The Dim-Post

December 4, 2012

Perhaps I can help

Filed under: Politics — danylmc @ 9:02 am

DPF wonders why the government is getting a second opinion on compensation for David Bain, after having sought an extensive review by Canadian Judge Justice Ian Binnie. Is it the money? The unpopularity of compensating Bain? Issues with the quality of the report?

Here’s my guess. Justice Binnie’s report finds that the police and the Justice Ministry acted unethically and incompetently in investigating and prosecuting Bain, and the heads of these organisations are collectively losing their shit over the findings and warning their Minister that the report will be ‘bad for the country’ because it will undermine public confidence in the justice system. The second opinion is about diluting the first report.

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50 Comments »

  1. Yeah but what are ya gunna do? Its the police

    Comment by max — December 4, 2012 @ 9:20 am

  2. undermine public confidence in the justice system

    Horses, gates, bolted.

    Comment by Phil — December 4, 2012 @ 9:53 am

  3. While I think you could well be right, I’m doing to offer a view more generous to the Government. (Yes, you read that correctly. Make the most of it, it won’t happen often.)

    Is it the money? The unpopularity of compensating Bain? Issues with the quality of the report?

    It’s not the first, I’m sure. But the second, and possibly a little bit the third, are at least playing a part.

    A many people in New Zealand still consider David Bain guilty. Many consider him probably guilty, and begrudging accepting of the ultimate ‘not guilty’ verdict, but still feel it would be wrong to provide compensation. I wouldn’t be surprised if more than half are in this category. A jury member even came out recently and emphasised that they didn’t find him ‘innocent’, just that they weren’t sure beyond reasonable doubt that he was guilty.

    There’s a further peculiarity to this case: there are really only two possibilities of what happened that have serious consideration. Either David committed the murders, or if not then his father Robin did. So in effect any finding that David is probably innocent seems to mean that Robin is probably guilty. And I suspect that there are many who would be very unhappy at this implication. So the Government are very reluctant to pay out for that reason. Given that there appears to be no specific rule about paying out, they’re trying to find their wiggle room.

    Comment by steve — December 4, 2012 @ 10:14 am

  4. *going to offer.

    Comment by steve — December 4, 2012 @ 10:14 am

  5. The purpose of the Justice Binnie was to establish whether Mr Bain was innocent enough to warrant compensation. Assuming that he found in Mr Bain’s favour, then what the public think or what Mz Collin’s thinks is a better politic position, is irrelevant. If a medical specialist made a decision would it be then put in the hands of the public to review his decision?
    To deny the Binnie Decision would be to bring the Law into greater contempt.

    Comment by xianmac — December 4, 2012 @ 10:31 am

  6. Agreed xianmac. It would set a pretty alarming precedent if the court of public opinion informed a compo claim for justice poorly served.

    Comment by Gregor W — December 4, 2012 @ 10:49 am

  7. The purpose of the Justice Binnie was to establish whether Mr Bain was innocent enough to warrant compensation. Assuming that he found in Mr Bain’s favour, then what the public think or what Mz Collin’s thinks is a better politic position, is irrelevant. If a medical specialist made a decision would it be then put in the hands of the public to review his decision?
    To deny the Binnie Decision would be to bring the Law into greater contempt.

    +1

    There’s also the small matter that a significant portion of the populace (plus quite a few journalists) seem to struggle with the concept of “innocent until proven guilty”.

    Comment by TerryB — December 4, 2012 @ 11:11 am

  8. But “Innocent until proven guilty” isn’t the standard here, otherwise there’s be no need for Binnie’s report.

    Comment by steve — December 4, 2012 @ 11:25 am

  9. So the Binnie review was “to establish whether Mr Bain was innocent enough to warrant compensation”
    That seems a bizarre rationale. Surely compensation is based on how fairly the Police and the Crown conducted the prosecution, not Bain’s “degree of innocence” (which is a oxy-moron anyway).
    As much as Judith Collins might try to spin it otherwise, she and the Government very much appear to Christmas shopping for the review opinion they really want to get.

