Bain v Collins, what the Minister's decision must mean.

One thing it must mean is that it is accepted that a Minister of Justice when exercising a Prerogative Power is able to 'test' the evidence, the core of the case under review, whether it be an exercise under the Prerogative for Mercy or similarly within the Executive Council deciding 'innocence' on applications for compensation.

Judith Collins spelt out her concerns privately, and within her own ranks as to her disquiet over the recommendation by Ian Binnie that David Bain was innocent on the balance of probabilities. Following that, it is again confirmed that it pays to look sceptically at the process by which a man found not guilty must to be reprieved from an 'actual Miscarriage of Justice' by being able to show he, or she are innocent despite being found not guilty in a subsequent re-trial, and how reasonable or just that is. I argue for the status of Jurys to be foremost in decisions of guilt and that no 'further look behind' a verdict is needed, particularly not one that could be considered subjective,  onerous and therefore most unreasonable

The Royal Prerogative of Mercy has always been unwieldy by its interpretation of being in flux. Interpreted, according to who ever is the Minister of Justice is at the time, the sense that it has a political bias, and by the fact it is in essence the Justice Department looking into itself and reporting to a Minister who deigns to act in an impartial role, calling it a type of madness might be too kind. Looking at this aspect for more clarity, the competence of a Minister and his or her 'ability' to ignore the politics of any decision might bear, it's fairly plain to see that the Royal Prerogative, and the exercise of Executive powers in the area of Justice is disastrous - if solely for the reason that there is no 'code,' no developed history and free access to the Courts. In short, it is largely up to the Minister of the day and how pompous they may become with a largely unfettered power.

There has been a pathetic history of 'reviews' of convictions ordered by a Minister to last an infinity. The recent Watson one being an example of Ms McDonald taking over 3 years to report, and what has that report been? I'd say an indulgence on the public purse first of all, then secondly a 'designer' outcome best suited for the Justice Department. Nobody in their right minds doesn't realise the interest in the Watson case or understand the fairly broad public feeling that he either is innocent or his conviction is firmly unsound. Yet Ms McDonald has reached a recommendation  compromised by conclusions that in all other circumstances, except when considering the exercise of the Royal Prerogative, are decided in the Courts. She has searched among weak evidence to support a proposition that inaccurate identification in a case of circumstantial evidence is 'overcome' by other evidence. In particular the hair fibres 'evidence' which has all  the hallmarks of being 'planted.' On the face of it Ms McDonald, and the Minister primarily rely, on evidence to reject Watson's application that is weaker than the evidence in question. The failure to put Watson together with the deceased on his own boat is 'righted' by the 'discovery' of two hairs on a blanket, that had previously been searched but upon which they weren't disovered is some kind of madness - particularly when there is no absolute proof of the DNA match to either of the victims.

Why Judith Collins didn't call foul on that can only be explained by the fact that she was 'happy' with the decision - because, by example when she wasn't 'happy' with the 'Binnie decision' on Bain she made a list of 34 reasons why, excluded Bain from those, then had another 'report' written which 'addressed' her concerns exactly the way she had described in her letter, thus proving her 'right' for the 34 reasons she lain awake at nights worrying about. This, a Minister, who Joe Karam who when asked about her 'criticisms' of the Binnie report questioned what she would know about the Bain case. She never came back on that question and now finds herself in Court where it is going to be asked why she is so biased when exercising a 'nuetral' role.

If she were neutral she might have written secret letters asking why a powerful case 'endorsed by it's facts' was relying upon evidence that could be argued to have been planted. In fact she could have raised 68 bullet points as to the apparent incompetence of Ms McDonald  and ordered a secret 'Peer Review' be undertaken. Should that have happened? Well, not to the extent that I'm exaggerating but certainly, this Minister has 'descended' to the fray, willing to make her opinions known even from a position where she has made no public disagreement with Karam's claim that she knows nothing about the Bain case - apart from the fact obvious to me, that she has treated David Bain despicably, threatened him and denied him basic rights under the Law. Assuming that the Minister does not treat all petitioners with hateful threats about what he might not like  and therefore what he should. not ask to be made public, then clearly she hates David Bain and that can only be by reason that she has lost the ability to be dispassionate and employ reasoning to ensure the 'neutrality' of her role.

The arguments on that point are yet to be argued at Judicial Review. But what there is no argument about is the ad hoc, piece meal approach that a Petitioner or Applicant might find their application or petition greeted with. One certainty will be long delays. Delays which counter the tenet that Justice delayed is Justice denied. Another certainty is that a Minister, as Doug Grahem, did and as Collins has done, might not 'like' the report and intervene in some way. Pushing the train a little further along the tracks there is precedent for Judicial Review of Ministers decisions in Council, opening the way for reviews of unnecessary delay on decisions for Lawyers to consider as an option in the future. I also think the current shift toward having the Courts involved when power has apparently gone to a Minister's head, or when they have not been purposeful to their task, provides another route - 'Produce the Body' or Habeus Corpus, Checking out the Act - there is Law to provide for such a course.

The Purpose of The Act:

Purposes

The purposes of this Act are—

• (a) to reaffirm the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty:

• (b) to make better provision for restoring the liberty of persons unlawfully detained by establishing an effective procedure for applications to the High Court for the issue of a writ of habeas corpus, and the expeditious determination of those applications:

• (c) to provide certain unsuccessful parties in habeas corpus proceedings with a right of appeal to the Court of Appeal:

• (d) to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum

 A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

• (a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

• (b) a ruling as to bail by a court of competent jurisdiction.

 

Here it is stated that the Court may not call into question the conviction of an offence by a court of competent jurisdiction which in my opinion doesn't exclude a Executive Power. Historically, and Habeus Corpus is a historic article, every man (and woman) must be entitled to access to the Courts, While Prerogative Powers are recognised as a safety net for unsafe convictions and miscarriages of Justice, their purpose can never have been to deny Justice but rather to ensure it - an area where the independence of the Courts is supreme in a just society.

 

11 Interim orders for release from detention

• (1) The High Court may make an interim order for the release from detention of the detained person pending final determination of the application, and may attach any conditions to the order that the court thinks appropriate to the circumstances.

 

Here it is stated that the Court may make an interim order for release from detention pending final determination of the application. The application of course being the writ of Habeus Corpus. Yet  the application could arguably be made because of the tardiness of the process of Executive Power, or  because of acts or omissions in respect of that process of Executive Power. Watson for example waiting 3 years only to find the Minister rejects the application and relies on weaker evidence than that which clearly had been undermined. When the Minister and Ms McDonald hung their hats on the 'hair fibres' to catch their falling case they paid Justice a disservice, and Scott Watson also a disservice in the process. If the Minister was capable of 'interfering' deeply in the Binnie decision on the Bain case she was also capable of the wise and 'stepped back' decision of ordering an independent review of the evidence of the two hair fibres which are seen as so important that they 'catch all' the discrepancies in the Crown case and deliver a vote of confidence in the conviction of Watson. Of course the Minister didn't do that, yet the record shows everything she has done when exercising her Executive Powers has been one sided against the applicants.

 

These are fundamentals that are askew as one Minister of Justice after another fiddles while Rome burns. It is not only Watson, Bain, Pora and others that lose by such mockery, but the entire public and the belief in open and transparent Justice where all parties are held accountable in the only place that ultimately matters - the Courts.