Wednesday, April 27, 2016

The 'Secret' Bain case.

Thanks to various media reports such as the one above the secret Bain case continues to emerge. For anybody with an interest in this case and a certain amount of insight the secrets of the Bain saga continue to emerge. There are many aspects to the Bain compensation claim that when viewed in context tell the public a lot more than what is being revealed.

Firstly, when Ian Binnie's report was rejected by an over zealous and unlawful use of Cabinet Powers, rather than the case being dropped from public mind interest was increased about how the Law was being applied to Bain's compensation bid. Royal (Executive) Powers as conferred on the New Zealand Government of the day compared to legal procedure and due process were brought into sharp focus and found wanting.

Bain was forced to seek a Judicial Review of the way his compensation was handled. Judicial Review was something this commentator had felt since 2009 was the way forward for David Bain in a unprecedented way that challenged the status quo of a person wrongfully convicted to be compensated by a process put in place by the Government of the day which excluded the Judicial System. In other words a wrongfully convicted person was not entitled to take his case for compensation to the Courts but had to rely on a Government Judging it's own conduct and decide the financial fate and future of person wrongfully convicted. If such a process was open and fair, as no doubt the original design of such a system was considered to be, time and practice had shown that in the hands of politicians seeking advice from the very people or their predecessors responsible for the execution of a Miscarriage of Justice have control over the process was anything but fair and open. Who investigates alleged misconduct by the Crown in NZ, the Crown itself. In the rare cases where someone totally independent of The Crown might be appointed to do an investigation who does that person report to, or who are given the right of responding to any negative finding? Under the current system the Crown itself.

In the case of right of reply by the Crown no one could hope to say that is unfair, equally no one could say the complainant into misconduct by the Crown or their representative would be seen to be given an unfair status by being able to reply to the Crown saying that some part of the investigation was unfair or flawed resulting in unfairness. But the truth is no leglislation protects any member of the public from misuse or omission of Executive Powers in cases of wrongful imprisonment - except, now as it becomes to be recognised the NZ Bill of Rights.

One could say that Parliamentarians or Crown Entities do not like not having absolute powers as granted to them by Law that cannot be reviewed by the Courts. That is made plain in the Bain case, cabinet wanted to simply throw out the Bain compensation claim without allowing Bain himself natural justice or due process. They considered it their right to make decisions for individuals such as Bain and Pora, both victims of Miscarriages of Justice, without consideration to the Laws and were content to deny such people access to the Courts where at least Judicial Independence could be seen operating and make decisions observed by  the public and tested in Higher Courts if required. It is not fully realised by all politicians and Lawyers alike that there has been a shift in Executive Powers, not only in decisions as to where a wharf may or may not be built, what area may or may not become a marine reserve and so on but right to the heart of the Judicial system as was intended by the advent of Executive Powers Legislation being formally enshrined into Law.

Politicians may have given themselves absolute power according to certain aspects of the Law, trusting in themselves and those that would follow in their footsteps to act fairly and constructively for not only the public good but also the rights of the individual but time has shown they failed. No clearer recent example exists than that of Judith Collins supported by the National Cabinet who worked against the system of Executive Powers instead of being carefully used in the public interest to using them in a manner that was unlawful. When the original Bain application for compensation process was abused a watershed moment was reached where the question was raised dramatically as to how someone can be denied justice and process by those empowered by Statute to ensure no such abuses ever occurred. Most readers will know that the first Bain compensation bid processes and mishandling was made known to the media and with held from Bain himself. He was even threatened when seeking a copy of the report already sent to the media with a comment from the Minister that he might not like what was in the report but which had been widely distributed without his knowledge.

Not wishing to go deeply in the first Bain compensation claim details and the Cabinet directed fiasco which followed I will return to firm ground - ie what we know and what we can deduce by that knowledge of where the Bain case now is, a current situation that appears not be fully comprehended by the media generally, or by the public. It's actually a dog fight. When Bain belatedly, in my opinion, finally applied to the Courts as to the misconduct of the use of Executive Powers there was an explosion in the halls of Powers, political revolution was rattling at the doors of Parliament. A subject of the Crown was knocking loudly to come in and be heard, nay busting his way in through the hallowed doors, opening them wide so that public might also see the right of an individual to be treated fairly before the Law.

