This is not a post about David Bain. It just looks that way.

So late last year I posted an inexcusably long, meandering (and, let's be brutally honest, criminally self-indulgent) meditation on Ian Binnie's report on David Bain's "innocence" and Robert Fisher's criticisms of that report. I commenced said post by claiming it represented "an attempt to wipe [the Bain case's] tar from my fur with one last comment on where we are now and how we got to get there."

Right. Like that was ever going to happen. So here we go again.

David Bain's camp have lodged an application for judicial review, challenging Judith Collin's actions since she received the Binnie report last August. I haven't seen the pleadings, but I assume the crux of their challenge relates to the process she followed when first deciding upon, and then asking, Robert Fisher to review Binnie's report.

I'm not going to make any firm prediction about the chances of this claim succeeding - judicial review proceedings are so fact-dependent that I just don't have the appropriate level of insight. Instead, here's something of a primer on the issues involved, with some comments on how matters might (or, might not) play out when this gets in front of a judge.

The initial matter to note is that judicial review is about process, not substance. In other words, a court is not being asked to decide whether or not a given decision or action is right, but rather to look at how the relevant decision was made or the action was taken. So in this context, a court will not be required to assess whether Collins was permitted to obtain a second opinion on Binnie's report (even Binnie himself accepted it was within the Minister's right to seek additional views on the robustness of his conclusions) - much less whether Fisher's criticisms of Binnie's report were well founded.

In other words, this case will not decide whose report is the better one: Binnie's or Fisher's. It will instead be about how Collins went about deciding that it was necessary to get Fisher to have a look at Binnie's report, and how she then asked him to do that job.

So if a judicial review claim is about the process surrounding some decision or action, what does it then involve? Well, there's three questions you have to ask.

First, is the decision or action you want the court to look at one that is amenable to judicial review (i.e. is it "justiciable")?

Second, can you establish that one of the relevant grounds of review apply (i.e. are you able to show the court that there is a problem of a sort that it will take notice of)?

Third, will you be able to convince the court to exercise its discretion to grant a remedy (i.e. even if you can show the court there is a problem of a sort it will take notice of, can you get it to do anything about that problem)?

Again, without wanting to purport to predict how this application for review will play out, here's some thoughts on each of those questions.

On the first question, you might think that the fact that compensation for wrongful imprisonment is ex gratia (i.e. at the Crown's discretion) means that the issue is not one that the courts will involve themselves in at all. Certainly, this is the line David Farrar takes:

The Bain claim for compensation in fact falls outside the Cabinet guidelines. Bain and Karam have asked for Cabinet to use their discretion to give him compensation even though he doesn’t qualify outside the guidelines. It would be highly unusual for the courts to injunct a Minister from reporting an issue to Cabinet involving a discretionary decision.

With respect, this muddles a couple of issues. It may very well be that a court would not "injunct a Minister from reporting an issue to Cabinet involving a discretionary decision", but that's a question about remedies not justiciability (to which I'll get to later). And while a court might not be prepared to review the Cabinet's final decision on granting (or not granting) compensation in a given case (there's a suggestion of this in existing case law - see Akatere v Attorney General), that doesn't necessarily mean that a Minister is free to act in any way she pleases when gathering information to place before the Cabinet.

But for me the best evidence that the process leading to Cabinet's decision on compensation might very well be amenable to judicial review comes from a perhaps surprising source - Fisher's review of Binnie's report. In chapter 7 of his review, Fisher examines several instances where Binnie allegedly makes critical comments about individuals without giving them an adequate chance to respond, and concludes that this action means "that the possibility of successful [judicial review] proceedings by those criticised is a substantial risk."

Now, it would be odd if Fisher believes that a report provided to the Minister in order to help her inform Cabinet is "a[t] substantial risk" of judicial review, but the Minister's actions in deciding what to do with that report are not. Or, at the least, one might see a certain irony in Collins declaring that "The list of errors in Mr Binnie’s report is extensive, and according to Dr Fisher could be vulnerable to judicial review", whilst at the same time asserting that her actions are not justiciable as David Bain's claim "falls outside Cabinet guidelines and is entirely at Cabinet's discretion".

