Judith Collins ducks for cover in Bain compo stoush

Justice Minister Judith Collins is refusing to be drawn into a tit-for-tat war of words with Justice Ian Binnie over the David Bain compensation claim.

After being publicly blasted by Ms Collins for serious shortcomings in his report on Mr Bain’s claim, the retired Canadian justice responded in kind, accusing her of playing politics.

But with the ball firmly back in her court, Miss Collins has now gone to ground, telling NBR ONLINE through spin doctor Rachael Bowie that she “is not getting into a personal debate” with him.

“An independent peer review process is under way and it’s important this is allowed to work through,” Ms Bowie says.

She also revealed that “Minister Collins is giving careful consideration to Mr Bain’s supporters' public requests to release both Justice Binnie’s and Robert Fisher’s advice”.

Queen’s counsel Robert Fisher was engaged by the minister to conduct a peer review of the Binnie report, which she considered seriously deficient in several respects.

It appeared to contain assumptions based on incorrect facts and showed a misunderstanding of New Zealand law, she says.

It also lacked “a robustness of reasoning used to justify its conclusions”.

Mr Fisher is due to present his report to Ms Collins any day and a decision on whether Mr Bain receives any compensation will be made in the New Year.

Miss Collins' very public spat with Justice Binnie has, not surprisingly, captured the attention of the legal fraternity, which is following events with a mounting sense of incredulity.

It is not often that a Cabinet minister besmirches the reputation and standing of a well-respected Commonwealth judge and it has legal tongues wagging, especially in the realms of academia.

So NBR ONLINE submitted some pertinent questions to two of the country’s leading legal academics, Associate Professor Bill Hodge of Auckland University and Professor Andrew Geddis of Otago University.

1. Has Justice Binnie a right to feel aggrieved at Miss Collins' comments saying his report appeared to contain assumptions based on incorrect facts, showed a misunderstanding of New Zealand law and lacked a robustness of reasoning used to justify its conclusions?

Andrew Geddis: Yes. It's a pretty scathing indictment of someone who was, until last year, serving on the highest court of Canada and it calls his professional competence into question.

And if you do that to an ex-judge (who is used to having a certain level of deference paid to him and his opinions), then you are striking directly at his mana.

So I'm not surprised he's given Collins as good as he got, nor do I think he was wrong to do so.”

Bill Hodge: “It’s an attack on his competence, it’s not just saying you missed out on a few facts or you don’t appreciate our culture, but to say you’re incompetent, that’s really going to the heart and he has a right to be aggrieved in my view.

There is a way she could have said this is not quite what we were looking for but to say it’s not reasoned or robust is an allegation of incompetence.

And it would be a smear on his reputation, his capacity, and his ability.

I mean, this is what judges do – take a complicated set of facts, get some legal submissions and distil an outcome, and Collins says he’s done it incompetently so it’s close to being defamatory.

I’d say it’s on the borderline of defamation, maybe over the border, but he’s not going to bring an action."  

2. Has Ms Collins followed “a fair and even handed process” in determining whether David Bain should receive compensation?

Andrew Geddis:  “Well, we're not at the end of it, so it may be too early to say.

However, the real problem is that the process is being made up on the hoof ... Simon Power decided to set one process in train, Judith Collins has taken over his role and received a report she clearly is unhappy with, so she has decided to set another process in train to try and deal with that issue.

But because the rules are being made up as we go, there's inevitably a fear that they are being developed in an effort to produce an outcome.”

Bill Hodge: “Although Collins is Minister of Justice she’s working in a political environment with the backup of the Solicitor General, so it’s not the same as an employer considering allegations of misconduct – it’s not the same as a criminal court hearing cases.

It’s a decision about spending public money by people who are entrusted with the public money to spend, albeit in this case ex gratia, to spend it appropriately.

So there is a political element to this rather than fair and even handed processes or about a legal decision-making process.

It is a political process and Binnie himself has said that.”

3. Should Ms Collins have referred the Binnie report to the Solicitor General for “advice” given that his office “attempted for almost 17 years to uphold a conviction of Bain?

Andrew Geddis: “The problem is that she has no-one else to go to for advice!

The Government's legal officers are also the people who are charged with representing the Crown in criminal prosecutions – it's just that we expect them to 'swap hats' when they move from role to role.

So unless Collins was going to lock herself in her office and make up her mind what to do here without talking to anyone, the only people she could talk to were the Solicitor General and Crown Law.”

Bill Hodge: “The Solicitor General is the highest law officer in the land who is not a politician, so she doesn’t have anywhere else to go to.

I mean, he is the go-to guy who I would go to if I wanted a little bit of back-up or cover.

He’s bound to report on the law. He’s not a prosecutor, he’s a legal adviser to the government and she’s quite within her rights to go to him.”

4. If Ms Collins was intent on seeking advice was she duty bound to get “input from both sides?”

Andrew Geddis:  “Depends what we mean by "duty". In a legal sense, probably not.

This whole compensation issue is a political call wherein the Cabinet can do whatever it wants to, so the minister has pretty much a free hand when it comes to pulling together information to give to Cabinet.

The 'Cabinet Guidelines' are meant to give this process some sort of structure (without being legally binding on the Crown), but they don't cover the eventuality we're presented with here.

So it's a clean slate in terms of deciding what to do.”

Bill Hodge: “This is more of a political decision-making process and I don’t think she is legally bound to get input from both sides.

There’s certainly an element of unfairness but not a legally deficient unfairness.”

