Justice Minister Judith Collins' silence on why she had sought a second opinion on the Bain compensation was prompting speculation she was shopping for a verdict. But who knew she's respond like this?

Judith 'Crusher' Collins is back at it. Having had little luck actually crushing cars, today she's using her vice to scrunch the reputations of Justice Ian Binnie from Canada, and her own predecessor as Justice Minister, Simon Power. You have to love that you won't die wondering with Collins!

In a press release this morning, Collins dispenses with any niceties as she finally explains why she's decided to have Binnie's report into the question of compensating David Bain peer reviewed by Robert Fisher QC.

At the start of the month we learnt Collins has asked Fisher, a former High Court judge, for a second opinion on whether the government should compensate Bain, who spent almost 13 years in prison for the murder of his family members. Bain was acquitted in 2009 and it's understood -- though it has never been confirmed -- that Binnie had decided Bain was probably innocent and deserved compensation.

The second look was a terrible u-turn by National, raising questions about natural justice and suggesting that it lacked faith in its own process. It looked as if Collins was shopping around for the answer she wanted. Andrew spelled it out very well here last week.

The review itself, by a New Zealander, contradicted the government's stance of just a year ago.

Simon Power, announcing Binnie's review last year, stressed the Canadian's "distinguished career", adding:

“Due to the long-running and high-profile nature of the case, and after consultation with Mr Bain’s lawyers, it was decided a judge from outside New Zealand would be appointed."

Collins, in appointing Fisher, decided a New Zealander could pass judgment after all, contradicting Power. But she also contradicted herself. When Binnie handed in his findings in September, Collins publicly thanked him for his "very comprehensive work". Comprehensive reports, however, don't need a re-do.

Still, Collins stayed silent on the crucial question of why a second opinion was needed, allowing speculation to fill the gap in the facts. I raised this point in my "huddle" with Larry Williams on ZB last Friday. While Larry was arguing the peer review was right and proper, I pointed out we couldn't know either way because only the cabinet had seen the Binnie report. We had no way of knowing why Collins had not accepted it and what was meant to be so wrong with the report. The risk was that people thought Collins had decided on Bains' guilt, thought compensation would be politically damaging and was looking for a way out. She needed to release the report, or short of that explain why, I said.

Today Collins has done the latter, saying with little ambiguity that the "distinguished" Binnie didn't do the job well enough.

“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".


“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".


“I am very disappointed this peer review is needed – I think we would all agree that a timely conclusion to this matter would be best for everyone. But justice must be done – a robust and proper process is the only way to ensure a certain and final conclusion to Mr Bain’s claim".


And just to finish the poor blighter off:

“Since then [September], I have received from Justice Binnie, unsolicited, two further versions of his report".

So in sum, Collins is asying -- Binnie wasn't able to construct an argument robust enough to support its own conclusions, didn't know the law (despite Power noting "Canada has a compensation regime with similarities to New Zealand’s"), and made incorrect assumptions on facts of law. And since I pointed that out to him, he's been sending me new versions in a pathetic attempt to get back on my good side!

Not only does that harm Binnie's international reputation, it implicitly criticises Power for picking him in the first place and the process cabinet signed up to. Why did the former minister choose the wrong man for the job? Why did he bother going offshore? And why did he commit $400,000 to a process that wasn't guaranteed value for the taxpayer's money?

Really, it's one heck of a press release that can crush two respected men and raise so many uncomfortable questions for her own party. But it's so refreshing in its bluntness and lack of spin, you've gotta love it. We could do with more like that from this government.

While some sort of statement from Collins was necessary, as I argued on Friday, few ministers would have worded it quite like this. It didn't really pan out with the cars, but perhaps the 'Crusher' nickname is well suited after all.


Comments (14)

by Andrew Geddis on December 11, 2012
Andrew Geddis

All I can say is that it is lucky people didn't leap to the conclusion that just because Binnie said so, it was so. Such people would be feeling a little bit embarrased about now.

Unless, of course, they had earlier expressed contradictory views that enabled them to say; "See? I was right all along."

by Tim Watkin on December 11, 2012
Tim Watkin

Imagine if that person had written:

Of course, if it turns out that Binnie has completely messed up his report, then that would change things. But I doubt he has.


Now he's completed that job, I think we have to accept his conclusions ... at least and until it is comprehensively demonstrated that he screwed up. In which case, of course we'd be silly to accept his views just because he was a judge.

Would that be better or worse?

But the same guy may have made another very good point:

So for the Crown to turn around and say "thanks, but there still will be no compensation as we know better (because you stuffed up)", there's going to have to be pretty major evidence that he HAS stuffed up ...

I'd note that we still only have Collins' word that Binnie stuffed up. It'll be interesting to see the report, presumably to be released the week before Christmas!

by Andrew Geddis on December 11, 2012
Andrew Geddis

I'd say that person is a slippery bugger who likes to keep all his options open ... in other words, he's hung round lawyers too long.

by Ross on December 11, 2012

it implicitly criticises Power for picking him in the first place and the process cabinet signed up to.