And I'll leave it at that.

On the second question, is there anything about the way that Collins decided a second opinion on Binnie's report was needed, and then commissioned Fisher to conduct it, that might represent a problem in the court's eyes? Well, in my last post on this topic I went through a number of what I saw to be shortcomings in Collins' actions. That she decided a review was necessary after hearing from the Police and Crown Law, but without any input from David Bain or his representatives. That she "prepped" Fisher before he undertook his review of Binnie's report with those institutions' negative comments about it. That it at least appeared that the two of them were already discussing how a new inquiry into David Bain's guilt/innocence should be conducted before Fisher had conducted his peer review of Binnie's report.

The issue then will be whether any of these "shortcomings" amount to a breach of natural justice - either by failing to hear from a party affected by Collins' decision, or by displaying inappropriate bias when deciding what to do. Deciding that gets us deep into both questions of legal duty (what expectation about being consulted could David Bain legitimately have?) and fact-dependent territory (what actually was said to whom and when?). So all I'll say here is that it would not surprise me if a court looked at the way Collins handled the matter and found it to be "unfair", in the sense of breaching one of the requirements of natural justice. But, equally it would not surprise me if a court went the other way. That's the great thing about "natural justice" - it can mean whatever a court wants it to mean.

And I'll leave it at that.

Which then brings us to the third question: even if a court did find that this issue is justiciable, and that Collins did breach some requirement of natural justice, would a court exercise its discretion to grant a remedy? Because in judicial review proceedings you don't have a right to any particular remedy - rather, the court may decide what sort of remedy (if any) is appropriate in the circumstances. And it's here that I think David Bain's camp may face its biggest problem.

Let's say that David Bain successfully convinces a judge that she or he can look at the judicial review claim, and that Collins actually has treated him unfairly (in a legal sense) in the way she went about getting a second opinion of Binnie's report. What could a court do about that? Well, ideally David Bain would like the court to order the Minister to disregard Fisher's report and make a recommendation to Cabinet based on Binnie's report alone. But that's not going to happen, for a couple of reasons.

First, the criticisms of Binnie in Fisher's report can't be magicked away by judicial decree. And as I said in my last post on the topic, I think the core criticism that FIsher makes is a legitimate one. So even if unfairly produced, Fisher's report may still have substance to it that a Minister (and Cabinet) cannot be expected to ignore. Furthermore, a court simply is not in a position to legislate precisely as to how the Minister must go about advising Cabinet on compensation issues. Sure, it may be able to lay down general rules such as "act in a fair way when collecting information to help Cabinet decide what to do". But going beyond that to specifically order the Minister to carry out (or, not carry out) a particular action starts to encroach on territory that the executive has explicitly marked out as its own. And courts ought not to start doing the job of the other branches of government for them.

Which may mean that the only remedy that David Bain can expect to gain is a declaration that the Minister acted unlawfully in her handling of the Binnie report, without any further orders to bind the Minister's next step. Which would then mean that the Minister can continue to say that she regards the Binnie report as flawed and that she wants a new one on the issue. Which is what she was likely to tell Cabinet next week in any case.

Well, wouldn't that then amount to a Pyrrhic victory? Maybe. Or maybe not. Because even if such a finding has limited legal effects, it could still be a pretty strong weapon in an ongoing PR campaign to force the Government's hand on this issue. If Collins is portrayed as having acted unfairly and unlawfully in the way she rejected the Binnie report, then that may help to build public pressure on the Government to "do the right thing" by him. And that may make it politically that much more difficult for it not to.

Is it wrong for the David Bain camp to do so? Well - if the Government wants to retain the power to give (or not give) compensation as its own special discretionary so as to avoid having to pay out "unworthy" candidates, can it really complain when it becomes the target of public campaigns to force its hand? If you don't like the heat, you could always take yourself out of the kitchen by handing the job over to someone else ... .

