David Cullen Bain v Minister of Justice

• Jurisdiction: New Zealand
• Judge: Keane J
• Judgment Date: 21 August 2013
• Neutral Citation: [2013] NZHC 2123
• Docket Number: CIV-2013-404-439
• Court: High Court
• Date: 21 August 2013

Between

David Cullen Bain

Applicant

and

Minister of Justice

Respondent

[2013] NZHC 2123

CIV-2013-404-439

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application for discovery of Solicitor-General's opinion, Crown law file and related Ministry documents — applicant seeking judicial review of Minister of Justice's decision that he was not eligible for compensation following acquittal on charge of murder on retrial — respondent had received reports on the compensation claim from a former Judge of the Supreme Court of Canada and a former High Court Judge subsequently appointed to peer review the first report, and a fresh report was recommended — applicant did not receive a copies of either report until the respondent released both reports publicly on 13 December 2012 — applicant sought access to documents concerning the decision for a peer review which respondent claimed were privileged under s54 Evidence Act 2006 (privilege for communications with legal advisers) — whether respondent waived privilege under s65 EA (waiver) by releasing the documents to the New Zealand Police — whether the privilege was held personally by the respondent or the Crown — whether internal legal advisers were separate from the respondent or the respondent's alter ego.

Counsel:

M P Reed QC & M A Karam for Applicant

K P McDonald QC & E Child for Respondent

JUDGMENT OF Keane J [Re Discovery]

1 In 1995 David Bain was convicted of the murders in 1994 of five members of his family. In 2007 the Privy Council quashed his convictions and ordered that he undergo a new trial. 1 In June 2009, at his second trial, he was acquitted on all counts. He had then spent 13 years in prison. On 25 March 2010 he applied to the then Minister of Justice, Hon Simon Power, seeking compensation.

2 Mr Bain was not then eligible to be considered under the Cabinet Guidelines governing compensation for wrongful conviction and imprisonment. The Privy Council had granted his appeal but it had ordered a retrial. The retrial order made him ineligible under the Guidelines. Mr Bain relied rather on the Cabinet decision approving the Guidelines, dated 2 December 1998, under which Cabinet agreed to this extension:

The Crown reserve(s) the right, in extraordinary circumstances, to consider claims falling outside the criteria specified … on their individual merits, where this is in the interests of justice.

3 On 10 November 2011 the Minister appointed Hon Ian Binnie QC, CC, formerly a Judge of the Supreme Court of Canada, to advise him on the two issues central to Mr Bain's claim.

4 Mr Binnie QC was to advise the Minister whether he was satisfied that Mr Bain was innocent to the balance of probabilities, as to which Mr Bain carried the onus of proof; and, if he was satisfied to that standard, whether he was also satisfied that Mr Bain was innocent beyond reasonable doubt. He was also to advise the Minister as to any other factors particular to Mr Bain's case that he considered relevant to the Executive's assessment whether there were ‘extraordinary circumstances’ that made it just to consider Mr Bain's claim.

5 On 30 August 2012 Mr Binnie QC advised the present Minister, Hon Judith Collins, that Mr Bain had satisfied him that he was innocent to the balance of probabilities, but had not satisfied him of that beyond reasonable doubt. He also advised the Minister that there were ‘extraordinary circumstances’ that made it just that Mr Bain be compensated: ‘the egregious errors of the Dunedin police that led

directly to the wrongful conviction’. Mr Binnie QC recommended that Mr Bain be compensated

6 The Minister, after taking advice from the Solicitor-General on 12 September 2012, and of responses from the New Zealand Police before that date and afterwards, on 26 September 2012 instructed Hon Dr R L Fisher QC, a former Judge of this Court, to ‘peer-review’ the Binnie report. On 13 December 2012, in an interim report, Dr Fisher put in issue Mr Binnie QC's method of analysis, and thus his conclusions and recommendation. He recommended a fresh review.

7 Mr Bain and his advisers did not receive a copy of either report until the Minister released both reports publicly on 13 December 2012. The Minister considered that she was not obliged to release the Binnie report to Mr Bain and his counsel any earlier, or to release to them the Fisher report at all, or to consult with them about either report.

8 To report responsibly to Cabinet, the Minister considered, she was entitled, indeed obliged, to assess Mr Binnie QC's report for herself assisted by confidential legal advice. Mr Bain's claim was outside the Cabinet Guidelines and, she considered, the evaluative process it prescribes did not apply. Cabinet's decision whether to grant Mr Bain compensation was entirely discretionary.

