Friday 14 December 2012

The Incorrectables: Or, Why Judith Collins Won't Resign.

Justice Minister? The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of the internationally renowned Canadian jurist, Justice Ian Binnie. Collin’s conduct condemns us as a nation of ignorant and politically reckless barbarians.

ARTHUR ALLAN THOMAS, Peter Ellis, David Bain – and these are just the cases that have seared themselves into our consciousness. How many similar miscarriages of justice have blighted the lives of innocent men and women: passing unnoticed for want of a Pat Booth, a Lynley Hood or a Joe Karam to stir the nation's conscience? What is it about the New Zealand Establishment that renders it virtually incapable of self-correction? What makes our rulers so unwilling to admit their mistakes?
Today it’s Judith Collins whose been caught in flagrante delicto with error. But the present Justice Minister is simply the most recent in a long line of politicians who have decided that they and the system they represent are in all respects beyond reprimand, admonition or rebuke. That in New Zealand the powers-that-be are incorrectable.
Is it because we’re so small? Are the hidden networks connecting those who wield political, judicial and economic power over our daily lives so hopelessly entangled; so pervasively compromised by unacknowledged conflicts of interest; that even the slightest scrutiny would instantly provoke a general collapse in public trust and confidence? Is that the reason we constantly emerge from international comparisons as the least corrupt country on the planet? Not because we are incorruptible, but because by the general (if unspoken) agreement of the elites, incidents which in other jurisdictions would inevitably attract accusations of corruption and malfeasance are in New Zealand consistently characterised as something else?
There’s no doubt that the New Zealand Establishment has become extraordinarily proficient at protecting itself. Just consider the three cases already referred to: the Thomas Case, the Ellis Case and the Bain Case. What was the common factor which ensured that Thomas and Bain were vindicated? What is Peter Ellis still waiting for? The answer, of course, is a foreign pair of eyes. Thomas was rescued by Rob Muldoon’s populist instincts. Recognising an obvious Establishment stitch-up, he initiated a Royal Commission of Inquiry headed by an Australian judge. Bain was saved by the five pairs of British eyes assigned to his case by the Privy Council in London. Peter Ellis’s great misfortune is that those responsible for reviewing his case have all been senior members of the New Zealand judiciary.
It should never be forgotten that in all of these cases the New Zealand Court of Appeal upheld the wrongful conviction of innocent men. Evidentiary insecurity – in all cases due to “lapses” in the gathering and retention of crucial forensic material and/or testimony – was never considered by the Court as being of sufficient weight to vacate the earlier verdicts. Not even when, in the Ellis case, the evidence was patently absurd and obviously untrue.
And now we have the Report of Justice Ian Binnie – a Canadian jurist with a formidable international reputation – who, like so many other foreign judges, has studied the evidence used to convict a New Zealand citizen and unequivocally rejected it as unpersuasive of anything except that person’s innocence. In arriving at his conclusions he has had a few highly critical things to say about the way the New Zealand Police conducted their investigations. And, by implication, the New Zealand Court of Appeal is criticised for its failure to spot what was so clear to both himself and UK Privy Council.
Asked by the then Justice Minister, Simon Power, to help the Cabinet to decide whether or not to compensate David Bain for the 13 years he spent in jail, Justice Binnie could have had no inkling of the insults to which Power’s successor, Judith Collins would subject him.
Collin’s behaviour is explicable only in terms of the New Zealand Establishment’s blank refusal to be corrected. Upon receiving Justice Binnie’s report her first instinct was to pass it on to the Solicitor General and the Police. The Canadian judge had dared to suggest that they had erred – a conclusion which was plainly false since the New Zealand authorities are incapable of error. In spite of passing on the report to parties which were, in effect, Bain’s opponents, the Justice Minister did not think it proper to provide a copy to the legal representatives of the man most directly involved. Not content with this extraordinary breach of the basic principles of fairness, she then commissioned a former New Zealand High Court judge, Robert Fisher QC, to “peer review” the former Canadian Supreme Court Judge’s findings.
The Minister’s extraordinary behaviour was then compounded by her decision to unleash a campaign of public denigration against Justice Binnie. The eminent jurist was painted as an incompetent assessor of evidence and accused of having a poor understanding of “New Zealand Law”. In a chilling example of ruthless politicking, Collins withheld Justice Binnie’s report until Fisher QC’s critique of its findings could be released simultaneously. In this way Bain’s opponents would have a ready counter to Justice Binnie’s conclusions.
The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of an internationally renowned jurist. Collins’ conduct condemns us as a nation of ignorant and politically reckless barbarians. Her seeming disregard for the ability of future New Zealand governments to access expert international legal advice renders her unfit to hold the office of Justice Minister, and her failure to honour the most basic requirements of natural justice should attract the strong censure of the New Zealand Law Society.
Will it happen? Probably not. Judith Collins’ behaviour is entirely consistent with the New Zealand Establishment’s “incorrectable” traditions. The Prime Minister has already cast the cloak of his protection over her shoulders, and that part of the population which prefers to believe that its political, judicial and economic masters are as blameless and honourable as they are disinterested and incorruptible will cheer her to the echo.
Better by far that ten innocent people remain incarcerated than the corrupt New Zealand Establishment which wrongfully convicted them ever be held accountable.
This posting is exclusive to the Bowalley Road blogsite.