OK - there you have it. Now, all you JR aficionados out there, have at it. Is David Bain's claim a goer, or dead on arrival?

Comments (30)

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

I'm not outing myself as a 'JR aficionado', but...

Which may mean that the only remedy that David Bain can expect to gain is a declaration that the Minister acted unlawfully in her handling of the Binnie report, without any further orders to bind the Minister's next step.

My understanding is that this is the only remedy that David Bain is seeking, which indicates that this is simply a move to gain political traction. The Court may have little interes (or ability)t in exercising any coercive remedies over Cabinet or Judith Collins, but a declaration that she behaved unlawfully may suffice for putting political pressure upon her personally. This may be  be exactly what his camp wants - after all, there's clear precedent in this Government for Ministers resigning over much less.

That's assuming that his claim is a goer at all. I expect that while technically amenable to review, the Court will have a hard time scrutinising a Minister's decision-making process that is so unburdened by statutory constraints.

 

by Andrew Geddis on January 31, 2013
Andrew Geddis

Less a JR aficionado, and more a JR idiot savant ... but I digress.

I take your point " that while technically amenable to review, the Court will have a hard time scrutinising a Minister's decision-making process that is so unburdened by statutory constraints." However, if this is the case, what make you of Robert Fisher's dire warnings about the potential for judicial review of Ian Binnie's report? Did he overstate matters, or is there any reason why Binnie's report is more amenable to judicial review on natural justice grounds than Collins' actions once she receives that report?

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

I see a categotrical distinction between Justice Binnie's report and the actions of Judith Collins such that a warning by Robert Fisher about the former will not necessarily apply to the latter. The investigation conducted by Justice Binnie (and his report) surely has a quasi-judicial status that gives rise to duties of procedural fairness. Unless Judith Collins (or her predecessor, Simon Power) gave some assurance to the contrary, I do not see how the same duties necessarily arise in terms of her conduct and her handling of the report.

by Andrew Geddis on January 31, 2013
Andrew Geddis

But why?

Binnie's report only gets any "publicness" by virtue of the Minister commissioning it and what the Minister might do with it afterwards. So, if David Bain had paid Binnie to fly in and produce such a report for him, there'd be no question that it ever could be judicially reviewed even if it made swinging criticisms of individuals without any chance for their response. Thus, if the only reason for Binnie's report being amenable to JR is because of the potential role it will play in the Minister's decision-making process, then it seems odd to think that the rest of the Minister's decision-making is off-limits. Why can the courts look at just this one, limited part of what will be a chain of information gathering and decision making leading up to Cabinet's final exercise of discretion?

Further, if Binnie's report really does have a "quasi-judicial" status (rather than simply an advisory, take-it-or-leave-it quality), then surely that makes the Minister's response to the report more amenable to review? Wouldn't a court be far more interested in how a Minister decides to deal with the results of a "quasi-judicial" process than it would be in respect of mere advice?

by Graeme Edgeler on January 31, 2013
Graeme Edgeler

The list of errors in Mr Binnie’s report is extensive, and according to Dr Fisher could be vulnerable to judicial review"

I think I've asked before (not sure if it was publicly), but who exactly would have standing to judicially review Binnie's report? David Bain if he'd disagreed with it, perhaps, but does anyone who thinks Binnie was wrong have a sufficient interest to even get through the first door?

by Andrew Geddis on January 31, 2013
Andrew Geddis

I think Fisher had in mind the various individual crown witnesses/police officers subject to Binnie's  critical comments. My point is that Fisher seemed to assume that justiciability wouldn't be (much of) a problem, irrespective of the issue of compensation being ex gratia.

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

I see your point - that Judith Collins' handling of the report was just another link in a decision-making chain that included the preparation of Justice Binnie's report and thus fall into the same amenability-of-review basket - and I think that must be what Mr Bain will argue.

