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Binnie blitzes Collins over Bain report

The gloves are off in the David Bain compensation case and the main protagonists are now in full attack mode.

Retired Canadian Justice Ian Binnie has launched a scathing broadside at Justice Minister Judith Collins, stung by her trenchant criticism of his still-secret report on Mr Bain.

His comments have upped the ante in what appears to be an unprecedented international legal fracas.

Ms Collins said his report – which Ms Colllins has yet to publicly release – appeared to contain assumptions based on incorrect facts and showed a misunderstanding of New Zealand law, something which drove her to engage Queen’s Counsel Robert Fisher to conduct a peer review of it.

In a statement to all New Zealand news media Justice Binnie, who is currently attending a meeting of the International Commission of Jurists in Geneva, says:

“The language of (Ms Collins') 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 hand process leading up to the political decision.

“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.

“The Solicitor General was and remains part of the prosecutorial team.”

Justice Binnie said it was unfair that 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.

“I appreciate that New Zealanders have strong views about the Bain case, which is why, as an outsider, I was mandated by a previous Minister of Justice to have a look at it.

“However, I would think most New Zealanders, whatever their views of the merits of David Bain’s claim, would want it dealt with in an even handed and fair process.”

In response to claims his report contained assumptions based on incorrect facts and a misunderstanding of New Zealand law, Justice Binnie said he received “very able input from a distinguished and totally independent New Zealand lawyer, who is identified in my report”.

NBR ONLINE has sought comment from Ms Collins about Justice Binnie’s statement and is awaiting her response.

An Official Information Act request seeking a copy of the Binnie report and the Fisher peer review has also been made.


RAW DATA

The full text of Justice Binnie’s statement is as follows:

“I have just received a copy of the press release dated 11 December from the Minister's office plus numerous e-mail media inquiries. As I am presently in Geneva at a meeting of the International Commission of Jurists, the time difference between Switzerland and New Zealand, (as well as the logistics of responding to the number of different journalists who have made contact), make it more efficient to answer your inquiries collectively rather than individually. I have not discussed the Bain matter with the media since my appointment in November 2011 (apart from an early letter to a newspaper about a patently absurd reporter's comment) but the Minister's press release requires a response. This e-mail is copied to the Minister's office, as well as to the parties to the "compo inquiry"

1. No, I was not forewarned that the Minister intended to issue the press release and had no advance notice of its contents.

2. The press release refers to "robustness of reasoning" which seems to be code for "reasoning" that supports the Minister's preferred disposition of the Bain claim.

3. 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. David Bain is seeking a discretionary payment from Cabinet and Cabinet is a political body that makes political decisions. However I expected the Minister to follow a fair and even handed process leading up to that political decision. She is, after all, the Minister of Justice. The purpose of this e'mail is to give people the facts to enable them to determine for themselves whether or not the process has been even-handed.

4. 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. The Solicitor General was and remains part of the prosecutorial team. The opposing parties in the compensation inquiry were David Bain and the Crown Law Office. At a January 2012 meeting held at the Ministry of Justice for me to obtain the views of the Crown Law Office as to how the inquiry should proceed (a similar meeting was held with the Bain people) I was introduced to the then Solicitor General, David Collins, who had unsuccessfully argued the case against David Bain before the Judicial Committee of the Privy Council. He was not, and did not pretend to be, independent. For present purposes the Solicitor General is equivalent to the Crown Law Office.

5. It is a curious feature of this case that all of the "external" judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain's guilt. By far the most prominent, of course, were the five judges of the Judicial Committee of the Privy Council, which reversed the Court of Appeal's decision in 2003 that no miscarriage of justice had occurred. In that appeal, too, David Bain's arguments were dismissed by the Solicitor General as based on incorrect facts and a misapprehension of New Zealand law. The Privy Council judgment was authored by Lord Thomas Bingham, generally regarded as one of the brightest and best judges produced by the common law world since the Second World War. In a much more modest capacity, as a retired judge of the Supreme Court of Canada, I too have expressed views on the respective merits of the case of Mr Bain and the Crown. People are free to disagree with my views (as they are free to disagree with the views of the Privy Council and the 2009 Christchurch jury), but it is no disrespect to the able Hon Robert Fisher QC to note that the Minister is keen to repatriate the Bain case to her home turf.

