Bain wins early skirmish.

http://img.scoop.co.nz/media/pdfs/1304/20130416142239236.pdf

Though it's hardly 'early' in terms of the 13 or so years he spent in prison for a crime he was eventually acquitted of, it's 'relatively' early in his pursuit for compensation. The above Judgement by Keane J was released yesterday at the Auckland High Court ruling that Minister Collins move to have the case transferred to Wellington was rejected. There are for me a number of interesting facets of to the Judgement and an earlier indication that the Court is drawing a line under the conduct of two Justice Ministers in a framework of 'start as you intend to go.'

Firstly though I'm a little surprised by 2 facets of the Judgement. The first being that Keane J while addressing the history of the case didn't observe pointedly the earlier decision of the Privy Council that an 'actual Miscarriage of Justice' had occurred in this case. Also that he didn't draw any distinction that while the Privy Council had ordered a retrial  they had made it clear that the decision to go to a retrial was entirely up to the New Zealand authorities. Some readers will know that the decision by the Crown to take the case to re-trial effectively put any claim for compensation into a category of having to prove extraordinary circumstances, a situation that wouldn't have been the case had the Crown simply accepted that their case was shot to bits and it was unsound to proceed with it further. That situation effectively meant that the Crown case coming up short on proof penalised Bain from the normal procedures of compensation. I think there is an argument there to test the validity of The Crown's decision to seek a retrial on the basis of the acquittal by a unanimous jury decision in very quick time - however that hasn't been argued as far as we know other than by earlier efforts seeking the Courts to dismiss the charges before the actual re-trial.

Binnie observed the validity of Privy Council Judgement and there is no criticism by the Crown of that observation that I can recall in the 'Peer' review by Fisher of Binnie's report. So it would seem that acceptance by both parties to the Judicial Review of the Privy Council ruling being foremost in Law is not an issue and that may be why Keane J didn't specifically spell it out in his Judgment.

Keane J was quick to reject arguments as to David Bain's financial position being a factor as to where the case should be held. I think that was a mistake. David Bain has been disadvantaged in every way possible since 1994 when he came home from his paper round and found his family dead. He lost all his aspirations for a career, his inheritance, his freedom based on hidden and suspect evidence. That he or anyone in his position might be struggling to pay for a  writ to the High Court shouldn't reasonably be held against them when it already accepted that they are a victim of a Miscarriage of Justice is harsh. On the other hand David Bain has not applied to this point for legal aid and Keane J might simply having been observing that point.

But to the point made in paragraph 1 above about 'start as you intend to go' shines through as the most persuasive reason why Judith Collins wasn't successful in her application to have the case moved and appears unlikely to be able to defend without compromise the claim of David that he has been 'denied natural  Justice' and had his rights under the Bill of Rights Act compromised. It's in the letters of Simon Power (previous Minister of Justice who ordered the report into the compensation claim) to Binnie and Binnie's responding letters at the outset of Binne accepting to do the report. The letters are clear as to the 'background' of the review, the 'openness' expected between the contesting parties and how information was to be shared. A complete contrast to the actions of Collins in excluding Bain from access to Binnie's report while at the same time taking 'secret' steps to undermine it, excluding not only the applicant Bain but also Jurist Binne - the author of the report. Little need be said that Collin's took advice from the parties criticised in the Binnie's review, but completely cut out David Bain and his lawyers. A fatal mistake for the Minister I think we will see, along with the extraordinary and public attack on Binnie in which he was virtually called a liar.

The difference of the approach between the 2 Ministers can't be Bain's fault. It also can't be his fault that one Minister has taken his right to compensation personally, and in doing so trampled over his rights under the Law, as though David Bain, and David Bain alone could be treated with contempt by a Minister charged with overseeing the Justice system. Judith Collins hasn't to this point understood that discretionary powers or prerogatives are not to be administered beyond the normal principles of being just and fair, they are not a return to a complete and unquestioned power that existed before the Magna Carta. Many anticipated that this Judicial Review was going to find an important place in New Zealand Law and those first few steps have been made.