Canadian ex-judge Ian Binnie found Bain had satisfied him of his innocence on the balance of probabilities but had not satisfied him of his innocence beyond reasonable doubt. Photo / Janna Dixon
Canadian ex-judge Ian Binnie found Bain had satisfied him of his innocence on the balance of probabilities but had not satisfied him of his innocence beyond reasonable doubt. Photo / Janna Dixon
Opinion by
Before settling on fiction writer and Australian ex-High Court judge Ian Callinan to conduct a fresh inquiry into David Bain's' bid for tax-payer funded compensation, Justice Minister Amy Adams posed an interesting question.
CaseLoad can exclusively confirm that potential candidates for the job - which novelist Callinan (78 in September) is said to have started this week - were asked by Adams for their advice on whether Bain be required to satisfy the inquirer he is innocent of murder beyond reasonable doubt - as well as on the balance of probabilities.
Followers of the Bain Saga will recall that the original terms of reference which then justice minister Simon Power put to Canadian ex-judge Ian Binnie, required Binnie to find if Bain could satisfy him of his innocence on the balance of probabilities and beyond reasonable doubt (CaseLoad's italics).
This required a two-pronged response.
Binnie found Bain had satisfied him of his innocence on the balance of probabilities but had not satisfied him of his innocence beyond reasonable doubt - a finding some observers likened to having a dollar each way.
The fact that potential new inquirers were asked whether the "beyond reasonable doubt" question be included in the new terms of reference led some sceptics to conclude that if it wasn't, it was an indication the government might have gone soft on Bain's compo claim.
As Our Man At The Bar was heard to announce to anyone within earshot: "If the high standard of beyond reasonable doubt was dropped and the inquiry left with the lower standard of balance of probabilities, we would be left with what lawyers call the soft c*ck option..."
As it transpires Adams has included both questions in Callinan's brief, requiring him - as Power required of Binnie - to find Bain prove his innocence of murder on both the balance of probabilities and beyond reasonable doubt.
Adams says she has given Callinan similar instructions to those given to Binnie and has made it clear to him what is expected of him as a reviewer.
However, she says those instructions are confidential - "on the basis of legal privilege" - while Callinan's inquiry is underway.
(Large sections of Adams' Cabinet report recommending a fresh inquiry were censored at source.)
She told CaseLoad Callinan is being asked to find on the "beyond reasonable doubt" question "at this stage," because the Cabinet had previously treated innocence beyond reasonable doubt as an example of "extraordinary circumstances."
Finding extraordinary circumstances could be the tipping point at which the cabinet says Yes or No to compensation.
Hon Ian Callinan AC QC, a former Justice of the High Court of Australia, has been appointed to conduct a fresh inquiry into Mr Bain's claim for compensation for wrongful conviction and imprisonment.
"It seems commonsense has again prevailed," said Our Man At The Bar, twanging the exposed garters of a nearby Mature Lady Brief.
Meanwhile, fiction-writing Callinan got mixed reaction to his first novel, The Lawyer and The Libertine, published in 1997 - just before his 1998 appointment to the High Court of Australia.
La Trobe University professor of law and legal studies Margaret Thornton reckoned it would not gain fame as an elegant work of fiction.
She said the writing was flat, the conversation stilted and the characterisation wooden. The sex scenes, which she said broadsheet journalists had to go to quite a lot of trouble to find, were "crass and perfunctory."
"Nevertheless, the novel is fascinating - because the author is a High Court judge," Thornton said.
Which is why observers are puzzled by recent moves by some judges to "black out" previously public references to a serious matter currently back before the High Court.
CaseLoad is prohibited from going into detail but rulings suggest some judges think jurors might not be trusted to do their duty properly.
Every day properly directed jurors exercise good judgment, commonsense and deliver mostly sound verdicts.
In almost every case (there are always exceptions) men and women come to court with open minds to decide cases only on what they hear and see in court.
They put out of their minds any prior knowledge and pre-conceived views of those on trial or of any pre-trial publicity.
In a system that is not perfect and where attempts at secrecy are futile, properly directed jurors should be trusted to deliver the goods.
In a shock development judges want televised court coverage to be accurate, full, informative and avoid sensationalist stand-alone clips.
Television bosses are reportedly reeling from a new rule issued by judges requiring in-court coverage to be accurate as well as fair and balanced.
In-court coverage rules, first introduced in 1995, primarily permit and govern the access and use of television and video cameras in court.
Review panel head, High Court Justice Raynor Asher, says lawyers and judges want more accuracy and balance in reporting. Photo / NZME.
Review panel head, High Court Justice Raynor Asher, says lawyers and judges want more accuracy and balance in reporting.
The review panel, which includes Justice Ron Young and district court judge Russell Collins, wants to see full and informative court coverage but also wants sensationalist and stand-alone excerpts to be avoided.
Apart from that, the panel proposes no changes to what at times has been controversial and partisan in-court coverage, reckoning is it is better to stick with the present coverage than none at all.
"You mean humiliating 'reality' shows?" said The Scunner.
"Burp..." said A Member Of The Fourth Estate.
Lawyer bikkie-ban part two
Chocolate biscuit-deprived legal rebels allege an Auckland district law society (ADLS) promise to replace free chokkie bikkies with a fruit basket has never been honoured (
In a desperate bid more than a year ago to get out of the red, ADLS management slashed popular free Macaroons, Squiggles and Toffee Pops enjoyed by lawyer tenants in the society's Chancery Chambers.
Brian Keene QC has promised CaseLoad a beer. Photo / Richard Robinson
Promises were made to replace the bikkies with a fruit basket, but Lawyer Tenants (names withheld for obvious reasons) claim the promised fruit basket never appeared and they want the record put straight.
"On top of that, the bloody lift is out of order and there's no sign of an estimated $120,000 being spent to fix it," said Another Insider (name suppressed for obvious reasons.)
Latest financial statements showed ADSL turned a 2013 deficit of $283,923 into a 2014 surplus of $270,313 - partly as a result of increased rents and growing membership.
"How much of the surplus is down to taking away the chocolate biscuits, welching on fruit and not fixing the lift???" said A Usual Suspect (blah blah blah.)
Footnote: Many months ago ADLS president Brian Keene QC, just before he headed off to do something important in the Cook Islands, promised to buy CaseLoad a beer...That was many months ago...