Dave Kennedy said...

I thought Justice Binnie responded to Collins' commentss in moderate and considered way that was in keeping with his position. He was fully accepting of her right to disagree with his findings but objected to the lack of good process and fairness in the way she responded.

I am continually embarrassed as a New Zealander at the lack of respect displayed by this Government to those who do not agree with the Government line. Rather than using good process and directly deal with the arguments it seems to now be common practice to denigrate the opposition in personal ways and manipulate the process to ensure a predetermined outcome.

To have a respected jurist treat so appallingly by a Minister of the New Zealand Government, and in such a public way, is disgraceful. To have his email response to the unfair criticisms also publicly released and criticized for its spelling was even more appalling.

Chris, I was concerned at your rather dismissive comment on an earlier post about the Greens' focus on good process as being as important as the end decision. Here is just another example of why appropriate decision making is so important.

Chris Trotter said...

Fair point, bspout.

I stand corrected ;-)

Jigsaw said...

Please remind me just what Labour did in the Peter Ellis case-in their nine years in office?

Anonymous said...

Like many I will completely agree with everything you wrote except the last paragraph:

"Better by far that ten guilty people remain incarcerated than the corrupt New Zealand Establishment which put them there should ever be held accountable"

Does accepting the report mean anyone's position at all is under threat? It does not. The Thomas commission had no effect on the careers of the police officers concerned. Why should accepting this report be any different?

Chris Trotter said...

To their eternal shame they refused to instigate the sort of inquiry which, in other jurisdictions, had laid bare the moral panic and false memories of the "Satanic Abuse" phenomenon which spread across the world in the 1980s.

In spite of numerous expert studies rubbishing the evidence that convicted Peter Ellis, the former NZ Chief Justice, Sir Thomas Eichelbaum, upheld the guilty verdicts.

Like its treatment of Ahmed Zaoui, the Clark Government's denial of justice to Peter Ellis continues to cast many of its more honourable achievements into shadow.

Anonymous said...

well Chris, there is the more than probable chance that David Bain is guilty as the first jury found.
Robin Bain is not here to speak for himself, and David Bain did hunt rabbits. Not what he told Binnie.
Lies, coverups, lies.
Good on Judith Collins, she is doing the right thing.
The second jury did not find Bain innocent.

Chris Trotter said...

To: Anonymous@1:53

I do not propose to engage in any debate over the guilt or innocence of either David or Robin Bain.

My position was clearly stated three years ago (just follow the link).

Paulus said...

In the Ellis case which has not been at all resolved, the Eichelbaum report had very narrow terms of reference.
At the time of the report's release, although signed by Sir Thomas, he was very unwell, and it would appear that the research was not done entirely by him but in the main by one Val Sim, whose views were not considered sympathetic to Ellis.
The two papers in the NZ Law Journal Dec 2007 by Ross Francis throws considerable discord of the Eichelbaum report.

Chris Trotter said...

To: Anonymous@1:22PM

In the last sentence I was trying for a note of bitter sarcasm.

Clearly, I didn't hit it.

Anonymous said...

There's a reason why constitutionalists have long theorised the separation of powers between executive, legislature and judiciary.

In this case, we seem to have all three embodied in a single individual: Judith Collins, Minister, MP and judge.

The phrase 'banana republic' comes to mind.

Anonymous said...

Chris - Your last sentence. Yes you did hit it (IMHO)

sean fliegner said...

Hi Chris, Sean Fliegner here - it's very wrong that Bain hasn't been given a copy of the report (as at time of this post anyway). Collins is a moron: flinging dung at Binnie because she doesn't like his conclusion.