6. The press release does not state whether my Report has also been given to the police, but I gather that it was, and in any event the mandate of the Crown Law Office, as well as the Solicitor General, has been to speak up for the police in this case, and it is understood that they will continue to do so. This is all very well except that the only interested party who has so far been denied a look at my report is the party most directly affected, namely David Bain.

7. 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. It is a bit like an appeal process where one side is invited to discuss the case with the REAL decision maker "on appeal" but the claimant is left outside in the dark -- not only not knowing what his opponent of 17 years is saying but not even knowing the content of the report that is under discussion. This seems to me unfair.

8. I appreciate that New Zealanders have strong views about the Bain case (which is why, as an outsider, I was mandated by a previous Minister of Justice to have a look at it) -- however I would think most New Zealanders, whatever their views of the merits of David Bain's claim, would want it dealt with in an even handed and fair process.

9. The press release states that the Minister raised "concerns" about "some aspects" of the Report at our meeting on September 13. The press release then says she subsequently received "unsolicited, two further versions of his Report". In the same paragraph of the press release she insists that my "Report must remain confidential". I am not at liberty, the Minister says, to identify the very minor changes in the Report made in response to her "concerns". Of course if she did not want a response to her "concerns" raised on September 13 she should have said so. My previous experience at the bar since 1967 is that when clients raise questions they want responses. The minor changes I made to the original document occupy no more than a couple of pages of a lengthy Report and are identified in the two accompanying letters to the Minister.

10. The Minister seems to have a curiously one-sided view of "confidentiality”. She feels free to criticize my Report while claiming in the same press release that the Report is covered by solicitor client privilege and, therefore, I am not to disclose the obvious responses to her criticisms by releasing the Report. (My own view is that the privilege was waived but that is not an issue I care to pursue)

11. In particular, the press release quotes the Minister as claiming my Report contains certain unidentified " assumptions based on (unidentified) incorrect facts" demonstrating some (also unidentified) "misunderstanding of New Zealand law" -- despite the fact that at all times I had the very able input from a distinguished and totally independent New Zealand lawyer (who is identified in my Report). Whatever else New Zealand law states, it is certainly well established that it is most improper for "a client" -- especially a legally trained client -- to attack publicly a lawyer's advice while simultaneously claiming privilege to protect from disclosure the advice that is being attacked. I would expect that the Minister, as a former Auckland tax lawyer, would be well aware of this principle.

12. If the Minister would release the Report New Zealanders would be in a position to judge for themselves the merits of the Minister's press release. The present orchestrations by the Minister would then become unnecessary. Mr Bain would know what is being said about him. The playing field would be at least partially rebalanced.

13. I met with the Minister on September 13. The press release says that even at that time the Minister had decided on a "peer review". I certainly have no objection to peer review. The press release states that the matter was then referred to Hon Robert Fisher QC for his opinion. When I was appointed the Minister was careful to disclose at the outset all of the documents and other material provided to me for my consideration. I would have expected the same level of disclosure to apply in the case of Mr Fisher, especially disclosure of material that has come into existence since delivery of my Report, including the comments of the Solicitor General.

14. The press release says that I will be given an opportunity to respond to Mr Fishers' opinion. I certainly expect that my response will be published as well.”

rvaughan@nbr.co.nz

More by Rod Vaughan

Comments and questions
43

I understand Justice Binnie is world class and perhaps better than anyone NZ has access to since the stupid decision to remove us from the Privy Council. I have an opinion regards Bain and the thought of him gaining money (as well as release from prison). I find ... well, I prefer not to go there.
I consider the government is caught in a bind and this aggressive rhetoric unbecoming. I think most understand that the system has delivered a 'damned if we do or don't', so just get on with it, as unpalatable as that may be.

This reply says it all really.

Well. The shameless travesty of justice and incompetence that Judith Collins is pushing.

