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Canada New Zealand seeks second review of murder conviction, rejects Canadian’s take

Former Supreme Court justice Ian Binnie, seen in Ottawa in 2011, says the review of his report on the murder case was ‘highly partisan.’

Dave Chan/The Globe and Mail

A three-year feud between a retired Canadian Supreme Court judge and the New Zealand government has escalated, with a second foreign judge set to do what Ian Binnie has already done – review a notorious murder conviction.

New Zealand rejected a report from Mr. Binnie three years ago that said David Bain was innocent and deserved compensation because botched police work caused him to serve 13 years in prison. The government is now turning to a retired Australian judge for a fresh look. And in a murder case on which virtually every household is said to have an opinion, even Prime Minister John Key is publicly criticizing Mr. Binnie.

The feud turns on the 1995 conviction of Mr. Bain for the murders of his father, mother, two sisters and brother in Dunedin, N.Z. Bloody sock prints the size of the father's stockinged feet and smaller than those of the accused were found throughout the murder scene, and evidence showed that one of the daughters was about to accuse the father of sexual abuse. The Judicial Committee of the Privy Council in Britain ruled in 2007 that the conviction was a miscarriage of justice and ordered a new trial. A jury acquitted Mr. Bain in 2009.

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Mr. Bain had said he came home from his early-morning paper route and found all members of his family shot dead.

Three weeks after Mr. Binnie retired from the Supreme Court in 2011, then-New Zealand justice minister Simon Power retained him to determine whether Mr. Bain could prove his innocence, which is New Zealand's minimum standard for paying compensation. His 2012 report said Mr. Bain was innocent on a "balance of probabilities," although not beyond a reasonable doubt. He said extraordinary features of the wrongful conviction justified compensation – in particular, amateurish aspects of the investigation by Dunedin police, including the way they assessed Mr. Bain's paper-route alibi.

A new justice minister, Judith Collins, rejected the report after asking a retired New Zealand judge to review it. Former judge Robert Fisher said Mr. Binnie made fundamental errors of principle in assessing innocence and police misconduct. Last month, yet another Justice Minister, Amy Adams, asked Ian Callinan, a retired judge from the High Court of Australia, to write a new report on whether Mr. Bain deserves compensation.

On a New Zealand radio show in late February, Mr. Key disputed a widely reported remark from Mr. Binnie that the government had been shopping for a judge who would produce the opinion it wanted. "Robert Fisher would say the opposite," he said. "Fisher ripped Binnie's report apart. … Cabinet believes, with very good justification, that the process that Binnie went through is incorrect." He said the new investigation was about "doing the right thing."

To Mr. Binnie, who was on Canada's Supreme Court for 13 years, the fix was in from the beginning.

"The former Justice Minister Judith Collins had been Minister of Police at the time Bain was acquitted in 2007 and took the prosecution's defeat very badly," he said in an e-mail to The Globe and Mail from Japan while on his way to an arbitration assignment in Singapore. She "made it clear that I was supposed to say (as in the OJ Simpson case) that Bain was acquitted when the issue was beyond reasonable doubt but not factually innocent on a balance of probabilities." He said Mr. Fisher had "conducted a highly partisan review of my Report (which the Minister pretended was a 'peer review')." The appointment of the new judge, he said, reflects the politicization of the issue.

He described the Bain case as a combination of several notorious wrongful conviction cases in Canada, saying it "seems to be like Milgaard, Morin, Sophonow and Marshall rolled into one fireball."

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Chris Gallavin, dean of law at the University of Canterbury in Christchurch, said Mr. Fisher's report took a legalistic approach that was at odds with Mr. Binnie's goal of achieving a just result. He said he feels "embarrassed" at how the government has treated Mr. Binnie, and that the appointment of a second retired judge adds insult to injury.

"The decision of the [government] to retain another judge smacks of a fishing exercise in order to receive a conclusion that best suits their desires," he said in an e-mail. "The need to re-establish the integrity of the system was cited as the main need to appoint a further reviewer. I contend that it was the actions of Minister Collins and the woeful treatment of justice Binnie that compromised the integrity of the system in the first place."

The Bain case has polarized the country, he said. "There would hardly be a household in NZ that had not formed a view on his guilt or innocence. Most people would see the current state of the case as a fiasco – that is irrespective of whether people thought him guilty or not. The [government] seems to be game playing with the process of compensation and this contravenes that NZ ethos of a 'fair go' for all."

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