But Chris, there is a larger issue: the storm trooper tactics with dotcom, the unlawful dealings with him, the "terror" case that wasn't, the unlawful surveillance there, the GCSB unlawfully spying in NZ, Zaoui

There's a consistent failure by the Crown in its corporate sense, to obey the rule of law.

This is an extra feature, in addition your remarks. Let's remember that Thomas was framed, with evidence planted.

It's not often that readers of your pages will speak up for 'the rule of law.' But these aspects of 'the rule of law' -due process, -full disclosure, -trial by jury, -trial by an impartial tribunal, -rigorous but honest policing, -independent and fair prosecuting ... are important for all of us. Because these safeguards thwart the abuse of power by the State, and when applied prevent innocent going to prison, preserve personal privacy, and our rights to demonstrate and disagree with the government.

It the risk of looking perverse, I argue that 'the rule of law' and holding the State, including the police, and spies and ministers to the rules is a live issue for all kiwis including any on the left.

We in NZ need a change in culture. Where are the independent voices crying out against Collins and her ilk ?

In terms of reform: we need an Office of Director of Public Prosecutions (as in NSW) with statue guaranteed independence. In Labour, Greens, rank and file members can and should take up the cudgels in holding ministers, police, spies, prosecutors to 'the rule of law.'

Just saying.

Anonymous said...

It has not gone unnoticed the disturbing pattern and trend emerging around our Minister of Justice & ACC - mysterious leaks of confidential reports and private information over her control to newspapers, with the same players seemingly always involved - David Fisher, Adam Bennett and Whaleoil - seemingly right on top of everything before other mainstream media, with obstruction of natural justice and lack of procedure fairness being applied to affected parties - e.g, Binnie report & Bain, ACC Situation Report & Pullar/Boag, etc, and the use of leaks from her office to counteract anything negative.

If Collins expect others to comply with the State Services Code of Conduct she should start to walk the talk.

Key is certainly giving her plenty of rope...

Anonymous said...

So in other words, even though there is a chance that Bain is guilty, pay him compensation anyway, just because some foreign high-powered judge advises the govt to do this?

Very glad Judith Collins has a good, cool head on her shoulders. What about justice for Robin, who had his name wrecked and sullied. Cries and whispers and no real evidence there.

Anon again.

The Flying Tortoise said...

The problem is one of arrogance and Ms Collins has it in spades...

Anonymous said...

Just back from overseas and it's almost official.

Trust me brothers and sisters, we're a joke. Even to our own moko.

100% pure - now 97% of rivers unswimmable.

Leaders in social justice - now leaders in rich-poor inequity rate.

Welcome, Borat. Hello, international ridicule for eons; thank you, John Key.


Olwyn said...

Shouldn't that be "Better by far that ten innocent people remain incarcerated than the corrupt NZ establishment that put them there be ever held accountable"? To me it makes more sense that way, or have I missed something?

Rmj1 said...

Sean is dead right, an independent DPP such as here in NSW where I now practise is needed. The NSW DPP has been given total independence under the DPP Act here. He does not run cases on to trial because the police want to carry on. The fact of the matter is there is also no cosy relationship like there is in NZ between local police and the Crown Solicitor. So the key is the Police here KNOW that they have to do their job properly, as the DPP will not wallpaper over any defects or carry on if the evidence is not there. And here is another surprise you do not see in NZ, if the DPP considers on an appeal there has been a miscarriage of justice, he does not fight on as the Crown always do in NZ regardless of the merits, he recognises what is the just result.

After the recent " prima donna performance of the Minister" in Bain's case it is now impossible to conclude justice can be done. Whether he was in fact guilty or innocent, no longer matters. After the Minister's recent performance he has now lost any chance of achieving justice. Ever.

And he should be compensated on that basis, if for nothing else.

I am now acutely embarrassed as a New Zealander at the systemic institutional corruption in the NZ justice system.

Mudwhump said...

This sad case reminds me of the Erebus Inquiry some years ago and how Mr. Justice Mahon was crucified after he found the AirNZ Management were responsible.
His phrase, "Orchestrated Litany of Lies" is now folklore! he was set upon by the business community and it killed him eventually.
Collins is a cretin albeit an intelligent one and a real Gnazi.

Chris Trotter said...

Thank you, Olwyn! Much better! I knew there was something wrong with that final sentence.

Now corrected.

Richard Christie said...

I thought I'd supply a link to papers in NZLJ on Eichelbaum report as mentioned earlier by Paulus.
Eichelbaum was played like a marionette.

Victor said...