5. Was it unfair that Justice Binnie’s report was not shown to “the party most affected, David Bain?”

Andrew Geddis: “That's a different way of asking the previous question.

I suspect that Collins' concern was that had Bain's team been provided with a copy of the report, it (or, selected excerpts from it) would quickly have made its way into the media and been used as a stick to try and beat the government into settling the matter quickly.

So she's chosen not to give it to them.

Which is, of course, not 'fair' if you think that the issue should be handled in a legalistic, even-handed manner.

But if you think that the issue is a political one in which public opinion is a critical factor in how it will finally be resolved, then fairness doesn't come into it!”

Bill Hodge: “There is an element of moral unfairness but not legal unfairness. I don’t think there is a legal obligation to release it.

It is a report commissioned by the government for its own political use so it’s not for the public in that sense.

I suspect that in the long run the politics and the morals of it will demand its release, so I suspect it will come out in due course.

There’s no legal requirement to show it to Bain, although I would have done that myself routinely if I was considering making a decision that was adverse to him.

But this is not the type of process where it is legally required – there is no precedent for it.

So I would say it’s morally unfair, but without seeing the report it’s impossible to fully make that judgment but I would say she should have shown it to counsel on the other side.”  

6. Is it incumbent upon Ms Collins to release the Binnie report now in order to allow New Zealanders to “judge for themselves” the merits of her press release?

Andrew Geddis: “Well, I think she's made that rod for her own back.

If she wanted 'the process' to play out before releasing all the information (which, I believe she eventually will have to do), then she ought to have simply said that from the start ... "This is a high-profile case with a lot riding on it. We want to get it right, so we're gathering all the facts we can before making any decision – once we have all those facts then we will, of course, make them public ... but until then there will be no further comment."

But by hinting at what is in Binnie's report, but then saying 'it's secret', she's opened herself to the question, 'just what is it that you want to hide?'

Bill Hodge: “In due course I think she will release the report. She probably won't before Christmas and I think it will come out in January, and I’ll bet you a latte on that one.”

7. How would you describe the overall way in which Ms Collins has handled the Bain compensation claim?

Andrew Geddis: “I think she's been handed a tough hand to play, but nevertheless she hasn't dealt with it all that well.

In particular, I think her decision to rip into Binnie in public has backfired – not only does it now pit her against someone who isn't afraid to give as good as he gets.

But it's probably scotched any chance that Binnie could have been convinced to quietly withdraw his report following Fisher's review of it.

She's now hurt his ego too much for that."

Bill Hodge: “It has been clumsily handled but I would say remember she is considering spending a lot of public money and she has an obligation to the taxpayer to spend that money carefully.”

8. Will there be any disquiet in legal circles here and abroad at the way this case is playing out?

Andrew Geddis: “I think the entire Bain saga has produced disquiet in legal circles – given all that preceded it, the miracle would have been had the compensation claim been settled in a quick and uncontroversial fashion!"

Bill Hodge: I think the disquiet is about the fact that there are a lot of people, some in your profession and some in mine, who are pretty hostile to Joe Karam, David Bain and Privet Reed and there is a lot of support for the view that Robin Bain could not have done it (committed the murders).

So there is a view around that Collins is dealing with a hot potato in a clumsy way, but it is a legitimate hot potato with strong views on both sides.”

9. In getting Robert Fisher to undertake a peer review was Ms Collins “shopping around” for an opinion she liked?

Andrew Geddis: “I think 'shopping around' is too strong.

I think she has genuine concerns about some aspects of the Binnie report (which have been amplified by Crown Law's advice) and believes that if it had been accepted and acted on as is, there would have been a very strong public reaction against it ... you can bet that every amateur Bainologist convinced of Bain's guilt would be all over it with a microscope ripping it to shreds.

But if she came out and simply said 'I think this report is wrong (and Crown Law thinks so, too)', then she would be subject to a very strong public reaction against that conclusion ... every other amateur Bainologist (plus Karam/Reed/etc) would be all over the media crying 'cover up!'

So she needs some outside cover to back up her concerns – which is NOT (I repeat NOT) an allegation that Fisher simply has been brought in to tell the minister what she wants to hear, but rather reflects my suspicion that if she thinks the report is that bad then those facts will also lead another independent observer to the same conclusion.”

Bill Hodge: “In terms of shopping around, Bob Fisher has been the go-to guy in this sort of situation before.

He’s found some in favour, he’s found some against, but as far as I’m concerned he plays with a straight bat.

So she couldn’t go to a better guy in terms of experience or in terms of being able to cope with the complexities and the pressures.

He’s not known to me to have a strong view one way or the other on this and I know him pretty well.

I think he’s the best available person to do it.”

10. Is there anything else you would like to comment on in relation to this matter?

Andrew Geddis: “This episode really underscores the need to rethink how we handle the issue of both dealing with alleged miscarriages of justice and compensating wrongly convicted/imprisoned people.

There have been calls to set up something like the UK's Criminal Cases Review Tribunal (see, eg, this: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10578421), which could also have the role of deciding upon claims for compensation for wrongful convictions.

Leaving this issue in the hands of a minister inevitably politicises it, which comes at two costs.

First, there's a public confidence question: is the just thing being done, or the popular one?

And second, there's the question of fairness to people who may have already suffered a terrible injustice at the hands of the State.”

Bill Hodge: “It’s an awkward and ugly situation and we’ll all await with interest to see how it plays out.”

rvaughan@nbr.co.nz