• Do What’s Right

    What are those of us – I assume a large majority – who do not have time to read the Binnie Report to make of David Bain’s compensation claim and the legal tangle that Judith Collins has got herself into?
    We can surely have some sympathy for the Minister; she will be damned if she does and damned if she doesn’t. But there are at least a few salient points that can help us – and her.
    First, there can be no doubt that David Bain – following the quashing of his earlier conviction by the Privy Council and his acquittal at his re-trial – was found not guilty of the crime. No one with any respect for our justice system should dispute that outcome. The conclusion is unavoidable; David Bain should never, on that basis, have spent a day in jail, let alone thirteen years. A claim for compensation should, in principle, be entirely justifiable.
    There are, however, complications. In most cases where a conviction is overturned, there is clear (often DNA) evidence to show that the accused person did not commit the crime. In the Bain case, it seems that the evidence still leaves room for doubt – and there is the further complication that, on the facts of this particular case, if he is innocent, there was only one other person who could have done it.
    But David Bain does not have to prove his innocence, or that someone else did it, nor is he responsible if his acquittal casts suspicion on someone else. The real complexity arises, however, because the legal test applied to the question of whether or not he is entitled to compensation is quite different from the one that determined his guilt or otherwise.
    David Bain was acquitted because the test in a criminal case is whether or not there was a reasonable doubt about his guilt – and the jury found that there was. His claim for compensation, on the other hand, falls to be considered under an “extraordinary circumstances discretion” by which Cabinet will consider “claims on a case-by-case basis, where this is in the interests of justice”, and in circumstances where these terms are not defined.
    Simon Power, the Minister who appointed Justice Binnie to report on this issue, specified that “innocence on the balance of probabilities is a minimum requirement”. The onus was on David Bain therefore to establish, on a balance of probabilities, his factual (and not merely technical) innocence as a condition of his receiving compensation. Justice Binnie’s conclusion is that, following a review of all the evidence, David Bain discharged that responsibility and is entitled to compensation. It is that finding that Judith Collins has chosen to question.
    The Minister is of course faced with a dilemma, and one that arises because public opinion, as far as one can tell, is divided on the issue of whether David Bain can be regarded as “innocent” on a balance of probabilities, and not merely “not guilty”. The Minister fears that if she advises Cabinet that compensation should be paid, a substantial body of opinion will accuse her of unjustifiably paying out taxpayers’ money to someone who does not deserve it.
    Yet, if she does not do so, what basis can she claim for that decision? Short of a full and further judicial hearing, which is surely out of the question, does she claim to know better than the courts, and to believe that David Bain is guilty? What does she claim to know that eluded an eminent Canadian jurist engaged to give an authoritative opinion on precisely the issue of Bain’s innocence and that now leads her to assert that David Bain, on a balance of probabilities, committed the crime?
    It is precisely because she can have no sound basis for unilaterally reaching for such a conclusion that she has cast around for someone else to get her off the hook. But going back to the Solicitor General, who is surely parti pris, or asking for further opinions until – presumably – she gets one she likes, cannot resolve her dilemma for her.
    What, therefore, should she do? The two possible outcomes both carry with them the risk of serious injustice. On the one hand, to pay compensation to a David Bain who had killed his family would be to reward a criminal at the taxpayer’s expense. But, on the other hand, to deny an innocent David Bain compensation for thirteen years in prison for a crime he did not commit would be to add insult to injury, in the dual sense that fairness had been denied to the victim of a terrible wrong, and that he had been left with an ineradicable stigma in the eyes of his fellow-citizens – a stigma that our courts felt themselves not justified in imposing.
    There is surely no doubt that the latter outcome carries the greater risk of injustice. Judith Collins should set aside political calculation and concern for what some elements of public opinion may think, and reach the only decision that can minimise potential injustice. She should support her own justice system and the report commissioned by her predecessor, and advise Cabinet accordingly.
    Bryan Gould
    14 December 2012

    This article was published in the NZ Herald on 17 December.

