The report has not been made public but it has been widely reported that retired Canadian judge Justice Ian Binnie found Bain was innocent, on the balance of probabilities, of the murders and that he should receive compensation. Supporters of Bain have suggested that Collins dislikes this result and is shopping around for an opinion she agrees with.
That is unfair. The decision on compensation will be a highly contentious and political one, whichever way it goes. If she has misgivings about the report she has been given, it is entirely proper that Collins should seek further advice before she makes any recommendation to her Cabinet colleagues.
Some people have suggested that the second report is because there is some damning criticism of govt agencies in the first report that the Govt wants to hide. But as far as I know, there is no question that the Binnie report will be released. Just, that the Fisher report will also be released.
The task of assessing this was, surprisingly, outsourced by an earlier Minister of Justice, Simon Power, to Canada’s Justice Binnie. The aim was to get an opinion from someone entirely outside the New Zealand justice system but it was odd, particularly in light of the fact that New Zealand had not long before ended one of the last vestiges of colonial practice by abolishing final appeals to the Privy Council in London. There are few people who would dissent from the view that it was right to establish the Supreme Court and make the entire justice system a domestic one.
To seek a foreign opinion in one of the most celebrated cases of the century looks like a strange and unjustified loss of confidence in the integrity of those who serve in that system. It is difficult to believe that it was impossible to find a retired judge within the country with the intellect and the integrity to be able to deliver a sound decision. That is, in fact, what Collins will be seeking from the man to whom she has now referred the matter, Robert Fisher QC, a former judge of the High Court and widely recognised as one of New Zealand’s pre-eminent legal minds.
The 73 year old Binnie did serve on the Canadian Supreme Court, but it is worth noting he didn’t serve on any lower court before that appointment. That means he would probably never have presided over a criminal trial, and his background is business and corporate law – not criminal law. That doesn’t mean his report is not credible or thorough or sound – but it is worth noting that not all retired judges are equally experienced in all areas.
My default position is that the Govt should go with Binnie’s recommendation. But that is contingent on the quality of his report. By that, I don’t mean his conclusion – but whether all the evidence was considered, that the report complied with the terms of reference, that natural justice was followed etc. I can’t wait to read both the Binnie and Fisher reports.