Former Canadian judge Justice Ian Binnie revealed last
night he identified the failure of the Crown to preserve
evidence in the David Bain murder investigation as one of the
''extraordinary circumstances'' the Cabinet should take into
account in considering Mr Bain's compensation claim.
That is effectively a confirmation by him he has recommended
compensation should be paid.
Justice Binnie made the disclosure after seeing what Justice
Minister Judith Collins had cited in Parliament yesterday as
two alleged errors or misunderstandings of New Zealand law in
his report to her.
''As the minister feels free to comment on these two points
despite not revealing the report, I will do as well,'' he
said. When asked to identify the errors in the report, Ms
Collins told Parliament there were ''many examples'', but
''The first is in relying on incorrect understanding of what
has been given in evidence. In this case, Justice Binnie
asserts that a named scientist testified at the first trial
that he had chemically enhanced the prints and later sought
to resile from this.
Justice Ian Binnie
''A reference to chemical enhancement was an error on a
label attached to a fingerprint, and this was explained as such
by the named scientist at the retrial,'' Ms Collins said in
response to questions from Labour justice spokesman Charles
She said a second example related to assumptions as to the
correctness of submissions on the law.
''Justice Binnie appears to have assumed to be correct Mr
Karam's submission that the adverse inferences should be
drawn against the Crown case on the basis of evidence that is
no longer available.
''This is incompatible with the onus of proof being on Mr
Bain in this particular case because this is, in fact, a
request for Cabinet to use its discretion - and that's very
Justice Binnie responded in a statement: ''I mentioned the
failure to preserve evidence (and thus the inability of any
other expert to verify the primary evidence) as one of the
aggravating or `extraordinary circumstances' which the
minister's instructions asked me to identify as something the
Cabinet may want to consider in exercising its compensation
Neither Ms Collins nor Justice Binnie alluded to the actual
evidence to which they were referring, but a strong part of
the Bain case has been the police investigation and
destruction of evidence.
The controlled burning of the house and crime scene at Every
St in Dunedin on July 5, 1994 soon after David Bain's
parents, two sisters and a brother had been killed with a .22
rifle (June 20) destroyed much evidence, including the
footprints made by bloodied socks.
Justice Binnie's revelation last night caps an extraordinary
few days of clashes through the media between Ms Collins and
Justice Binnie, who was commissioned to investigate the
She criticised his report publicly as containing errors and
misunderstandings in an explanation of why she had sought a
peer review of it, but has refused to release the report.
But, in a lengthy rebuttal, issued from Geneva earlier
yesterday, Justice Binnie hit back at Ms Collins' criticisms.
''The language of the press release shows it to be a
political document which, given that the minister is engaged
in a political exercise, is not surprising. However, I
expected the minister to follow a fair and even-handed
process leading up to that political decision,'' he said.
Justice Binnie also said it was unfair his report had not
been shown to ''the party most directly affected'' - David
''The minister, of course, is free to seek advice wherever
she wants but if she wanted input from the actual parties to
the compensation inquiry (as distinguished from input from
her colleagues or other persons with no axe to grind) she
should surely have sought input from both sides. There may be
much in my report that Mr Bain disagrees with. He doesn't
know, because he hasn't seen it.''
New Zealanders had strong views about the David Bain case and
most would want his compensation claim for wrongful
conviction and imprisonment dealt with in an even-handed and
fair way, he added.
Justice Binnie was commissioned by former justice minister
Simon Power to investigate the claim for compensation, which,
if accepted, would be at least $2 million on the basis of
There is no obligation on the Cabinet to pay anything for
wrongful imprisonment, but the Cabinet has set itself
guidelines for applications. Mr Bain's case falls outside the
guidelines but there is a precedent for paying out in spite
of a case falling outside the guidelines in the case of
''extra circumstances'' - and that was explicitly part of
Justice Binnie's brief.
Ms Collins also told the House and reporters she was
considering releasing Justice Binnie's report and the peer
review of the report by former High Court judge Robert Fisher
before the Cabinet makes a decision.
She was considering whether it would be in David Bain's best