David Bain is innocent "on the balance of probabilities", believes Justice Ian Binnie.
David Bain is innocent "on the balance of probabilities", believes Justice Ian Binnie.
The Government is not 'shopping around' for a report that will allow it to dodge paying David Bain compensation, Prime Minister John Key says.
Retired Canadian judge Ian Binnie spoke out after Justice Minister Amy Adams' announcement last week that the Government would start afresh on Mr Bain's claim for a payout for the 13 years he spent in jail before being acquitted at a retrial for the murder of his parents and three siblings in 1994.
"It seems the Government is looking for somebody to give them the opinion they want, which is that David Bain should be denied compensation," the former Canadian Supreme Court member said.
This morning Mr Key said that wasn't the case.
"No, I don't think that's right," he said on NewstalkZB.
"Well, Binnie says it is, but Robert Fisher would say the opposite. Cabinet believes, with very good justification, that the process that Binnie went through is incorrect."
He later said he believed "Fisher ripped Binnie's report apart".
Starting a fresh investigation into whether Mr Bain should receive compensation was "about doing the right thing", Mr Key said.
"It isn't about money in the end, it's about doing the right thing. We've got to make the right call," Mr Key said.
"I would just make this one point, there are lots of people who have their convictions quashed that don't get compensation. To get compensation, the Bain team has to prove, not that he's not guilty beyond reasonable doubt .. he has to basically prove Robin [Bain, David Bain's father] did it and then has to provide exceptional circumstances."
Justice Binnie stands by his recommendation that David Bain should be awarded compensation and says the Government should try to get somebody detached from the case - possibly another international jurist.
"The problem now is that the Government has made it loud and clear what answer it wants and anybody taking on the assignment would see what happened to me for giving an answer that the Government didn't want. That is a new complexity that didn't exist when I went to New Zealand in January 2012."
Ms Adams denied that the Government had predetermined any outcome. She said the new process was to ensure the Cabinet had a reliable report in which the correct criteria were used and answers provided to the questions set.
"Once we have that, we may ultimately take the same view as Mr Binnie's report, or may not.
"We're not satisfied in terms of what's in front of us now, and in our view the only sensible way forward to make a decision that's defendable, either to the public or Mr Bain, is to seek a new inquiry."
Justice Binnie wrote the initial report, which found Mr Bain was innocent on the balance of probabilities and recommended the Cabinet grant compensation. The then Justice Minister, Judith Collins, was unhappy with aspects of his report and referred it to Dr Robert Fisher - a Queen's Counsel and former High Court judge - who found flaws in Justice Binnie's reasoning and analysis.
Ms Adams has now set aside both those reports.
Justice Ian Binnie - "I left Wellington knowing my report was dead on arrival".
Justice Binnie said he stood by his report and had been surprised at Ms Collins' response. He was called to travel to NZ for a 15-minute meeting with her in September 2012, soon after he delivered his report.
"It was very clear at that time that the minister was furious with the conclusion I had reached. So I left Wellington knowing my report was dead on arrival."
Asked if he believed the rejection had impacted on his reputation in Canada, he said it didn't seem to. "On the contrary, I'm told the fact I stood up to the minister is seen as a credit."
Yesterday, Ms Collins said she did not want to get involved. Last week, she stood by her actions in the case.
Justice Binnie said the Government had already spent $600,000 and had a lot of information on which to base its compensation decision.
"I just think there must be a simpler and cheaper procedure. There must be a faster way of getting a result in the case of a man who spent 13 years in jail in - based on what the Privy Council said - a miscarriage of justice."
Justice Binnie said he did not know Ms Adams, but the issue had gone through two justice ministers before her - Simon Power and Ms Collins.
"From 10,000 miles away, it looks like a familiar pattern lawyers encounter. It's not uncommon among clients to keep going through lawyers until they find someone who agrees with them."
Mr Bain's advocate Joe Karam said Justice Binnie was in a strong position to be able to assess the Government's motives having dealt directly with the two ministers before Ms Adams. "So it's a rather foreboding forecast. But yes, he might be right."
Justice Binnie also wrote to the editor of the Herald to defend his findings, describing Dr Fisher's review as "very partisan (not 'peer')".
He took exception to Dr Fisher's claim that he had failed to weigh up the totality of the evidence both for and against Mr Bain. He said he had considered all the evidence appropriately.
Labour leader Andrew Little said Ms Adams had no choice but to refer the matter to another investigation, but blamed Ms Collins' handling of it rather than Justice Binnie. He said the Canadian was right to be upset that his report was sent off for a peer review without his knowledge.