9 On 30 January 2013 Mr Bain brought this application for judicial review contending that, when the Minister withheld the Binnie report from him and did not disclose to him that she was seeking to have it peer-reviewed by Dr Fisher QC, she denied him natural justice. She predetermined his application for compensation and exhibited bias. He seeks related declarations that she frustrated his legitimate expectations and has acted unreasonably and invalidly. He seeks, without being more specific, such directions as are just and appropriate.

10 On 4 February 2013 the Cabinet decided that Mr Bain's compensation claim should be put on hold until Mr Bain's application for judicial review is resolved; and on 16 April 2013, in the face of the Minister's challenge, I decided that Mr Bain was entitled to bring that application here in Auckland, rather than in Wellington, and is entitled to have it heard here. 2 I have now to decide a further preliminary issue.

Preliminary discovery – privilege issue

11 On 12 March 2013, with the consent of the Minister, I made a tailored discovery order in this review proceeding, in terms acceptable to Mr Bain, under which the Minister agreed to disclose to him all documents in the categories that the order specifies, except those for which she was entitled to claim privilege.

12 Two affidavits of documents have been sworn for the Minister by the Chief Legal Counsel of the Office of Legal Counsel of the Ministry of Justice, Jeffrey Orr; the first on 17 April 2013 and an amended version on 31 May 2013. In those affidavits the Minister accepts that Mr Bain is entitled to some 600 documents. She claims legal-advice privilege for between 200 – 250 documents held by her office and by the Ministry of Justice, by the Attorney-General, and by the Solicitor-General and the Crown Law Office, and by her counsel on this application, Ms McDonald QC.

13 Mr Bain challenges the Minister's privilege claim and to decide that question I must touch on the issues to be resolved, when Mr Bain's review application is heard on its merits. But that is all I need to do, all I can do and all I am entitled to do. Those issues are only relevant presently to the extent that they go to Mr Bain's right to discovery and the Minister's right to claim legal-advice privilege, as to which I have only the statements of claim and defence and very limited untested evidence. 3

Likely primary review issues

14 On the hearing of the judicial review itself, once discovery is complete and full evidence is filed, a primary issue likely to be relevant to all of Mr Bain's grounds for relief is as to the capacity in which the Minister of Justice acts, when a

compensation claim is made under the Cabinet Guidelines, or as is the case here under the ‘extraordinary circumstances’ extension

15 Is the Minister's role, as Mr Bain contends, merely administrative? Is it merely to ‘oversee’ the claim on behalf of the Cabinet, to ensure that it is assessed under the Guidelines or analogously under the extension? Is it then merely to submit to Cabinet the claim, as advised upon, without the Minister assessing for herself whether and when the claim should be submitted to Cabinet? Or is it, as the Minister contends, to scrutinise the claim, once advised upon, and to decide whether the advice received is reliable? Is she entitled, as she contends, to withhold a claim from Cabinet completely or until she is satisfied that the advice received is reliable?

16 A second and more specific primary issue, likely to be central to Mr Bain's claim that he has been denied natural justice, is this. If the Minister did have the right to take a second opinion as to the reliability of the Binnie report, was she entitled to do so in confidence, as she did, without allowing Mr Bain any part to play?

17 As to that issue, Mr Bain already has, it seems to me, documents that may prove significant. He has the instructions given to Mr Binnie QC by the Hon Simon Power on 10 November 2011 authorising the inquiry in which he was accorded a right to be heard. He has the letter from the present Minister to Dr Fisher QC, dated 26 September 2012, in which she instructed Dr Fisher to peer-review the Binnie report, in which he was not accorded a right to be heard. He has the police reports commenting on the Binnie report.

18 What Mr Bain lacks and wants is the Solicitor-General's opinion, dated 12 September 2012, the Crown Law Office file, and any related Ministry papers, which may explain why the Minister elected to act as she did, and which may be relevant to the issues arising under the other grounds on which he seeks declaratory relief. He wants any documents that may demonstrate that the Minister predetermined his claim and exhibited bias. They also will be primary issues on his judicial review.

19 The Minister has accepted, in the two affidavits of documents filed on her behalf, that documents relevant to all these issues must be disclosed on...