Report recommending Bain compensation is 'flawed'

Justice Minister Judith Collins releasing Justice Binnie's report, on David Bain's bid for compensation, at a press conference in her Beehive office. Photo / Mark Mitchell

Police do not accept Justice Ian Binnie's opinion that the police investigation into the Bain family murders contained egregious errors.

Justice Minister Judith Collins today released the report written by Mr Binnie, a retired Supreme Court judge of Canada, and the highly critical peer review by former High Court judge Robert Fisher.

Justice Binnie's report recommends Mr Bain be compensated, while Dr Fisher's says his report is flawed and would not withstand scrutiny.

Justice Binnie's report also says the "egregious errors" of the Dunedin police that led to the wrongful conviction means that compensation should be paid, but the police have defended their investigation.

"The Dunedin police were experienced officers,'' a statement released late this afternoon says. "They had dealt with the Aramoana tragedy in which 13 adults and children were shot and killed, and had investigated two other familial homicides in close proximity to the Bain murders. This was a multiple homicide with a difficult scene. Reviews of that 1994 investigation found it was conducted in accordance with the standards or the day and without fear or favour.''

The statement acknowledged that some errors were made in the investigation, all of which had been thoroughly traversed by the courts.

"This is one of the most scrutinised police investigations and cases in New Zealand. It has been through two high courts, two courts of appeal and the Privy Council. No new points were raised by Justice Binnie that haven't already been extensively debated through the court process.''

In regard to Justice Binnie's opinion that police had failed to investigate the possibility of innocence, the statement said: "Police investigators work on the weight of evidence. As the investigation progressed, the weight of evidence pointed to David as the killer. That evidence was put before the court.''

Call for compensation

Justice Binnie accepted David Bain's version of events surrounding the murder of his family without question, except where it was directly contradicted by other witnesses, Justice Minister Judith Collins said today in criticising Justice Binnie's report for compensation for wrongful imprisonment.

And instead of requiring Mr Bain to satisfy the judge he was innocent, Mr Binnie imposed an onus on the Crown whenever the Crown suggested facts inconsistent with Mr Bain's innocence.

He therefore skewed the findings towards innocence, Ms Collins said.

Click here to read the report from Dr Fisher

Click here to read the Justice Binnie report

At issue is whether David Bain - who was acquitted in 2009 for murdering his family in 1994 - should be compensated for wrongful imprisonment.

Dr Fisher's report said "logic and experience suggest that if a suspect has lied in denying his responsibility for the crime itself, he will scarcely shrink from lying about the details.

"For the purposes of drawing inference from surround facts, most decision-makers will prefer sources other than the suspect.''

Ms Collins also released Mr Binnie's highly critical response to Dr Fisher's review which was emailed to Ms Collins office this morning.

He says Dr Fisher's complaints are "academic and theoretical and indicate little familiarity of the case.''

Mr Binnie also makes reference to the Herald story of September 10 saying that Mr Binnie's confidential report recommended compensation and suggests he has been blamed for a leak.

"What is particularly galling in Mr Fisher's commentary is reference to 'the well publicized recommendation that compensation be paid','' Mr Binnie said in his email to Ms Collins. "At the time this 'publicity' appeared in the New Zealand press, the only people who had my report were the ministry and myself. If the leak occurred, it had nothing to do with me."

In a media release today Joe Karam said he requested advance copies of Justice Binnie's report and the peer-review by Robert Fisher QC from Ms Collin's office but had no response.

"I have had no reply to that message.

"At this point in time nobody from the Bain team has seen the reports or had any other communication from the Ministry.''

Mr Karam and David Bain's lawyer Michael Reed QC also asked for copies of the report in August and September.

"We made it clear that we were seeking the report on a confidential basis so that in the event the Minister wished to take any further steps of seek advice from the other side, when we would have an equal opportunity.

"Disclosures over the last few days would indicate to us that Justice Binnie's report was viewed by more people than just the Solicitor-General himself, which adds to the unfairness of the process conducted by the Ministry over the past three months.

"Since Justice Binnie's report was provided to the Minister in late August, I have been very careful not to generate any public debate.''

Mr Karam said he had asked for the report in August and September.

Labour's justice spokesman Charles Chauvel said the release of the reports today revealed the extent of Ms Collins "behind-the-scenes interference to try and undermine Justice Binnie's report on the David Bain Case''.

"Judith Collins has worked relentlessly since 26 September to pick holes in Justice Binnie's reasoning. She has spent $100,000 of taxpayers' funds on a nit-picking review of Justice Binnie's report, which itself cost taxpayers over $400,000.

"At the same time she was instructing Robert Fisher QC to critique Justice Binnie's work on a far wider basis of criticism than she ever made clear to him.''

Mr Chauvel said that in the documents released today, the criticisms of Justice Binnie's work had been greatly overstated

At a press conference Ms Collins, referring to Dr Fisher's report, said the errors in Mr Binnie's report were extensive and serious:

- Items of evidence that did not prove a subsidiary fact on the balance of probabilities were disregarded - which meant important evidence like blood stains on Mr Bain's clothing and broken glasses were excluded.

- Justice Binnie regarded the acquittal as something that was relevant to whether Mr Bain had proved his innocence.

- An acceptance of Bain's version of events without question, except where it directly contradicted other witnesses.

- Justice Binnie arrived at a provisional conclusion of innocence based on one item (luminol footprints), followed by a serial testing of that conclusion, instead of considering the cumulative effect of all evidence - an approach Ms Collins said skewed the findings towards innocence.

- Justice Binnie's approach was generous to Mr Bain in its reliance on background facts sourced from him.

- Instead of requiring Mr Bain to satisfy him on the balance of probabilities, Justice Binnie imposed an onus on the Crown whenever the Crown suggested a factual possibility inconsistent with Mr Bain's innocence.

- He relied on innocent openness' defences to turn incriminating admissions or clues into points thought to support Mr Bain's genuineness and credibility.

- Going beyond his mandate, he did not have authority to conclude whether there were extraordinary circumstances, or make a recommendation on whether compensation should be paid.

- Instead of founding conclusions on the evidence available to him, Justice Binnie drew an adverse inference to the Crown where, in Mr Binnie's view, the Police ought to have gone further in its investigations.

- In finding serious wrongdoings by authorities, Justice Binnie paid no regard for the need for an official admission or judicial finding of misconduct, and treated as `serious misconduct' actions that were not deliberate, not done in bad faith.

- Justice Binnie criticised named individuals without giving them the right to respond.