I haven’t read the Binnie or Fisher reports in full, or all the various correspondences or press releases being fired out by the participants in the latest David Bain fiasco.
But from what I have so far read and heard I am left with some misgivings about the attacks by Judith Collins or Robert Fisher QC on the Binnie report. My understanding is that Justice Binnie was asked by Cabinet to prepare a report on whether or not David Bain was innocent of murder on the balance of probabilities, rather than a formal judgment. Some of Fisher’s criticisms arise from a view that Binnie’s reasoning failed to follow a particular deductive process, but Binnie has responded that such an approach is usual in criminal procedure, which the review process is not.
The arguments and counterarguments by Fisher and Binnie are complex and technical, and I’m left none the wiser on which authority is to be believed. This isn’t exactly my area of law, but it’s also clear that Justice Binnie is no fool, and I doubt his reputation will be shredded by the end of this exercise, whatever Judith Collins may now be hoping.
I am also troubled by the fact that the Crown had this report for months before it was released, and had time to discuss it internally and formulate a strategy for addressing the various “issues” it raised, while at no time letting David Bain’s legal team have access to the report. Our Justice Minister appears irked by the fact that Justice Binnie gave little weight to some evidence that the police and Crown considered crucial. That may be the case, but what of it? As an independent expert he was entitled to draw his own conclusions on the evidence. It’s usual for the losing party to say the judge got it wrong when a judge is called upon to decide which side’s evidence is to be preferred, and I wonder how many of the “errors” being alleged are simply calls made by the judge that went against the Crown.
Judith Collins has said that the flaws in the Binnie Report will be clear to any lawyer who examines it. She will now be hoping that those lawyers even now poring through the materials come to the same conclusion as her. But just for fun, I am going to predict that one or two of those lawyers will ruin everything for her by coming out in support of Justice Binnie’s report.