2 Aug 2016

David Bain denied compensation

3:57 pm on 2 August 2016

David Bain has been denied compensation, but will receive an ex-gratia payment of $925,000 to reflect the time and cost involved in the claim, Justice Minister Amy Adams has announced.

Speaking this morning, Ms Adams said a report by retired Australian High Court Judge Ian Callinan concluded Mr Bain should not be compensated.

Watch the announcement here:

"Mr Callinan's report found that Mr Bain has not established his innocence on the balance of probabilities. As such, no statement of innocence or compensation payment will be made to Mr Bain," Ms Adams said.

Mr Bain was seeking compensation for the 13 years he spent in prison after being found guilty of murdering his mother, father and three siblings in 1994. He was found not guilty at a retrial in 2009.

He told RNZ today that he was innocent and Ms Adams had got it wrong.

Read Ian Callinan's full report here

David Bain

While David Bain will receive no compensation, he will receive a $925,000 ex gratia payment. Photo: POOL

Ms Adams said Mr Bain would receive $925,000 to reflect the time and cost involved in his compensation claim, and also to avoid further legal proceedings and costs to the Crown.

"The Crown recognises that the compensation application process has lasted nearly six and a half years and that this has been an incredibly difficult and complicated case for all involved. Reaching this point has taken longer than anyone would have wanted it to," Ms Adams said.

She said since receiving Mr Callinan's final report, it had become evident Mr Bain and his advisors would not 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," she said.

"While the Crown is confident in the strength of its position in any such review, it's clearly desirable to bring finality to this case and avoid the cost and uncertainty of further proceedings."

Ms Adams said that while the case has "divided opinion" in New Zealand she was satisfied the matter had now been concluded.

Mr Bain had accepted this payment in full and final settlement of all matters, she said.

"This resolution is a pragmatic one that recognises the unique circumstances of this case and a desire on all sides to bring this matter to a close."

Ms Adams denied there was any element of compensation to the ex-gratia payment.

"There's been no compensation paid under the guidelines, no compensation paid for wrongful imprisonment, it is an ex-gratia payment recognising the need for bringing finality to the matter."

The minister would not provide a break-down of the $925,000 payment.

"Look in the end it's a global settlement that's been negotiated between the parties, we haven't sought to attribute exact amounts.

"But we've made it very clear the parameters of it, and the Crown is comfortable that the payment recognises a fair settlement recognising costs, time, complexity and the desirability of avoiding further litigation."

Ms Adams said Mr Callinan's report identified the important distinction between proving guilt or innocence in a court case, and in an application for Crown compensation.

"The difference is he doesn't have to have to prove that beyond reasonable doubt, which is that higher threshold, he has to prove it on what's called the 'civil standard' which is the balance of probabilities.

"So Mr Bain had the responsibility to prove that it was more likely than not that he was innocent.

"In this case, as Mr Callinan has very clearly set out in his report, he has the positive duty to prove his innocence and Mr Callinan finds that he hasn't met that threshold."

Amy Adams speaks to reporters about the government's decision on whether to give compensation to David Bain.

Amy Adams says the resolution is a 'pragmatic' one. Photo: RNZ / Rebekah Parsons-King

Mr Callinan's report on whether Mr Bain should be paid compensation has been with the government since January.

Since that time Mr Bain's lawyers and Crown Law have been considering the report.

It is the second report by an international judge considering Mr Bain's appeal for compensation.

In a report released in late 2012, former Canadian Supreme Court judge Ian Binnie concluded that Mr Bain was innocent and suggested he should receive compensation.

However, then-Justice Minister Judith Collins sought a peer review of that report, carried out by Robert Fisher QC, which criticised the findings as legally flawed.

Ms Adams later ordered a fresh inquiry into Mr Bain's application, saying at the time Cabinet did not have the information it needed to reasonably reach a decision.

The $925,000 ex-gratia payment, plus the cost of three reports from Ian Binnie, Robert Fisher and Ian Callinan on Mr Bain's compensation claim equal $1.8 million, that does not include money the Crown has spent in the courts.

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