Is Justice Binnie vindicated by the Teina Pora decision?

Written By: - Date published: 4:48 pm, August 30th, 2017 - 53 comments
Categories: Abuse of power, crime, Judith Collins, law, national, Politics - Tags:

I have read the decision of Justice Ellis on Teina Pora’s compensation. Andrew Geddis has also done a great analysis here

National’s recent Justice Ministers (ex lawyers) really do struggle with interpretation of the Law. Ms Collins doesn’t understand conflict of interest and later got the Privacy Law all wrong when passing the name of a public servant to a blogger resulting in the poor man getting death threats.

Now Amy Adams has stuffed up her first big decision. Let us not forget the cost to the taxpayer of defending the application for Judicial Review and the  time now needed to be spent by Cabinet revisiting the same issue.

According to the Herald;

Justice Ellis said the minister had made an error in interpreting the guidelines around compensation.

“That error caused, or was compounded by, further errors in the minister’s advice to Cabinet and in the reasons for the Cabinet decision itself.”

The reason I suggest Justice Binnie is vindicated is that Justice Ellis confirmed that the Government failed to follow process, and thereby breached the principles of Administrative Law (Natural Justice) by NOT following the advice of the QC they appointed to report on the matter.

Perhaps I am drawing a long bow, but isn’t that what National (and Collins) did with Justice Binnie? Simon Power, presumably with the go-ahead of Cabinet, recruited an International Jurist to review the Bain case and then Collins (by then Justice Minister after Power left for Westpac) cast him aside when he didn’t arrive at a decision she liked? So we had to pay a second lot of exhorbident legal fees to get the decision she wanted?

Amy Adams was Minister for Environment too… Lesson: do not put Commercial/Property Lawyers in charge of Justice or Environment

This is one reason why Turei’s demise infuriates me. Collins alone has done more to abuse power and mock the taxpayer than Turei ever did, cheerfully banking a minister’s salary and perks and setting herself up for a wealthy post Parliament money grab.

 

53 comments on “Is Justice Binnie vindicated by the Teina Pora decision?”

  1. Perhaps I am drawing a long bow, but isn’t that what National (and Collins) did with Justice Binnie?

    Unfortunately, it wasn’t. Collins’ complaint, that Binnie’s report reversed the onus of proof he was supposed to operate, was well justified and a replacement report necessary. The fact that Collins is the kind of person who’d end up in a book by Nicky Hager doesn’t alter the fact that Binnie screwed up big-time.

    • tracey 1.1

      Hmmm, can you point me to a link regarding the reversal of burden of proof?

      • Fisher’s review of Binnie’s report. (PDF) There’s a lot in it, but the conclusions are in the section “Conclusions regarding Justice Binnie’s approach to probabilities,” specifically items c and d.

        Andrew Geddis agreed with Fisher in this respect (although he also has plenty to say about the circumstances under which Fisher came to be doing a review).

        • tracey 1.1.1.1

          “he also has plenty to say about the circumstances under which Fisher came to be doing a review”

          And isn’t that my point PM? That Collins, if we follow Justice Ellis reasoning, ought to have accepted the advice she (Simon Power) sought? But she sent it off, why? The intracacies of litigation and stat interpretation and criminal law appear, on her past behaviour, beyond her. That she even got a second opinion suggests it was because she didn’t like the conclusion. That is NOT a ground surely?

          From geddis “Collins sought only input from those institutions that had long asserted David Bain’s guilt before making her decision to seek a peer review. The “Bain camp” didn’t even get a copy of the report, let alone get asked what they thought should happen in relation to any concerns the Minister may have had about it.”

          And that MUST have tainted her selection decision. As a former lawyer and deputy something in the Law Society she would know many of the leanings of the judiciary and highly paid, er regarded, barristers…

          Why should she not trust Simon Power’s choice?

          Binnie, Fisher, Callinan, what was the final cost to get a report she liked?

