Bain report's author takes aim at minister
A retired Canadian judge has issued a scathing response to the justice minister's claims that his report into David Bain's compensation bid contained "assumptions based on incorrect facts".
Justice Ian Binnie made his response a day after Judith Collins publicly announced that she thought his report was flawed.
Her decision to have it peer reviewed by the Solicitor General was a political decision, Binnie said, and essentially the same as sending it to the Crown Law Office.
It was a "curious feature" of the Bain case that all "external" judges who have looked at the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain's guilt, Binnie said.
"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", he said.
"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."
Binnie says Bain is the only relevant party who has not seen the report, yet is the party most directly affected.
"There may be much in my report that Mr Bain disagrees with. He doesn't know because he hasn't seen it," Binnie said.
"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," Binnie said.
"This seems to me unfair."
Binnie was not forewarned that the minister would be issuing a press release on her decision to have his report reviewed and said it was improper for her to publicly attack another lawyer's advice.
"I expected the minister to follow a fair and even handed process leading up to that political decision," he said. "She is, after all, the Minister of Justice."
It is understood Binnie's report supports compensation for Bain, who was wrongfully convicted and imprisoned over the 1994 killings of his parents, brother and two sisters.
Collins said yesterday that the report, which Binnie was commissioned to write by her predecessor, showed a misunderstanding of New Zealand law and lacked a robustness of reasoning used to justify its conclusions.
She has referred Judge Binnie's report to the Solicitor General because of concerns she has but says she did not take the decision to have it peer reviewed lightly.
Binnie questioned the merits of Collins' words, which he also said showed her "preferred disposition of the Bain claim".
He called on her to release the report publicly so New Zealanders could judge for themselves.
Binnie also said the minister had "a curiously one-sided view of 'confidentiality'," by criticising his report at the same time as saying that it was covered by solicitor-client privilege.
Collins also slated Binnie's understanding 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," Binnie said.
Collins has said she should receive the Solicitor General's peer review this week and would forward it to Binnie for his comment.
"When I hear back from Justice Binnie, I will take a recommendation to Cabinet on the next steps."
The review would not have an impact on Bain's claim other than to delay it, Collins said.
- © Fairfax NZ News
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