  • What the Hekia Doing?

    John Key enjoyed his first term as Prime Minister. It all seemed so easy. But now, in his second term, it’s not so much fun.

    The rot began to set in even before the last election, with the ill-fated storm in the John Banks teacup, and the Epsom MP has continued to give him nightmares ever since. But it is not just the Prime Minister’s inability to take decisive action to purge his government of a toxic element that has hurt him; the perception is growing that he is not as good as he should be at running an effective government.

    Too many of his ministers seem to lack proper direction; too many do and say things that surely cannot have been approved by Cabinet. When he looks at his education minister’s recent record, for example, with ill-judged initiatives followed by embarrassing backdowns on class sizes and Canterbury school closures, he could be excused for exclaiming “What the Hekia doing?”

    And how close an eye does he keep on his Foreign Minister, who used his speech to the UN General Assembly to promote New Zealand’s candidature for a seat on the Security Council in 2014, but at the same time has virtually destroyed our proud record as an active member of UNESCO, of whose founding document we were the second country to step up to sign in 1946? Is that the way to demonstrate that we are a good UN citizen?

    Even his most senior ministers seem to be laws unto themselves. Bill English, with whom he seems to have an increasingly tetchy relationship, seems not to have bothered to keep the Prime Minister in the loop over one of his main responsibilities while acting as PM during John Key’s absence overseas. And the Prime Minister himself seems to have a pretty cavalier attitude to those same responsibilities, declaring that a barely believable mistake by the spy agencies for which he is responsible minister – and one that was absolutely central to the performance of their prime functions – was nothing to do with him.

    Little wonder, then, that the Prime Minister now displays the unmistakable symptoms of a familiar second-term syndrome. Prime Ministers often get tired of the continued pressure and criticism they encounter on a daily basis in domestic politics. They begin to yearn, and then actively to look for, the respite they gain from overseas trips, whether necessary or manufactured.

    How pleasant it must be – after all the trials and tribulations of dealing with an ungrateful public – to go abroad to be feted and flattered, to be treated as an honoured guest, to enjoy the attention of uncritical media. But it is always a bad sign when, in any walk of life, someone doing an important job is happier away from it than actually doing it.

    The Prime Minister enjoys – and why not – overseas travel. The opportunities to travel – particularly to the United States, whether to watch his son play baseball or to tour Hollywood studios – seem, however, to be coming with increasing frequency.

    His latest foray to Hollywood is not just to collect a couple of autographs from some minor Hollywood celebrities. It has, we are assured, a serious purpose; but that serious purpose does not necessarily make us feel any happier about it.

    His latest engagement with the major film moguls, after all, calls to mind his last involvement with them, when a handful of Warner Bros executives rolled into town, told the Prime Minister what they wanted, and left shortly afterwards with major tax concessions (that is, gifts) in their pockets and having forced a change in our labour laws that reduced the rights of New Zealand workers. And we must bear in mind that John Key’s usual response to powerful overseas corporations, from mining interests to purchasers of our assets, is “The answer’s yes, now, what’s the question?”

    The Prime Minister assures us that he does not intend to make any further offers on this occasion – and short of handing over our powers of self-government, it is hard to know what more he could do to ingratiate himself with them. But what is the Prime Minister doing there at all?

    According to his own account, he is there as a salesman – and that raises another set of questions. The Prime Minister’s special expertise, as a foreign exchange dealer, was as a deal-maker; but, given the whole range of responsibilities he has to shoulder and the many pressing problems demanding his attention, is this the best way he can find to spend four days in his busy schedule? And, if the government really does need to softsoap Hollywood, does he not have a trade minister to do that?

    Do we really want or need a Prime Minister whose first and perhaps only thought is sell off whatever he can lay his hands on? And should those assets he seems so ready to sell include his – and our – self-respect as well?

    Bryan Gould

    2 October 2012

    This article was published in the NZ Herald on 4 October.