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 outlined two.
''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.
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 clearly wrong.''
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 discretion.''
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 compensation claim.
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 Bain.
''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 previous awards.
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 interests.
