For and against: Bain's claim for compensation

The release of reports this week about David Bain's claim for compensation has laid bare arguments for and against. The former Dunedin man was convicted in 1995 of murdering his family and spent 13 years in jail before being acquitted in a 2009 retrial. Former Canadian judge Justice Ian Binnie, commissioned by the New Zealand Government to determine whether Mr Bain deserved compensation, found in the claimant's favour. But his 187-page report has been criticised by New Zealand lawyer Robert Fisher QC, who was asked by the Government to peer-review it. Below is a summary of both cases.

Justice Binnie's case:
• David Bain was ''more likely than not'' innocent on the balance of probabilities.
• The ''egregious errors'' of Dunedin police led directly to the wrongful conviction of David, which made compensation ''in the interest of justice''.
• It was more probable than not Robin Bain killed his wife and three of their children before committing suicide, as he had been stressed and depressed.
• The Crown's theory David murdered his family was not consistent with physical evidence collected by police, including blood smears in the house.
• Bloody sock prints were too small to be David Bain's and it was unlikely he murdered four family members then did his paper run, only to return and kill his father.
• David was a ''credible witness'' and Crown interpretations of his initial testimony were ''erroneous''.
• Overall, David's version of events were accepted.
• No plausible motive for David to kill his family had ever emerged.
• The ''cumulative effect of numerous instances of investigative ineptitude'' and failure of the Dunedin CIB to respect detection rules and principles made for ''serious wrong-doing by authorities''.
• Police rushed to a judgement that David was guilty and did not test other theories.
• Police destroyed crucial evidence and allowed the Bain house to be burned to the ground within three weeks of the murders.
• Certain things were never tested or were ignored, such as the length of Robin's reach, and police admitted photographs of the scene were a ''shambles''.
• Important elements of police and ESR testimony during the initial trial were found to be misleading.
• Many features of the case took David's compensation claim outside the ordinary run of cases.
• The Privy Council found David was wrongfully convicted.
• David was acquitted in a 2009 retrial, having spent almost 13 years in jail.

Dr Fisher's case:
• Justice Binnie went beyond his mandate and did not have authority to conclude whether there were extraordinary circumstances warranting compensation.
• Justice Binnie was not asked to recommend whether compensation should be paid.
• Justice Binnie made ''fundamental errors of principle''.
• People involved in the case, including Dunedin police officers, were criticised without the right of reply.
• Evidence, which when considered individually was not proved on the balance of probabilities, was discarded, instead of each piece of evidence being considered as to whether it increased or reduced the likelihood of David's innocence.
• The cumulative effect of all relevant evidence was not considered.
• Justice Binnie based his conclusion that David was innocent on luminol footprints and not on evidence overall.
• David should have been made to prove his innocence in claiming compensation, but instead Justice Binnie put an onus on the Crown case proving otherwise.
• Justice Binnie did not have the mandate to consider whether police should have investigated further, but regardless took that into account.
• The jury acquittal was regarded as relevant to David's innocence.
• David's version of events were accepted without question except where it directly conflicted with other witnesses.
• New Zealand law was not properly understood or followed.
• Crucial evidence, including bloodstains on David's clothing, broken glasses, David's fingerprints on the rifle used to murder his family, David's gloves, and his knowledge of the trigger key, were discarded.
• Robin's motive and mental stability, as well as David's post-event admissions, including that he heard his sister Laniet gurgling, were also discarded.
• Background facts sourced from David were heavily relied upon.

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