          • Psycho Milt 1.1.1.1.1

            Oh sure, it seems a no-brainer to me that there was no way Collins was going to hand over wads of taxpayer cash to David Bain regardless, and given her previous form it seems reasonable to assume she would have been willing to adopt very dubious strategies to weasel out of having to pay him.

            However, as it turns out, she had an excellent reason for not paying, in that Binnie clearly and unmistakably screwed up. So I can’t see Ellis’ reasoning applying in this case – no, the Minister shouldn’t have accepted the expert advice her predecessor commissioned, because the advice was clearly deficient even to a layman.

            • tracey 1.1.1.1.1.1

              I think you are over egging how obvious it was PM to a layperson PM. Also, and with respect to Geddis, he is also expressing an opinion.

              Were I Collins and I picked up tgat he didnt adequately ( or at all) explain how he reached a particular conclusion, I would have contacted him and said

              “You know on page x you say… could you spend some time taking me through the steps you took to get there”

              • Thing is though, he was instructed to put the onus of proof on Bain, and produced a report that put the onus of proof on the Crown. You could say that that’s a matter of my uninformed opinion, but it’s an opinion that’s shared by lawyers. A failure like that is fundamental, not the kind of thing that can be tweaked with a bit of negotiated editing.

              • McFlock

                There are faults with Binnie’s report, but it is exceptionally clear. And he clearly placed the burden of proof on the wrong party.

                I doubt Collins has ever acted out of the best motives, but sometimes a thief steals something that the owner wanted to chuck out anyway.

          • Ross 1.1.1.1.2

            Tracey

            Have you listened to Martin Van Beynen’s podcast on the Bain case? It is exceedingly unlikely that Robin killef his family and so spare David. That leaves one scenario.

            Bain and Pora are like chalk and cheese. Sure the govt’s treatment of Pora has been poor, especially its decision not to adjust for inflation when compensating him. It relied on woeful advice from officials. Hopefully it will now do the right thing.

            • tracey 1.1.1.1.2.1

              Which is why I focused on the legal principle rather than on Bain’s guilt or innocence.

        • Macro 1.1.1.2

          Justice Binnie was interviewed By Kim Hill on this quite extensively a few weeks back. His rebuttal is well worth a listen. I’m not so sure that Fisher was correct.

          • tracey 1.1.1.2.1

            Like Geddis I have no idea if Bain did it or not but finding friendly retired Judges and QC’s is an old trick and one used in no small part by tax lawyers to represent clients to IRD. Collins wouldhave an extensive network of lawyers and judges and would have moved in those cocktail circles. Even QCs and Judges get drunk and say too much. The legal profession is FULL of gossips.

            Collins does strike me as someone who had a view on Bain’s innocence or guilt and appointed accordingly. Stacking the deck is her modus operandi. Otherwise she would have asked Binnie to revisit his workings/thinking process and set it out in writing… she did not.

          • Ross 1.1.1.2.2

            Binnie strikes me as unprofessional. He is almost advocating for David. That was never his job. He seems easily fooled too. He interviewed David – you might like to read a transcript because David’s answers are unconvincing. But I would suggest listening to MVB’s podcast.

            Remember David said to Melanie Reid that it was his “core belief” that he didnt kill his family. It is my core belief that Winx will make it 19 straight wins on Saturday. 🙂

            • Macro 1.1.1.2.2.1

              Listening to the interview he didn’t strike me as unprofessional at all. Upon what do you base your assertion – rather than you obviously are of the opinion that David Bain was the culprit – a matter that has been argued to the Privi Council and upon which there is no firm conviction.
              Bearing that in mind, and the fact that David Bain was incarcerated for so many years, one then has to determine a suitable rate of compensation. Something that Governments are reluctant to do – especially National led Governments.

              • Ross

                There are a number of reasons Binnie has acted unprofessionally. For a start he’s banged on about the case long after he produced his report. Usually a retired judge completes a report and leaves it at that. Binnie cannot, it seems, believe that David might actually be a killer. He has not listened to Black Hands, a podcast by Martin Van Beynen – why not? Black Hands features a lof of illuminating information about the case, information that Binnie might not be aware of.

