OPINION: As we near the end of 2012, it is natural to cast our thoughts towards some unfinished business.
It is an issue that doesn't affect us directly, but the unease increasingly gathering over the treatment of David Bain is something that offends the concepts of fairness and justice.
Irrespective of whether anyone thinks Mr Bain is innocent or guilty, the matter of his compensation needs to be resolved. The debate has moved on from the trials and is now firmly focused on the process.
After years of battling what his legal team and indefatigable campaigner Joe Karam believed was an injustice, they finally got the chance for a retrial after the Privy Council agreed with them.
As we all now know, Mr Bain was acquitted of the murder of his parents and siblings and, after more than 13 years in jail, was a free man. The focus then quickly shifted to one of compensation.
Here, the Government has taken the curious position of second-guessing the legal system, and he had to prove, on the balance of probabilities, that he was, in fact, innocent and did not commit the crimes.
Given the involvement of so many New Zealand lawyers, the Minister of Justice at the time, Simon Power, searched for a top overseas jurist and found it in retired Canadian Supreme Court judge Ian Binnie. He has impeccable credentials, and the Government emphasised that the need to employ an impartial person was paramount.
That was until the formidable Minister of Justice, Judith Collins, got the report. She disagreed with his findings, sat on it, ran it by the solicitor general and they commissioned retired High Court Judge Robert Fisher, QC, to peer review it.
Then, and only then, did Ms Collins publicly allude to some reservations about the Binnie report and the existence of the Fisher review.
That reignited the public debate, but Mr Bain's team was livid. It hadn't been given the courtesy of even seeing the reports, let alone responding to any points raised. At that stage, the court of public opinion weighed in. The protestations of Mr Bain's lawyer, Michael Reed, were valid. How could only one side - ie, Crown Law - be allowed to read and find fault in the Binnie findings?
Under pressure, Ms Collins was forced to make the documents public, which opened up the latest stanza in this saga. Since then there has been much in the way of legal opinion about the legal opinions, which merely serves to sully the murky waters even more.
The key feedback seems to be confirmation that the New Zealand legal system seems to find it nigh-on impossible to be able to change its own decisions. That is why an Australian judge was brought in to review Arthur Allan Thomas' compensation case. The Government accepted his findings and Thomas received nearly $1 million for his 9 1/2 years in jail.
The Privy Council and a Canadian judge have now both ruled in Mr Bain's favour, and Ms Collins should set aside her reservations and accept the independent findings of Justice Binnie - the sooner the better.
- © Fairfax NZ News
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