Sounds too dramatic? Forgive yourself such a thought. When Bain went to the Courts also accompanying him were others that the Law through Parliament had estranged them from their rights. Those would include Arthur Thomas, Allan Hall, Teina Pora and others convicted of offences they should never have been convicted of, victims of perversions of the Law. Include also the stifled rights of Mark Lundy and Scott Watson, men still without their deserved freedom or at least the chance for the cases to be fairly put before a Jury of their peers again to see if their convictions should stand or be wiped out for all time.

I debated for many years off and on with a number of Lawyers on line who claimed Bain had no right to go to the Courts. They argued that Executive Power was all encompassing. When the application was finally lodged the objections mainly dissipated, those who considered that the Courts had no role in passage of freedom and other rights to be heard challenging Executive power were no longer so sure. When it became apparent that the Crown through its association with Government of the day were no longer so certain that Executive Power could not be tested in the Courts a big shift had taken place on the landscape of NZ Justice. We don't know what agreement was made between the Crown and Bain when the 'reprieve' of an offer of a new compensation claim was made but it is not hard to guess despite the secrecy that surrounds the obvious.

The link above where the Prime Minister John Key explains how the compensation claim sits at the moment tell any discerning observer what is between the lines. Not one single application for the Royal Prerogative of Mercy or for an Exercise of Executive Powers to provide compensation for a wrongly convicted person has resulted in any New Zealand Prime Minister before John Key informing the public that an independent report has been received by the Minister of Justice which the Crown are considering but that also that the Bain legal representatives are considering as well.

That tells me what long has been obvious, that the deal cut between Bain and the Crown ensures that both the Crown and Bain have the right to respond. That one party cannot simply run off to the press excluding the other to make a case supporting their decision before the other party is even informed. In other words that due process is involved here, a giant step for a single man against the might of the State. That between the lines is revealed that if the author of the current report has made a recommendation not supported by facts as interpreted by either side, that is the Crown or Bain, that they shall be debated and agreed upon now or ultimately go back to the Courts. Additionally, any benchmarks of the Governments instruction to Callinan as to what his inquiry should look into which are not consistent with the facts of the case or indeed with Natural Justice and due process will be challenged by both sides, not just one as happened with the Binnie report.

This is a major step forward for New Zealanders in a way many may not yet realise, if offers that when all doors are doors are closed that a citizen still has the right to go to Court. The fact that power of one citizen against the state is generally recognized as inequitable financially is yet to be addressed by provision of legal aid, but I think that challenge is not far around the corner for something fairer for people such as Ellis and Pora who have to go cap in hand asking the Government to recognize its deliberate in many cases, mistakes.

Also was is peeled away here is that 'fairness' now has a voice in the Justice system, either by the process of The Exercise of the Royal Prerogative of Mercy to be scrutinised and held accountable as well as the use of all Executive Power. Right at the moment Mark Lundy serves a sentence of life imprisonment having been convicted of  weak circumstantial evidence supported by a highly suspect scientific procedure rejected by the President of The Court of Appeal, while Scott Watson is denied a retrial in part because a 'review' of his conviction wasn't looked at for its overall points but rather on its points individually, exactly the reason offered by Judith Collins when she wanted to throw out the Binnie report. That additionally in Watson's case he has been denied a retrial because among other things police cannot find their own witness who has recanted from a confession he claimed and since denied Watson made. A matter which should be at the moment be on the table again, at the High Court.

But right now consider something else as the slow march continues on the Bain case. There have now been 3 reviews of his right to compensation, whilst we don't know anything concrete about the 3rd we do know it's on the table now, and from my personal observations very difficult to Judge that he should not, or wont be compensated. The first finding was that Bain should be compensated, the second finding was that Binnie should have used a different method in his reasoning, but however using that alternative method may still have resulted in Binnie reaching the same decision. By any count both those conclusions support Bain, or at least neither reject his claim. The money is on that the 3rd report will be consistent with the first 2 and that reasons provided for such a finding will be a harsh revelation for the doubters of Bain's innocence.

Somethings may be kept secret but reality and observation can never be silenced.

No comments:

Post a Comment