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Interim Report for Minister of Justice

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Interim Report for Minister of Justice Robert Fisher QC INTERIM REPORT FOR MINISTER OF JUSTICE ON COMPENSATION CLAIM BY DAVID BAIN 13 December 2012 Hon Robert Lloyd Fisher QC, LL.D, FAMINZ; Bankside Chambers, Level 22, Lumley Centre, 88 Short/and Street, Auckland 1140. New Zealand. PO Box 3107, Short/and Street, Auckland 1140, New Zealand. Phone: 64-9-307 8780 Fox: 64-9-377 0997 Emalf: [email protected]. Website: www.robertfisher.co.nz , EXECUTIVE SUMMARY ••..•� ........ ..." ............" ........ "............. ....................................................5 Origins of this report ....... ............. ....... ... ......_ . ...... ........................................... ................... 5 Summary "I ,onciusions in relation to the Binnie Report ... ......... .............. ........, ................ 6 J�stke Binnie', finding that David Ba;n was innocent ........................... ..� . ......." ......"" ..... 7 Ju�tice Binnie's finding that there was serious wrongdoing bV iluthori!leo ...... .......... ........9 CHAPTER 1, SCOPE OFJUSTICE BINNIE'S MANDATE ........... ...... ...................... .................... 12 The terms of reference .•.•.•..••...., ....................................................................................... 12 Scope ofJustice Binnie's condu5ions ........ ................... ..........� ... ..., .. ................................ 12 Consequence of going beyond the mandate .......................................... .............. ..... ....... 13 CHAPTER 2, HIE REQUIRED APPROACH TO PROBABIUTlES ................ .......... ..................... ... 15 The role of probabilities .... .........., ............... ,................ ...................................................... 15 Onus and na ndard <Ifprool ............... ..... ............. ......... ...... ......._ . ............... ... .. ....... ......... 16 The treatment of circumSlantlal evidence ............................................................... ......... 17 (I) ProtxltNe force ofeach Item consldereC Individually ......................... ........ ...... .. .. .. ..... 19 (ii) Cumulative effect01 combining the individual probabilily issessments .....................19 A""rtions of I.ct by the Crown .......................... ... ......... ......................... ........................ .. 20 ava Gaps In the ilable Inlorma�on ........•.•......•. , ..................................................................2.1 Summary Df probability prine pies .....................................................................................22 CHAPTER 3: JUSTICE BINNIE'S APPROACH TO PROBABIUTIES ................ .......... ............... ...... 24 Justice B,nnle's Slated approach ........................................................................................ 24 Step one: .sse"lng the probabilily indialted by each item in ISol,l\lon ........................... 24 Step two: combinins the effect of aU the probabilities ..................................................... 28 JuSlice Binnie's treatment of .s.ertlolU ollact by the Crown ................ .......................... 31 ' . ...... ...... ...... ........... Juslice Binnie s treatment of gaps In the available InJormation.. ..... 33 Condu,'o"s re8"rdin& JU<lkeBinnie's approach to probabilities ............ ............. ............ 34 3 CHAi'TER 4: OTHER CURIOSITIES IN JUSTICE BINNIE'S TREATMENT OF THE FACTS ......•.•..•.. 36 A<$e"menlof the evidence In general. .............. ...... ....... ................................................. 36 Rel13nce on $YspecI's own �en ce. ........" ..." ........................ "..... ................................... 36 "Innocent opennessH defences ...................................................................." ........� . ......... 38 Significance aruor.hl'd 10the jury acquittal ............_ . .........................................................40 :0 •..•.•.•....•.... •...• Summ<l'Y ofJustice Binnie's approach other features of the evidence _ 41 CHAl'TER5: THE REQUIRED APPROACH TO CONDUCT OF AUTHORITIES ................ .............. 42 Question pOled to Justice Binnie .. .................................................................................... 42 OrIgIns of Ihe e� g",'la compellSiition regime ............................................... ................... 43 Elements of the se,iOllswrongdoing examllle.......... ............................._ .......•..•....•.•....•..• 46 (al Official adml"ion or judicial findlng ...... ._ .............. ...................................................... 46 (b) Serious wrongdolng ..........•_ . ...•. .. ..........._ . ....... ........•... ...•.... .......•.......•........•........ ....... 