Publish the Binnie report immediately, both to David Bain and the public.

Shame on Ms Collins. If Simon Power were still in charge, there is no way this circus would be happening.

Agreed. There is no place in the National Party for a person of principle.

What is it about this government that makes them so incompetent in matters of law and justice? First the Dotcom fiasco. But that wasn't enough to make us look like a bunch of morons on the international stage, oh no! We needed, apparently, to remove all doubt about our stupidity for the international audience. How embarassing! I'm a bit of a Key and National fan but they appear to be well off track on matters of law and justice.

Arrogance, a lack of respect for New Zealanders and perhaps an underlying institutional dishonesty?

How about populism and an obsession with issue management instead of any coherent vision.

I don't think any of our politician are guilty of this charge - OK, maybe Hone, but that's all. Other than him, I do believe they do their best. But in the law/justice space, this government's best doesn't appear to be good enough ... also reflected in their handling (or NOT handling) of the Law Commission's recomendations on alcohol law reform, which is just plain pathetic and incompetent.

What a pathetic spoilt child response from Collins.

The NZ public wants transparency in ALL decisions made by this and any government that is elected to carry out the wishes of the people of New Zealand, rather than the total obfuscation we are currently being forced, largely by the complicit and embedded mainstream media broadcasters, to endure.

Time the minister was sacked, along with all those involved in this massive miscarriage of justice. It makes me sick to think I am a Kiwi and this sort of rort still goes on in what is supposed to be a civilised country.
It appears to me this case went down the same lines as the Arthur Thomas case ... very one-sided and corrupt.

I don't think Bain deserves compensation, but this shows poor judgment by Collins and really doesn't paint NZ government decision making in a good light. She needs to hand the process off to someone else in cabinet (Finlayson?), and then that person can decide whether to continue, start over or some other option.

Finlayson was involved in the original prosecution. In my opinion he is part of the problem. Ego about overturning a verdict makes them look stupid.

Are you sure about that? Wasn't he a partner at Bell Gully back then?

#4...and I suppose you wouldn't want compensation for having being jailed for years wrongfully after a miscarriage of justice?

This deserves a complaint to the Law Society. Collins still holds a practicing certificate. But it also shows how out of touch the Solicitor General is - he believes he has no conflict here and can give a peer review. And, sadly, it shows an expectation from the politicians that our judiciary act to satisfy political whim.

Can anyone here imagine a New Zealand judge having the nuts to speak out the way Binnie has?

It appears that the minister's press release breaks some sort of code of etiquette which seems to have prompted this distinguished jurist to call Mr Frank.
It's unfortunate that the traditional restraint between the judiciary and the executive appears to be at risk of unraveling here.
The Bain case will pay for itself in an opportunity to reacquaint ourselves with critical constitutional tradition.

Only with a National government. Try it with a Labour governemnt and Comrade Auntie would have had all manner of sedition laws thrown at you. Just look at what they did to the police driver during the speedgate fiasco.

Judith Collins shouldn't be too fazed by retired Canadian Justice Ian Binnie's broadsides. We all know that, when it comes to judges, the greater the acclaim, the greater is their sense of infallibility (and attendant conceits).
Remember: Justice Peter Mahon got it so, badly, wrong.

But this kind of misses the point doesn't it?

Actually, Justice Mahon didn't get it wrong.

A Captain is a captain is a captain..........but Mahon figured someone else caused the crash.

I wonder who Mahon would have blamed for the Italian boat crash?

How sad for this small country. Pity we don't have more like Binnie here to compensate for our shortcomings.

Small country? We don't need the cringe thanks.

Is this guy French Canadian?

Good point. The Rainbow Warrior saga, still, sticks in the Frenchies' craw.

Quebec is not France.... I doubt that the Rainbow Warrior is even in the consciousness of most Canadians, and if it is, many are reflexively pro-environmentalists (I'm Canadian)

We had the chance to put the Bain case to bed before Christmas now it appears that we will start the New Year with it. Collins' PR team have failed.

Justice while she winks at crimes, Stumbles on innocence sometimes.