                Binnie lost whatever credibility he might have had when he suggested earlier this year that Robin had set David up by leaving behind evidence incrimintaing David. Binnie said: “What better revenge could you have than to leave your son with the blame…it’s the ultimate act of revenge.” So Robin really didn’t want to kill his family, but thought it would be a good way to get back at David? That is certifiably nuts. I note that David’s defence has never put forward such a theory, so why does Binnie? Remember Binnie is meant to be an independent jurist, not advocating an extreme theory that David’s defence has never proposed.

                https://www.tvnz.co.nz/shows/sunday/clips/the-dismissal

                But look at Binnie’s comments defending Bain:

                “I think that if David Bain was pushing the blame onto his father he would have emphasised his father’s estrangement from the family, his bitter relations with his wife and the fact he was obliged to live outside his own house in a caravan when he was the only bread winner in the family.

                “If you were David and were trying to shift the blame onto your father you would say this shows Robin had every reason to murder the family because he had been cast out and horrendously treated by the family.

                “The fact that David says this was not true and he had not been cast out, even though he was living in this trailer, nullifies what would otherwise be exculpatory evidence by David.”

                Binnie is not a psychologist. Yet he can apparently discern – from speaking to David for an hour – that David isn’t a killer. What qualifications does he have to make such a remarkable inference? He has since commented that David made a number of inconsistent statements to him (Binnie).

                In an interview with Janet McIntyre, Binnie asked rhetorically that if David wanted to kill his family, why would he do a paper round and then return and kill his father? In other words, because he can’t comprehend what David might have done, it can’t have happened! That is breath-taking naivete.

                David’s former lawyer, Michael Guest, wrote to Judith Collins advising her that David had misled him before David’s first trial. Nevertheless, Binnie had no desire to speak to Guest. Maybe Binnie had already made up his mind and felt he didn’t need to speak to anyone who raised concerns about David.

                Then there are the witnesses who didn’t testify at trial. The likes of Mark Buckley, Gareth Taylor and Kirsten Koch. Buckley and Taylor said that David had told them that he planned, while they were university students, to rape a jogger and to use his paper run as an alibi. Koch said that Arawa had told her that David was threatening his family with a gun.

                Joe Karam apparently hired a Victorian armourer to determine if Robin’s death was suicide. Apparently the expert said it was unlikely to have been suicide. Did Binnie talk to the armourer, or to Buckley, Taylor or Koch? No mention of them is made in his report. An outsider might suggest that he had already made up his mind and nothing was going to dissaude him from that viewpoint.

                https://www.odt.co.nz/news/dunedin/bain-paper-round-suggested-alibi-rape

                http://www.stuff.co.nz/blogs/opinion/6440170/Bain-defence-still-less-than-convincing

            • tracey 1.1.1.2.2.2

              Perhaps you have allowed your view of guilt and innocence of Bain to cloud the discussion?

              • Ross

                Tracey

                I am not sure if your comment is meant for me.

                I have criticised the govt’s penny pinching re Pora who is undoutedbly innocent.

                The Bain case is quite different. It is unlikely he is innocent. That is essentially the position of MVB who has traversed the evidence. It is up to Bain to prove on the balance of pribabilities that he deserves compo.

              • Ross

                Tracey

                I am not sure if your comment is meant for me.

                I have criticised the govt’s penny pinching re Pora who is undoutedbly innocent.

                The Bain case is quite different. It is unlikely he is innocent. That is essentially the position of MVB who has traversed the evidence. It is up to Bain to prove on the balance of probabilities that he deserves compo. He has failed to do so.

