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Bain judge hits back at Collins

Wednesday 12 Dec 2012 7:49 a.m.

By 3 News online staff

The internationally-respected former Canadian Supreme Court judge brought in by the Government to consider David Bain's compensation request has this morning sharply criticised Justice Minister Judith Collins.

Ms Collins yesterday revealed she has problems with Justice Binnie's findings, saying his report was fundamentally flawed, and she has referred it to a QC for a peer review.

She said Justice Binnie's report appeared to contain assumptions based on incorrect facts, and "lacked a robustness of reasoning used to justify its conclusions".

This morning, Justice Binnie's statement – posted on various websites, and sent to Ms Collins via email – says the Minister of Justice is talking politics rather than justice.

"David Bain is seeking a discretionary payment from Cabinet, and Cabinet is a political body that makes political decisions," writes Justice Binnie. "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."

He criticises Ms Collins' decision to send his report 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."

Justice Binnie says it's unfair for Ms Collins to not let Mr Bain's legal team see the report.

"There may be much in my report that Mr Bain disagrees with," he writes. "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."

Ms Collins also comes under fire for publicly criticising the report, while at the same time claiming it has to be kept private.

"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."

Justice Binnie recommends that Ms Collins releases the report so New Zealanders would "be in a position to judge for themselves" and Mr Bain would know what is being said about him.

He said he has no problem with his report undergoing peer review.

Ms Collins sought the advice of the Solicitor-General on the report in September, before asking lawyer Robert Fisher QC to review it.

GOVT ACCUSED OF DOUBLE STANDARD

Supporters of Mr Bain and his legal team are upset by these latest developments, as they are still yet to see Justice Binnie's original report.

"Say the report had gone against David Bain, would the minister have sent it to us and let us critique it and not given it to Crown Law?" Mr Bain's supporter Joe Karam told Firstline this morning. "Of course she wouldn’t."
Word of the pending review, to be carried out by former High Court Judge Michael Fisher, QC, first leaked a week ago.

"It seems ridiculous," Mr Bain's lawyer Michael Reed, QC, told Firstline last week. "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."

Mr Bain spent 13 years in jail before he was acquitted of his family's murder, putting him in line for an estimated payout of $2 million. It is up to Cabinet to decide whether to pay Mr Bain compensation.

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