We do things differently here in New Zealand than they do in Canada. Read into this comment what you want.

The only miscarriage of justice here was the retrial which was no more than a feelgood cheerfest for David Bain, turned into a complete farce by the ineptitude of the jury who clearly were not listening to the evidence.

This latest affair clearly shows the arrogance of this administration which is beyond its use-by date.
liberte

Collins is trying to be a hero and save the country a few million in compo for David Bain. No doubt Billie boy is in her corner egging her one, and Johno will be happy that collins is doing her bit to help bring us back to surplus by 2014.

This is just prolonging the inevitable. No doubt the report is damning and the government is being told he deserves compo. Give him the damn money and move on! Let David get on with his life in piece and quiet and let the whole sorry saga go out with a bit of dignity.

We still operate under the guise of British common law and justice as do the Canadians.
The point is that David Bain whatever crime she has committed - wearing dreadful jersey's being the most insidious was found NOT GUILTY. Whateever we all think. Therefore he should be compensated for the time he was in prisoned wronfully. At 40K per year he should be compensated for around 650,000.
Obviously, the minister can't see past the fact that we got it wrong.
For every action there is a consequence and this si the consequence.
Pay up, Crusher.

How many times do we have to put up with the cops getting it wrong, the courts getting it wrong and the judges and pollies getting it wrong? Arthur Allan Thomas comes to mind. Peter Ellis. David Bain and now Kim Dotcom.
Our police, spy agencies and courts are the laughing stock of all of us who can see through their obvious negligence, incompetence and arrogant attitudes, the latest being this primary school-type rubbish issued by our minister of, ahemmmm, justice.
It's time for a vote of no confidence on all counts and a complete rethink of a system that is out of control ... a system that sucks up to the world police like it's some kind of god ... a system that is looking more and more like a despotic state, ruling with arrogant disregard for its citizens.

It says a lot this display of arrogance by a "justice" minister.

It says a lot this display of arrogance by a "justice" minister.

The source of the problem is incompetence in the NZ judiciary.

Binnie's statement, reproduced above, is the best evidence so far supporting Judith Collins stance. In it, he quite clearly demonstrates a lack of understanding of the law and the facts.

In paragraph 4 he states that the decision of the Privy Council that there had been a miscarriage of justice was reinforced by the verdict in the 2009 retrial. I am astounded that he would make such a statement.

The acquittal did not reinforce the conclusion of the Privy Council. The Privy Council was at pains to say that it did not have an opinion as to whether Bain was guilty or not. In NZ, the term miscarriage of justice refers to the process, not the outcome. You can have a trial which is found to have been a miscarriage of justice, but which still reaches the right result.

Binnie has demonstrated in his statement that he does not understand the meaning of the term miscarriage of justice, nor doe he understand the PC decision. He has also demonstrated a failure to understand the 2009 jury’s verdict. His statement quite clearly demonstrates a belief that the not guilty verdict equates to a finding of innocence.

Then in paragraph 5 he states that “all of the “external” judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain’s guilt”. Again, a mistake that goes to the very heart of his integrity.

The PC made no judgment on David Bain’s guilt. Their judgment states “In closing, the Board wishes to emphasise, as it hopes is clear, that its decision imports no view whatever on the proper outcome of a retrial”.

Collins doesn’t have to release the report now. Binnie, by his own statements, has vindicated everything she has said about the report.

Justice Binnie's comment in paragraph 5 was that the external judges rejected the arguments of the Solicitor General and Crown Law Office regarding David Bains' guilt. Justice Binnie says the externals rejected the arguments about David Bain's guilt. Justice Binnie does not say they rejected David Bain's guilt. The arguments about the guilt were rejected - that is the PC said "Your argument is flawed". The PC did not draw conclusions beyond that. Justice Binnie's comment is not wrong.

It's time we name it as the New Zealand Provincial Government.
Utter n00bs.

Labour 1999 to 2008 vs. National 2008 to....look, what's the ruddy difference?

Fisher's peer review makes for interesting reading. I am not a National supporter, but go Judith. Binnie has failed miserably IMO.