Costs but no compo awarded to Bain

David Bain

Should David Bain have been awarded compensation?

Yes
34%
No
66%
Total votes: 267

No compensation will be paid to David Bain, Justice Minister Amy Adams has announced.

The decision is on the basis that the report by Ian Callinan, QC, a retired judge of the High Court of Australia, found that Mr Bain has not established his innocence on the balance of probabilities.

“However,” Ms Adams says in a statement, “the Crown recognises that the compensation application process has lasted nearly six and a half years and that this has been an incredibly difficult and complicated case for all involved. Reaching this point has taken longer than anyone would have wanted it to.

“In addition, since receiving Mr Callinan’s final report it has become evident that Mr Bain and his advisors didn’t accept Mr Callinan’s findings. They made it absolutely clear that they intended to legally challenge that report, leading to considerable further cost and delay in this matter.

“While the Crown is confident in the strength of its position in any such review, it’s clearly desirable to bring finality to this case and avoid the cost and uncertainty of further proceedings.

“In my view, no one benefits from this matter continuing to drag on. In light of that, the Crown has agreed to make an ex gratia payment of $925,000 in recognition of the time involved and expenses incurred by Mr Bain during the compensation process, and the desirability of avoiding further litigation.”

According to Ms Adams, Mr Bain has accepted the payment as full and final settlement of all matters.

Mr Bain spent 13 years in jail after being convicted in 1995 of the murder of five family members in Dunedin.

He was bailed in 2007 after his convictions were quashed by the Privy Council, which found his first trial was a miscarriage of justice.

Mr Bain’s bid for compensation began in 2010.

Retired Canadian judge Justice Ian Binnie produced an independent report on his case that concluded Mr Bain was innocent “on the balance of probabilities” and recommended that he be given financial redress for his decade-plus of imprisonment after being found guilty of the 1994 murder of his parents and three siblings.

Mr Bain was acquitted at retrial in 2009.

However, Justice Binnie’s findings were questioned by then-Justice Minister Judith Collin, who ordered a review of the report by then High Court Judge Robert Fisher.

Justice Fisher decided it would be “unsafe” to act upon the Binnie report.

 Mr Bain filed for a judicial review of Ms Collins’ decision three years ago.

In March last year, new Justice Minister Amy Adams appointed Mr Callinan to conduct a new inquiry into Mr Bain’s compensation suit.

Earlier this year details of Mr Callinan’s confidential report – including that Mr Bain had not been found to meet the beyond reasonable doubt threshold on Mr Bain’s compensation were leaked.

Mr Callinan’s reports are available online at here and here

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The Minister is a credit to the country.

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That: tongue in cheek or hand on heart?

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Eyes wide open, acted in one or two trials.

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What happened to innocent unless proven guilty?

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He was found Guilty

The retrial found him not guilty - and after so long there are reasonable doubts, especially as the police were in my view stupid by allowing for some of the evidence to be destroyed/lost (such as the burning of the house)

the presumption of innocence is not clear here for compensation as while a retrial was ordered that is different from finding him innocent

As a gun owner with the same sort of rifle (the exact same sort) I know the risks of keeping them, and he was negligent in his securing of his weapon - extremely so - so regardless he contributed to the crime.

I will be honest, that on the basis of probability I think he is guilty, I have some doubts - but I sincerely doubt his father was the shooter

The truth is no one really knows (any-more) as even if he is he has convinced himself he isn't

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Ah I see.

My simpleton view is that if he's guilty in the legal sense then he should be in prison. If he's not then he is innocent, don't understand all the color in between.

Fact of the world, it's not what you do but what people can prove you did that matters...

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It is much more complicated, as we in effect have four levels of guilt in NZ, Innocent beyond reasonable doubt, Innocent on basis of probability, Guilty on Basis of probability and guilty beyond reasonable doubt.

Also we do not actually work on the basis of innocent until proven guilty - we treat convictions that way, but we do lock people up prior to them being convicted (until trail) - which is done on the assumption of guilt.

innocent until proven guilty just means we do not sentence you, or enter a conviction until proof of guilt, not that we do not treat you as if you are guilty. it is an interesting discussion to get into as to what the legal system sees and does compared to what the public think it does (such as the innocent until proven guilty - which we do respect to a degree via bail, but bail works on the assumption of guilt as well)

Also in criminal cases you are only convicted in the scenario that you are guilty beyond all reasonable doubts - which in this case makes a conviction harder - and many unsolved cases never get prosecuted for this reason (others the evidence exists due to advances in technology)

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Were it not for Mr Karam doggedly championing his cause as a victim of injustice (by accusing the father of the crime) he would still be in jail.

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It would appear that like many, you believe beyond all doubt he is guilty, when the courts couldn't.

You might want to reflect on why "The Shawshank Redemption" is NZ's most watched film, and the emotions and thoughts it provokes for many.