    Comment by Mr February — December 4, 2012 @ 11:30 am

  10. @feb

    You dont get compensation for just being found not guilty after an original guilty verdict. that happens all the time. The evidence against Bain was plentiful and it’s hard to see how anyone can claim a prosecution or conviction was unreasonable.

    Maybe binnie turned his report into a report on police processes and so went outside the brief expected, and that is what is of concern.

    Comment by insider — December 4, 2012 @ 11:45 am

  11. As much as Judith Collins might try to spin it otherwise, she and the Government very much appear to Christmas shopping for the review opinion they really want to get.

    I suspect that’s exactly what they’re doing. Thing is, I also suspect a great many people are like me, in that they won’t care too much about that if it means none of our hard-earned taxpayer cash gets handed over to Mr Bain.

    Comment by Psycho Milt — December 4, 2012 @ 11:50 am

  12. Justice Binnie’s report finds that the police and the Justice Ministry acted unethically and incompetently in investigating and prosecuting Bain, and the heads of these organisations are collectively losing their shit over the findings and warning their Minister that the report will be ‘bad for the country’ because it will undermine public confidence in the justice system. The second opinion is about diluting the first report.

    So you’re saying that the follow-up report from former High Court judge Robert Fisher QC, will hide the failings? And that the original report from Binnie will not be released?

    Comment by steve — December 4, 2012 @ 12:02 pm

  13. If you are right Danyl (and I don’t know) then there may be isues of natural justice. The brief is to determine innocence on basis of probabilities – not to judge the Police and Justice Ministry. If there are findings relating to them, then natural justice is they should have been given a draft report and allowed to respond to them (as with Erebus).

    It will be fascinating to find out and read both reports.

    Comment by dpf — December 4, 2012 @ 1:07 pm

  14. “If there are findings relating to them, then natural justice is they should have been given a draft report and allowed to respond to them (as with Erebus).”

    True that. But “natural justice” wouldn’t require that another ex-judge be asked to review the findings of the first ex-judge.

    Comment by Andrew Geddis — December 4, 2012 @ 1:17 pm

  15. “If a medical specialist made a decision would it be then put in the hands of the public to review his decision?”

    My gut says that’s not quite the right analogy. A jury of peers (the public) had to decide his guilt or otherwise, not a judge (specialist). I think the OJ Simpson affair may be worth a review.

    Comment by Clunking Fist — December 4, 2012 @ 1:54 pm

  16. “If a medical specialist made a decision would it be then put in the hands of the public to review his decision?”

    My gut says that’s not quite the right analogy. A jury of peers (the public) had to decide his guilt or otherwise, not a judge (specialist). I think the OJ Simpson affair may be worth a review.

    Comment by Clunking Fist — December 4, 2012 @ 1:55 pm

  17. I can’t see why the government would have any problem with the idea of paying compensation to David Bain, when they can tell opponents of the decision that it was the conclusion of a learned canadian Judge and that they asked the judge to make the decision. Therefore – their concern must be about the details in the report – either they consider the report is objectively wrong, or the report contains information or conclusions that they want to hush up.

    Comment by kahikatea — December 4, 2012 @ 1:57 pm

  18. The real political fallout occurs if the Govt accepts the Binney report, pays out Bain, the report is released and people find obvious faults of fact, the way the evidence is collected and displayed etc. Then the public is going to be highly pissed off and Bain is compromised in his security and reputation. Thats a long term nightmare for any Govt.

    JC

    Comment by JC — December 4, 2012 @ 4:11 pm

  19. Agree with Steve #3, insider #10, and Pyscho Milt #11. If you glance through the quashing of the original conviction, the judges laid out the case for and against conviction pretty well. It seems Joe Karam just ran a very nice line of defence (accusing Robin) and got the jury to believe that in the retrial, while ignoring that the bulk of the evidence appeared to strongly support David having done it, in my opinion.

