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Bain's lawyer concerned about secret report

Tuesday 04 Dec 2012 8:22a.m.

Bain lawyer slams secret report

By Laura McQuillan and Dylan Moran

The Government faces accusations of a cover-up over its handling of David Bain's compensation claim, as Justice Minister Judith Collins seeks a second legal opinion over a retired judge's report.

Mr Bain spent 13 years behind bars for the 1994 murder of his parents and siblings, before his convictions were quashed by the Privy Council in 2007.

He was found not guilty at a retrial in 2009.

Retired Canadian Supreme Court Justice Ian Binnie delivered a report on Mr Bain's compensation claim to Ms Collins in September - and a leak suggests the report backs Mr Bain's innocence.

Despite this, Mr Bain’s lawyer Michael Reed, QC is still concerned with the report.

“Simon Power, the minister, said it would bring finality to the whole process. Now we have a secret process. We’ve asked the Minister what she’s doing… she won’t tell us,” he told Firstline this morning. “A secret process is never a fair process. It’s wrong and we object to it strongly.”

Ms Collins has asked former High Court judge Michael Fisher QC for a review of the report, with Prime Minister John Key telling media she "doesn't agree with, or at least has concerns about" a recommendation in it.

Labour's justice spokesman Charles Chauvel says the Government must make Justice Binnie's report public.

"The Government has made a rod for its own back by choosing to ask a judge from overseas to come and look at the case, and produce a long report at much expense to the taxpayer," Mr Chauvel told NZ Newswire.

"When you do that, I think you really have to follow the recommendations of the report unless they're plainly wrong, and there's no hint at that.

"I don't think the right avenue is to try to cover it up or to stop taxpayers who've paid for that report from seeing it and drawing their own conclusions - both about the substantive findings, and about any recommendations over compensation."

Bain’s lawyer says Justice Binnie interviewed police, spent an entire day cross-examining Bain himself and appeared to be very thorough in his actions - so cannot understand why a former High Court judge was asked to review Justice Binnie's report.

“It seems ridiculous, you spend half a million, you get one of the best top Supreme Court judges in the Commonwealth and then you get a retired High Court judge – which is nowhere near the level of a Supreme Court judge – to review him in secret. That’s wrong. Anything done in secret is never a fair process.”

The Government is under no obligation to compensate Mr Bain or even consider his claim because it falls outside of guidelines, due to him being acquitted at a retrial, but Cabinet has discretion to consider claims in extraordinary circumstances.

According to the formula used in its last compensation payment, Mr Bain stands to receive about $2 million for loss of liberty and livelihood, and emotional harm.

Mr Chauvel says the case adds weight to the idea of New Zealand establishing its own independent Criminal Cases Review Commission, like that in Britain, to assess compensation claims.

NZN