Gordon Campbell on the fallout from the Bain compensation row

In essence, everyone in New Zealand falls into one of three camps on David Bain, and whether or not he should be paid compensation:

(a) Those who believe him guilty of murdering his family and think he should not be paid any compensation
(b) Those who think he is probably guilty but because the legal system found him not guilty, an onus rests on the state to pay him something for the 13 years he spent in jail for a crime for which he was ultimately acquitted
(c) Those who think Robin Bain was the killer and that David Bain deserves full compensation for the wrong done to him.

All along, the question of compensation has been a political decision (made by Cabinet) as to whether Bain should be paid any compensation. Full compensation for Bain has been estimated to be in the region of $2 million. So far the report by retired Canadian judge Ian Binnie has cost $400,000 and the rebuttal of his report by Robert Fisher QC has cost $100,000. A third full report on the case (which is now being mooted) would presumably have to on the scale of Binnie’s effort, and would take the grand total for legal advice to close on $1 million. This would be in order to produce an outcome that, given the signals currently being emitted by Justice Minister Judith Collins, appears likely to recommend that no compensation should be paid.

Bain, though acquitted, has no automatic right to compensation. The test for compensation is different from that for acquittal. Rather than being found guilty beyond reasonable doubt, to qualify for compensation the onus is on defendants to prove that “on the balance of probabilities” they are innocent. In this case, the public faith in the final decision by Cabinet will rest on whether they think the legal foundation for that decision has been arrived at competently, and fairly. In recent days, Collins has been insistent that Binnie’s report is seriously flawed and riddled with errors, and she places more credence in Fisher. Binnie has defended his report from Fisher’s critique in a five page response. (See footnote for link.)

However interesting it would be to go through the fine details to and fro, the political landscape seems clear. Collins has disposed of Binnie’s report, and there is a strong suggestion that a fresh report will be commissioned, and that Fisher will be hired to carry it out. That is the political outcome that Collins appears to have been engineering ever since she received Binnie’s report some months ago. That’s one reason why Binnie’s five page response is so interesting. Yes, there are a few typos here and there in an email evidently composed overnight and without benefit of him having a copy of his own report at hand for reference – Binnie has been attending a jurists’ conference in Geneva – but the response contains this compelling passage:

It is of interest that…(a) Mr Fisher was retained on 26 September…(b) he met the Minister the same day (c) and without having performed the “first stage” analysis he reports that” as we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at its own conclusions on the merits”.

This seems a very results oriented retainer. Normally one would expect him to make his analysis of my Report, and to have his analysis considered by the Minister, BEFORE a decision to have Mr Fisher do an entirely new Report “on the merits”. It seems clear the Minister had already made up her mind on Septermber (sic) 26 regarding the outcome. The only function of Mr Fisher’s “first stage” report was, according to his own recitation, to provide a rationale for a Ministerial decision already taken.

In other words, the result seems to have been decided beforehand. Now, like me, you may have to confess to having no expertise or much familiarity with the Bain trial evidence, but no worries. Apparently, that puts us both in much the same position as Robert Fisher QC. Binnie continues:

The document makes it clear that Mr Fisher has not read any of the evidence since his meeting with the Minister last September –this task (which I would have thought essential to an assessment of my Report) he reserves for “the second and final report” –an exercise apparently predetermined at the September 26 meeting –to be delivered who knows when –much of what he says about my analysis seems to arise from his lack of familiarity with the material I was asked to review, as will be discussed. The other leg to his analysis is that he might have weighed up the evidence differently than I did (although, presumably with an eye to what he expects to be the second stage of his inquiry) he says he might reach the same ultimate conclusion –or he might not.

Can one have much faith in an analysis whose results appear to have been decided in advance, and without recourse to the evidence? Regardless, Fisher does not shrink from criticizing Binnie’s approach to the evidence, which is characterised as not taking a “cumulative” approach i.e. it allegedly does not consider the evidence in the round as to Bain’s likely innocence or otherwise. Even here, Fisher is not consistent since – as other commentators have pointed out – he both accuses Binnie of not taking a cumulative approach to the evidence and then cites him doing exactly that. This tendency provoked this tart rejoinder from Binnie:

Once again Mr Fisher’s analysis raises a distinction without a difference in order to discredit a report based on evidence he hasn’t read.

