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
