Editorial: Bain compo case must be resolved

Last updated 13:00 17/12/2012

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OPINION: Judith Collins is not nicknamed "Crusher" simply for the alliteration, and the iron lady of New Zealand politics has long built a reputation as one who takes no prisoners. As a minister of the Crown, Ms Collins has a responsibility to act in the best interests of the New Zealand taxpayer - and avoiding a multimillion-dollar compo payout for David Bain would achieve that end, from a fiscal viewpoint at least.

As justice minister, she also is expected to uphold the principles that underpin this portfolio: Ideals such as fairness, impartiality and seeking the truth. In dismissing in cavalier fashion Canadian judge Ian Binnie's report into the Bain compensation claim, Ms Collins risks being accused of playing politics and showing bias.

Justice Binnie was appointed by Ms Collins' predecessor, the highly regarded Simon Power, in order to seek an objective assessment of a claim seen as problematic due to the way the Bain case has divided this country. He is an eminent international jurist, spent a year examining the case, and has been paid $400,000 or more for his labours.

Not satisfied with his report, Ms Collins has spent another $100,000 having it peer reviewed, this time by a New Zealand QC. Dr Robert Fisher listed nearly a dozen errors in the Binnie report and says the retired judge failed to understand some aspects of New Zealand law. Justice Binnie has defended his findings vigorously. What is left is an unseemly mess. Clearly, even more taxpayer money will have to be spent sorting it out. One difficulty will be in finding out who is best qualified, and prepared, to do so.

Presumably Justice Binnie was the best option available to Mr Power. Presumably he was well briefed on the relevant aspects of New Zealand law and in particular, the rules around compensation claims. Given the obvious requirement for an impartial and untainted approach, another international jurist will probably be needed to undertake a thorough review. The way Justice Binnie has been treated means the Government will find it that much harder to sign up an equally credible candidate.

It is worth remembering that Justice Binnie's report is not the only international assessment that has found against the Crown in this problematic case. In 2007, the Privy Council found there had been a substantial miscarriage of justice and ruled the Bain convictions should be quashed.

Mr Bain spent more than 13 prime years in prison and, if innocent, would be entitled to a significant amount of compensation - somewhere around $2 million is likely. If guilty, he is entitled to nothing. In the current stalemate, a report suggesting his innocence on the balance of probability has been discredited by the minister who must take his compo case to Cabinet. The errors she - a former vice-president of the New Zealand Law Society - and Dr Fisher have highlighted do not suggest he is guilty, however.

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All concerned - Justice Binnie, the Government, public, and in particular Mr Bain - will want to see the matter resolved quickly. Five people were shot dead near Dunedin in 1994, and all evidence suggests the killer was either David Bain or his father Robin. Justice is taking too long to be seen to be done.

- The Nelson Mail

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