Bain compo recommended but Binnie report 'flawed'
David Bain's compensation bid has been crushed after Queen's Counsel Robert Fisher tore shreds out of Candian ex-judge's recommendations.
Justice Binnie concluded "it is more likely than not" that Mr Bain is "factually innocent" and that he should receive compensation for the wrongful 1995 conviction for the murders of his Dunedin family.
However, nowhere in Justice Binnie's amended report is a compensation figure suggested.
"It is my opinion that the egregious errors of the Dunedin Police that led directly to the wrongful conviction make it "in the interest of justice that compensation be paid".
But Mr Fisher QC, who was hired to carry out a peer review, has hit out at Justice Binnie saying he went "beyond his mandate."
Mr Fisher made a number of points criticising the initial report:
- Binnie went beyond his mandate. He did not have authority to express any conclusion on the question whether there were extraordinary circumstances such that compensation would be in the interests of justice. Nor was he invited to make any recommendation as to whether compensation should be paid. Those errors have been compounded by the publicity given to conclusions on matters which ought to have been for cabinet alone to decide.
- In assessing innocence Binnie made fundamental errors of principle.
- In assessing misconduct by authorities Binnie has also made fundamental errors of principle.
- The correct principles should now be applied to the evidence afresh. That is far from saying that a fresh assessment would produce any different outcome. It is perfectly possible that it would vindicate Binnie's conclusions.
- Binnie criticised named individuals without giving them adequate opportunity to respond. As it presently stands, the Binnie Report is vulnerable to judicial review by the named individuals. Steps should be taken to remedy that situation.
- On Tuesday, Ms Collins slammed Justice Binnie's report saying it appeared to contain assumptions based on incorrect facts and showed a misunderstanding of New Zealand law.
She said it also "lacked a robustness of reasoning used to justify its conclusions".
Ms Collins soon decided to seek advice on the report and ordered a peer review from Queen's Counsel Robert Fisher.
"When the Secretary for Justice and I met with Justice Binnie in September I made it clear to Justice Binnie there were concerns with the report he provided and it would be peer reviewed," Ms Collins said.
"Since then, I have received from Justice Binnie, unsolicited, two further versions of his report."
Justice Binnie was quick to reply to the criticism, launching an attack on the minister.
In a statement, he says the language of the release shows it to be a political document, which, given that the minister is engaged in a political exercise, is not surprising.
"The press release states that my report was referred to the Solicitor General for 'advice'.
"This makes it sound as though the Solicitor General is some sort of independent official whereas, in fact, his office attempted for almost 17 years to uphold a conviction of David Bain that New Zealand’s highest appeal court decided in 2007 was a miscarriage of justice – a conclusion reinforced by Mr Bain’s acquittal by a Christchurch jury in 2009."
Justice Binnie said it was unfair his report had not been shown to Mr 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.
Justice Binnie admits there might be plenty in his report which Mr Bain disagees with, because he hadn't seen the report, prior to its release.
In her press statement accompanying today's reports, Ms Collins said Mr Fisher's report confirmed the report by Justice Binnie is flawed and would not withstand scrutiny.
"Mr Bain has asked the government, on behalf of New Zealanders, to consider his claim for compensation.
"It would be unacceptable to me and unfair for New Zealand generally and for Mr Bain, to take a recommendation to cabinet for compensation based on a flawed report.