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.