            • Tricledrown 1.1.1.2.2.3

              Binnie asked leading questions and even answered some before Gain answered.
              The DNA samples all point to David no one else.
              The dark cloud comments he made 2 week s before the murders on the beach to a female friend.
              Then after he was found guilty again he said the black hands made me do it.
              Then the paper round where he advocated using the paper run to cover a rape.
              Another friend of laniet said David used to stalk the house with the gun then go into his room and fire the gun into a piece of pinex soft board with an outline of the top of a human head 39 times funnily 39 spent shells were found in Robins caravan.
              Read the transcript of the first trial.
              DNA evidence was damming but wasn’t allowed to be used in the second trial.
              DNA Hair skin found under Stephens nails from the fight to save himself was all Davids no one else’s.
              The brain and blood splatter on Davids socks in the same pattern as found in the Room Robin was murdered in matched meaning David was in the Room at the time of the murder.
              Now why did he accept the much lower pay out than he was asking for and sign away all his rights to challenge again.

        • Richard Christie 1.1.1.3

          @ psycho milt

          Ah, Fisher QC.

          The go-to toady for any legal opinion a minister requires.

          He did a similar hatchet job on Rex Haig when it was required.

          Fisher, the disgraced Judge who spent his time at work as a judge watching porn on Court work computers.

          Obviously in possession of a finely honed sense of good judgement.

          • Psycho Milt 1.1.1.3.1

            Very little judgement was needed to spot why Binnie’s report was unfit for purpose. Even if Fisher were an alcoholic and a paid retainer for organised crime in the final stages of terminal syphilis, it wouldn’t alter the facts he was looking at.

            • Richard Christie 1.1.1.3.1.1

              it wouldn’t alter the facts he was looking at.

              (facepalm)

              It would alter how competently he evaluated them.

              • And yet he evaluated them competently and accurately. Clearly, having an enthusiasm for porn and being able to evaluate a report are not mutually exclusive.

    • Xanthe 1.2

      BULLSHIT. Psycho

      Grow up!

    • tracey 1.4

      Given she was a tax lawyer who does not even understand conflict of interest and Privacy Law she must have given Binnie’s report to someone else to analyse. On what basis? At that point presumably because it didnt reach the decision she wanted. Justice Ellis is suggesting that she ought to have followed the advice she sought.

      Then she did what is common in business circles, she looked around for another person who would tell her what she wanted to hear to get the decision she wanted. Callinan certainly seems to fit in to the Gun for hire category.

      • On what basis?

        Basic reading comprehension. I read Binnie’s report and thought “What the fuck? This guy’s supposed to be requiring Bain to show he’s innocent on balance on probabilities, but he puts the onus of proof on the crown at every turn!” Much as I dislike Collins, I presume she can read as well as I can.

        • tracey 1.4.1.1

          That is a big presumption given she doesn’t understand simple confilict of interest (despite years of tax law practice and politics) 😉

          • One Anonymous Bloke 1.4.1.1.1

            Of course she understands conflicts of interest. How else do you go about establishing plausible deniability?

            • Psycho Milt 1.4.1.1.1.1

              Tru dat. I’m assuming she’s actually pretty clever, because [stuff I just deleted because I don’t get to expose this blog to defamation risk].

              • tracey

                LOL. Of course she understands conflict of interest. That is what made her behaviour all the more risible. If she didnyt understand it she needed to stand down on incompetence. If she did understand it she needed to stand down for corruption. Meanwhile… Turei ruled ourt of Cabinet in a future Labour led govt.

        • tracey 1.4.1.2

          Thanks for the discussion. I was genuinely looking for a debate about the legal principle being applicable to Binnie and you gave it me.

        • xanthe 1.4.1.3

          it appears both you and Collins are blinded by prejudice.

          As part of demonstrating Bains “probable innocence” it is necessary to show where the crown evidence did not demonstrate guilt. If Collins and now you want to play catch 22 with that then so be it. but its still BULLSHIT. grow up!

          • Psycho Milt 1.4.1.3.1

            As part of demonstrating Bains “probable innocence” it is necessary to show where the crown evidence did not demonstrate guilt.

            True. Now you just need to bridge the fairly big non sequitur gap between that undisputed statement and your claims of prejudice, bullshit, and the need to grow up.

