This post is an update of an earlier post I did on Waitakere News amended to include comment on the recent announcement that Cabinet is seeking another report on David Bain’s application for compensation.
Previous events surrounding David Bain’s claim for compensation for his prosecution, imprisonment and subsequent acquittal left many in the legal profession aghast.<
There are some very important principles at stake. Essentially Bain is asking the Crown for compensation because the justice system improperly took away his liberty for an extended period of time. He spent 13 years in custody for something that the justice system eventually agreed he had not done. There are strong views either way on his guilt or innocence. But any such claim needs to be considered seriously.
The claim relies on extraordinary circumstances being found. Amy Adams has said that the test is Bain has to establish his innocence on the balance of probabilities. The decision maker is Cabinet and as is usual with our adversarial system David Bain should have the opportunity to make his claim, the Crown Solicitor can respond, and Cabinet, after taking advice, can then decide.
Reviews or appeals of these decisions are difficult. The decision can be judicially reviewed and obviously there is an obligation on Cabinet to adhere to the rules of Natural Justice.
Natural justice has two basic rules:
1. No party should be a judge in a decision in a matter they have an interest in (“the bias rule”)
2. All parties should have notice of the case, access to the evidence and the ability to present their own case (“the fair hearing rule”).
The bias rule poses difficulties in this situation because Cabinet is the only entity with decision making power and it has an interest in the decision in that it has to pay compensation if the application is successful and the payment of compensation is a criticism of an entity or entities under its control. So unless you overlook this rule no decision could ever be made.
But this is why it is vital for the Crown to make sure that it sticks meticulously to the fair hearing rule. And my strong impression is that Collins’ handling of the claim trampled on the fair hearing rule.
The brief history at the time was that an eminent Canadian Jurist Ian Binnie was instructed to review the case and make recommendations on whether or not compensation should be paid. He recommended firmly that compensation was appropriate. Collins then urgently sought a critique of the report by former New Zealand Judge Robert Fisher without telling Bain and then used this report to publicly attack Binnie’s credibility.
Bain’s lawyer Michael Reed QC was scathing at what had happened.
He said that he was “deeply disturbed at the process”. He criticised the fact that Collins handed Binnie’s report over to the Police and the Crown Law Office for comment without Bain and his advisers being given the same opportunity. He called it a “one sided process” and said that Bain and his advisers had not been able to participate in the process at all. The Police and Crown Law are the entities that had caused Bain’s incarceration and so of course they had an interest in undermining his attempt for compensation. So why should they be the only ones with a say in the review process of a very robust recommendation.
Perhaps the best way to understand the anguish that was caused is to imagine a situation where a professional adviser makes a recommendation to a Court about a case. The Court does not like the recommendation and then goes to one of the parties, offers them the report and following receipt of their comments asks for a critique of the report. The other side is not told of this. The Court then relies on the critique to rule against the recommendation. The sense of injustice would be palpable. Reed’s description of the process as being “Banana Republic” like is regrettably correct.
And to make matters worse Collins then set out to publicly undermine Binnie’s report. No wonder Binnie was angry. I have never seen the public undermining of a jurist in a first world country the way this has occurred. It is the sort of behaviour you would expect in Fiji, not New Zealand.
Binnie’s response to Fisher’s critique was made public. It is obviously typed by him and represents a heated, passionate rebuttal of Collins’ and Fisher’s criticsms. It makes great reading.
A particular passage from his response was spot on. He said “[i]t is of interest that … Mr Fisher was retained on 26 September … he met the Minister the same day … and without having performed the “first stage” analysis he reports that “as we discussed, a second and final report will be required for the purpose of reviewing the evidence afresh and arriving at its own conclusions on the merits”. As he pointed out one would normally expect Fisher to make his analysis of Binnie’s report and have his analysis considered by the Minister BEFORE a decision to have an entirely new report performed on the merits. Yet on the first day that Collins and Fisher spoke a second report was being planned. Binnie is probably correct in concluding that Collins had already made up her mind on September 26 regarding the outcome.
In another telling passage Binnie considers the suggestion the report should not be published because some of the players were criticised to be “contrived”. Of course people were going to be criticized. This happens in all sorts of inquiries.
Collins then took the opportunity to ridicule Binnie’s understanding of NZ law and the Fisher review reinforces this. But Binnie’s response was exquisite. He noted that this is an application for compensation and not a criminal trial. The subtleties of evidential rules for criminal trials do not apply. The inquiry should only be interested in the truth and in what is just.
Reed was utterly right. The process had been hopelessly compromised. The application for judicial review had every chance of succeeding, especially when it was revealed that Collins had given Cameron Slater preferential treatment in processing OIA requests concerning the Bain inquiry. One was processed within 37 minutes and a second within 5 hours. Current Justice Minister Amy Adams somehow managed to neglect to mention these requests when asked to compile a list of Slater’s OIS requests made to Collins. The scent of predetermination and failure of process is strong.
Bain then applied for judicial review of Collins’ handling of the claim. The matter was set to be determined by the High Court but was settled last month. It appears that the settlement is based on Amy Adams’ announcement that a further report would be called for and the Binnie report and the Fisher critique would be disregarded.
This announcement was inevitable. National had three options:
Option 3 is what they have chosen and to my mind it was the only palatable choice for them. By the end of the process they would have blown well over $1 million in report fees and this does not include the Police’s or the Crown’s legal fees or the costs of defending the judicial review.
I look forward to the Taxpayers union criticism of Collins’ actions. And I look forward to a proper resolution of the Bain claim where the evidence is considered impartially and due process is followed.