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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 claims.
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 previous cases.
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.