Payout for Bain urged

David Bain
David Bain
A confidential report on former Dunedin man David Bain's claim for wrongful imprisonment concludes he is innocent of murdering his parents, brother and two sisters and recommends the Government pay him compensation.

The case that has divided the country at every step promises to do so again as the Cabinet decides whether to pay out.

Mr Bain could be looking at nearly $2 million for non-pecuniary losses such as liberty and emotional harm, and more for pecuniary losses such as loss of livelihood, as compensation for the almost 13 years he spent in prison.

Those figures are based on the formula the Cabinet used for non-pecuniary losses in its last compensation payout, in April last year.

But compensation is by no means certain and there is no obligation to pay it.

Mr Bain was described as "penniless" by his lawyer, Michael Reed QC, when the application for compensation was lodged in March 2010.

At that time, most legal experts thought Mr Bain would have an uphill battle meeting the test.

Justice Minister Judith Collins last week said she had received the report of retired Canadian Supreme Court judge Justice Ian Binnie and would be meeting him about it soon.

She said she would not release his report until the Cabinet had decided whether to pay compensation, but The New Zealand Herald has learned Justice Binnie believes that on balance, Mr Bain is innocent.

Justice Binnie interviewed Mr Bain in Auckland in July and also met other figures including police, whom the defence accused of planting a spectacle lens, a key piece of evidence in the prosecution case.

Mr Bain was convicted of murdering his parents, Margaret (50) and Robin (58), and three siblings, Arawa (19), Laniet (18) and Stephen (14), by shooting them with a .22 rifle in Every St, Dunedin, in June 1994.

Former All Black Joe Karam has campaigned for years on Mr Bain's behalf, writing books and seeking appeals.

Mr Bain had served almost 13 years of his minimum 16-year life sentence when the convictions were quashed by the Privy Council in 2007 and a retrial ordered.

He was acquitted after the three-month retrial in Christchurch in 2009.

An overseas judge was chosen by former justice minister Simon Power because of the high-profile nature of the case in New Zealand.

The Cabinet will be faced with a dilemma over Justice Binnie's findings, both because of the polarised views about Mr Bain's innocence and because his case falls outside the 1998 guidelines for compensation for wrongful conviction and imprisonment.

Under the guidelines, eligible claimants must have had a pardon or had their convictions quashed on appeal without the order of a retrial.

But it has the discretion to pay compensation if it is convinced there are "extraordinary circumstances".

And there is a precedent for compensation in case that fall outside the guidelines.

Aaron Farmer last year was paid $351,575 by the Government and received a statement of innocence and an apology for his conviction in 2005 for rape. He had served two years and three months of an eight-year sentence.

The Court of Appeal had quashed his conviction in 2007 and ordered a retrial, but the retrial never went ahead.

More advanced DNA testing before the retrial excluded Mr Farmer as the offender.

Former New Zealand High Court judge Robert Fisher conducted the inquiry for the Government into that case. He found that not only was Mr Farmer innocent on the balance of probabilities - the minimum requirement for eligibility - but he had met a higher standard of proving his innocence beyond reasonable doubt.

While the guideline for awarding compensation for non-pecuniary losses (loss of liberty, emotional harm etc) is set at $100,000 per year, on a pro rata basis, the base for establishing Mr Farmer's payout was set at $150,000.

For his 819 days in prison, he received $336,575 (or about $410 a day) plus $15,000 for improper conduct by a police detective when interviewing Mr Farmer as part of the police investigation.

If a similar formula were applied to 13 years' imprisonment, the figure would be $1.94 million, with possible add-ons for pecuniary loss and improper conduct by authorities.

The Ministry of Justice will report to the Cabinet on whether "extraordinary circumstances" exist, and if so, it will recommend how much compensation should be paid.

There is no guideline on "extraordinary circumstances" but in dealing with the Farmer case, Mr Fisher suggested it could include: unequivocal innocence; someone convicted of an offence that did not exist under the law; or serious wrong-doing by authorities.

By Audrey Young.