However, I will still stick to my view that they are categorically different decisions. The appointment of Justice Binnie was touted as follows in 2011:

"Justice Minister Simon Power yesterday announced the appointment of retired Canadian Supreme Court Judge Ian Binnie to assess Bain's claim for compensation for wrongful conviction and imprisonment. [...] Binnie will report to the minister of justice who will make a recommendation to the Cabinet, which makes the final decision."

Three different exercises of power are mentioned there: the preparation of the report, the recommendation to Cabinet and Cabinet's final decision. By the chain-of-decision-making logic, Cabinet's decision should be as amenable to review as Binnie's report is. Except that unless we see a revolution in judicial review jurisprudence, the Court will not touch Cabinet's final decision. So it can be cleaved off from Justice Binnie's report, and I think that so too can Collin's decision not to recommend the report to Cabinet.

Essentially, I see Justice Binnie's report as a year-long investigation that the Court would be happy to second-guess (hence Robert Fisher's concern). At the same time, I think the Court would be loathe to question what a Minister does with that report - essentially a pure exercise of discretion by a Minister who was not bound by any statutory guidelines.


 

 

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

who exactly would have standing to judicially review Binnie's report?

Also, rightly or wrongly, the Court takes such a liberal approach to standing these days that it is barely a requirement. The intensity of the interest in this issue I think would suffice for anyone to challenge it (though as Andrew states, it would be someone like Michael Guest of who would be the ones who'd likely want to).

by Ross on January 31, 2013
Ross

I must confess I am at a loss to understand what remedy Team Bain is seeking. Joe Karam continues to opine that David has no money. Well, isn't the action he's taking going to cost money? At the same time, it will delay any compo bid...though maybe Joe realises that that bid has little or no chance of success, so the best he can hope for is to give the Minister a bloody nose before she delivers the bad news.

by Ross on January 31, 2013
Ross

Could this judicial review be an opportunity for Team Bain to acquire information which they might otherwise be denied under the OIA? In other words, could the basis of this be a fishing expedition?

by Graeme Edgeler on January 31, 2013
Graeme Edgeler

The intensity of the interest in this issue I think would suffice for anyone to challenge it (though as Andrew states, it would be someone like Michael Guest of who would be the ones who'd likely want to).

But a new report isn't going to correct the outcome of those aspect of Binnie's report. The purpose of a new report is to assist with the determination of compensation. It's not going to affect a decision over whether Cabinet will do something about police incompetence etc. because cabinet isn't going to do anything about that.

Fisher's view on judicial review appeared to be aimed at saying: if you base your recommendation or decision on this report, the flaws in it will make that susecptible to judicial review. Flaws in the conclusions of Binnie about named individuals are going to be there - and are going to be just as susceptible to judicial review - whether there is a further report or not.

by Analyst on January 31, 2013
Analyst

Surely Professor Joseph wouldn't be on the Bain team for this review application unless he was pretty sure there were grounds?  He certainly knows his stuff.

by Andrew Geddis on January 31, 2013
Andrew Geddis

Fisher's view on judicial review appeared to be aimed at saying: if you base your recommendation or decision on this report, the flaws in it will make that susecptible to judicial review.

Not quite sure about this - does Fisher warn the Minister that her actions could be reviewed, or just say that Binnie's report could be? I took him to be saying only that Binnie had failed to accord some folks natural justice, that this failure could interest a court (if they were asked to look at it) and that this alone is a reason why the Minister should not accept Binnie's report ... because it is not a good look for her to act on something which has been created in breach of natural justice (even if there are no legal consequences that may follow should she choose to do so).

More generally, Marcello may be right that you can distinguish between the process of crafting a report that will aid a Minister in advising her colleagues on how to exercise a purely discretionary decision making power, and the process the Minister then follows when deciding whether to use that report in advising her colleagues on how to exercise a purely discretionary decision making power ... and perhaps Fisher thinks the same. But I still think there's an irony in Binnie's report being rejected in part because of his failure to follow the rules of natural justice, following advice from someone commissioned to review Binnie's report without David Bain or anyone from his "camp" being told about it.

