An overseas judge will assess whether there are extraordinary circumstances that would allow David Bain's compensation bid to be considered, but Mr Bain still has a "very big" threshold to cross before he can receive any sum for his years in jail, a University of Otago law professor says.
"He basically has to prove someone else did it,"criminal law professor Kevin Dawkins said.
Justice Minister Simon Power's move, announced yesterday, to appoint retired Canadian Supreme Court judge Justice Ian Binnie to assess Mr Bain's compensation claim was a departure from Cabinet guidelines, but probably a sensible one as the judge had no connection to the case and his determination would be final and conclusive, Prof Dawkins said.
However, Mr Bain still had to prove his innocence on the balance of probabilities, which was "very significantly different" from being acquitted on the basis of a reasonable doubt.
Mr Bain was found guilty of murdering five family members in Dunedin in 1995, but a jury found him not guilty at a retrial in Christchurch in 2009.
The retrial came after the Privy Council in 2007 quashed his conviction after finding there had been a substantial miscarriage of justice.
Mr Bain's lawyers last year signalled he intended to claim compensation over his wrongful conviction and 13 years' imprisonment, but the process was held up while he waited for legal aid.
In August, he decided to proceed without legal aid, allowing the case to move forward.
Mr Bain's lawyer, Michael Reed, said when contacted last night the legal team would meet this morning to discuss Justice Binnie's appointment.
Mr Power said that because of the long-running and high-profile nature of the case, and after consultation with Mr Bain's lawyers, it was decided a judge from outside New Zealand would be appointed.
He said the claim for compensation fell outside Cabinet guidelines because Mr Bain was acquitted after a retrial.
However, there was still a residual discretion to consider claims outside the guidelines in extraordinary circumstances where it was in the interests of justice to do so.
Justice Binnie would assess Mr Bain's claim under that residual discretion.
"The compensation framework requires claimants to prove their innocence and, at a minimum, under Cabinet guidelines Mr Bain will need to establish his innocence on the balance of probabilities.
"But because his case falls outside the guidelines, something more is required that demonstrates that the circumstances are extraordinary, and Justice Binnie will decide the best process for assessing Mr Bain's claim against this test."
Prof Dawkins said there were no guidelines as to what constituted "extraordinary" circumstances and it was unclear if the judge would decide whether there were extraordinary circumstances or if that was up to Mr Bain's lawyers to prove.
Being a long-running high-profile case did not make the circumstances of Mr Bain's case extraordinary compared with other cases of people who had sought compensation and not received it.
The question of whether it really was in the interests of justice to pay what would be a "rather large" compensation package would also have to be considered before any decision was made, he said.
Mr Power said Justice Binnie was chosen from a list of several senior judges.
He was appointed a Queens Counsel (Ontario) in 1979 and served as the Canadian associate deputy minister of justice from 1982 to 1986.
He served on the Supreme Court of Canada for more than 13 years.
Mr Power noted Canada's compensation regime was similar to New Zealand's.
"Justice Binnie's appointment is a significant step in attempting to resolve Mr Bain's claim for compensation and a step towards achieving finality in this case." Justice Binnie will begin work on the case before the end of the year.
