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Justice Binnie’s report 'markedly generous' to Bain

Thursday 13 Dec 2012 2:56 p.m.

By Angela Beswick and Lloyd Burr

A former Supreme Court judge’s report into David Bain’s compensation claim concluded he should be paid out by the Government for his time spent in prison.

In his report, Justice Ian Binnie said acts and omissions of the Dunedin police played a significant part in Mr Bain’s arrest. However, Justice Minister Judith Collins says his report is simply not credible.

Ms Collins has this afternoon released two reports into Mr Bain’s compensation claim.

The first report is that of retired Canadian Supreme Court judge Ian Binnie. The second, a peer-reviewed version of the original, requested by Ms Collins after alleged discrepancies in Justice Binnie’s findings.

FULL REPORTS

“I told Mr Binnie that I had decided to have this matter peer reviewed and he did not like that, actually,” she said.

At a press conference this afternoon, Ms Collins said Justice Binnie went far beyond his mandate and Robert Fischer QC had identified an “extensive” list of errors in his report.

"Mr Binnie made fundamental errors of principle," she said.

“[His] approach was markedly generous to Mr Bain in its reliance on background facts sourced from him.”

Ms Collins said she could not put the report before Cabinet because of the errors.

"It would be unacceptable for me and unfair for New Zealand generally and for Mr Bain, to take a recommendation to Cabinet for compensation based on a flawed report.

"It would have been so much better if Mr Binnie's report was of better quality. If it was clearly one I could rely on, I would have put it to Cabinet,” she said.

She would not rule out getting another report on Mr Bain's compensation.

"Do you think it's fair for me today to be making such decisions? No," she says.

“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.”

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.

Cabinet will now consider both reports and will decide on the next steps in this process in the New Year, Ms Collins said.

“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.”

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