As mentioned, all of this is now somewhat academic. Collins is careering down her chosen path, whatever the damage done to the reputation of our justice system internationally. One can only cringe at Collins’ repeated claim that Binnie’s findings do not accord with New Zealand law. She makes our legal system sound profoundly, mysteriously different – like some South Seas version of sharia law – and not part of the British legal tradition to which Canada, Australia and New Zealand all belong. In any case, Binnie guarded against this possibility by taking advice throughout from the distinguished Auckland University law professor Paul Rishworth. Such variations are minor, and have been observed in the Bain case. In his Privy Council decision for instance, Lord Bingham specifically notes (e.g. at para 3) relevant areas where New Zealand practice differs in minor degree from British practice.

The row that Collins has provoked can only harm our international reputation. Evidently, New Zealand is only willing to invite an eminent jurist to determine a locally contentious issue if the result matches the political will of the government of the day. The “errors” that Collins is loudly and repeatedly proclaiming lack substance – e.g. Binnie did not exceed his brief as Collins claims, since that had left him open to make a recommendation as to compensation, or not. (Whether he did or not also hardly seems a momentous matter, given that this doesn’t prevent Cabinet from having the final say.)

To many New Zealanders, Fisher’s claim that Binnie erred in regarding the acquittal of Bain as a relevant matter to his claim for compensation will seem especially strange. Yes, acquittal does not prove Bain innocent. But conversely, is it to be taken as completely irrelevant that the Privy Council re-considered the evidence, found sufficient grounds for ordering a new trial before a new jury – who then heard all the evidence in the round, and choose to acquit him? While not determinative of innocence, it seems at least, relevant. After all, if Bain hadn’t been acquitted, Binnie and Fisher wouldn’t be here doing this job.

Much the same incredulity will greet Collins response to the criticisms of the failings in police procedure contained in Binnie’s report. Let’s be clear about this. The Binnie report clearly and unequivocally exonerated the Police from any suggestion of deliberate malpractice on their part. His argument was that their incompetence weighed in favour of compensation. (After all, if the onus of proof is on the defendant to prove their innocence, yet in the interim, the same state that imprisoned him has also stupidly destroyed his means of proving his innocence, then shouldn’t the state assume some responsibility for its actions?)

In fact, there is nothing new in Binnie’s criticisms of the Police, the grounds for which had been well aired in previous court hearings, and to which the Police have been given ample opportunity inn the past to respond. Those criticisms are now part of the historical record of the case. Regardless, Collins – a former Minister of Police – has criticised Binnie for not giving those attacked in his report a right of rebuttal, even though the Police themselves came out yesterday in a press release saying that there was nothing new in his criticisms. Collins really can’t have it both ways. Yet as things currently stand, the Binnie criticisms are being treated as contentious and needful of a response on natural justice grounds, while simultaneously being old hat and no big deal!

One could go through Fisher’s report item by item – but to no point, since the political outcome seems to have been pre-determined, months ago. Did Binnie ultimately reverse the onus of proof and put it on the Crown to prove that Bain was not innocent? Here, I think it is inevitable that an element of subjectivity will enter the frame, by all concerned. Fisher is quite entitled to claim that Binnie was more subjective than he should have been in his methodology and conclusions – but that in itself, on the onus of proof question at least, is a subjective assessment on Fisher’s part. As a careful reader of both reports and Binnie’s reply, I’m pretty sure who I think has been more rigorous in his approach. I’ll leave it to readers to reach their own subjective conclusions on this point.

Speaking personally, I’m glad this conflict forced me to go back last night and read the Privy Council analysis of the Bain evidence afresh, in the light of Binnie/Fisher. To repeat : it does not prove innocence, but Lord Bingham’s conclusion was that if all of the evidence now available was put before a jury again, there were reasonable grounds for thinking that they might conceivably reach a different verdict. It was, and they did. Bain was found not guilty of a crime for which he spent 13 years in jail. Whatever we may think subjectively of his guilt or innocence – it is hard to shake the feeling that Bain is now owed some degree of compensation and means of rehabilitation from the state, on that basis alone. Even though the grounds for compensation are different than those for criminal guilt. After all, if we spend money on the rehabilitation of prisoners, shouldn’t we also spend something on those who have been wrongly convicted?

By that I mean: if the system errs at times, it is still a system worth preserving. And ducking out of taking any responsibility at all for Bain’s formal status – which is that he spent his 20s imprisoned for a crime for which he was acquitted – seems to me, to do more harm to the system than would be done by paying him. And that is so even if subjectively, we still happen to think him guilty.

Footnote: Links to the Binnie Report, the Fisher report, and Binnie’s remarkably well argued response to Fisher can all be found here. Unfortunately, the version of the Fisher Report listed there does not have the appendix containing Fisher’s terms of reference, which can be found at the back of the version available here. The Privy Council judgement on the Bain case is here.