Friday, December 28, 2012

Reax 1: David Bain: Minister Collins must support her own justice system and the report comissioned by her predecessor. Time to set aside poitical calculation. Column: Bryan Gould; New Zealand Herald.

 STORY: "Collins should stand by Bain report," by Bryan Gould, published in the New Zealand Herald on December 17, 2012.  (Bryan Gould is a former Labour MP in Britain and a former law don at Oxford University.)

SUB-Heading: "Does Justice Minister claim to know better than the courts, and to believe in spite of all that he is guilty?"

GIST: "The minister fears that if she advises the Cabinet that compensation should be paid, a substantial body of opinion will accuse her of unjustifiably paying out taxpayers' money to someone who does not deserve it. Yet, if she does not do so, what basis can she claim for that decision? Short of a full and further judicial hearing, which is surely out of the question, does she claim to know better than the courts, and to believe that David Bain is guilty? What does she claim to know that eluded an eminent Canadian jurist engaged to give an authoritative opinion on precisely the issue of David Bain's innocence and that would now lead her to assert that, on a balance of probabilities, he committed the crime? It is precisely because she can have no sound basis for unilaterally reaching for such a conclusion that she has cast around for someone else to get her off the hook. But going back to the Solicitor-General, who is surely parti pris, or asking for further opinions until - presumably - she gets one she likes, cannot resolve her dilemma for her. What, therefore, should she do? The two possible outcomes both carry with them the risk of serious injustice. On the one hand, to pay compensation to a David Bain who had killed his family would be to reward a criminal at the taxpayers' expense. But, on the other hand, to deny an innocent David Bain compensation for 13 years in prison for a crime he did not commit would be to add insult to injury, in the dual sense that fairness had been denied to the victim of a terrible wrong, and that he had been left with an ineradicable stigma in the eyes of his fellow citizens - a stigma that our courts felt themselves not justified in imposing. There is surely no doubt that the latter outcome carries the greater risk of injustice.".........Judith Collins should set aside political calculation and concern for what some elements of public opinion may think, and reach the only decision that can minimise potential injustice. She should support her own justice system and the report commissioned by her predecessor, and advise the Cabinet accordingly."

PUBLISHER'S VIEW:  (Editorial).  A close look at the content of Justice Ian Binnie's report leads this Blog to the inescapable conclusion that the Government of New Zealand should heed Justice Binnie's advice, and without delay make generous compensation to David Bain,  because "the state authorities and in particular the Duneden CIB were seriously complicit in this miscarriage of justice." Justice Binnie makes clear that this is not a typical appeal in which there are instances of police investigative failures. Instead, "It is the number and cumulative importance of errors here that should, in my view be seen as constituting extraordinary circumstances.   The sheer length of David Bain's incarceration takes the Bain prosecution "outside the ordinary run of cases in which appeals have been allowed."  I hope the New Zealand government will rise above the  howls of protest,  set internal politics aside - and do what is just for David Bain.


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