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Bain report: Justice Ian Binnie response to Judith Collins

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 email 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.


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