If I commissioned a notable international jurist to write a legal report for me, it would take a lot of convincing from others for me to throw it in the bin. But that appears to be what Justice Minister Judith Collins has done with Justice Binnie's report on David Bain's compensation bid.
Collins' behaviour is unusual, even bold, because Binnie is highly respected and his independence in this matter is unquestionable.
Conceivably, though, Binnie's report might have contained errors. People make mistakes. But who decided that the report was flawed? Crown Law? The Solicitor General? The same agencies involved over the years in pursuing Bain? How independent is their initial assessment on Binnie's report? How clear-cut are the alleged errors?
Very few people have seen the report, so we have to hope that the players involved in the process are behaving properly and are not being guided by the desire for a particular outcome. I don't believe Collins wants to refuse Bain compensation, but it's possible that some within Crown Law and other state legal agencies might react badly to a finding that Bain is innocent, and might look to find holes in any such finding. People don't like being told they're wrong.
It is also remarkable that our Justice Minister should be questioning the competency of a highly respected international jurist, and at the same time refusing to allow Bain's defence team access to the report. If there are alleged errors in the report, shouldn't Bain's defence team also have the opportunity to assess and comment on them?
Binnie's report is now being reviewed by a retired New Zealand judge, and Binnie has reacted badly to having his competence challenged. If the review of Binnie's report concludes it to be unreliable, what then? Will Collins commission another report? Surely she will have to, otherwise if her recommendation to Cabinet is that Binnie's report be rejected and that no compensation be paid to Bain, Bain's supporters will claim that yet another injustice has been perpetuated, and we'll never hear the end of this accursed case.
Wednesday, December 12, 2012
22 comments:
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This has the stench of a 'dont give me the facts, I've already made up my mind' philosophy all over it. Shame!
ReplyDeleteHas he reacted badly? Both you and Andrew Geddis have said so - and since you are both legal experts of high standing I am going to rely on your judgement a little - but I have read the press releases of both parties and thought that what Binnie replied with was pretty fair. I mean Collins has made un-substantiated claims as to the competence of an international jurist for what appears to be political reasons. If there were real issues surely this would have been raised at a closed door meeting with all the concerned parties? This strikes me as political posturing by Collins to look tough rather than a solutions-focussed approach to resolving a difficult situation (assuming for the moment that there were errors).
ReplyDeleteBy "badly" I mean intemperately, at least for a judge. Judges don't usually respond to criticism by issuing press statements.
DeleteAh - thank you... I expect he is not used to being dissed by a minister of the crown...
Delete"Collins claims she will not commission another report on Bain's innocence or otherwise ... "
ReplyDeleteHas she? Do you have a reference for this (genuine question - I'd like to read it).
"Has he reacted badly? Both you and Andrew Geddis have said so ... "
Have I? I didn't mean to - I think he was entirely justified in his response!
There was an error in my post, which I have fixed at no cost to the taxpayer (no need for a QC to review it). To my knowledge Collins hasn't said there won't be another report if the Binnie one is cast aside.
DeletePhew!
DeleteOtherwise I'd have to go about reworking my Pundit post. And I don't like working, let alone reworking.
First rule of Law School: Don't cheek Judges. You can tell Justice Binnie is annoyed with his little dig about Collins being "a former Auckland tax lawyer".
ReplyDeleteSadly this is just another example of the Government's overriding theme: when it hears unwelcome news reach for a revolver and shoot the messenger.
This has Erebus stamped all over it in its handling
ReplyDeleteCan anybody point out the upside for Collins in doing this.
ReplyDeleteThere simply is no political points for her to score in trying to not pay compensation.
Why create drama when you do not need to. She is no mug.
I'm not convinced she's playing politics. For all we know her concerns about the report may be justified.
DeleteOne possible explanation is that the people advising her may have their own reasons for dissing the report, e.g. it may depict the police and Crown prosecutors as foolish, vindictive, or incompetent.
Possibly, but how does this make NZ look wider afield? Binnie made the point that everyone from outside NZ who had looked at the Bain case found deficiencies and that ought to give pause for thought.
DeleteEither way - pay or no pay - she's going to piss off a huge number of people who are going to be vocal.
DeleteSo - what's to lose?
Get it wrong - forever vilified by the pissed off.
Get it right - temporarily vilified by the pissed off and ultimately respected for having got a tough call right.
And, personally, I think she's doing a great job of heading towards getting it right.
As we get mired in the roles of the meta-judiciary and the political crossover coupled with the input of a foreign expert it all becomes more and more complicated.
ReplyDeleteStrip away all the fluff, red herrings, obfuscation, improbable explanations and scenarios and head down to the few core items of evidence that are relevant and it's pretty clear who did the murders - hence the question of paying compensation based on accurate assessment (Binnie's report seems to be creating more heat than light) of "balance of probabilities" is pretty straightforward.
I think Judith Collins will get us to that place.
Strip away all the fluff, red herrings, obfuscation, improbable explanations and scenarios and head down to the few core items of evidence that are relevant and it's pretty clear who did the murders
DeleteNo it's not. An assortment of judges, legal experts and juries have examined this case over the years, with very different conclusions. You may have an opinion on who committed the murders, but it's just an opinion, and so the issue of compensation is not at all straight-forward.
As far as I know only one judge has concluded on guilt/innocence and that's Justice Binnie. Others have concluded on safety or otherwise of verdicts but not on guilt/innocence (the PC expressly so).
DeleteThe varying legal experts roughly split to prosecution and defence. No surprises there - they get paid for their opinions.
As for juries - there were two - one guilty one not guilty.
Assortment? If that was a box of chocolates I'd want my money back.
My opinion on guilt/innocence as you rightly point it is irrelevant.
However, the payment of compensation will come down to opinions - that of the Minister and cabinet. What I'm saying and asking for is that they base their opinions on the core pieces of evidence and when they do that the right answer will present itself - as I'm assuming that payment of compensation is based on meeting the condition of innocence on balance of probabilities.
Binnie's Report
Delete132. I recommend that the “factual innocence” issue be determined by the physical evidence at the crime scene, essentially as analysed by the prosecution’s own expert witnesses. (cont)
Which, of course, he doesn't do - but at least he expressed the sentiment.
Politik in the worst sense. Playing on the opinion of the majority of New Zealanders who lead such sad and vindictive little lives that they would love to see David Bain swing. This is a cruel little country and the current government reflects this only too well.
ReplyDeleteYour dead right there unclemuzza.
DeleteWhen you question people who have forthright opinions on this matter you quickly realise their knowledge of the evidence and cross examination is zero.
Last night in my taxi I asked two young women what they thought. One told me it is possible to walk around in blood soaked socks making your feet smaller. The other told me her uncle a policeman told her they have a secret tape of David admitting it (the "I shot the prick" claim).
The "guilty" brigade rationalization, for that is what it is, simultaneously claim David's Machiavellian ingenuity while resorting to "evidence" suggesting stupidity to the extreme
@unclemuzza and/or @Stuart - perhaps you can explain to us exactly how Robin did it (should be pretty easy if David's innocence is so obvious).
DeleteI don't think we're going to resolve the guilt or innocence of Bain here, so let's just not go there.
DeleteOk - let's not - but it's all too easy to make some assertions without backing them up.
ReplyDelete