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

I agree with Andrew: Dr Fisher was indicating that judicial review could afford a remedy for those slighted by Justice Binnie's report in the absence of the usual remedy of defamation (pp. 63-64) rather than the risks of of relying upon the report.

Ross: not sure what information that the Bain legal team would be trying to obtain that was (a) not already in the public domain or (b) not subject to legal privilege. It's unclear what in particular motivated the proceedings but the political ramifications of successfully obtaining declarations against Judith Collins could give them leverage with regards to Justice Binnie's report.

Andrew: it would indeed be Alanis Morrisette-grade irony. But it wouldn't be the first (or, doubtless, the last) ironic twist in this saga. 

by Andrew Geddis on January 31, 2013
Andrew Geddis

Andrew: it would indeed be Alanis Morrisette-grade irony.

So ... not ironic, then?

Surely Professor Joseph wouldn't be on the Bain team for this review application unless he was pretty sure there were grounds?  He certainly knows his stuff.

I think it is indisputable that Phil Joseph "knows his stuff" - but even the best of us sometimes get things wrong! Incidentally, what's your source for saying he is "on the Bain team for this review application"? Google tells me nothing.

by Marcelo Rodriguez Ferrere on January 31, 2013
Marcelo Rodriguez Ferrere

Exactly. Just a list of extremely unfortunate circumstances.

Joe Karam indicated that Professor Joseph was on the team on Newstalk ZB this morning.

by Analyst on January 31, 2013
Analyst

^^ what Marcello said. It's on the press release too. Joseph, like anyone, may get things wrong sometimes, but he must be pretty sure of his ground to align himself in this way. Perhaps he too noted the irony?

by Ross on January 31, 2013
Ross

This is what Prof Joseph about Fisher's report into Rex Haig's claim for compensation:

[Fisher] played no part in the proceedings leading to Mr Haig's conviction or the subsequent quashing of it, did not personally interview witnesses, was not involved in gathering evidence and did not attend the trial, he said."He was, for all intents and purposes, a casual bystander. Yet Fisher could be confident that he, and only he, really knew what happened on the boat when Roderique was murdered. Such prescience is truly admirable," Prof Joseph said.

One can only wonder what Joseph would make of Binnie's report claiming that David Bain is innocent, seeing as Binnie:

played no part in the proceedings leading to Bain's conviction or the subsequent acquittal;

did not personally interview witnesses (apart from Bain, Doyle and Weir);  

was not involved in gathering evidence and did not attend the trial;

assumed Bain was telling the truth;

made errors of fact;

speculated at length;

went beyond his brief;

seemed to believe the onus of proof was on the Crown;

did not approach the evidence in a way consistent with NZ law.

 

 

by Andrew Geddis on January 31, 2013
Andrew Geddis

Ross,

Whatever the validity or otherwise of your overall criticisms of Binnie, and whatever Joseph might hypothetically think about his report, you aren't comparing apples with apples. Joseph's criticisms of Fisher in the Haig case relate specifically to Fisher's adoption of a new theory of the crime when rejecting Haig's claim (i.e. Fisher didn't just accept the Crown's theory at trial, but rather found an alternative account of the crime to be the "true" one). Joseph alleged this was inappropriate, given that Fisher "was, for all intents and purposes, a casual bystander." So the first three "criticisms" would not apply to Binnie.

by Ross on January 31, 2013
Ross

It's unclear what in particular motivated the proceedings but the political ramifications of successfully obtaining declarations against Judith Collins could give them leverage with regards to Justice Binnie's report.

