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Collins defends stance as Bain issues legal challenge

Justice Minister Judith Collins is defending the government’s stance in the face of a High Court challenge from David Bain.

Alleging bad faith, abuse of power and bias, Mr Bain today filed a High Court claim against Ms Collins seeking a judicial review of her actions over retired Canadian judge Ian Binnie's report on the Bain trials.

Otago University law professor Andrew Geddis predicted to NBR ONLINE last week a judicial review was a possibility – an area he said was messy territory.

A review by former High Court judge Robert Fisher found Mr Binnie over-stepped his brief.

Ms Collins is today sticking to her guns, saying the Binnie report was “unsafe” and “flawed” and the government should not base any claim for compensation for Mr Bain on the basis of such a report.

“That would not have resulted in justice for anyone, let alone Mr Bain.”

Mr Bain was convicted of murdering five members of his Dunedin family in 1995 but that conviction was overturned after the Privy Council ordered a retrial in 2009.

“Mr Bain’s application falls outside cabinet guidelines and is entirely at cabinet’s discretion. I have taken steps to ensure the process is fair and proper throughout,” Ms Collins says.

Mr Bain has asked the government to put his application for compensation on hold and this will cause further delays, she says.

“I am considering his request. As this matter is now before the courts I will not be commenting further.”

More by Rob Hosking

Comments and questions

Boy oh boy, what a mess (and cost) Collins has put us poor taxpayer to. There is no doubt the cops scewed up (and possibly he's guilty). But this needs to be shut down. Give him money and move on.

....better still, give him nothing and move on.

Couldn't agree less.

It is one thing for a jury to find the guy not guilty, but there remains only one plausible culprit. Justice was partially served.

Much like the Kahui twins shambles, but in that case it was much worse.

I would rather pay 10 times the money to make sure Bain doesn't get a cent in compensation.

If police incompetence destroyed any possibility of David Bain proving his innocence then under law the NZ government should pay. Binnie, who is one of the most respected judges in a common law country, understood this and clearly made it a feature of his findings.

While Collins or any other person might think they know David "did it" under the presumption of innocence, until such time as he has been conclusively found guilty in court, without any possibility of appeal, he has the right to be regarded as innocent. The highest court in the land, at the time the Privy Council, on appeal found sufficient reason to grant Bain a new trial at which a jury of his peers found him "not guilty".

What Collins wants to do is throw away legal traditions that go back to the Magna Carta in 1215AD and allow the government to deprive natural justice because the minister has a hunch or gut feeling David Bain is guilty.

Her slating of the Binnie report in public in the manner she did was arrogant, unprofessional and an inexcusable insult to the former Canadian Supreme Court justice.

The legal system is not based on ministerial hunches, but on process of law and fact.

The minister appears to be getting a little too big for her already generously sized britches.

If the police destroyed the possibility of the man proving his innocence, and he spend over a decade in prison because of this, then we owe him compensation. The police and ministers of the Crown need to understand that the NZ Bill of Rights is there to stop abuse of government power. When the government steps over the mark and infringes the civil liberties of the public, compensation is the remedy our legal framework is based on:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
(Clause 39 Magna Carta, 1215.)

Presumption of innocence applies to the court process, not compensation. Your quote from the Magna Carta doesn't mention anything about compensation, either. Truth is, Bain was declared guilty by a jury in the 90's and sent away. A second jury (and think of them what you will) found him not guilty (though not necessarily innocent), and he was released. He was fairly tried the first time, so it's not as though he was locked up without due process.

Your whole premise starts with an "if". Rather a lot of pontification follows from a large assumption that is very much not proven.

IF-IF-IF. What value is a conclusion when the argument is based on IF? There is a mass of evidence. The fact is the likelihood Robin killed himself approaches zero. That's why there isn't enough for David to prove his innocence. Not police incompetence. That's just part of the propaganda. That and the poisonous rumour of incest.

I have explained it here:

Collins is a Pillar amongst Pillocks.

Ditto Brads

Better yet, let him sue (gasp) like they do in other civilised countries instead of having to beg for the (wholly) discretionary mercy of the Cabinet! That way, the Court could decide if he deserves the compensation, instead of this sideshow of whether or not Ms Collins has acted fairly. NZ restricts the ability to sue, yet creates more litigation, ironic.

...and lawyers' nirvana continues on.

If society could only handle their affairs civilly, the need for legal counsel would be greatly reduced. Doctors we all need because illness, injury is inevitable. Lawyers we need because of our flawed natures. And priests, too.