47 (cllovesligation elCprosecution ofIhe case ........................................................... ...........50 Causal conneelion with imprisonment ..............................................................._ . ............ 50 Sroader Kope 10 consider "rare cases"..•...•................ .....•.............•.................................. 51 Summary of requirements in relation 10 (onduct ofiluthorlties ........................•.•....•....•.. 52 CHAPTER 6: JUSTICE BINNIE'S APPROACH TO CONDUerOF AUTHORmB ..•....... ....•........•.. 54 Justice Binnie's approach to conduct of authorities in g.. ne'31 .._ . .................................._ 54 (a) Approach takento official admi"ion or judicial finding ............................... ...............55 (blApproach taken to requirement that the wrongdoing bedeliberate or in bad failh .. 5S (e) Approach 13ken to connection between misconduct and imprisonment .............•....•. 57 Overriding discretionto go outside the e.amples givt!"..........•....•.•..•...•..••..•••••••.•••••••••••• 58 Condusi"ns regarding Ju"lce Binnie', approach 10 authority (On duct ............................ 58 CHAPTER7: PERSONAL CRITICISMS WITHOUTOPPORTUNrTYFOR RESPONSE .•... _........•...• 60 Criticism of Individuals bv Justice BlnnTe... _ .................. ....................... ............................. 60 4 Wa5 adequate opportunityprovlr;leo:l for response?_ .................................... .......... .......... 62 Amenability to Judicial review ...... .............. ................ .. ...................... _ ..................... ...... 63 Conclusions ..... ..... .. .... _ ..... ................... .. _ ......... ...... .......... ............... ....... .......... ...............: 64 CHAPTER 8: FURTHER STEPS REQUIRED ........................ ........................................................ 66 APPENDIX: LffiER OF IN5TRUcnON AND ANNEXURES ........... _ .. ..... .. ................... ...... .. ....... 67 5 ' EXECUTIVE SUMMARY Origins of this report 1. In 2011 the Han Simon Power, the then Minister of Justice, asked the Han Justice Ian Binnie QC, a retired judge of the Supreme Court of Canada (Binnie J), to provide advice on an application by David Bain for compensation fo r wrongful imprisonment. 2. In his report of 30 August 2012, supplemented on 25 September 2012, (the Binnie Report) Binnie J concluded that David Bain was innocent on the balance of probabilities; concluded that wrongful conduct by authorities qualified as the necessary extraordinary circumstances; and recommended that compensation be paid. 3. By letter of26 September 2012 you asked me to conduct a peer review of Binnie J's report in the fo llowing terms: a. Review Justice Ian Binnie's report and such additional relevant information as you consider necessary and provide advice to me on whether or not you agree with his conclusion that David Bain has established his innocence on the balance of probabilities, but not beyond reasonable doubt, stating your reasons in full; b. If you agree with Justice Binnie's conclusion, provide me with your advice on any factors particular to Mr Bain's case that you consider are relevant to the Executive's assessment of whether there are extraordinary circumstances such that it is in the interests ofjus tice that the claim be considered. c. You [are1 not asked to provide an op'Olon on whether the "extraordinary circumstances" test is met nor whether compensation should be paid as these assessments are reserved fo r the judgement of the Executive. 4. At our meeting on 26 September 2012 we agreed that the task should be approached in two stages. 5. The first stage is addressed in the interim report that fo llows. In finalising this report I have had the benefit ofa response to a draft of my report in Binnie J's fo ur­ page email oftoday's date and made modifications in consequence . • I am grateful to Rebecca Edwards BA, LLB (Hons) (Auckland), LLM (Virginia), Barrister, and Kate Tolmie Bowden BCom (Auckland), Law Clerk, for their assistance in preparing this report. 6 6. In this report I have expressed final conclusions on the principles to be applied to an inquiry of this kind; fo und that those principles have been misunderstood in the Binnie Report; and concluded that in consequence it would be unsafe to act upon the Binnie Report. 7. This interim report does not purport to apply the appropriate tests to the actual evidence. As we discussed, a second and final report will be required fo r the purpose of reviewing the evidence afresh and arriving at conclusions on the merits. An outline of the suggested steps involved in preparing such a report is included at the ! end of this report. 8. A full copy of your letter of26 September 2012 and annexures is annexed to this interim report. This interim report is confined to an analysis
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