Editorial: An unseemly backtrack

19:00, Dec 04 2012

If the Binnie report is somehow too hot to handle then it is far too hot to mishandle.

Justice Minister Judith Collins has balked at something in the report by Canadian Supreme Court judge Justice Ian Binnie into whether David Bain should receive compensation for his nearly 13 years in jail. To answer whatever questions she might have about this report - widely understood to have been in Bain's favour - she has turned not to the author but to New Zealand's Robert Fisher, QC.

Ms Collins' decision to consult further might mean there's something iffy about the Binnie report. The far more vivid suspicion is that it's her own reaction that's dodgy.

Prime Minister John Key now finds himself giving far-from-reassuring assertions that by seeking a second opinion - taking a step or two down the Commonwealth's judicial hierarchy in the process - the Government isn't shopping around for some judge, any judge, that will tell it what it wants to hear.

David Bain spent nearly 13 years in jail for the murder of his family in Dunedin. Only then was the conviction overturned by the Privy Council as legally unsafe and a new trial ended with a not guilty verdict. Justice Binnie's brief was not just to read through the records of this fiercely controversial case but to interview key figures as well, and to apply a higher standard than whether Bain's guilt had been proven beyond reasonable doubt. For the purposes of compensation, he needed to be convinced on the balance of probabilities that the man was, in a word, innocent.

It has widely been reported that his report concludes exactly that. But now Ms Collins had held back from taking it to Cabinet for the final decision because she has, as Mr Key puts it, "some concerns, or at last some issues, that she wants to flesh out a bit more".


Can't say what, of course. Bain's lawyer Michael Reed casts this as a transparent inquiry now being dragged into the darkness of secret process.

One benign scenario is that perhaps the minister wants reassurances that no subtle distinctions between Canadian and New Zealand legal perspectives have gone unrecognised. After all, a key reason we now have our own Supreme Court is that the Privy Council sent out the message that with all due respect to Commonwealth commonalities, ours was a society with its own social and legal characteristics about which they were not necessarily sufficiently expert. But the trouble with this, of course, is that it suggests that the decision to bring Justice Binnie into the role in the first place was a serious mistake on former minister Simon Power's part. At the time, it was regarded as necessary for the required level of independence.

The prospect that it's a duff report will strike many as altogether less plausible than that it's a mightily discomforting one, scathing of the competence, if not the ethics, of the police, or the Justice Ministry, or both, and that the Government wouldn't mind dampening down the fire by adding a potentially contradictory view.

That would be not only a sorry case of self-serving meddling, but an obvious and shabby one.

The nation is divided on Bain's guilt, so whatever decision Cabinet makes on compensation will be controversial. But now there's this secondary matter; is the Government trying to subvert the report of a respected expert whose conclusions are unwelcome. If not, it needs to convince us. And there's no doubt whatsoever where the burden of proof lies.

The Southland Times