Editorial: Seeing justice is done

20:21, Dec 12 2012

The "not guilty" verdict at the 2009 retrial ordered by the Privy Council led to David Bain being set free after 13 years in prison, but it did not end public conjecture about whether he or his father were responsible for the deaths of his parents, two sisters and brother in 1994. Nor did it bring his marathon legal battle to an end.

Less than a year after the retrial, he filed a claim for compensation with the Minister of Justice for the time spent in prison. A higher hurdle had to be jumped to win this one.

Otago University law professor Andrew Geddis has drawn a simple distinction: Whereas the retrial jury decided the evidence failed beyond a reasonable doubt to show Mr Bain killed his family, compensation is being decided on the basis there is evidence his father - more likely than not - committed the crime.

A retired Canadian Supreme Court judge, Ian Binnie, has reviewed the evidence and reached a decision. He reported back to the Government and met with Justice Minister Judith Collins in mid-September.

But Ms Collins at that time said ministers would not be bound by his recommendation, and this week she said Robert Fisher, QC, is undertaking a peer review of Justice Binnie's report.

Among her concerns: The report "appeared to contain assumptions based on incorrect facts", showed "a misunderstanding of New Zealand law", and "lacked a robustness of reasoning used to justify its conclusions".

She said justice needed to be done and a proper process followed, and she had not taken the decision lightly. But the delay will be frustrating for Mr Bain and his supporters and bring the integrity of the process into question, fuelling speculation that the minister is shopping for a report that fortifies the Government's views on the matter.

That's unfair. With $2 million or so of public money at stake, the minister is prudent to seek a second opinion. It is better to try to ensure the right decision is reached than put a premium on haste.

More critically, the justice that needs to be done must be seen to be done. Alas, the Binnie report is being kept confidential. While Crown lawyers will have seen it, the interested party most directly affected, Mr Bain, has not. That is unfair, too.