Without knowing the full story of the events in the film, as recalled in a flashback by the alleged character Andy Dufresne, and given only the facts of the case, you would be forgiven for arriving at a resounding but incorrect "Guilty" verdict. Had the police uncovered more evidence, and found more pieces of the puzzle, as would have existed, they would have found a entirely different chain of events.

99% of the evidence indicated Andy Dufresne had motive, had a gun, wanted to kill his cheating wife fuelled by being drunk, and was in the locale at the time. The 1% of evidence, that he changed his mind, threw away the gun, did not do it, contradicts the assumptions of the other 99%. That one piece of the puzzle, that he was not there, does not fit the entire puzzle.

Now David may have done it, but there are also too many unexplained pieces of the puzzle to reach that conclusion.

NZr's are happy to root for Andy Dufresne's character in Shawshank Redemption, but we are quick to judge and convict David despite missing and clearly incorrect pieces of the puzzle.

The courts, prosecution, and public were so polarised on proving David did it and that Robin couldn't have done it, that they forgot to finish the puzzle. The police assumed what the scene on the puzzle was going to before finishing it and getting a complete picture, and did not follow up alternate theories and lines of questioning. And then the police burnt the puzzle, preventing anyone from putting the entire picture together.

Maybe an unfortunate series of events for David, not unlike Andy Dufresne, but clearly a circus. Would Judith Collins or Amy Adams want a relative of theirs convicted under such Fawlty Towers justice?

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Agreed, and in the same vein we can only hope that OJ Simpson too receives compensation in due time for all he's suffered, poor sod.

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The parallel powder marks from the rifle magazine on the fathers thumb was a game changer and just dismissed so casually.

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Thank you Nick. I stress the words," In their opinion"

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I own the same sort of riffle

when this was raised I fired 100+ rounds through it, using 1 magazine over and over without cleaning and still could not get those powder marks.....

Maybe my Ammo is cleaner but....

there are a lot of other things that go into why I doubt Robin committed suicide - like rifle length (plus Silencer)

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Who said the marks were caused by 'ammo'? Those marks may have been caused by something else - dirt, grease - (it wasn't the cleanest family, in fact their house was filthy, the gun was probably kept in a filthy state too) - while he, Robin Bain, loaded rounds into the magazine. The truth is we will never know what caused those marks, other than the marks do exist.

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Steve

Read the report on the likely-hood of the marks being from the magazine, especially about whether the marks were on his finger prints and thus likely to be cuts or not

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Just another kick in the teeth for Mr Bain.

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The whole process has raised doubts over the integrity of the law and by consequence the impartiality of now 2 Justice Ministers

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So you say, but any more justice in this case and the country would be broke. All very easy to sneer at the system and the people involved, rather than acknowledging that in a small percentage of very difficult cases it is unlikely that everyone will be completely satisfied.

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You mean the Canadian justice who was paid or the Australian justice who was paid after the Canadian justice who was paid didn't come to the desired conclusion?

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An entirely orthodox outcome. Party: Nil; Lawyers: The lot.

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Well at least the lawyers didn't miss out on their reward for dragging out the case.

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Surely you can't be half guilty or half innocent , again this looks like a trail by the heavies with their suitable outcome otherwise why pay any compensation at all!!!
But of a mystery!!
John S

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The Appeal was allowed - along with the subsequent judicial reviews - to allow the lawyers another bull rush to the buffet table, funded by the taxpayer. Amy Adams' announcement, shows just how hopeless the Government is. Makes my skin crawl.

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Stitched right up.

They wanted a conviction whatever the cost and they made the muck stick. Now it has been washed off they will not pay for the towels.

Injustice for all.

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Bain was imprisoned for 13 years based on flawed evidence. That alone should result in compensation. Realistically how could he ever prove that he is innocent, given that the police (with their supposed expertise) could not prove that he was guilty. Especially given that the police destroyed key evidence when they burned down the house.

Binnie explained the basis of his conclusion and in my opinion he was logical and reasonable. The only issue was that his advice was not what Collins wanted. So she shopped around for another opinion. This really isn't justice in my book.

Note, I have no idea whether Bain is guilty or not. Only he knows the truth and many of those commenting that claim he his guilty are not qualified to make those comments.

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>>>"Only he knows the truth and many of those commenting that claim he his guilty are not qualified to make those comments."

If someone believes someone else is guilty of a crime, then they should present that evidence. Otherwise it is just an opinion. And all opinions seem biased on two alternatives. Mostly either David is guilty because his father couldn't have done it, or Robin did it.

One of the original police bungles was in thinking that it either had to be David or Robin who murdered everyone. Since ALL the evidence did not support Robin in a murder suicide, they concluded that it had to be David.

Several loose pieces of evidence suggest that while David may not have told all he knows, it casts great doubt on him killing his entire family. Robin had more of a motive than David. The early destruction of evidence i.e. burning down the house, raises the question if someone had a conflict of interest in either destroying yet undiscovered evidence or in trying to remove any possible future resistance to the slam dunk "David did it" theory. Get a conviction and get get rid of the public pressure.