Perhaps that's not the entire story, Frank. Present levels of litigation are not only the product of human nature, they are the product also of an adversarial legal system, which in turn comes not from human nature but from ancient bad royal politics, at least according to Hasnas:

The current state-supplied legal system is adversarial in nature, pitting the plaintiff or prosecution against the defendant in a winner-take-all, loser-get-nothing contest. The reason for this arrangement has absolutely nothing to do with this procedure's effectiveness in settling disputes and everything to do with the medieval English kings' desire to centralise power. For historical reasons well beyond the scope of this article, the Crown was able to extend its temporal power relative to the feudal lords as well as raise significant revenue by commanding or enticing the parties to local disputes to bring their case before the king or other royal official for decision. Our current system of adversarial presentation to a third-party decisionmaker is an outgrowth of these early "public choice" considerations, not its ability to successfully provide mutually satisfactory resolutions to interpersonal disputes. (from the Myth of the Rule of Law)

Human nature, liberated from the royal shackles, would allow people to settle their differences with more concessions and compromises between the people most directly affected.

Also, the work of lawyers is not confined to litigation. Lawyers also advise people how to structure their activities to avoid disputes and to enable disputes to be settled more readily.

Ms Collins is absolutely right to ask for a peer review of the "Binnie report".
How the hell could anybody get paid 400k for writing that, I'll never know.

The Police did screw up, badly!! But if you pay Boy Bain compo for that, then do you not also need to consider compo for Dad Bain?
His name too has suffered from our policing mistakes!!

This sounds like a desperate act by David Bain.
He knows he has got no chance if a second report is commissioned.
So this is his last throw of the dice.
At least it is not costing the taxpayers of New Zealand anything.

Who do you think pays the Crown Law Office's bills (who will represent the Justice Ministry or Ms Collins herself if she is the named defendant)? Who do you think pays for the High Court judge, registrar's and other's time? The taxpayer always pays for the judge and Crown, only gets upset when the common man also gets free legal work.

Collins should pay up (our money) and be done with the matter.
A wonder that JK has not stepped in to stem the continuing damage to National's already severely damaged reputation.

Binnie explains Discombobulation

Robin didn’t pee before the killing spree, p*ss his pants strangling Stephen, visit the lavatory during his clean-up.

Robin changed his bloodied clothes (forgot underpants) before he shot himself but barely washed his hands, because they had little or no blood on them when found.

Robin forgot to leave a suicide letter explaining himself, typing instead an immature message on the computer praising the son who habitually locked him out of the lounge/computer alcove.

Robin didn’t grasp the muzzle (suppressor) to guide the rifle (accurately) to his temple, in order not disturb Stephen’s pristine prints, but left no prints on the rifle anywhere. He got spatter from the head wound on his left index fingernail that was supposedly near the trigger.

Robin, now dead, realised he wasn’t going to fall with his hand outstretched near where he had placed the magazine on its edge, under the table a metre from the beanbag, so he discombobulated over to make it look like suicide.

Cabinet combobulates

Robin was shot dead as he entered the computer alcove, his body lifted up under the shoulders, so spilling blood onto the curtains, and dragged over and dumped on the beanbag to make it look he shot himself there. The spare magazine was placed on its edge a few millimetres from his outstretched hand. The probability of it falling that way is 0 and the rifle was also placed unconvincingly. So while the police initially thought it was suicide they very soon realised it was murder.

What...?,,Is Michael above some sort of mind reader to know what David Bain is knowing or thinking.?
One might be inclined to take a little more notice if he had been on the jury in the last retrial..but he wasn't..and the people who were didn't find him guilty..

You all need to read Binnies brief. He did exactly what was requested. As I''ve stated before, this Government needs to get pragmatic and stop wasting my hard earned taxes on this soap opera. Pay Bain the money now. Half the country will applaud you and half the country will scorn you, so better to end the matter now.

The Binnie report is schoolboy stuff. One juror has said on TV Bain is not innocent. She contacted Binnie; he sent her packing.

Binnie had read Karam's books, you see, and had it all sussed.

If you're worried about your taxes, why don't you complain about the circus that is the legal system? I mean, there is a mass of evidence to show Robin did not kill himself. How did Karam manage to persuade so many people he did?

Wouldn't be the poisonous rumours about incest, would it? Laniet moves into the schoolhouse with Robin and he invites a lodger to join them. Why, exactly?


Binnie didn't do what he was requested at all. He was told not to comment on whether there were any extraordinary cirsumstances. Instead he did the exact opposite. He wasn't asked to recommend compo. He did the exact opposite. On top of that, he made errors of fact, made false assumptions and believed every word David told him! He simply ignored evidence rather than assigning probabilities to it.