    Justice Binnie’s report seems to be struggling with the same problem – while there were police goof ups, that is not the same thing as saying David was innocent. In fact, it seems utterly not credible to suggest David was innocent – too much blood spattered David’s clothing trying to be washed afterwards. Why would Robin use David’s clothes to do the killings (incriminating David) if Robin then let David live, and wrote computer messages to that effect? Does not compute.

    You have to believe far too many such incredible stretches of reality to think David was innocent; but it seems J Binnie did believe just that. Thankfully, Collins is paying close attention (and I am sooo not a fan of Collins, but if she gets this right, then cudo’s).

    Comment by bob — December 4, 2012 @ 5:04 pm

  20. I guess MoJ’s lost the Post-It note with Greg O’Connor’s number on it, or they’d just wheel him out to say that if police were armed they wouldn’t have to be unethical and incompetent.

    Comment by QoT — December 4, 2012 @ 6:33 pm

  21. I was interested to read there are people who think Bain actually killed his family. I thought pretty much everyone now agrees it was his father. But saying otherwise could be the excuse for paying Bain little…..or maybe even nothing.

    Comment by Steve (@nza1) — December 4, 2012 @ 11:00 pm

  22. Pretty much everyone? That’s satire right?

    Comment by insider — December 4, 2012 @ 11:13 pm

  23. The Bains were a fucked up family unit, so whoever killed them did the world a favour.

    Comment by frank_db — December 5, 2012 @ 5:47 am

  24. I thought pretty much everyone now agrees it was his father

    Joe? Is that you?

    Comment by Psycho Milt — December 5, 2012 @ 6:16 am

  25. frank_db,

    If being fucked up is justification for murder, your last comment makes you something of a prime target.

    Comment by Flashing Light — December 5, 2012 @ 7:31 am

  26. Personally, I think David Bain killed his entire family in cold blood and concocted a preposterous charade to try and evade responsibility for his actions, for which he was entirely and properly seen through and convicted and jailed. And there it would have sat, had he not had the great good fortune of attracting the attention of an outsider and a rather strange rebel in search of a cause, one Joe Karam, who unaccountably put his fortune at Mr. Bain’s disposal until such time as they was able to generate enough obfustication and obscuration to secure an over-turning of the verdict.

    That is what I think, personally.

    But we live in a system where what I personally think doesn’t amount to diddly squat, and frankly neither should it. If the state says he is innocent, and therefore the state wrongly imprisoned him, then the state has to pay for that. John Key might think the state should be flexible enough to accomodate his amateur hour Bainimarama impressions, but I think I’ll stick to the rule of rule – good, bad and indifferent.

    Comment by Sanctuary — December 5, 2012 @ 8:56 am

  27. As insider said at 10, you dont get compensation just for being found not guilty after an original guilty verdict.

    I’ll stick to the rule of rule

    Good for you, but not sure what your point is in this regard. Who is not following the rule of law?

    Comment by steve — December 5, 2012 @ 10:11 am

  28. Brian Rudman outlines the case well today in the Herald:

    “http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10851995

    The rule of law relates to the way this government seems to regard objective assessments of the facts as mutable to their will and opinion. There are cabinet guidelines around the awarding of compensation and a reasonable body of precedent to determine the amount. In this case, the government called in an independent legal mind to help it make a decision. Now it has that objective assessment it doesn’t agree with it, so Collins is looking for another one more suited to her taste.

    This is a government of opinion and emotion rather than fact and objectivity. John Key’s biggest legacy is going to be a new banana republic doctrine of governance, the John Key doctrine of the negotiability of facts.

    “He’s one lawyer, and I can give you another one that will give a counterview…” has been elevated to a tool of policy making.

    Comment by Sanctuary — December 5, 2012 @ 10:47 am

  29. The thing is, we’ve got a conservative government and they go by the maxim of finding out whether someone is innocent enough to warrant compensation. If it was a Labour Government, they would give him compensation simply because he’s out of prison now, where as if he was guilty he would still be in there.

    Comment by Dan — December 5, 2012 @ 12:33 pm

  30. In this case, the government called in an independent legal mind to help it make a decision.

    And perhaps that independent report has helped it to make a decision. Sometimes, you can be helped to the right choice by being made to give serious consideration to the wrong choice.

