Judith Collins, who replaced Simon Power as Justice Minister, refused to accept Judge Ian Binnie’s conclusions that David was ‘more likely than not’ to be innocent. She claimed he was biased, that he’d made numerous errors and sought feedback on the report from both the police and the Solicitor-General. While obtaining this feedback, she refused to allow Bain’s legal team to even see a copy.
Ms Collins ordered a peer review of the report by former High Court judge, Robert Fisher. She subsequently leaked Fisher’s criticisms of Binnie’s report to the media and then issued a press release. In essence it said:
“With the consent of the Attorney-General, I received advice from the Solicitor-General on the report…
My concerns are broadly that the report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law. It lacked a robustness of reasoning used to justify its conclusions.”
This led to an embarrassing public spat with Justice Binnie who, by this stage, had left the country. In response to the press release by Collins, Justice Binnie sent her an email saying it was unfair that she had not given a copy of his report to Bain’s legal team. He also pointed out that he is the sixth overseas judge (after the five judges on the Privy Council), to reject the arguments of the Solicitor-General and Crown Law office of New Zealand from whom she sought advice. Binnie went on to say:
“It is a curious feature of this case that all of the “external” judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain’s guilt.”
“The [Minister’s] press release refers to ‘robustness of reasoning’ which seems to be code for ‘reasoning’ that supports the Minister’s preferred disposition of the Bain claim… “
Stung by Binnie’s criticisms, Judith Collins finally released Justice Binnie’s report to the media and at the same time released Robert Fisher’s interim report which criticised it. Using Fisher’s criticisms of Binnie’s report to justify her stance, Ms Collins said yet another report into Bain’s compensation claim would have to be commissioned.
The judicial review
In January 2013, Bain’s legal team sought a judicial review of Ms Collins’ handling of Bain’s compensation claim. The claim alleged Ms Collins breached natural justice and the New Zealand Bill of Rights and said she:
“Acted in bad faith, abused her power, and acted in a biased, unreasonable and predetermined manner”.
While this review was winding its way through the courts, Collins was also accused of a conflict of interest over Oravida and then got caught up in the ‘Dirty Politics’ debacle. She resigned from her position as Minister of Justice in August 2014. Bain’s legal team dropped the judicial review proceedings after Ms Collins was replaced by a new minister, Amy Adams (left), who appeared to be more reasonable to deal with.
But in February 2015, after consulting with her Cabinet colleagues, Ms Adams made the extraordinary statement that: “The Government did not have enough information to reach a decision on a potential payout for Mr Bain.” What she really meant was that the Government did not yet have the recommendation it wanted to avoid making a payout.