Collins, judge feud over Bain

Last updated 05:00 13/12/2012
judith collins
Fairfax NZ
JUDITH COLLINS: Justice Minister.
Retired Canadian Supreme Court judge Ian Binnie.
REPORT AUTHOR: Retired Canadian Supreme Court judge Ian Binnie.

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The gloves are off in a bitter spat between Justice Minister Judith Collins and retired Canadian judge Ian Binnie over the David Bain compensation report.

In a verbal sparring match one observer described as "unprecedented", the pair publicly traded blows yesterday over what was in Mr Binnie's September report on the compensation bid.

He had concluded Mr Bain was innocent on the balance of probabilities of the murder of his parents, two sisters and brother in Dunedin in 1994.

Ms Collins says Mr Binnie made "significant errors", misinterpreted evidence and went "well beyond" his terms of reference. She has asked for his report to be peer-reviewed by New Zealand lawyer Robert Fisher, which she is due to receive today.

She said Mr Binnie made assertions about witnesses in the report - and did not give them a chance to respond.

"When it comes to Justice Binnie, I'm not at all impugning his integrity," she insisted.

Mr Binnie bit back at the criticism. In a press release issued from Switzerland yesterday morning, he accused Ms Collins of playing politics with the report.

The respected international judge - who was paid about $400,000 by the Government for his work - said Mr Bain was entitled to see his findings.

"It is a curious feature of this case that all of the ‘external' judges who have looked at the record of the case have rejected the arguments of the solicitor-general and the Crown Law Office regarding David Bain's guilt," Mr Binnie said. In a stinging swipe at Ms Collins, he said it was improper for a client to publicly attack a lawyer's advice.

"I would expect that the minister, as a former Auckland tax lawyer, would be well aware of this principle."

Ms Collins used question time in Parliament to continue her critique of his work. She said he made errors about fingerprint evidence and was wrong to rely on elements of Mr Bain's defence as fact.

Within hours, Mr Binnie took to the airwaves to say "all I ask is that she stop talking about it".

"I was extremely surprised to hear her comments given that she insisted my report was confidential," he told Radio New Zealand. "It's catch-22.

"She can apparently declare open season on the report and yet claim that I can't release the report."

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He said she waived privilege with her actions and it was unfair not to disclose his findings to Mr Bain when she had shown the report to Crown lawyers.

But Mr Binnie said he would not release it. "I think she is wrong in doing what she has done . . . I'm not about to multiply the wrong."

Ms Collins also turned her wrath on Michael Reed, QC, Mr Bain's lawyer, who said the minister just did not like what the report concluded.

"Mr Reed is quite wrong. Mr Reed is, in fact, impugning my honesty, integrity."

He "should know better", she said.

The minister was likely to release both reports by the end of the week.

"There is no point having a report with significant errors through it . . . that's not going to help David Bain."

Mr Bain is seeking compensation for the almost 13 years he spent in jail after being convicted in May 1995. He was acquitted at a retrial in 2009 and could get about $2 million but the Government is not obliged to pay compensation.

Otago University law professor Andrew Geddis said the David Bain case had captured the public attention - and any errors were bound to be seized on.

"New Zealand seems to be a country of amateur Bain-ologists . . . the evidence is such a long and complicated trail spread over two trials, I wonder if it's possible to write a report that gets everything spot-on."

Politicians had chosen to make the decision on compensation "a political call".

"That means the usual rules of respect between the judicial and the legal branch don't really apply here so strongly," Prof Geddis said.

- The Dominion Post

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