Macelo, what political ramifications do you have in mind? You've said that even if Team Bain win this round, Collins can ignore the outcome.

by Michael Stockdale on February 01, 2013
Michael Stockdale

I have been researching the Bain murders on and off since the retrial.
In fact you could say it is my hobby . I believe David Bain,beyond reasonable doubt, did murder his family.
David Bain was found guilty at the first trial. In my opinion the police did a pretty good job,under the circumstances. They were never going to get everything 100% right.
There was a report carried out by the PCA. There were Court of Appeal hearings.
There was a petition for the Exercise of the Royal Prerogative of Mercy.
And then came the Privy Council decision. As I understand it, from a layman's point of view, the Law Lords disagreed with the Court of Appeals in that they said all the new evidence should be heard by a jury,whereas the Court of Appeals didn't see it that way. .
Then came the retrial. A study of the transcript shows that condiderable effort was made to confuse the jury and obviously those efforts were successfull, The one jury member that has come forward has said the the Crown were not able to prove beyond reasonable doubt that David  Bain murdered his family. She has also said she does not want David Bain to receive any compensation, so it would appear she believes he probably did murder his family.
Then we have the compensation claim. Justice Binnie made a number of mistakes in his report. Judith Collins had it reviewed. She said she couldn't present it to Cabinet.
It now appears that Bain's lawyers are saying that Collins should have told them that she was having Binnie's report reviewed. As a layman I don't understand why she needed to have done that,.
My focus has been on the Binnie/Bain interview. There is no doubt in my mind that Binnie has given Bain an armchair ride. He asked many pertinent questions,but he accepted Bain's answers far too readily, in my opinion.
I can point out where Bain gave Binnie what I would say where untruthful answers.
So I would like to pose this question.
If it can be proved that some of the answers Bain gave Binnie were untruthful, would not that negate his claim for compensation?

by Marcelo Rodriguez Ferrere on February 01, 2013
Marcelo Rodriguez Ferrere

Ross: Collins might ignore any successful declarations, but would Cabinet? The Opposition certainly wouldn't ignore them. A black eye from the Court could increase pressure on her personally (i.e. to resign) and/or Cabinet (i.e. to accept Justice Binnie's report). Now that's both extremely speculative and far-fetched - I'm not saying that would or even could occur - just that sometimes the legal impotence of Court rulings doesn't mean that they don't have political power.

by Andrew Geddis on February 01, 2013
Andrew Geddis

"It now appears that Bain's lawyers are saying that Collins should have told them that she was having Binnie's report reviewed. As a layman I don't understand why she needed to have done that."

Well, that will be one of the points debated in the judicial review proceedings. I should imagine the Bain camp claim will be something along the lines of:

"We entered into the process of Ian Binnie's review in good faith, agreeing to be bound by his conclusion. When Binnie carried out that review process, it was clear that we and Crown Law were in an antagonistic relation (i.e. we were pushing for different outcomes from it). Consequently,

(1) We had a legitimate expectation, based on the way the Binnie review process was set up and out interests in its outcome, to be consulted before the Minister decided to have the Binnie report peer reviewed (both in terms of whether such a peer review was necessary, and how it would be conducted);

(2) It is procedurally unfair for the Minister to make the decision to have the Binnie report peer reviewed based on the concerns of only one side to the dispute."

Whether or not a court accepts these points (if, indeed, it decides it can review the matter at all) will be one of the interesting aspects of the review.

by Michael Stockdale on February 01, 2013
Michael Stockdale

But did Judith Collins agree to be bound by Binnie's conclusion?
And I repeat my last question.
If it can be proved that some of the answers Bain gave to Binnie were untruthful,would that not negate his claim for compensation, seeing as he was on oath when he gave them?

by Andrew Geddis on February 01, 2013
Andrew Geddis

"But did Judith Collins agree to be bound by Binnie's conclusion?"

Given that she was not Minister at the time of his appointment, no. But that isn't really in contention - even Ian Binnie said that the Minister was free to accept or reject his recommendations as she saw fit. The question is, given the way the process was set up and conducted, did this give David Bain a legitimate expectation to be consulted before the Minister acted to have Binnie's report reviewed? 

I don't know how a court will decide that argument (if it even looks at it) ... but it isn't a manifestly silly one to make. And that is all.

If it can be proved that some of the answers Bain gave to Binnie were untruthful,would that not negate his claim for compensation, seeing as he was on oath when he gave them.

