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.
Links:
[1] mailto:hamish.mcneilly@odt.co.nz