John Key shadow boxes with the Bain case.

Post Cabinet presser Transcription

[question] Prime Minister. Where to here on David Bain – the David Bain issue?

[JK] [visibly uncomfortable] Er yeah, so Minister Collins gave Cabinet a, you know, a really brief update about the process, there wasn’t um, any conclusions drawn [looks at notes] or, ah, a huge amount of debate undertaken. She simply indicated the next steps of the process that she’s looking at embarking upon, and agreed to come back to Cabinet with further recommendations for us. She’s likely to do that the next available Cabinet which is 4^th February.

[Question] Is it likely that another person will be appointed to enquire into the deal?

[JK] Well they are, they’re all the sorts of issues that she’s grappling with so that’s exactly right.

[Question] So can you just outline what are exactly the next steps?

[JK] Well she’ll need to consider the process that now has to happen and so effectively if you think about it Rob Fisher QC didn’t complete his report , he completed part 1 of his report which was the critiquing of Binnie’s assessment of the situation, um, there’s other work that he could do, or another person could do, either domestically or off-shore… so there’s a range of different potential options so she’ll come back with some more advice in due course.

[question] Are you concerned about the expense?

[JK] [visibly uncomfortable] Er, well look, at one level obviously I’m always cautious with the expenditure of government money, so maybe a person’d say well, the money doesn’t matter and to a certain degree that’s always true and it’s not true. So yes of course I’m mindful of that, but I’m also really mindful that it’s really important that this is done professionally and right; and this is a very high-profile situation: if you think about these kinds of cases in New Zealand’s history, ones with this level of profile are, you can count on one hand. So, so money is important but I think it’s actually more important that we reach a robust conclusion that New Zealanders can understand why we’ve reached that decision.

[question] So are you saying that second review is going to take place?

[JK] No, I’m saying she’s going to come back with advice on what the next step it.

[Question] So is the door actually closed on the Binnie report now, is that shelved?

[JK] I think it’s fair to say that the Minister doesn’t feel confident to take a recommendation based on the Binnie report to Cabinet, so in that regard, yes, and I think that if you look at the work that Rob Fisher did and his critiquing of that, my assessment of others’ review of Rob Fisher’s work is that they agree with what he’s done. They’re not finding fault in his legal arguments that he’s presented about the Binnie report, so I think in that regard both the Minister… Well, the Minister’s been vindicated in the steps that she took.

[question] So logically, if that report is in the government, if that’s the government’s view, there’d have to be a second report wouldn’t there?

[JK] Well, most probably, but as I say, let’s just wade through the process of what happens next.

Above I've called John Key and Cabinet's handling of the Bain case as shadow boxing. In the now famous words of the 2IC of the Bain case that the police were not chasing 'ghosts' as reference as to why Robin Bain was never investigated as a suspect we now see the modern day counterpart. John Key and his cabinet failing to address the issue of David's innocence and by proxy blaming him for that. But first consider the 'tool' for doing this, they blame the Binnie report. Well hello, David didn't chose Binnie' the John Key Government did. David Bain also didn't write the Binnie report and was excluded from commenting on the criticisms raised about it by the Crown and police - the two parties identified in Binnie's report of conduct which led to false imprisonment. Ask yourself, were the police or Crown ever going to be happy with such a finding, whether it is true or not, but how complicit is this Government in denying David Bain the justice that has eluded him for so long, deeply. The contents of the report have been savaged by the Government and continue to be so, no distance has been placed between the Government and what is essentially a legislative process in all developed countries in the World. It's an area where the Government have said 'we'll be impartial, we'll judge with the integrity of the highest Courts, politics will not enter.' Yet politics has entered, right down to government departments releasing material under the Official Information Act in record time to attack the Binnie report as final 'act' before Christmas.

The Minister has run a public commentary on the Bain case and a private one with police and Crown without a word to the applicant David Bain. She has changed positions many times and the 'consistency' of her story has been shredded by her own words. But most clearly all the effort has been about what Binnie was  asked to do in a procedural sense. There are no real issues about the evidence he was asked to decide upon, only his methodology. I think Binnie got it a 100% right, and that it is also clear that like any reviewer he was willing, had he been given the opportunity, to either demonstrate his decisions or answer any criticisms of them. In short he wasn't for hire for an 'required' opinion, his mandate was in getting to the bottom of the Bain case to determine if David was innocent or not. The main argument against his opinion (although) they vary, is that he didn't step back from the evidence at times to look at the overall aspects of the case as well as the single 'threads.' He says that he did and it seems to be demonstrated to the satisfaction of some of his reviewers and a good number of the public. But what short of demonstrating the overall context of the case in words, explaining what and how he considered things in words was he to do? The farce of the Government's position is quickly becoming two distinct features both which have obvious answers.

1/ Was Binnie meant to not only write what his deliberations were but was he also actually required to have himself filmed. Say for example that on July 2nd 2012, "I am sitting at my desk and it is 9am and I am now thinking about the evidence of incest. It is now 5 minutes since I  began to think about the incest and am now at 9.05 going to test the worth of value of that evidence against the overall weight of the case. It is now 30 seconds later and I reject the evidence of incest as having any bearing on my overall consideration as to the guilt or innocent of David Bain." Has the world of Justice reached the point where Judges need to muse aloud their deliberations or considerations or risk not being believed? Well, in NZ at this point, that's what's required of a Judge, particularly one who might be asked to 'assist' the Government reach a view that ought to be decided by legislation or by the Courts and not by a party to the act of false imprisonment.

2/ The second very evident feature is that the Bain case has been moved away from the evidence, and the key features which constitute the question of David's innocence, but not by himself - rather by the Government taking umbrage from the findings of it's own agent. David is not, repeat, is not responsible for appointing Binnie. While I make it clear I think Binnie's work is excellen.t if anyway he is off the mark - that is not David Bain's fault. David is still not getting a fair go.

But nobody should forget that while JK is shadow boxing with the issue the source of the shadow should not be forgotten. That source is embodied in 5 Law Lords, several QCs, an international Jurist, but most of all in that cornerstone of our Justice system 11 Jurors (the 12th having taken ill from memory) who answered the charges against David Bain 5 times - each with the answer of not guilty. No matter how much he deck chairs are moved, or how much one member of the Cabinet compliments or defends another there is a giant among them that dwarfs them into relative obscurity, the freedom of people to be Judged by their own, to have their rights preserved in a modern world by those beyond political influence - decisions like those of the Law Lords and Binnie already made long before politicians deigned themselves 'neutral' in order to take upon judgment of themselves and their careers.