David Bain has filed a claim for compensation with the Minister of Justice. He'll be damn lucky to get it.

So David Bain has decided to apply for compensation for wrongful imprisonment following his acquittal at his 2009 retrial. Fair enough. If he really did spend 13 years behind bars for something he did not do, then we collectively owe him a lot of money.

Just how much we would owe him is clear when you remember that David Dougherty received almost $900,000 after being imprisoned for three years for a crime he did not commit. Any payout to David Bain likely would be in the millions.

However, as I've suggested previously, it is going to be very, very hard for him to get anything at all from the government. In fact, as my boss at Otago Law School pointed out when compensation first was mooted a couple of years ago, he shouldn't really get anything at all under the current rules.

Here's how the process works. You do not have a right to compensation for being wrongly convicted and imprisoned in New Zealand. We deliberately left that particular right out of the New Zealand Bill of Rights Act 1990 when deciding which of our international individual rights commitments to affirm.

Instead, the government in 1998 adopted a set of guidelines to govern "ex gratia" payments - payments made without any admission of legal liability - to wrongfully imprisoned persons. These guidelines followed a Law Commission report on how this matter should be handled. (They also were added to in 2000 to standardise the amount of such compensation payments, but that doesn't change the basis on which payments are made.)

These guidelines set out a threshold criteria for who is able to apply:

"those eligible to apply for compensation are individuals who have had their convictions quashed on appeal to the High Court or Court of Appeal, without order for retrial, or who have received a free pardon."

Note the immediate problem for David Bain. While the Privy Council quashed his conviction (the fact this court isn't mentioned in the guidelines is immaterial), it also ordered a retrial be held. In other words, while it found problems with the previous trial process that rendered Bain's conviction unsafe, it nevertheless thought there remained a sufficient evidential basis to try him for the crime. The fact he was acquitted at that retrial doesn't by itself mean he was "wrongfully" convicted the first time around.

Furthermore, there is then the test Bain has to meet in order to get receive a payment.

[Update: I'm a bit confused on this one. The original guidelines announced in 1998 stated that: "claimants must establish beyond reasonable doubt that they are innocent." But the information provided by the Ministry of Justice now states that the test is "innocent on the balance of probabilities". Just when and how this changed I'm not sure.]

In any case, this issue is assessed by a Queen's Council, and it is a far, far different question to that answered by the jury at his retrial. That jury decided there was not evidence beyond a reasonable doubt that Bain killed his family. The Queen's Council will have to decide that there is evidence that it is more likely than not that Bain's father Robin committed the crime.

I'll simply note that others think it would be difficult to prove this proposition even on the balance of probabilities.

Of course, these two hurdles - the order of a retrial and the burden of proof - do not have force of law. They exist in a set of "guidelines" for the exercise of a non-legal discretion. And even within those guidelines, "The Minister of Justice ... retain[s] the discretion to consider claims falling outside these criteria, if there are extraordinary circumstances and this is in the interests of justice." So Simon Power could, if he chose (and Cabinet agreed to it), decide to put aside the "ordinary" tests and give Bain compensation anyway.

Perhaps the delay in gaining a retrial because of the Court of Appeal's refusal to overturn the original verdict in 1995 (or even in 2003) represented an extraordinary delay in his receiving justice. Perhaps problems of evidence in a case nearly 16 years old mean it now is impossible to meet the test of proving Bain's innocence. Or some such claims.

But I suspect Bain and his legal team will be hard pressed to get them accepted. For one thing, the whole reason for the tough tests in the guidelines is:

"that it is essential in order to preserve the integrity of our justice system. What we are aiming for is a system that will vindicate innocent defendants and make good the losses incurred when it is absolutely clear they have been wrongly imprisoned."

Setting the guidelines aside for Bain would undermine their basic purpose.

For another, I'm not sure exactly what the political climate is on Bain's case anymore. There was an undoubted level of public support for his acquittal, helped in no small part by some pretty favourable media coverage. But it's another thing to see him get some millions of dollars from the taxpayer on the basis that he definitely did not do it. Whether the public will wear that decision is, I think, a much harder case to call.

 

Comments (0)

No comments yet.

Post new comment

You must be logged in to post a comment.