Thursday, September 5, 2013

David Bain to appeal non release of secret documents.

In possibly a surprise move David Bain is set to appeal a decision by the Auckland High Court not to order the release of 250 documents or so in the hands of the Minister of Justice. This is against a background that DB is in the process of a Judicial Review alleging that that Minister, Judith Collins, denied the basics of Law, due process, natural Law and that she effectively 'acted' against the application rather that acted upon information forwarded to her, or in other words that she displayed bias.

In the High Court decision the Judge said that DB's counsel may well already have proof of their contention of bias in documents discovered to them. That observation is important to the Bain term because it apparently satisfies the allegation that the Minister was not only 'not' neutral, but actively biased. It's hard to disagree with that view. The Judge hearing the application read the documentation and made a decision that it wasn't helpful to the Lawyers of Bain. That may have been a key, on the one hand the Judge observed the 'openness' of Justice and satisfied herself that the with held papers either weren't of material evidence, or that released documents already (as she referred) satisfied the contention of bias being demonstrated. One can imagine that it is great that 'door' was opened and investigated by the Judge, although on the other hand the Judge put herself in a position of 'secret' judgment excluding counsel and the applicant,

That issue of 'secrecy' has a long life in the Bain case, it is part of the reason why the Privy Council ruled in 2007 that an 'actual Miscarriage of Justice' had taken place, by virtue of, among other things, material being kept secret against the principles and precedents of fairness. The 'shame' for those interested in 'open Justice' is that the High Court ruling has an element of secrecy where one side don't know the information of the other yet for purposes the information is part of the mechanism that robbed Bain of his freedom and which by turn has been used in an attempt to deny him compensation.

The Minister has argued that the information was privileged. On the surface that is a traditional and acceptable argument in most circumstances in an adversarial law suit. However, there the big problem for the Minister arrives, hers in not an adversarial role, her role is to consider and prepare an recommendation for the Executive. In this case the recommendation was made by retired Justice Ian Binnie, however the Minister has demonstrably acted against the advice, finally rejecting it publicly when it emerged that she had secretly (yes that word again) been working against Binnie's report and by proxy against the applicant David Bain.

The Minister may believe she has 'king like' powers, but she clearly misses that they are to operate with compassion and mercy for individuals who may be wrongly imprisoned or suffering loss associated with such. In all they (the discretionary powers) must demonstrate that the gap in our Legislation that should have afforded compulsory compensation for false imprisonment is filled by a discretionary power said by it's 'designers' as capable of covering that missing Legislation, and of course in accordance (even if it is not spelt out) with all the rules of Justice and Law. Secrecy is not one of those, nor of course is bias.

Having thought about the said decision to appeal I've been interested in what the grounds might be. If in fact there is an argument that every thing put before, or solicited by the Minister in her preparations to Cabinet should be available to the applicant then I agree. It's 'secrecy' that served as a MOJ to David Bain and to see a Minister, deigned to act with both impartiality and mercy, continue the secrecy is to me a further travesty of Justice. David Bain is not going to be hurt by knowing what is in those papers, but convincingly he will be hurt by not knowing. Who stands to lose? Why the Minister of course, because she hasn't been diligent and fair to her task, she has leant one way to look at documents from one 'party' and not to disclosed them to the 'other.' The Minister's role appears to have become one of 'protecting' one of the parties from information from the other - sounds good at first but what is the victim of a MOJ being protected from this time, and why is it imperative that he is not allowed to know.

On another level, The Minister, being foremost a politician, even when wearing her temporary Crown, has other hurdles in front of her. Foremost is the discovery of David Giles of what looks certainly to be gun shot residue on the hands of Robin Bain consistent with him having loaded and fired the rifle the morning his wife and 3 of his children were killed. He plainly wasn't the 'victim' that the Crown have portrayed for nearly 20 years, he was the killer that left 4 victims dead and a son who would be soon victimised for 2 decades of trying to prove him guilty of crimes he didn't commit. Assuming the Minister has one eye on the future she has gone down a track that may prove perilous on many known grounds. When she first 'began' she didn't know about the 'Giles' discovery, one which I would presume may have tempered her bias has she known, because ultimately it reflects upon her. She is the person who has acted against David Bain because of a report she didn't like which declared him factually innocent, she thought otherwise, or at least her intimate 'advisors' did those whose advice she chooses to keep secret as though she has 'descended into the arena' to quote her own words. However, what she doesn't know, but has presumed, is that there is no more evidence such as that discovered by David Giles. A prudent, let alone unbiased person would consider that there would be at least some on going search taken up where the gsr evidence leads off, it is clearly fertile ground now - having removed a 'major' uncertainty that had it been known, properly discovered and noted that David would never have been charged. He might have still be subjected to the intrusive strip search, but possibly no more than that had police been willing to listen to their own pathologist.

The 'knowns' in the Bain case continue to stack up against Robin Bain, not that they all may have ever been hidden deliberately but continue to emerge they nevertheless do. The first of those must be secrecy, that the current Minister has continued that is about to be tested in Court, what ever the result, the known that Robin had battered and bloody hands with fresh wounds when he shot himself is now added to by the fact of the high probability that he had gsr on his thumb and elsewhere on his hands, while other 'knowns' are sure to follow to confront the 'secrecy' of Judith Collins.


  1. Are further appeals, if necessary, also possible?

  2. Yes, at least to the Supreme Court, possibly even the Privy Council because the murder convictions from which this action arise was during the time when the PC was our top Court. What's happening, even if not by design, is that the process of the legitimacy of Prerogative Powers and how they operate is being scrutinised. I think it's going to become a major event, over shadowed, or at least in the background that David Bain is innocent. This is not a case of a Minister playing touch guy with a gang member, but rather with an innocent victim.

  3. Thanks, and appeals all the way up to the Privy Council, if necessary, could help to end the secrecy.

  4. Its an all to well known fact that police consistently even today withhold discovery evidence if it portrays a view contrary to theirs.
    Or they claim privelage of some sort
    or their final means is to claim an internal police document thereby non discoverable
    ( these are the grand prize if one can overcomes the hurdles of retreival )