Justice Minister reignites de Bain debate

Minister of Justice has announced that Cabinet will start from scratch in investigating whether David Bain will be compensated for being imprisoned or not.

This will please all those who relish an excuse to debate the merits of the case.

Press release:

CABINET TO TAKE FRESH LOOK AT BAIN CASE

The Government has agreed to set aside all previous advice relating to David Bain’s compensation claim and conduct a fresh inquiry, Justice Minister Amy Adams has announced.

In November 2011, former Canadian Supreme Court judge Justice Ian Binnie was appointed to provide advice on the claim. He completed his report in August 2012.

After being made aware of concerns raised about Justice Binnie’s report and receiving advice from the Solicitor-General, the then Justice Minister Judith Collins decided to seek a peer review by former High Court judge Dr Robert Fisher. Dr Fisher found that Justice Binnie’s report contained a number of errors and was, therefore, unsafe to rely on.

“Given these events, it’s my view that Cabinet doesn’t have the information in front of it on which it could reasonably reach a decision,” says Ms Adams.

“For that reason, the advice of both Justice Binnie and Dr Fisher will be set aside and I will appoint a new inquirer to conduct a fresh inquiry into Mr Bain’s claim.”

Ms Adams says it’s important that the final decision on Mr Bain’s claim is durable and withstands the close scrutiny the case attracts.

“The New Zealand public rightly expects the Government to make a decision with the full set of facts and reliable advice in front of them. A fresh look will safeguard the integrity of the process and reassure the public that Cabinet will act on the best advice available,” says Ms Adams.

“Despite the further delay, conducting a fresh inquiry is the best approach in the circumstances and enables Mr Bain’s claim to be progressed on a proper and robust basis.”

Mr Bain’s claim for compensation falls outside existing Cabinet guidelines because when his conviction was quashed, a retrial was ordered. However, Cabinet has also reserved a residual discretion to consider claims outside the guidelines in “extraordinary circumstances … where this is in the interests of justice”. To satisfy the test for the payment of compensation that applies in his case, Mr Bain will need to prove his innocence on the balance of probabilities and be able to satisfy Cabinet that the circumstances are sufficiently extraordinary that it would be in the interests of justice for compensation to be paid.

“I have notified Mr Bain’s representatives of Cabinet’s decision and I understand they are comfortable with the process. All parties have agreed to draw a line under what’s happened and move forward in a constructive manner,” says Ms Adams.

Ms Adams will now seek advice on an appropriate inquirer and develop their terms of reference. There will be a further announcement in due course.

Related Documents

9 Comments

  1. Kittycatkin

     /  February 19, 2015

    If I was David Bain, I wouldn’t push my luck.

  2. Mike C

     /  February 19, 2015

    I think David Bain has a legitimate case.

  3. My first thought is simple: this kind of thing is absolutely a matter for the courts. Ministers – politicians! – singly, or in cabinet, should *never* be making such quasi-judicial decisions.

    If this is a high-profile or controversial case (I’m a recent immigrant to NZ, don’t know background) there’s FAR too much danger of justice and fairness being shunted aside, and political considerations (how the decision will play to their electorate) being their prime consideration.

  4. Brown

     /  February 20, 2015

    Everyone has an opinion about this and many followed the case closely. The last trial was embarrassing with some juror’s hugging him after the trial. At least one thought he did it but the evidence did not meet the level required for conviction. That people generally appear so split over guilt seems to indicate that Bain cannot begin to satisfy the test of innocence. I don’t know why the govt doesn’t say “No” without further ado.

    Meanwhile Peter Ellis, who appears to have been stitched up, remains convicted.

    • Test of innocence????

      There’s only one such test, and it’s summed up by ‘innocent until proven guilty’.

      If you haven’t been proven guilty you’re 100% innocent; there’s no other way, no middle ground here. In Scotland we have THREE verdicts; ‘guilty’, ‘not guilty’, and ‘not proven’; the last two verdicts are both full acquittals, leaving the accused as innocent as they were before they were first suspected.

      • Mike C

         /  February 20, 2015

        @MikeRoss. You are absolutely 100% correct about the perspective that the Justice Minister must view David Bains situation and legal case.

        A Not Guilty Verdict = Innocent

        • Alan Wilkinson

           /  February 20, 2015

          I think the question is whether the Crown acted unfairly to obtain the guilty verdict that was overturned. If so then compensation is payable.

          • ‘fairness’ is a good concept in cricket.

            If an innocent man has lost many years in jail as a result of a wrongful conviction – which is what happened in this case, as I understand it – then it doesn’t *matter* if the conviction was obtained ‘fairly’ or ‘unfairly’; he needs to be made good for what he’s lost, in as much as monetary compensation can ever do that.

            There will inevitably be ‘collateral damage’ in any criminal justice system; innocent people who for whatever reason end up wrongly convicted. Taking good care of such people is as important a function of the system as punishing those rightly convicted – more important, in fact, as a failure to do so makes the system look oppressive and unjust, and risks undermining public confidence.

  5. Brown

     /  February 21, 2015

    In the compo matter Bain has to show its most likely he didn’t do it. The criminal matter was a case of the police having to prove to a higher standard he did do it and as we know they couldn’t quite do that. We don’t actually know if he did it or not and the case is effectively one of “not proven” rather than innocent although that option was not available to the jury. This makes compo a more delicate thing than you seem to appreciate. I think the evidence points to David but that’s just my opinion.