In my mind, Bain is not innocent. Bain is starting to remind me of Lance Armstrong's arrogant "comeback". Better for Bain to hide somewhere and keep his head down and get on with life, grateful he hasn't been convicted.

Those who think David Bain is innocent, should contribute to a fund; those who think he is guilty, should deduct from this fund. That way, everyone gets a say.

There has to be something that sets the rules, it is called the law in most countries, including this one.

How would you feel if it was you that was imprisoned then found not guilty under the law?

The increasingly commonplace practice of politicians using taxpayer money in their pursuit of justifying their opinions, should findings under the law not be to their liking, is sinister.

The fact that the individual concerned is David Bain is irrelevant.

There are rules. Compensation is a gift from the people reserved for those found factually innocent, not just found not guilty. Politicians represent the people.

No, we don't need a change in rules awarding compensation, we need a fundamental change in the legal system so we get as close to the truth as possible, What we have now is a charade where we pay defence lawyers to trick the jury.

So what is the bottom line, Dennis?

Innocent until proven guilty, or not worthy until factually innocent?

People are considered innocent until proven guilty. In this case not all the jurors thought Bain was innocent, one appeared on TV saying so.

The applicable rules are, to receive compensation, Bain must show himself to be factually innocent, either beyond reasonable doubt, or if he can show exceptional circumstances, on the balance of probability.

He can't show BRD because there is so much evidence against him. He can't show exceptional circumstances because the police collected enough evidence, clearly, that led to his convict the first time. (If I had been on the second jury, I believe I would have never voted "not guilty".)

It was only the Privy Council ruling the jury should have heard other evidence, that it wasn't for the Appeal Court to decide if a jury would convict. For example, the rumours about incest, which the first judge ruled they shouldn't, because the witness was unreliable. He had an arrest warrant out on him because he refused to appear.

How many people commenting were at the trial or have they just based an opinion on media reports ?????

I see the guilt in the persona.

In my opinion, David Bain lied about those glasses that were found in his room. He told his lawyer and his co-counsel that he had been wearing them and he also told his aunt that he had been wearing them.
They weren't perfect, he told her, but they got him by.
If he had not exercised his right to silence at the retrial I am sure any half-competent prosecutor would have wiped the floor with him on that piece of evidence alone.
Then he had Stephen's blood on his shorts. How did it get there?
Innocent transference, said the defence.
Leaked through from those track pants in the wash, said the prosecution.
When Binnie asked Bain about those track pants, pointing out to him that they were too long to be Robin's, what does Bain say?
He said he couldn't recognise them. But they must have been his. No-one else in the family, apart from David, was taller than Robin.
Then we have those scratches on his chest that he can't explain. How did he get them? Was it the hand of God?
He told Binnie he was completely naked at one point of time when Dr Pryde examined him. But would he have really been completely naked? Wouldn't he have at least been given a blanket to cover himself with, a blanket that he could have used to keep his torso covered so Dr Pryde would not have seen those scratches?
And why did Bain change his story re his father and the house?
At trial he said his mother had said his father wasn't going to have a room in the new house but he tells Binnie his father was going to have a room in the new house.
Bain tells Binnie there was no locking door to the lounge, yet when a friend of Arawa's visited the house she said Arawa had to go into David's room to get a key to open the lounge door.
I could go on. In my opinion, David Bain is a habitual liar.
He has even been able to convince a number of people that he didn't murder his family,
But he sure as hell hasn't convinced me.

How about it, David?
How about following Lance Armstrong's example?
Better late than never.

This will go on...and on... until a plausible explanation of the day's events comes up. He was probably acquitted because the Crown could not counter the evidence of the nurse who saw him outside after the time of computer turn on. But there is an explanation. Just before she saw DB, she also saw another unknown man walking down Every St. But DB has never mentioned seeing this man... possibly because he had come up some 10 minutes earlier, hid in the alcove, BANG, then turned the computer on, then ran down the road until the nurse's car came up. Alibi established. But the jury (and Binnie) heard none of this. They should have. And DB should be asked ... did he see the man? Why hasn't he mentioned it? And the police should be asked why didn't they find this man?

Look at Robin's "suicide" scene. His body has been picked up and dragged from the curtains where the blood spilled, and the magazine has been placed on its edge millimetres from his right hand.

Robin couldn't have grasped the suppressor, the natural position to hold the rifle to his temple, because he didn't smudge Stephen's pristine prints. Or leave any of his own anywhere on the rifle, which clearly took prints, including David's.

How much evidence do you want?

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