The tangled decision on whether David Bain should receive
compensation for the time he spent in prison is set to play
out into next year, with no guarantee it will end there.
Justice Minister Judith Collins was scathing this week of a
report by a senior Canadian judge on Mr Bain's claim for
compensation for wrongful imprisonment. She said the report -
which reportedly cost the Government about $400,000 - by
Justice Binnie contained assumptions based on incorrect facts
and a misunderstanding of New Zealand law. The minister was
concerned by some aspects of the report and after advice from
the Solicitor-general decided it should be reviewed. Ms
Collins said she made it clear to Justice Binnie in September
there were concerns with his report and it would be peer
reviewed. Her concerns also included that the report lacked a
robustness of reasoning used to justify its conclusions.
The decision to have the report peer reviewed was not one she
made lightly but one that was absolutely necessary, she said.
It would not be acceptable to make a recommendation to
Cabinet based on a report that would not withstand the
considerable scrutiny it would attract. The minister has
attracted criticism for her decision to not release Justice
Binnie's report. Ms Collins maintains that when she and the
Secretary for Justice met him in September she made clear
there were concerns with the report and she had advised him
it must remain confidential because it would be premature to
release it until Cabinet had made a decision on Mr Bain's
Unusually, it seems, Justice Binnie subsequently sent two
unsolicited further versions of his report to Ms Collins -
for which he would not be paid, the minister said. Ms Collins
yesterday promised to release parts of the report as soon as
she can. Mr Bain is seeking compensation for wrongful
conviction and imprisonment over the 1994 killing of his
parents, brother and two sisters in Dunedin. After his
initial conviction, former All Black Joe Karam campaigned for
Mr Bain, including taking a case to the Privy Council which
quashed his convictions in 2007 and ordered a retrial. Mr
Bain was acquitted after a retrial in 2009.
In September this year, The New Zealand Herald reported
Justice Binnie had delivered his confidential report to the
Government concluding that, on balance of probabilities, Mr
Bain was innocent of the 1994 murders. Cabinet has no
obligation to follow the compensation recommendation, but if
it does the payout could be at least $2 million, based on
University of Canterbury law professor Chris Gallavin said
paying compensation was a difficult issue for the Government,
given the polarising nature of the case. For many people the
thought of Mr Bain getting compensation would be a difficult
sell for the Government, Prof Gallavin said. Ms Collins has
called in Robert Fisher QC to peer review the Binnie report.
The Bain case still haunts many people in our community, and
in others around the country. If there are errors within the
report, these must be identified, investigated and remedied.
But it must also be explained to the public why Justice
Binnie spent so long on this important claim, only to
apparently get it wrong. Mr Fisher is expected to provide his
peer review to the minister within the next few days. It will
then be forwarded to Justice Binnie for his comment. When Ms
Collins hears back from Justice Binnie, she will take a
recommendation to Cabinet on the next steps.
Mr Bain's legal team is understandably upset with the delay.
And there is no doubt the latest speculation, innuendo and
debate around the matter does raise suspicions. It is also
yet another poor look in what has been a tough year for the
Government. However, it is in the best interests of the
country - and Mr Bain especially - that the final remedy is
beyond reproach. There has been an assurance from Ms Collins
that the review will not have an impact on Mr Bain's claim,
apart from causing an unfortunate delay. For everyone
concerned, let us hope that is the case.