Bain slams judge
Karam describes Callinan report as a ‘ train wreck’
David Bain was “disgusted” with the Australian judge for refusing to meet him while considering his compensation bid for wrongful imprisonment. Bain said his rights were “completely abused” by retired Justice Ian Callinan QC who made “extremely hurtful” comments in finding Bain did not prove his innocence “on the balance of probabilities” of killing five members of his family. On this advice, the Government rejected Bain’s compensation application for the 13 years he spent in prison before his convictions were overturned but agreed to pay him $ 925,000 to put an end to any further legal action. Documents obtained by the Weekend Herald under the Official Information Act show the application was heading back to court — for a second time — with Bain’s advocate Joe Karam describing the Callinan report as a “train wreck”. Karam listed errors in evidence, as did the Crown, some of which were later corrected by Callinan but pointed out Bain was never interviewed despite the judge making negative comments about him. Failing to allow a witness to respond to criticism was one of the reasons a 2012 report by Canadian judge Ian Binnie QC, which found Bain to be innocent on the balance of probabilities, was discarded by the Government. “[ Bain] i s seriously aggrieved at the interpretations placed on his behaviour and utterings in the report. He disputes much of what has been said and feels his rights to natural justice has been seriously breached,” Karam wrote to Justice Minister Amy Adams in October last year. “I suggest that if you were to analyse, even relatively superficially, the contents of the Callinan report, in light of the information in this letter and compared with the claim and submissions which it purports to assess, you will see that it is extremely unsatisfactory and will not withstand scrutiny. “Accordingly, the report must be either discarded or independently peerreviewed so that proper and detailed criticisms can be presented and answered.
“It is our opinion that the report is so defective as a result of the errors described herein that a formal review would be a waste of further public money. In plain language it is a train wreck.”
Bain was interviewed by Binnie for an entire day for the original compensation report and the Canadian judge described him as a “credible witness”.
But Bain said Callinan placed “damning interpretations” on statements he had made, or others made about him, without speaking to him.
He took exception to a particular comment by the judge about Bain “hating” his father, Robin, whom the defence blamed for the five deaths.
“This is extremely hurtful. I did not hate my father, ever, then or now,” according to an affidavit signed by Bain.
“I had said that in the context of having just been told by the police that if I didn’t do it, then it must have been my father who killed everyone. I was reacting to that information, and I meant that I hated him ‘ if he had done this’.
“These are just examples of where Mr Callinan has failed me and abused my right to natural justice by not giving me any opportunity to respond to the extremely negative slurs against me in his report.
“I repeat what I have stated on many occasions under oath and in public. I did not kill any members of my family. I loved them and still grieve for them.
“I am disgusted that the present inquiry could presume anything about my innocence or guilt without interviewing me.”
Amy Adams replied to say there was no need to discard or peer- review the Callinan report, as Karam suggested, because it was a draft only.
She suggested Karam write directly to Callinan with any concerns.
When Callinan’s final report was released in August this year, a second document was released where he responded to Karam’s complaints.
He chose to “offer no comment” on many of the criticisms but noted where corrections were made to the draft report.
On the matter of whether Bain should have been interviewed, Callinan said no request was ever made to him and “no ‘ expectation’ that I do so was ever suggested to me”.
“Had any expectation on the part of [ Bain] that he would be personally interviewed been communicated to me, I would have needed to consider whether that would be appropriate and helpful, having regard to several matters.” These included whether to interview Bain in an inquisitorial way, if the Crown should cross- examine him, and if this would turn the process into a “de facto trial”.
In announcing Bain would receive no compensation for wrongful conviction and imprisonment, Adams said the $ 925,000 ex gratia payment was to bring the matter to an end.
Bain and his advisers “made it absolutely clear” they would legally challenge the Callinan report, said Adams, and while the Crown was confident of its position it was “clearly desirable” to avoid another expensive court battle. “In my view, no one benefits from this matter continuing to drag on.”
The compensation claim had dragged on for five years before Callinan was appointed by Adams in 2015, after Bain’s team took her predecessor Judith Collins to court over her decision to discard the Binnie report.
Binnie found Bain was innocent on the balance of probabilities and therefore eligible for taxpayer compensation under the Cabinet guidelines.
But Collins did not accept the finding after a peer review, by a retired New Zealand judge Robert Fisher, found mistakes in how Binnie applied the law and errors in the evidence.
Bain challenged the process in the High Court, alleging Collins acted in bad faith, but the legal case was halted in a confidential settlement with the Crown, paving the way for the second review.
While Adams said the $ 925,000 payment was a “pragmatic resolution” to avoid further cost in a complex case which has divided opinion in New Zealand, Karam said this was “political spin”.
“The real reason the Government settled on this basis was to avoid a further judicial review which would have been extremely embarrassing for Cabinet,” said Karam. “Mr Bain for his part despaired at continuing to deal with a politicised process where he felt the cards were overwhelmingly stacked against him, and so decided to accept the offer.”