Police reject Binnie's criticism of Dunedin staff

The ''egregious errors of Dunedin police'' led to the wrongful conviction of David Bain, who in the interest of justice deserved compensation, the former judge appointed to review his compensation claim concluded.

That report from former Canadian judge Justice Ian Binnie was released yesterday, alongside a peer review by New Zealand lawyer Robert Fisher QC, who concluded Justice Binnie's report was fundamentally flawed.

Justice Minister Judith Collins ordered the release of both reports and said the errors found in Justice Binnie's report were ''excessive'' and could be vulnerable to a judicial review.''

This is a matter of justice that must be seen to be done, and justice must follow a fair and proper process,'' she said.

Errors highlighted by Dr Fisher included Justice Binnie going beyond his mandate, particularly in criticising Dunedin police for their handling of the Bain case.

Justice Binnie said the police rushed to a premature decision, lost objectivity following the arrest of Mr Bain and destroyed evidence.''

They decided to announce that the case was solved and what remained to be done was for them to prove it.''

The state authorities, and in particular the Dunedin CIB, were seriously complicit in this miscarriage of justice,'' he said.

In response, Police Commissioner Peter Marshall issued a statement last night defending the police handling of the Bain case.

Mr Marshall said reviews of the 1994 investigation found it was conducted in accordance with the standards of the day.

''The Dunedin police were experienced officers,'' he said.

''They had dealt with the Aramoana tragedy, in which 13 adults and children were shot and killed, and had investigated two other familial homicides in close proximity to the Bain murders.

''This was a multiple homicide with a difficult scene.

''Reviews of that 1994 investigation found it was conducted in accordance with the standards of the day and without fear or favour.''

Some errors were made in the investigation and they had all been thoroughly traversed by the courts, he said.

This was one of the most scrutinised police investigations and cases in New Zealand.

''It has been through two High Courts, two Courts of Appeal and the Privy Council.

''No new points were raised by Justice Binnie that haven't already been extensively debated through the court process.''

In regard to Justice Binnie's opinion that police failed to investigate the possibility of innocence, he said police investigators worked on the weight of evidence.

''As the investigation progressed, the weight of evidence pointed to David as the killer. That evidence was put before the court,'' Mr Marshall said.

Dr Fisher also found Justice Binnie criticised named individuals, including Dunedin police officers, without giving them the opportunity to respond, which left his report vulnerable to judicial review.

He said Justice Binnie made ''fundamental errors of principle'', failed to understand New Zealand law, and excluded significant evidence such as bloodstains on David Bain's clothing and his fingerprints on a rifle.

''He excluded from further consideration a great deal of evidence that most people would have regarded as significant,'' Dr Fisher said.

In total, he identified five key areas of concern in Justice Binnie's report and recommended further steps be taken in order to resolve Mr Bain's compensation claim.

Dr Fisher said all documentary records in the case should be read and analysed, then a final draft report prepared and opened to feedback from those involved before being revised if necessary and sent to the justice minister.

Ms Collins said the Cabinet would consider both reports, but she warned an ''unfortunate delay'' could be expected.

Mr Bain was convicted in 1995 of murdering his family and spent 13 years in jail before being acquitted in a 2009 retrial.

The retrial came after the Privy Council in 2007 quashed his conviction after finding there had been a substantial miscarriage of justice.

Mr Bain's application for compensation for wrongful conviction was received by former justice minister Simon Power in March 2010.

In his report, Justice Binnie said he believed the evidence suggested ''it is more probable than not that Margaret Bain and three of the Bain children were killed by Robin Bain before he turned the gun on himself and committed suicide''.

Justice Binnie came to his conclusion after reviewing the case, and included interviews with Mr Bain in Auckland on July 23 this year, whom he found to be a ''credible witness''.

He urged the Cabinet not to view his recommendation then say to Mr Bain ''tough luck'' and ''move on''.

Mr Bain could be compensated almost $2 million for non-pecuniary losses such as liberty and emotional harm, and more for pecuniary losses such as loss of livelihood, for the almost 13 years he spent in prison.

Those figures were based on the formula the Cabinet used for non-pecuniary losses in its last compensation payment, made in April last year.

 

 

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