'End of the road' for Bain case

Regardless of how David Bain's claim for compensation has been handled, Cabinet's decision will be ''the end of the road'' in respect of the Bain murder case, a Dunedin law professor says.

University of Otago Faculty of Law dean Prof Mark Henaghan said there was no room for court involvement in what had been a political matter from the beginning.

Ultimately, Mr Bain had applied to the Government for compensation and it would be extremely unusual for any court to be involved, he said.

''Courts never interfere with decisions of Cabinet. It's the end of the road; there's nowhere you can go. You're putting yourself at the mercy of Government. Whenever ministers exercise power and authority you can challenge that, but I don't think, for example, David Bain or Joe Karam could sue the Government.

''They may be able to say the process was inappropriate and certainly people have differing views on that,'' he said.

Prof Henaghan said in contracting former Canadian judge Justice Ian Binnie to report on whether Mr Bain deserved compensation, the Government never committed itself to accepting or adopting any recommendation.

''The Binnie report could have been accepted and Cabinet not give compensation. It's not a legal process, it's totally a political process.''

Prof Henaghan's colleague, criminal law expert Prof Kevin Dawkins, said it was also unlikely those potentially defamed in Justice Binnie's report would seek judicial review because ''the mud has not stuck''.

Justice Binnie was criticised for making assertions and statements about some involved in the Bain case, including Dunedin police officers, without giving them an opportunity to respond.

New Zealand lawyer Robert Fisher QC and Justice Minister Judith Collins said that made Justice Binnie's report vulnerable to judicial review, which was a concern.

But Prof Dawkins said there was no significant remedy available through judicial review.

Both law professors said a further report in the case was likely, but finding an author would be difficult.

''Various commentators have queried whether you could get anybody from outside the New Zealand legal community to take on the job,'' Prof Dawkins said.

Whatever the Cabinet's decision, it would not set a precedent because claims for compensation were so infrequent and case-specific, Prof Henaghan said.

He found it ''somewhat sad'' Mr Bain's claim had prompted such a public and political debate, even before any decision had been made.

''It has become a farce almost, everyone's playing games and forgetting about the end result. But that is politics, it's brutal and this is a political process, we have to be realistic about that.''

The release of reports and other material this week at least provided transparency, he said.

Prof Henaghan did not envy Justice Binnie's position and suggested it would have been easier for a panel of two or three judges to examine the case and prepare a report.

''I can understand why the Government did it because everyone in New Zealand had an opinion on David Bain. But at least with a panel of judges they can reality-check each other and make sure they are not being influenced by one thing.''

He thought it ''correct in a sense'' for Ms Collins to have Dr Fisher peer review Justice Binnie's report, although that should never have been kept secret from Mr Bain and his legal team.

Having read both reports, Prof Henaghan said a main issue of concern with Justice Binnie's report was whether it relied on the onus of Mr Bain proving his innocence, rather than the Crown proving his guilt.

''In this case, it is not a criminal trial. If you are asking for compensation the onus is on you to prove you deserve it and that was one thing Robert Fisher was worried most about in respect of Justice Binnie's report.''

He thought Dr Fisher's recommendation to have a revised report drafted and opened for feedback from all involved was sensible, and anyone preparing such a report could at least benefit from Justice Binnie's ''thorough'' compiling of data.

Calls to Mr Bain's lawyer, Michael Reed QC, and Mr Karam were not returned yesterday.

Bain family members spoken to by the Otago Daily Times declined to comment, saying the release of reports did not change anything for the family, nor raise anything new.

- rosie.manins@odt.co.nz

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