    Comment by Psycho Milt — December 5, 2012 @ 12:41 pm

  31. Got any facts to back up that assessment, Dan?

    Comment by Gregor W — December 5, 2012 @ 12:49 pm

  32. That’s complete bullshit, Dan. The same rules as to when a person can and can’t get compensation have been in place since 2001(ish).

    Comment by Andrew Geddis — December 5, 2012 @ 1:33 pm

  33. Note, David Bain doesn’t meet the guidlines:

    • have received a free pardon or have had their convictions quashed on appeal without order of retrial.

    He’s relying on the discretion that Cabinet gave itself under “extraordinary circumstances”. So there really is understandably a lot more flexibility than if they were looking at compo under the guidelines. I think a lot people don’t realise that.

    Comment by steve — December 5, 2012 @ 1:42 pm

  34. OMG a commenter who provides the actual working url to the actual Justice web page with the relevant criteria for compensation for wrongful conviction and imprisonment.
    Thanks Steve!
    I am still struggling to see what the rationale is for having “innocent on the balance of probabilities” as one of the criteria. Can any one enlighten me?

    Comment by Mr February — December 5, 2012 @ 1:45 pm

  35. In 1998, David Bain petitioned the Governor-General for the exercise of the Royal prerogative of mercy. The petition was sent to the Justice Ministry where it was assessed by Val Sim and Michael Petherick. They believed Bain’s conviction was safe.

    “We do not consider that any of the matters advanced in the petition when looked at individually point to a miscarriage of justice…[n]or do we consider that they have a collective significance which may cast doubt on the safety of the petitioner’s convictions…[w]e acknowledge that there were a number of errors in the Crown’s case. However we do not consider they indicate a likely miscarriage of justice, having regard to the overall weight of the Crown case…On that basis, we cannot recommend a pardon at this stage. Nor is a referral back to the Court of Appeal under section 406(a) of the Crimes Act 1961 warranted.”

    So yeah, the Justice Ministry’s competence may well have been called into question.

    Comment by Ross — December 5, 2012 @ 1:55 pm

  36. > I am still struggling to see what the rationale is for having “innocent on the balance of probabilities” as one of the criteria.

    That’s to prevent mass murderers from receiving compensation. :)

    Comment by Ross — December 5, 2012 @ 1:58 pm

  37. The rule of law relates to the way this government seems to regard objective assessments of the facts as mutable to their will and opinion.

    If more than a thin sliver of human interaction and conflict could be put in terms of a universally accepted, non-controversial objective assessment of the facts then human society would long ago have done without politics and a justice system.

    I do agree with on David Bain. That the father killed everyone with the intent of framing David only to at the last minute change his mind, commit suicide, while leaving only a very cryptic message exonerating David is unlikely.

    Comment by NeilM — December 5, 2012 @ 5:33 pm

  38. “If more than a thin sliver of human interaction and conflict could be put in terms of a universally accepted, non-controversial objective assessment of the facts then human society would long ago have done without politics and a justice system.”

    Word

    Comment by Hugh — December 6, 2012 @ 1:08 am

  39. It would make a few people on the Thorndon cocktail circuit a wee bit embarrassed so we called the whole thing off. Jolly good then.

    Comment by phil — December 8, 2012 @ 4:45 am

  40. No, I’m sticking with what I said. I think it’s rare for a MInister to question the accuracy of a review in regards to compensation. Is it a mere coincidence that this happened under a National Government? I think not. The facts are that National are hard on people when they feel they can get away with it, whereas Labour lets the systems in place work as effectively as they can. And Bain actually went to prison when a National Government was in, didn’t he? Another coincidence perhaps?

    Comment by Dan — December 10, 2012 @ 11:29 am

  41. But what you said was: “The thing is, we’ve got a conservative government and they go by the maxim of finding out whether someone is innocent enough to warrant compensation. If it was a Labour Government, they would give him compensation simply because he’s out of prison now, where as if he was guilty he would still be in there.