            Actually, cancel that – there’s no “need” for you to do anything. I get that you’re angered by others’ failure to support Bain’s compensation demands and want them to know it – no need to elaborate.

            • xanthe 1.4.1.3.1.1

              no psyco I am angered at hearing Collins nasty bullshit spin take-down parroted here. its a dishonest catch 22 and you seem happy to promote it. why?

              • McFlock

                What’s the catch-22?

                It’s pretty simple: to justify compensation, Binnie had to show that Bain probably didn’t do it.
                All he did was argue that the prosecution failed to show that Bain probably did it.

                They are not the same proposition.

                • xanthe

                  Given that the prosecution had complete control of all the evidence there was no other way than to use the prosecutions case as a starting point …. catch 22! Collins interpretation makes the task impossible in which case it is bullshit to say binnie “failed”. Given that the prosecution had collected everything up and then BURNT the site! Binnie went as far as he could go and it was far enough, dismissing him by wordplay does not then change it!

                  • McFlock

                    Let me make it as simple as possible for you:

                    We know the evidence didn’t prove to a jury’s satisfaction that he did it because he was acquitted in a second trial. It is perfectly logical to assume that a further review might conclude that Bain probably did not do it. However, Binnie focused on whether the evidence proved that he did it, a pointless third consideration of the same question that could have no repercussions whatsoever.

                    If he’d tried to answer the question he was asked to consider, we wouldn’t be having this discussion.

              • Why? Because it’s not a “dishonest Catch 22” but an accurate assessment of a report. An assessment that’s correct doesn’t somehow become incorrect just because it’s presented by someone you don’t like.

  2. dukeofurl 2

    To think Amy Adams has taken on a role in Housing to replace that human banana skin Nick Smith.
    They just cant get it inside their heads, there are experts to advise them, its vital to essentially follow their advice on complicated technical issues

    • One Anonymous Bloke 2.1

      How can you do your owners’ bidding if you take expert advice?

      • tracey 2.1.1

        By choosing the expert very carefully, Robert.

        • alwyn 2.1.1.1

          Just you wait and see how it works if Labour get to form the new Government and they get to appoint an “expert committee” to examine the tax system.
          They will produce exactly the report that the Government requires of them.
          Well we can always hope it never happens.
          You never set up an enquiry unless you are absolutely sure that they will produce the report you want.

          • North 2.1.1.1.1

            Walyn your distress at the prospect of political change is comical. Years of being (vicariously) the big boy then suddenly……..OMG what now ?

          • tracey 2.1.1.1.2

            Which is why we have Courts. And wby Ministers shoukd follow those legal principles

  3. gsays 3

    Apartment from the injustice and lack of compassion, what sticks out for me is this:
    “This is one reason why Turei’s demise infuriates me. Collins alone has done more to abuse power and mock the taxpayer than Turei ever did, cheerfully banking a minister’s salary and perks and setting herself up for a wealthy post Parliament money grab.”

    Well said Tracey.

    • red-blooded 3.1

      That’s a false equivalence, Tracey and gsays. There’s no connection between the actions of these two women.

      Collins is awful, but she’s perfectly entitled to accept a Minister’s salary while serving as a Minister. Shock! Horror!

      • tracey 3.1.1

        Abuse of power and breaches of the Law by Collins are not equivalent to lying to WINZ at age 23? I agree

      • gsays 3.1.2

        entitiled to a ministers salary-
        i would like to know what collins has cost us (beyond her salary and perks) in decisions she has been involved in. eg lawyers costs in fighting victims of state abuse, paying ‘experts’ to get the opinion she wants to hear etc.

        as this parliament is seemingly run along business lines, i think she would be gone burger if she were in the real world and her company were writing the cheques for her decisions.

  4. Macro 4

    Lesson: do not put Commercial/Property Lawyers in charge of Justice or Environment

    Correction:
    Do not put any National MP in charge of anything.

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