The Cabinet can decide what it likes about giving David Bain compensation, based on whatever "facts" it wants. But I'd prefer not to turn this thread into a detailed debate on whether Bain lied, or other points of dispute about the evidence in Binnie's report. It isn't relevant to the topic of this post, and there's lots of other places on the interweb where those debates can be had.

by Ross on February 01, 2013
Ross

Bill Hodge has said:

“The Solicitor General is the highest law officer in the land who is not a politician, so she doesn’t have anywhere else to go to. I mean, he is the go-to guy who I would go to if I wanted a little bit of back-up or cover. He’s bound to report on the law. He’s not a prosecutor, he’s a legal adviser to the government and she’s quite within her rights to go to him.”

Andrew's point - albeit made on behalf of Team Bain - that Bain "had a legitimate expectation...to be consulted before the Minister decided to have the Binnie report peer reviewed, I do not agree with. What exactly would Collins have consulted over? No doubt Bain's advisors would have complained about any peer review. What then? A peer review was clearly necessary. By the way, did Bain's advisors consult with Collins over its decision to seek a judicial review? I very much doubt it, and that is as it should be. Similarly, Collins was under no obligation to consult with Bain's advisors re her peer review.  

 

by Andrew Geddis on February 01, 2013
Andrew Geddis

Ross,

Agreed - I made the very same point as Bill in the same NBR article. The complaint can't just be that the Minister consulted the Solicitor General about what to do (but note, she didn't just speak to him ... she also got the Police's view of the report). Rather, it has to be that she didn't speak to Bain.

As for "What exactly would Collins have consulted over?" Well, in addition to the question of whether a peer review would be conducted (which, I note, even Binnie said was not inappropriate), there is the question of who would do it and under what conditions/terms. For example, I'm sure the Bain side would have had quite a lot to say about the fact Fisher was sent off to review the Binnie report with the express instruction to take note of Crown Law's/the Police's criticisms of it!

Again, note that this is a proceedural criticism. Collins could have carried on exactly as she did after hearing from the Bain camp. But the argument will be that by not doing so, she's acted in breach of natural justice (and thus unlawfully).

by Marcelo Rodriguez Ferrere on February 01, 2013
Marcelo Rodriguez Ferrere

That's right. It's less about the content of the consultation than it is the necessity. If Judith Collins was under a duty to consult, then by not doing so, she has breached the tenets of natural justice. As Andew points out, though, Bain will likely need to prove that he had a legitimate expectation of being consulted for that duty to arise. I foresee that being a difficult hurdle to surmount, because I'm not sure if the way that Justice Binnie acted would suffice to provide an expectation that Judith Collins would have to consult with him.

by Ross on February 01, 2013
Ross

I'm sure the Bain side would have had quite a lot to say about the fact Fisher was sent off to review the Binnie report with the express instruction to take note of Crown Law's/the Police's criticisms of it!

That may well be true, but Fisher (and any half competent jurist) was always going to find problems with Binnie's report.

I note that Collins advised Fisher:

"The communications from Police and Michael Guest coupled with my own reservations arising from reading the report and background documentation have led me to consider that I need to proceed to this peer review." So, it wasn't merely her communications with Police (or Crown Law) which led her to peer review Binnie's report.

As for natural justice, it has its limits.

by Michael Stockdale on February 01, 2013
Michael Stockdale

Chrystal -gazing.
I don't believe anything will come of this. I see it as a last throw of the dice to get Binnie's report back on the table. That's not going to happen.
Sooner or later another report will be done, by either one person or perhaps, though unlikely, a panel of three judges.
If Bain is asked to appear again [and he does not have to front up] but if he does hopefully the person who is asking him questions will cross-examine him when he gives evasive or contradictory answers,that is contradictory to what he has said previously. Or when he mentions something that he has never mentioned before.
Bain will not be found innocent on the BOP's.  He will not receive any compensation.
He may be charged with perjury.
There will be another election. National will almost certainly win that election.
The Bain case will be old news.by the time that happens.

Post new comment

You must be logged in to post a comment.