Binnie was hired in 2011 by then-justice minister Simon Power to assess the compensation claim of David Bain, who was acquitted in 2009 at his second trial for the 1994 murders of his parents and three siblings. By that time, Bain had spent 13 years in prison following his conviction at the original trial in 1995.
Since compensation for prison time is normally reserved for those whose convictions were quashed or pardoned, Binnie was asked to decide whether Bain was entitled to claim compensation, and if so, how much. State broadcaster TVNZ reported Bain could be in line for a payout of up to NZ$2 million (C$1.65 million).
But after spending almost NZ$400,000 (CDN$330,000) on Binnie’s completed report, Power’s successor Judith Collins has called in local lawyer Robert Fisher to “peer review” the former judge’s work.
“My concerns are broadly that the report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law. It lacked a robustness of reasoning used to justify its conclusions,” Collins said in a press release announcing the move Dec. 11. “This was not a decision I made lightly, but one that was absolutely necessary. Put simply, it would not be acceptable to make a recommendation to Cabinet based on a report that would not withstand the considerable scrutiny it would attract.”
Collins goes on to say: “My concerns are broadly that the report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law. It lacked a robustness of reasoning used to justify its conclusions.”
In a statement e-mailed to Legal Feeds, Binnie, who is currently in Switzerland, said he had received no advance warning of Collins’ statement, which he called a “political document.”
“The press release refers to ‘robustness of reasoning’ which seems to be code for ‘reasoning’ that supports the Minister’s preferred disposition of the Bain claim,” Binnie wrote. “David Bain is seeking a discretionary payment from Cabinet and Cabinet is a political body that makes political decisions. However I expected the Minister to follow a fair and even handed process leading up to that political decision. She is, after all, the Minister of Justice.”
Binnie is not the first overseas judge to get involved with the Bain case. In 2007, Bain’s was one of the last New Zealand cases heard by the U.K. Privy Council before the New Zealand Supreme Court became the country’s final court of appeal. The five-judge panel ordered a retrial after finding there had been a miscarriage of justice.
“It is a curious feature of this case that all of the ‘external’ judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain’s guilt. . . . People are free to disagree with my views (as they are free to disagree with the views of the Privy Council and the 2009 Christchurch jury), but it is no disrespect to the able Hon Robert Fisher QC to note that the Minister is keen to repatriate the Bain case to her home turf,” Binnie added.
Collins says she raised concerns about Binnie’s report when she met with the former judge in September, and told him it would be peer reviewed.
“I also advised Justice Binnie the report must remain confidential and it would be premature to release it until after Cabinet had made a decision on Mr Bain’s claim,” she wrote in her statement. “Since then, I have received from Justice Binnie, unsolicited, two further versions of his report.”
“The Minister seems to have a curiously one sided view of ‘confidentiality,’” retorted Binnie, who says he was simply responding to her concerns with minor changes to his report. “She feels free to criticize my Report while claiming in the same press release that the Report is covered by solicitor client privilege and, therefore, I am not to disclose the obvious responses to her criticisms by releasing the Report…Whatever else New Zealand law states, it is certainly well established that it is most improper for ‘a client’ — especially a legally trained client — to attack publicly a lawyer’s advice while simultaneously claiming privilege to protect from disclosure the advice that is being attacked. I would expect that the Minister, as a former Auckland tax lawyer, would be well aware of this principle.”
According to Collins, she’ll have Fisher’s peer review within days, which will then be forwarded to Binnie for his comments, before Collins finally makes a recommendation to cabinet. On Wednesday morning, there were reports in the New Zealand press that she was considering making both Binnie and Fisher’s reports public by the end of the week.
“Ultimately, this review will not have an impact on Mr. Bain’s claim, apart from causing an unfortunate delay to the decision Cabinet will make,” Collins said.
Update Dec. 13, 1:20 pm.
The minister of justice released both Binnie and Fisher's reports on Friday morning, New Zealand time. Below find links to the main documents:
Binnie's final report on the Bain case.
A summary of Fisher's key criticisms of Binnie's report.
Fisher's full report
Binnie's response to Fisher's report