".

The following day, I wrote to the minister expressing my concern that it was unfair that the report was being withheld, and that public statements such as those she issued had fuelled improper speculation. I also said that under the Official Information Act, and in the interests of fairness and principles of natural justice, David Bain must be entitled to a copy. I made the point that the Crown, as one of the parties to the claim, had the report, yet David Bain and his advisers remained completely in the dark.

On September 10 the Herald reported on its front page that Justice Binnie found that David Bain was innocent and recommended compensation be paid. This was obviously a leak. At that time we understood the only people to have seen the report were Justice Binnie and the minister. On the same day Deputy Prime Minister Bill English commented to the effect that this was "just one man's opinion - other people have opinions too".

On September 11 the minister responded, and declined the request for provision of the report on the basis that it was legally privileged to her. On the same day it was reported in Fairfax newspapers that Justice Binnie would be meeting with minister Collins that week. It transpires that meeting took place on September 13, 2012. We did not know about this meeting, but somehow the media did.

Information provided to us for the first time two days ago shows that around this time the report had been handed to the police and the Solicitor-General / Crown Law Office. We also now know that before September 26 the Assistant Commissioner of Police provided a report to the minister. At the time, of course, we knew nothing about the police involvement.

On September 24, in response to the Herald leak, and due to the fact that various media were getting information which we knew nothing about, I wrote yet again requesting confirmation that the Herald article was correct; a reconsideration of the decision to withhold the report; advice on the status of Justice Binnie and a projected timeline for her decision. I invited the minister to supply the report to David Bain's lawyers.

I received a two line reply from a ministry official which simply stated that the ministry would not confirm media reports. I therefore forwarded the letter on September 26, 2012, to the minister's office, and on October 4 received a response to the effect that all deliberations were confidential. You might imagine this was something of a shock to me bearing in mind the number of reports I was reading in the media regarding the matter.

It transpires that also on September 26 the minister met with Dr Robert Fisher, QC, and gave him a letter instructing him to review Justice Binnie's report and advise whether or not he agreed with his conclusion that David Bain was innocent; and also to advise on his opinion as to extraordinary circumstances. In addition to all of the material which Justice Binnie had considered, Dr Fisher was supplied with the report provided by the police to Ms Collins.

During November rumours were circulating that Dr Fisher was doing a report on David Bain's compensation claim. This confirmed a suspicion that the minister's refusal to keep the Bain team properly informed was due to some other process taking place behind our backs. So, Mr Reed wrote to the minister informing her that we had good information to this effect and politely requested, yet again, that she supply us with a copy of Justice Binnie's report and advise us what was going on. The minister refused, claiming legal privilege on the document even though by now it had been studied by a number of people.

In early December, while Ms Collins was overseas, everything began to unravel when Mr Key was asked questions about the Bain compensation claim. He revealed that Ms Collins had "some concerns" with aspects of the report and was having it reviewed. Then he stated that the reviewer was indeed Dr Fisher. This caused considerable comment in the media. At the same time, complaints I had made to the Privacy Commissioner and the Ombudsman regarding the secret process were coming to a head.

Ms Collins then returned from overseas and, in a manner in which many commentators say typifies her style, went on the attack and issued an extraordinary press statement in effect condemning Justice Binnie as being incompetent before his findings were even public.

In light of the events outlined above I believe this was a calculated move to discredit the Binnie report before it had seen the light of day. It was staggering that she would do this without informing Justice Binnie, or giving us a copy of his report. It was galling to David that she subsequently said she had acted with his interests at heart.

The rest is history, as they say. We received the various reports (about 1500 pages) on Thursday, just minutes before the press, and over three months after the Binnie report had been delivered to the minister, and subsequently handed on by her to the police.

So, a number of questions are raised about the process adopted by Justice Minister Collins:

• Why were we never given the Binnie report?

• If David had been the subject of adverse findings, would she have given him the opportunity to make submissions at all, let alone to the exclusion of the police?

• Had I not accidentally heard about the Fisher review and had it not been raised with the minister in writing by Michael Reed, would all of this have happened and would we be any the wiser?

• How could the interests of justice have been affected adversely by allowing us to see the Binnie report? And, equally, not even being told of the existence of Dr Fisher's review, or being permitted to make representations to him?

We know David Bain suffered a miscarriage of justice when he was found guilty. Now it appears he suffered another miscarriage of justice when he has been found innocent.


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