    You can stick by that if you like, but you’d be wrong. Labour would also go by the standard of whether someone is innocent (on the balance of probabilities); they would not have given him compensation “simply because he’s out of prison now”. So you should resile from your previous position. You’re right that it’s rare for a Minister to second guess an independent report in these circumstances, but. that isn’t because this government has a “maxim” of finding out whether someone is innocent enough.

    Comment by steve — December 10, 2012 @ 11:07 pm

  42. And Bain actually went to prison when a National Government was in, didn’t he? Another coincidence perhaps?

    Are you seriously suggesting that the Fourth National Government was able to (i) sway the deliberations of a specific jury and (ii) directly influenced the sentencing decision of a judge (as opposed to say, precedent) and moreover, that it was some form of conspiracy?

    I think you need to seriously consider taking off that tinfoil hat and go and see a professional about upping your dose of neuroleptics.

    Comment by Gregor W — December 11, 2012 @ 10:23 am

  43. No, I’m saying that cops act differently depending on what party is in power.

    Comment by Dan — December 11, 2012 @ 1:30 pm

  44. Ah – so the conspiracy extends to the Police now, predicated on which political party is in power?

    Gotcha.

    Comment by Gregor W — December 11, 2012 @ 2:41 pm

  45. And now we have “Bain report based on incorrect facts – minister” (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10853273) So Judith Collins now thinks the Binnie report is “based on incorrect facts and a misunderstanding of New Zealand law” and needs to be “peer reviewed”.
    What ever next for Collins? She could just decide that the jury’s not guilty verdict for Ewen Macdonald was based on incorrect facts and needs to be peer-reviewed. There;s about 0% doubt now that she shopping for decisions.

    Comment by Mr February — December 11, 2012 @ 11:54 pm

  46. @Gregor W: Ah – so the conspiracy extends to the Police now, predicated on which political party is in power?

    I don’t believe in a conspiracy in the Bain case; it can be explained by low(ish) level cock-ups, with higher levels attempting to paper over the cracks. However, it is probably expected that the police act differently depending on whom their political masters are. Afterall, on the face of it, that seems to be the point of having a Police Minister who has various budgetary/policy levers to play with.

    Comment by RJL — December 12, 2012 @ 11:07 am

  47. She could just decide that the jury’s not guilty verdict for Ewen Macdonald was based on incorrect facts and needs to be peer-reviewed.

    Poor comparison. It’s not at all the Minister’s decision to make in that case. Whereas, in the case of an award of compensation outside the guidelines, it is the and Cabinet’s decision via the Minister’s recommendation.

    Comment by steve — December 12, 2012 @ 8:04 pm

  48. Dan wrote: “Is it a mere coincidence that this happened under a National Government? I think not. The facts are that National are hard on people when they feel they can get away with it, whereas Labour lets the systems in place work as effectively as they can”

    I think that’s half-right. Labour do usually seem to go for the approach of letting the systems in place do their thing even if they don’t like the outcome (the Foreshore and Seabed issue being an obvious exception). However, I don’t think National are inclined to intervene for the sake of ‘being hard on people’ – I think they’re just inclined to interfere because they think they know better. The sacking of ECan and the decision to fund Herceptin weren’t anything to do with being hard on people, but they were classic examples of National deciding to override a process that had been set up to be arms-length from the government, simply because they thought they knew better. I understand Muldoon did something similar in insisting that the Clyde Dam be built high enough to flood Cromwell, when the experts recommended building it lower than that.

    Comment by kahikatea — December 12, 2012 @ 8:22 pm

  49. However, it is probably expected that the police act differently depending on whom their political masters are.

    Sure, in a policy sense maybe but not a procedural one.

    Dan stated “And Bain actually went to prison when a National Government was in, didn’t he?” the reasonable inference is that he believes the outcome (i.e a conviction) would have been different under a Labour government.

    I take that to mean he believes that the flavour of Government directly influencse standards of evidence collection, and the judicial process which is a pretty horrifying thought.

    Comment by Gregor W — December 13, 2012 @ 10:30 am


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