There are many pieces of evidence that don't fit the "Robin doing it" story, but their are also some pieces of evidence that don't fit the "David did it" story either.

In my view, a puzzle is not solved until ALL the pieces fit. You can't claim a puzzle is solved with a dozen pieces that don't fit. Offering up a choice of David or Robin, is like offering up heads or tails, black or white, or male and female, which as we know, there are often many shades or variations in between the two.

Due to public pressure some police went looking for a conviction instead of looking for the truth. That is a miscarriage of justice. By this century we should have evolved beyond resorting to wild west justice. He deserves full compo.

Judith Collins is not a judge nor was she employed as such. If she believes he is guilty then she should have presented any such evidence at the trial. She is not judge, jury and executioner. This is not the wild west, justice is not about opinions, it is about process, including beyond reasonable doubt. If there is reasonable doubt, it means it may not have happened the way the prosecution's theory suggests it happened.

Usurping the justice process is something you would expect from a corrupted third world country or totalitarian state. Perhaps we are heading that way.

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He was found guilty at his first trial. He was found not guilty at his second trial. He is now a free man. That is the justice system. Compensation is a separate matter. It is not a right. It is discretionary, and the discretion rests with the Government. It is a matter for the Cabinet to decide, based on a recommendation from the Ministry of Justice. This means that in order to receive compensation a claimant must convince the cabinet that he or she qualifies. This means establishing to the satisfaction of Cabinet - as a minimum - innocence on the balance of probabilities. In this case he has not been able to satisfy the Cabinet of that. And in those circumstances he does not qualify. It matters not what other people think of his guilt or innocence when it comes to compensation - it turns on whether the Cabinet is satisfied as to his innocence. This is not "usurping the justice process". This is an expressly discretionary matter strictly within the purview of the Cabinet.

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We can spend 30 million on a Flag debarkle, and we quibble over by comparison a few Bucks for Bain, something doesn't stack up here does it!

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I love reading comments about how Justice Binnie got the right recommendation to cabinet - the problem was he made recommendation that he was not meant to - he was meant to state that there could be circumstances that should be considered, but not recommend on them - a very important legal distinction

Minister Collins (for all I dislike her) made the right decision in saying this is a politically charged case, and I am not sure that the report meets the requirements for it to be considered by Cabinet - as it exceeded the allowed scope, and she then got it reviewed as to whether it was legally sound in NZ. I note here legally sound, not was it correct, but did it follow NZ law, and with the report exceeding scope (possible miscommunication of a few very fine details within NZ law), did that effect the ability of cabinet to rely on it?

The issue alot of people miss by saying he wasn't convicted at the re-trail is we have four effective levels of guilt, ranging from completely innocent (Tena Pora) to completely guilty, for a criminal case you can only be found guilty if you are found to be guilty beyond all reasonable doubt (that means even if a jury thinks it is extremely likely, but there is some reasonable doubt as to guilt then you are not guilty beyond reasonable doubt - and with Bain there is doubt both ways) however when we deal with a compensation claim (in effect civil not criminal law) you get to the idea of guilty on balance of probabilities, which means you are not guilty enough to convict but you are likely to be guilty (just not enough proof) - the phrasing used may be not innocent on the balance of probabilities - you then come to the idea of innocent on the balance of probabilities, and of course innocent beyond reasonable doubt

The problem is the Media itself is often not educated enough to get the distinction between not guilty, and not guilty beyond reasonable doubt, therefore the general public are not getting the full information and also lack the this understanding (often because they have not had it explained)

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The four levels only exist because of the PC world we live in.

It was a not guilty verdict. Reasonable doubt means members of the jury were not convinced of his guilt. i.e. they doubted he did it, based on the evidence. If the evidence accepted into court does not lead a jury to arrive at a guilty verdict, then how can guilt be assumed by those in cabinet when the evidence does not support that?

Perhaps Amy Adams is angling for a role as Judge Caulfield in an upcoming remake of the movie Star Chamber.

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Samuel Foster

the four levels existed long before PC - it is only due to PC that people fail to realize they exist - that and dumbing down of NZ population due to be to PC to say that people are likely to be guilty but we can not prove it beyond doubt.....

What not guilty beyond reasonable doubt means is highly subjective to the case and evidence (plus alternative theories and the receiving jury) but it has one clear meaning, we are not convinced he is guilty beyond reasonable doubt - not we are not convinced he is guilty - and especially not we believe him to be innocent

A jury may well believe him to be guilty (they can in fact be convinced that he is) but due to some doubt they can not say he is guilty beyond all reasonable doubt - it just has to be one small but reasonable reason to doubt he is completely guilty - such as did he find his father murdered his family and kill him (still guilty of killing one person but possible self defense......)

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