Hon Judith Collins

Minister of Justice

13 December 2012 Media Statement
Reports into Bain application released

Justice Minister Judith Collins has today released the reports by Canadian former judge Justice Ian Binnie, QC into David Bain’s application for compensation for wrongful conviction and imprisonment, and the Hon Dr Robert Fisher’s peer review of that report.

“Hon Dr Robert Fisher, QC has confirmed the report by former judge Justice Ian Binnie, QC 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.

“Given the high level of public and media interest in this issue, and to respond to Mr Bain’s supporters and Mr Binnie’s calls to release the reports, I have decided to make both reports public. I think this is also important in the interests of transparency of process,” Ms Collins said.

Examples of errors contained in Mr Binnie’s report are:

• In assessing Mr Bain’s innocence, and misconduct by authorities, Mr Binnie made fundamental errors of principle.

• Mr Binnie disregarded any item of evidence that did not prove a subsidiary fact on the balance of probabilities, contrary to New Zealand law. This meant he excluded significant evidence such as blood stains on Mr David Bain’s clothing, the broken glasses, Mr David Bain’s fingerprints on the rifle, Mr Robin Bain’s motive and mental stability, Mr David Bain’s post-event admissions, and Mr David Bain’s admission that he heard Laniet gurgling.

• Mr Binnie regarded the jury acquittal as something that was relevant to whether Mr Bain had proved his innocence.

• Mr Binnie accepted Mr Bain’s version of events without question, except where it directly contradicted other witnesses.

• Mr Binnie arrived at a provisional conclusion of innocence based on one item (luminol footprints), followed by a serial testing of that conclusion, instead of considering the cumulative effect of all evidence. This approach skewed the findings towards innocence.

• Mr Binnie’s approach was markedly generous to Mr Bain in its reliance on background facts sourced from him.

• Instead of requiring Mr Bain to satisfy him on the balance of probabilities, Mr Binnie imposed an onus on the Crown whenever the Crown suggested a factual possibility inconsistent with Mr Bain’s innocence.

• Mr Binnie relied on ‘innocent openness’ defences to turn incriminating admissions or clues into points thought to support Mr Bain’s genuineness and credibility.

• Mr Binnie went beyond his mandate. He did not have authority to conclude whether there were extraordinary circumstances, or make a recommendation on whether compensation should be paid.

• Instead of founding conclusions on the evidence available to him, Mr Binnie drew an adverse inference to the Crown where, in Mr Binnie’s view, the Police ought to have gone further in its investigations.

• In finding serious wrongdoing by authorities, Mr Binnie paid no regard for the need for an official admission or judicial finding of misconduct, and treated as ‘serious misconduct’ actions that were not deliberate, nor done in bad faith.

• Mr Binnie criticised named individuals without giving them the right to respond.

“I would like to thank Hon Dr Robert Fisher, QC for his peer review. The list of errors in Mr Binnie’s report is extensive, and according to Dr Fisher could be vulnerable to judicial review.

“Cabinet needs the best and most complete information to base its decision on and it is in Mr Bain’s interest to have his claim concluded as robustly as possible.

“This is a matter of justice that must be seen to be done, and justice must follow a fair and proper process.

“Cabinet will now consider both reports and will decide on the next steps in this process in the New Year.

“Ultimately, this review will not have an impact on Mr Bain’s claim, apart from causing an unfortunate delay to the decision Cabinet will make,” Ms Collins said.

Copies of reports and applicable correspondence will be available on the Ministry of Justice website at http://www.justice.govt.nz/media/in-focus/topic-library/David-Bain-reports at approximately 5pm today.

A further announcement on Mr Bain’s claim will be made in due course.

ENDS

Note:

Attached are:

• Justice Ian Binnie’s report 02_Justice_Binnies_amended_report.pdf.pdf

• Hon Dr Robert Fisher’s peer review Robert_Fisher_Report.pdf
[Update: Fisher report with request letter, terms of reference etc. (PDF)]

• Summary of key findings of Hon Dr Robert Fisher’s peer review Summary_of_key_findings_Hon_Dr_Robert_Fisher_QC.pdf

• CV Hon Dr Robert Fisher Robert_Fisher_CV.pdf

• Justice Binnie’s response to Robert Fisher’s peer review 07_Response_from_Justice_Binnie.pdf

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