David Bain is anguished by the prospect of returning to court
to pursue a High Court claim against Justice Minister Judith
Collins, his long-term advocate Joe Karam says.
Mr Karam yesterday confirmed Mr Bain had filed a claim in the
High Court at Auckland seeking a judicial review of the
actions of the Justice Minister.
The claim concerns her actions after she received the report
from former Canadian Justice Ian Binnie, who found that on
the balance of probabilities Mr Bain was innocent, and the
process behind the report from Robert Fisher QC.
The minister released Justice Binnie's report and Dr Fisher's
peer review last month, which concluded the Binnie report was
fundamentally flawed. Mr Bain's claim includes allegations
the minister breached his right to natural justice, breached
his rights under he New Zealand Bill of Rights Act (1990),
acted in bad faith, abused her power, and acted in a biased,
unreasonable and predetermined manner.
In a statement, Ms Collins said Mr Bain's application fell
outside Cabinet guidelines and was at the discretion of
Cabinet.
''I have taken steps to ensure the process is fair and proper
throughout.
''Put simply, it would be unacceptable for Cabinet to base
its decision for compensation on an unsafe and flawed report.
That would not have resulted in justice for anyone, let alone
Mr Bain.
''Mr Bain has requested the Government put his application
for compensation on hold. This will result in further delay.
I am considering his request.''
She declined to comment further as the matter was before the
courts.
Mr Karam said last night the only person disadvantaged by a
delay in the compensation decision was Mr Bain, who had no
confidence his claim was being assessed in a fair manner.
''The reason he is being disadvantaged is because he is being
excluded from the process for the last six months. How could
justice have been better served by having David Bain
excluded?''Communication between the minister and the Bain
legal team was ''non-existent'', Mr Karam said.
''What we know about the process we only find out through
media releases. We have been completely sidelined, so how can
you have confidence in that process?''He said most civil
actions ended out of court. It was a ''last resort'' for Mr
Bain's team, and had anguished Mr Bain.
''He entered into this process in good faith and thought it
would be ended when Justice Binnie's report was filed and he
has had enough of courts, claims and inquiries and everything
else and just wants to get on with his life.''
Mr Bain had ''no hope'' of paying his legal team, which also
anguished him, he said.
His legal team had worked on a pro bono basis, but if the
hours had been charged since the application for compensation
was lodged in early 2010, the fee would be about $400,000.
''If the [judicial review application] goes all the way to
the Supreme Court, it will be another $400,000,'' Mr Karam
said.
''He just wants an end to it, and can't understand why the
Government doesn't want an end to it.''
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. An application for
compensation for wrongful conviction from Mr Bain was
received by former justice minister Simon Power in March
2010.
- hamish.mcneilly@odt.co.nz
