David Bain's claim for compensation is starting to look more and more like Charlie Brown's attempt to kick the football.

According to the stuff.co.nz website, John Key said the following about Judith Collin's decision to seek further legal advice (actually, a review of the review) on David Bain's claim for compensation:

Asked if it was a question of the Government looking for the advice it wanted, he said: "No, I don't think so . . . she [Ms Collins] had some concerns, or at least issues, that she wanted to flesh out a bit more before she took the next step.

"There will be a lot of public interest in what happens here and obviously the Government needs to ensure it's fair."

Let me translate and flesh out that statement for Pundit readers.

"Look, just about everyone in New Zealand has an opinion on this Bain bloke's guilt or innocence, and a fair chunk of them think he's guilty as sin. And, to be honest, there's a lot of us around the cabinet table think that, too. So if we give him a couple of million dollars as compensation for being wrongly jailed, we know there's going to be a hell of a backlash from people who've read things like this.

So that's why Simon Power got this bloke Binnie in from Canada to have a look at Bain's claim for compensation. I suppose he hoped that getting an informed opinion on the case from an eminent outside source might work to convince everyone that, whatever their personal views, they should just accept his conclusion and let the issue go.

Now, frankly, the easiest thing for us would have been for this bloke Binnie to conclude that while Bain is not guilty of the murders, he also most probably is not innocent of them either. Then we could just do a Rex Haig on him by telling him to count himself lucky he's not still in jail before sending him on his way.

But unfortunately for us, this bloke Binnie has come back and told us that Bain actually is most probably innocent. And in the meantime, Simon has moved on and Judith has taken over his job. And Judith has some problems with some of the decisions that Simon made, so doesn't feel that she has to just carry through with the plans that he made.

So because we're not all that happy with this bloke Binnie's conclusions, and we know that there'll be a fair chunk of New Zealanders who won't be either, we're going to get someone else - this bloke Fisher - to have a look at what we've been told. If this bloke Fisher tells us that this bloke Binnie got it right, well then ... I guess we'll have no real choice but to go along with it.

However, if this bloke Fisher tells us that this bloke Binnie has gone off the deep-end and got it all wrong (which, to be honest, is what Judith herself thinks), then that'll give us a reason to say that the "special circumstances" needed to pay Bain compensation haven't been met. Which would, quite frankly, be a bit easier for us to sell. So that's what we're going to do."

I suppose that answer wouldn't really fit neatly into a press conference - and good luck getting it packaged into a neat sound-bite quote!

Comments (9)

by Ian MacKay on December 04, 2012
Ian MacKay

It shouldn't matter what the public think. If you employ a specialist to make a decision then you better accept it or look stupid in denial.

by Richard on December 04, 2012
Richard

@Ian

"Well he’s one lawyer, and like academics I can give you another one that will give a counterview..."

by Ross on December 04, 2012
Ross

Just because someone is eminent doesn't mean they're incapable of making mistakes. Lord Denning was an eminent judge who couldn't comprehend that the Birmingham Six could be innocent. He was horribly wrong. His mistake led the Birmingham Six to spend several more years in prison before being exonerated. Former Chief Justice Sir Thomas Eichelbaum seemed to believe that Peter Ellis indulged in all manner of Satanic rituals with kids and colleagues at the Christchurch Civic Creche. His findings don't withstand scrutiny.

Surely there's nothing wrong with a peer review in this case. It happens all  the time in academic journals where arguably the stakes are lower.

 

by Andrew Geddis on December 05, 2012
Andrew Geddis

@Ross,

Sure, judges are human and as such prone to error - as both your examples show. Hence the existence of appeals. But even given the possibility that Binnie simply got it wrong, there's still some pretty dodgy points about this "review" process.

(1) With appeals, there are rules as to who does them and when they are available. (I note that those rules may be inadequate - as the Peter Ellis example shows - but nevertheless they exist.) In Bain's compensation case, the Government seems to be making the process up as it goes ... which leaves it open to cynical eyebrow raising like mine.

(2) Here we aren't dealing with a possible miscarriage of justice, in which some individual remains languishing in jail (Birmingham 6) or publicly labled a paedophile (Peter Ellis). At worst, Bain will get a chunk of money that he doesn't deserve (which happens to lotto winners every week). So there is a difference in the consequences of a judge "getting it wrong" in this situation as opposed to the ones you mention.

(3) Collins is asking a retired High Court judge to examine and comment on the quality of analysis of a retired Supreme Court judge. Usually you take things the other way - ask a higher court judge to look at the work of a lower court one.

(4) Collins is asking a NZ judge to see whether the Canadian judge got it right. The reason that we turned to an outsider in the first place was because of concerns that domestic views on this matter are too tainted to trust. Have those concerns now vanished?

by Ross on December 05, 2012
Ross

In Bain's compensation case, the Government seems to be making the process up as it goes ... which leaves it open to cynical eyebrow raising like mine.

I tend to agree with you, Andrew, on this point. The Government should have set out exactly what it would do in regards to this compensation claim. There is the perception that the Government is waiting for the "right" advice.

At worst, Bain will get a chunk of money that he doesn't deserve (which happens to lotto winners every week).

I'm not sure I see the connection with this case and lotto winners. To win lotto, you have to pay some money and pick some numbers, not kill your family (if that's what David did). It's worth remembering that the Government is not obliged to compensate Bain given that his claim falls outside the criteria.

Collins is asking a retired High Court judge to examine and comment on the quality of analysis of a retired Supreme Court judge. Usually you take things the other way - ask a higher court judge to look at the work of a lower court one.

Who should Collins have asked to review Binnie's report? Retired High Court Judges and QCs are often asked by the Justice Ministry to review alleged miscarriages of justice in regards to applications for the Royal prerogative of mercy. Sir Thomas Thorp reviewed the Peter Ellis case, despite Thorp being a lowly former judge. On this point, I think you're wrong.

by Ross on December 05, 2012
Ross

I should've added that Justice Fisher reviewed Rex Haig's application for compensation. Are you suggesting that Fisher wasn't of sufficient standing to undertake such a review? I've not heard of this criticism before now.

by Andrew Geddis on December 05, 2012
Andrew Geddis

@Ross,

All I'm pointing out in respect of Robert Fisher's role is that it seems odd to make a decision to bring in Justice Binnie on the grounds that a fresh pair of unimpeachably qualified eyes is needed from outside of NZ (to guard against both the reality and the appearance of bias when reviewing what is the most controversial criminal case in NZ since Arthur Alan Thomas - much more so than Rex Haig's was), then decide to subject that report to a review by someone who you could just as easily have got to do the original report.

In other words, why exactly was Binnie brought in at all, if we're now going to simply default to the usual QC/ex-NZ Judge source of review? Have those concerns magically disappeared ... or were they never present to begin with? And further, now that we're reviewing reviews, why not have reviews of the review of the review? Ad infinitum? 

by Jane Beezle on December 11, 2012
Jane Beezle

Well, of course there is always the possibility that the Minister isn't pandering to public opinion, but genuinely has principled concerns about the report she has received.

I would think that it is more likely than your "explanation", which appears to have a lot to do with bias against John Key and Judith Collins, and little to do with considered legal comment.

by Viona C on December 12, 2012
Viona C

Andrew is it weird that I read your entire translation in Key's voice?

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