"Fatally Flawed": Collins on Binnie Report
Press Conference - 13 December 2012
By Mark P. Williams
Today the Justice Minister Judith Collins released the report on the David Bain case by Canadian former Justice Ian Binnie QC and the Hon. Dr Robert Fisher's peer review of that report. She described Justice Binnie's report in no uncertain terms as "fatally flawed" and indicated that it was unfit to be used to make a determination on Mr Bain's possible rights for compensation. She said that Dr Fisher's report confirmed that Justice Binnie's report was flawed and would not withstand scrutiny.
She said that there were many "serious" and "fundamental errors of principle" in the whole report. She highlighted specific instances relating to the appearance and size of footprints as evidence of bias in favour of David Bain in Justice Ian Binnie's approach, and claimed that Mr Binnie accepted Mr Bain's version of events at face value. She also criticised Mr Binnie for criticising named individuals without giving them opportunity to respond and said that Mr Binnie had gone far beyond his remit.
Ms Collins said that the list of errors in Mr Binnie's report was so "extensive" that it would have led to a judicial review. She added that cabinet will now consider both reports and decide on its next steps in the New Year. She then took questions from the press.
Ms Collins was asked whether a new report was now needed. She responded that a review was needed, whether or not it would start afresh was yet to be determined.
Ms Collins was asked why she would not simply make a settlement. Ms Collins responded that money and expense were not the issue, saying that her concern was to be certain that justice was done.
Ms Collins was asked what, in layman's terms, was, in her view, wrong with Justice Binnie's report. She responded that it was "so fundamentally flawed" and its whole basis "so outside the terms of reference" that it is "simply not credible". She said that the report did not place the onus on the defendant to prove their innocence "beyond reasonable doubt" or "on the balance of credibility", but rather placed the onus on the Crown. She said that she believed Mr Binnie to have "done his best" but the result was so flawed that it was simply not a report that she could have put forward.
Ms Collins was asked what was specifically wrong. She responded that the problem was that the report took the position that the second finding of "not guilty" essentially demonstrated innocence and fitted its responses to that assumption.
Ms Collins was asked whether it was possible that a more extensive review could be undertaken. Ms Collins said that it was not something that she would make a judgment on but that it was a question that needed to be put to cabinet.
Ms Collins was asked why she felt that such a senior jurist could have got it so wrong, and whether he could have been "captured" by "the Bain camp". She said that this was a matter for others to assess and simply said that she was concerned and that her concerns have been borne out by the peer review.
Ms Collins was asked about the remit of Mr Justice Binnie's report. She responded that he had gone well beyond the brief he was given by her predecessor Simon Power, saying that Mr Binnie had been specifically asked not to make a recommendation as to whether or not compensation could be paid and whether or not there were areas that cabinet could consider to be extraordinary circumstances. She referred the press to the Ministry website.
Ms Collins was asked whether she had spelled out her concerns to Mr Justice Binnie. She said that she had told Mr Binnie that she had determined that his report would be peer reviewed, and that he had not been happy about it.
Ms Collins was asked if there was any suggestion that the "Bain team" had acted improperly. She responded that there was no suggestion of that in either report.
Ms Collins was asked whether there was any suggestion that Crown Law had failed to put up a decent argument in their case. She said not.
Ms Collins was asked whether Mr Binnie had criticised the Police in his report and whether that was fair or unfair. She responded that she felt that it was important when criticising anyone or any institution, particularly named individuals, it was important to offer them an opportunity to respond, adding that Mr Binnie's response was also being released on the website.
Ms Collins was asked whether she would be ordering another report. She responded that it was something she would be putting to cabinet but would not be making a judgment on it today.
Ms Collins was asked how much the Fisher report had cost. She replied that it had cost over $100,000 to date but that natural justice was the more important concern than the monetary cost of the proceedings.
Ms Collins was asked whether she had an opinion on the case. She responded that she had no personal view on the case herself and was only interested in seeing it concluded properly.
Ms Collins was asked what she thought of Mr Binnie's comments to her by email. She responded that his email "speaks for itself".
Ms Collins was asked whether cabinet would now take responsibility for taking on someone who was simply not up to the job. She responded that on the evidence that her predecessor had about Mr Binnie's competence there was nothing to suggest that there would be a problem.