Cabinet to take fresh look at Bain case

The Government has agreed to set aside all previous advice relating to David Bain’s compensation claim and conduct a fresh inquiry, Justice Minister Amy Adams has announced.

In November 2011, former Canadian Supreme Court judge Justice Ian Binnie was appointed to provide advice on the claim. He completed his report in August 2012.

After being made aware of concerns raised about Justice Binnie’s report and receiving advice from the Solicitor-General, the then Justice Minister Judith Collins decided to seek a peer review by former High Court judge Dr Robert Fisher. Dr Fisher found that Justice Binnie’s report contained a number of errors and was, therefore, unsafe to rely on.

“Given these events, it’s my view that Cabinet doesn’t have the information in front of it on which it could reasonably reach a decision,” says Ms Adams.

“For that reason, the advice of both Justice Binnie and Dr Fisher will be set aside and I will appoint a new inquirer to conduct a fresh inquiry into Mr Bain’s claim.”

Ms Adams says it’s important that the final decision on Mr Bain’s claim is durable and withstands the close scrutiny the case attracts.

“The New Zealand public rightly expects the Government to make a decision with the full set of facts and reliable advice in front of them. A fresh look will safeguard the integrity of the process and reassure the public that Cabinet will act on the best advice available,” says Ms Adams.

“Despite the further delay, conducting a fresh inquiry is the best approach in the circumstances and enables Mr Bain’s claim to be progressed on a proper and robust basis.”

Mr Bain’s claim for compensation falls outside existing Cabinet guidelines because when his conviction was quashed, a retrial was ordered. However, Cabinet has also reserved a residual discretion to consider claims outside the guidelines in “extraordinary circumstances … where this is in the interests of justice”. To satisfy the test for the payment of compensation that applies in his case, Mr Bain will need to prove his innocence on the balance of probabilities and be able to satisfy Cabinet that the circumstances are sufficiently extraordinary that it would be in the interests of justice for compensation to be paid.

“I have notified Mr Bain’s representatives of Cabinet’s decision and I understand they are comfortable with the process. All parties have agreed to draw a line under what’s happened and move forward in a constructive manner,” says Ms Adams.

Ms Adams will now seek advice on an appropriate inquirer and develop their terms of reference. There will be a further announcement in due course.

Cabinet paper on next steps is attached and will be available at www.justice.govt.nz/media/documents/cabinet-paper-bain/view.