In a report published on Tuesday, former Australian High Court judge Ian Callinan found that New Zealander David Bain ‘has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June 1994.’ While the judge’s career since leaving the High Court in 2007 has been characterised by government-commissioned reports (as well as sitting on an International Court of Justice dispute between Australia and East Timor), this is surely the first occasion that a retired High Court judge has played the role of judge of fact in a murder case. The Bain case, which turns on the question of whether David Bain shot his parents and three siblings at
an isolated farm near their house in Dunedin (for no known motive), or whether Bain’s father committed a murder-suicide (possibly fearing revelations of abuse of his only youngest daughter) while his eldest son was on a paper run, has long divided New Zealanders. Remarkably, it has also been the subject of three controversial interventions by overseas judges.
The first intervention came over a decade after a jury convicted Bain of the murders. After Bain’s cause was taken up by former All Black player Joe Karam, the New Zealand government referred the question of a possible miscarriage of justice to the Court of Appeal. That Court’s rejection of Bain’s claim came just 16 days before New Zealand abolished appeals to the Privy Council, meaning that the Privy Council could, and in 2007 did, allow Bain’s appeal and quash Bain’s conviction, in something of a rebuff to the New Zealand justice system. The Privy Council’s stance received further vindication at Bain’s 2009 retrial, when a jury acquitted Bain of all five murders after a single day of deliberations.
The second intervention was arranged in 2011 by New Zealand’s then Justice Minister in response to Bain suing for compensation for his thirteen years of imprisonment. The Minister engaged a recently retired judge of the Supreme Court of Canada, Ian Binnie, to report on the case for compensating Bain. However, his successor initially refused to release his report (which found that Bain was innocent on the balance of probabilities and that police misconduct constituted exceptional circumstances meriting compensation) and engaged a retired New Zealand High Court judge to conduct a ‘peer review‘ (which found that Binnie’s report contained errors and should not be relied upon.) After Bain announced a fresh challenge to this process and a third Justice Minister announced that she bin both reports (which had cost around half a million New Zealand dollars) and start again, the furious Binnie commented: ‘It seems the Government is looking for somebody to give them the opinion they want, which is that David Bain should be denied compensation’.
It is into this treacherous territory that Callinan was commissioned and willing to tread, ultimately reaching the opposite conclusion to his Canadian counterpart, whose report he was instructed to ignore. (In passing, Callinan’s report refers to De Gruchy v R, where Australia’s High Court, including Callinan J, dismissed the appeal of a son convicted of murdering his family for no known motive.) Unsurprisingly, his report has not settled the public controversy about the Bain case and, indeed, became the focus of criticism in February this year when a draft was leaked. The government conceded this week that:
since receiving Mr Callinan’s final report it has become evident that Mr Bain and his advisors didn’t accept Mr Callinan’s findings. They made it absolutely clear that they intended to legally challenge that report, leading to considerable further cost and delay in this matter.
So, the government agreed settle the dispute by making an ex gratia payment to Bain of nearly one million (NZ) dollars. A government publication adds that ‘Mr Callinan’s inquiry cost $298,381.45’, about $70,000 less than the Canadian judge’s inquiry and $100,000 more than the New Zealand judge’s ‘peer review’.