Maybe I'm naive but don't read it that way it all. Collins has simply explained how Binnie came to be selected. How could Power (or anyone else) have known that he would write a crap report?

by Jane Beezle on December 11, 2012
Jane Beezle

Well, we don't appear to just have Collins' word.  We have the Ministry of Justice officials charged with considering compensation claims; a Solicitor-General who has a good legal brain; and the Attorney-General.

Given that it is likely all the papers on this will eventually be made public, heaven forbid the Minister might be telling the truth.

by Stephen on December 11, 2012

Mmmmmm who to believe, a well respected judge or a self serving politician??

by Tim Watkin on December 11, 2012
Tim Watkin

Ross, far from me to disagree with you when a read of Andrew's earlier post shows you to have been spookily prescient on this one... but I think the political reality is a bit tougher than that.

It's not cricket to come in and dump on your predecessor's process like that, whatever the reality of the report (which we don't know yet). Even then, politics is meant to be a results and judgment business. You might not be able to predict the end result, but you're supposed to be able to find a safe pair of hands and choose someone who will get the job done properly. Good choices are a big part of the job. If you choose a dud you're darn tootin' sure going to have your judgment questioned, especially when you've backed your choice with $400,000 of taxpayers' dosh.

by Ross on December 12, 2012

It's not cricket to come in and dump on your predecessor's process like that

I see things differently. As I've said, Collins has explained the process. If you think there is more to it than that, fine. But I don't, and I don't see her criticising the process. Power presumably thought that Binnie would do a good job and would satisfy Bain's supporters, though whether Power thought Binnie would recommend compo is another matter. But I support Power's decision. It was quite a different decision to that of then Justice Minister Phil Goff who, in 2000, appointed Sir Thomas Eichelbaum to head the ministerial inquiry into the Peter Ellis case. Eichelbaum was a mate of the Ellis trial judge (Justice Williamson) and had referred to Williamson as  "model judge" who had handled some of the most difficult trials of his time and had done so "impeccably". Did Goff really think that Eichelbaum would find in Ellis's favour?

by Tim Watkin on December 12, 2012
Tim Watkin

You're being more generous to Power than me, Ross. And more generous than Collins' cabinet ministers are likely to be feeling towards her (apart from Parata, who will be grateful this growing controversey has diminished yet another education screw up).

If I chose someone to be interviewed o telly thinking they'd do a good job, and then they got their facts wrong, maybe caused TVNZ to put out a press release explaining the error and promising a review... I'd get hauled over the coals. Isn't that similar to what Power's done? He thought Binnie would be good, sure, but according to Collins Binne made mistakes that have put National in an awkward political bind, has a top judge firing off broadsides from Geneva, lawyers calling this an abuse of power and Joe Karam accusing the government of shopping for a verdict. Sounds like a fail.

And no, I don't buy Collins is just explaining. That's one of the most strongly worded press releases I've seen for a long time, hence my original post. She's seen the fuss coming and decided from the outset that the best form of defence is attack.

by Ross on December 12, 2012

Yes, Tim, Collins' press release is strongly worded. But I suggest that Binnie's press release referring to Collins as an "Auckland tax lawyer" is even stronger.

You seem to be blaming Power for Binnie's report. I still don't get it. Binnie is accountable for whatever is in his report, not Power. If Binnie has made mistakes, they're his mistakes. It's a bit like blaming Steve Hansen if Dan Carter has a shocker, though in this case Binnie and Power have a more distant relationship than Hansen and Carter.

As for putting National in a bind, I suspect Collins and Co simply don't want to pay compo because the Justice Ministry and Solicitor General can't stomach the idea. Binnie can't be held responsible for the entrenched positions of these two.


by Andrew Geddis on December 12, 2012
Andrew Geddis

Yes, Tim, Collins' press release is strongly worded. But I suggest that Binnie's press release referring to Collins as an "Auckland tax lawyer" is even stronger.

Absolutely! But I suspect Collins has misjudged her target a bit, and assumed Binnie would respond to her comments as a NZ ex-judge would. Canadian judges, however, are not as shy and retiring in the face of slap-downs by elected politicians. They (and Binnie in particular, if you look at his post-Supreme Court comments) will, and do, give as good as they get. So by going on the attack, she's now in a shouting match that I'm not entirely certain she can win.

by Tim Watkin on December 12, 2012
Tim Watkin

Ross, I agree Binnie's is very strong. But this post was about Collins' release and written before Binnie's had come out. And my commentary was aimed at the politics not the legalities.

Yes I'm blaming Power (in large part) for creating this mess. Your ABs comparison is actually a good one - the coach often cops the blame if the players don't perform. Why did he pick them? Should he have trained them harder/lighter? Did he get the tactics wrong?

And Collins is the minister. If her department and the S-G don't want to pay, she doesn't have to agree. She's the boss of them in a political decision such as this.

by Ross on December 12, 2012

the coach often cops the blame if the players don't perform

And the players get all the kudos if they play well! The coach can never win.



by Andrew Geddis on December 12, 2012
Andrew Geddis

The coach can never win.

Oh, I don't know. Alex Ferguson has done alright for himself ... and there was that bloke Brian Lohore who people seemed to have a bit of time for.

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