Justice over Bain proves to be bane of Justice

9:34 am on 5 August 2016

Power Play - Justice Minister Amy Adams is right about one thing: the David Bain murder case has been one of the most gripping and divisive in New Zealand's history.

David Bain

David Bain Photo: POOL

But was she right to sign off a nearly $1 million payment to Mr Bain?

Is it compensation? Is it not? In the end it does not really matter - it is $925,000 funded by the taxpayer and in large part to put a stop to any future legal action.

The government would not have got away with a straight denial of any compensation, because quite simply Mr Bain's team would not have let it lie.

Even having signed an agreement to cease and desist with any court action, the first words out of Mr Bain's mouth were that the government had got it wrong, and he was innocent.

Just as well then the government had a signed and sealed agreement this would be the end of matter, in the courts at least.

It has been asked why, if Mr Bain was acquitted of all charges in 2009, was he not then eligible for compensation for 'wrongful conviction and imprisonment'?

Unlike for Teina Pora, the Cabinet guidelines did not come into play in this case, because the criterion is to establish innocence on the balance of probabilities, which Ian Callinan QC found had not been done.

Furthermore, the original 2010 application had not met the guidelines, as they require convictions to be quashed without a retrial, which was not the case for Mr Bain.

Even so, the guidelines give Cabinet discretion to consider applications that do not meet this test in "extraordinary circumstances", and in the end it settled on the ex-gratia payment.

A second question is how the government has handled David Bain's application for compensation since it was lodged six and half years ago.

There have been nuances throughout in terms of the findings on Mr Bain's guilt or otherwise, for example in the first report from Ian Binnie QC he found Mr Bain "factually innocent" on the balance of probabilities and that compensation should be paid, but that was primarily based on criticisms of the way police had handled the case in 1994.

That was enough however to prompt then-Justice Minister Judith Collins to seek a second opinion, and Mr Binnie's report would be discredited, an outcome he still finds "insulting".

At the time, Ms Collins stood firm in the face of criticism she should accept Mr Binnie's report in good faith, and accordingly take his recommendations to Cabinet for consideration.

Judith Collins being appointed as a Minister again 14.12.15.

Former Justice Minister Judith Collins Photo: RNZ / Alexander Robertson

Her actions would spin the case out for a further four years.

Current minister Amy Adams cleared the decks last year, ordering a new inquiry and determining any previous findings should be disregarded.

Having witnessed the actions of various ministers, it is hard to escape the view the Cabinet was resistant to paying Mr Bain any compensation.

That may have been down to the belief of individual ministers about his guilt or innocence, alongside a recognition of the very strong feelings among members of the public about this case, feelings that have not diminished over the years.

When that was put to Ms Adams she would only say Cabinet made decisions "collectively" and ministers, like others, "saw merit" in putting this case to rest.

02082016 Photo: Rebekah Parsons-King. Amy Adams held a press conference in relation to David Bain's compensation.

Justice Minister Amy Adams holds a press conference in relation to David Bain's compensation. Photo: RNZ / Rebekah Parsons-King

Looking at it from a purely financial perspective, it was a pragmatic and probably necessary decision to award some money to Mr Bain, in return for a cessation of legal action.

The money spent on the whole process, on the government side alone, has run into the millions.

Mr Bain received more than $3 million in legal aid for his 2009 retrial, and the three reports on his applications from QCs Ian Binnie, Robert Fisher and now Ian Callinan have together cost $877,000.

According to Ms Adams, Mr Bain and his legal team did not accept Mr Callinan's findings and had made it "absolutely clear" they intended to challenge it in the courts.

It is hard to see how and where that process would have ended up, and how much it would end up costing, but it would have been considerable.

Of course, the ex-gratia payment and the way it was presented by the government was in no way intended to suggest Mr Bain was innocent, which was in line with Mr Callinan's finding.

In fact, one of the most interesting parts of his report was a counter-factual scenario presenting the sequence of events if, as asserted by David Bain's legal team, it had been his father Robin who had carried out the murders. It is fair to say Mr Callinan did not sound convinced.

Mr Callinan finds Mr Bain has not proved his innocence to the degree necessary to seek compensation, but his report is unlikely to sway people who believe Mr Bain is guilty, or those who believe he is innocent.

The QC himself acknowledged there were "loose ends", that all questions could not be answered and all of the issues resolved.

"This is such a case".

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