5. CHARLES CHAUVEL (Labour) to the Minister of Justice: What are the specific “assumptions” based on “incorrect facts” demonstrating some “misunderstanding of New Zealand law” that she alleges are contained in the report of Justice Binnie concerning the application by Mr Bain for compensation for wrongful conviction and imprisonment?

Hon JUDITH COLLINS (Minister of Justice) : I stated in my media release that “My concerns are broadly that the report appeared to contain assumptions based on incorrect facts, and showed a misunderstanding of New Zealand law.” Prior to giving examples, I need to give just a little bit of context to this. I can advise the House that an independent peer review of the first Binnie advice is being done by the Hon Robert Fisher QC, and I am considering the public request made by Mr Bain’s supporters to release both these reports—or advice to me—before Cabinet has made its decision. One of the things I am considering is whether or not it is going to be in Mr Bain’s interests or in the interests of justice to do so. But in relation to the examples sought, there are many. I will give the House two of those. The first is relying on incorrect understanding of what has been given in evidence. In this case, Justice Binnie asserts that a named scientist testified at the first trial that he had chemically enhanced the prints and later sought to resile from this. The reference to chemical enhancement was an error on a label attached to a fingerprint, and this was explained as such by the named scientist at the retrial. A second example is in relation to assumptions as to the correctness of submissions on the law. Justice Binnie appears to have assumed to be correct Mr Karam’s submission that the adverse inferences should be drawn against the Crown case on the basis of evidence that is no longer available. This is incompatible with the onus of proof being on Mr Bain in this particular case, because this is, in fact, a request for Cabinet to use its discretion, and that is very clearly wrong.

Charles Chauvel: Having summarised some of her criticisms of Justice Binnie’s report, why does she not simply release it in full so that the taxpayers, who have already paid over $400,000 for it, can assess for themselves whether those criticisms are fair; or is the prospect of dropping it in the press gallery just before Christmas in the hope of a dead news period just too tempting for her?

Hon JUDITH COLLINS: I am not going to rise to that particular bait and the barb, because, frankly, it does not actually do the member justice. In fact, I think it is important to consider the fact that I have already answered the question—that I am considering it. I am awaiting the advice to me from the Hon Rob Fisher QC, a former High Court judge of New Zealand, and I expect to have it either today or tomorrow. I expect that once I have it, I am going to consider whether or not to release both reports. Because of the concerns that are out in the public, and, clearly, Mr Bain is concerned and his supporters are concerned, I want to make sure that we have information that can be relied on.

Charles Chauvel: Has Robert Fisher QC received the same level of disclosure of documents and other material afforded to Justice Binnie by her predecessor, and, in particular, will he be given access to any material produced by the Crown Law Office or other officials that contains analysis that is critical of Justice Binnie’s report?

Hon JUDITH COLLINS: I can advise the member that Mr Fisher, from memory, has not been provided with any Crown Law advice. It is a matter that the Attorney-General has not waived privilege on. I think it is important to note that Mr Fisher’s advice to me will be a peer review of Justice Binnie’s report. It is not, in fact, under the same terms of reference that Justice Binnie was provided with by my predecessor.

Charles Chauvel: In light of that answer, what were the terms of reference given to Mr Fisher QC, and how can the public have any confidence that the fruits of that exercise will bear out the criticisms that she has made of Justice Binnie’s report, if he has not seen those criticisms, a summary of them, or the advice leading to them?

Hon JUDITH COLLINS: Mr Speaker, could you ask the member to repeat his question?

Mr SPEAKER: Certainly. Charles Chauvel, please.

Charles Chauvel: How can the public be confident, in light of her question, that the result of Robert Fisher QC’s review of the report by Justice Binnie can be comprehensive or satisfying, in light of the fact that he appears not to have any access to the analysis that she clearly has had of criticism of the report?

Hon JUDITH COLLINS: I think the Hon Justice Fisher’s advice to me will be comprehensive, and I expect that the terms of reference that Justice Binnie was provided with by my predecessor either will be contained in that report or I will be happy to provide them.