I agree with you wholeheartedly.

But I don't think it's just our venal, arrogant and narrow-focused establishment that's so recurrently resolute in defence of injustice.

I'm often equally shocked by juries of my fellow members of the common herd, for whom the concept of "reasonable doubt" doesn't seem to mean anything.

Perhaps there's a link between these two phenomena. If so, I'm not sure what it is.

Jigsaw said...

Pretty hopeless when people resort to calling Judith Collins names- moron, cretin and the like-shows a distinct lack of ability to argue a case I would have thought.

peterpeasant said...

When people behave publicly, rightly or wrongly. they are going to attract names, rightly or wrongly.

The test is in the argument.

Anonymous said...

The Herald is incredibly biased on this issue, in that David Bain is totally innocent. Shame on the Herald for leading a one-sided crusade, when they don't actually know the truth either.
I am boycotting this paper from now on. Hopelessly left.
David can enjoy mince pies and coffee in his backyard, Robin and family enjoy nothing.

peterpeasant said...

AW, c'mon since when has Judith Collins EVER made a mistake?

Anonymous said...

What have left and right got to do with Bain's guilt? Herald 'left' Yeah right.

Unknown said...

I still believe David Bain is guilty of murdering his whole immediate family - parents, two sisters and younger brother. The only alternative would be his father - but his suicide is not creditable - and david bain's fingerprints are on that rifle too. He he was found not guilty beyond a shadow of a doubt. he has yet to prove his innocence, despite the clumsy attempts of Binnie to help him in this area. Good on Crusher Collins!

The only other possible scenario would have been David coming home to find that his father had killed the rest of the family and then David shot his father!!

Anonymous said...

Everything, anon, everything.
The left is usually more ready to believe that the accused is innocent, and that if they are guilty, then it is not their fault anyway, somehow.
The Herald is shamelessly left and has been for a long time.

Grant Hay said...

@ anonymous 3.56

If there is any truth in what you say then it is also fair to observe the opposite of the socially conservative right. They are generally more willing to believe in the guilt of an accused person and content to see them railroaded through a flawed judicial process into an undeserved prison sentence. When the system is proven to be flawed the usual response is "tough! got to break some eggs to make an omelette"...

Jack Scrivano said...

@ Grant Hay ... I’m not sure that the labels (left, right, somewhere in the middle) necessarily help. But, yes, there does seem to be a group that believes that if the process doesn’t produce the desired result, the process must have misfired. Eggs and omelettes – maybe fine. But breaking a few real people?

Kevin Welsh said...

You 'belive' David Bain is guilty? Based on what?

After having read the Privy Council's decision and now the Binnie report, based on the evidence, they reached the right conclusions.

Unfortunately, Judith Collins political ambitions have done a great disservice to David Bain and the New Zealand justice system.

Sean Fliegner said...

hi Chris, Sean Fliegner here. On reflection Jigsaw is right: name calling by me is self indulgent.

Collins is clearly capable and articulate. She has deliberately decided to withhold the Binnie report from all of us, and from Bain - against all of us, we paid for the report, and we are all stakeholders in the criminal justice system. We have a right to know.

Against Bain, he has been acquitted found "not guilty." He has a right to see what's been written about him.

It's usually only commentators who do not go to court, especially who do not go to the criminal courts who say 'we don't need the Privy Council', 'they got it wrong', 'how would they know' etc

Read the privy council Bain decision:

*the jury was mislead on matters of real importance

*an expert witness changed his evidence, but this change was not given to the jury

*material about motive by the father to kill was kept away from the jury, when this material was broadly consistent with other evidence from other witnesses about the father

*this other evidence was also not given to the jury

*a police officer giving evidence to the jury, gave incorrect evidence, later agreed that his evidence was incorrect, that he may have "mislead" the jury but the jury only got his incorrect version (about the glasses said to have been worn at the time of the attack)

*the man who examined the Bain household computer for times (relevant to timing of events) was not wearing a watch. Repeat: not wearing a watch. The police officer with him was wearing a watch but

"the constable’s watch, having no second hand and no divisions marked between the five minute intervals, was not a very suitable one for making exact measurements. It moreover appeared that it had at the relevant time been 2 minutes fast."

Anon - you say Collins got it right: on timing of events, and the computer times - would you put your freedom in the hands of one expert witness not wearing a watch, and a police officer with a watch but with no second hand - when in the Bain case minutes and seconds were important ?

and on it goes ...

The criminal justice system belongs to all of us. We paid for the Binnie report, lets see it.