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Bain must meet 'extraordinary circumstances' test

David Bain will have to meet an "extraordinary circumstances" test in his bid for compensation for wrongful conviction and imprisonment, Justice Minister Simon Power said today.Mr Power said he had instructed officials to work with Mr Bain's law

NZPA
Tue, 20 Apr 2010

David Bain will have to meet an "extraordinary circumstances" test in his bid for compensation for wrongful conviction and imprisonment, Justice Minister Simon Power said today.

Mr Power said he had instructed officials to work with Mr Bain's lawyers to devise "a workable process" for the assessment of the claim.

Mr Bain was convicted in 1995 of murdering five members of his family in Dunedin. In 2007 the Privy Council quashed his convictions on the grounds of a substantial miscarriage of justice and ordered a retrial.

In June last year he was found not guilty at a retrial.

Mr Bain's lawyers wrote to Mr Power on March 25 notifying him of a claim for compensation. They wrote a second letter on April 9 regarding the process for their claim.

Mr Power replied today, outlining the established test that claims for compensation must meet.

He said that under cabinet guidelines adopted in 1998, the category of claimants who were eligible for compensation was limited to those who had their convictions quashed on appeal without order of retrial, or who had received a free pardon.

To receive compensation, eligible claimants had to establish their innocence on the balance of probabilities.

Mr Power said that at the same time as adopting those guidelines, the cabinet decided the Crown should have residual discretion to consider claims falling outside the guidelines in "extraordinary circumstances" where it was in the interests of justice to do so.

"Mr Bain's claim falls outside the guidelines because he was acquitted following a retrial," Mr Power said.

"However, it is open to him to meet the extraordinary circumstances test."

Mr Power said claims under residual discretion were assessed on a case-by-case basis.

"At a minimum, and consistent with the cabinet guidelines applying to eligible claimants, a claimant must establish innocence on the balance of probabilities," he said.

"But for claims that fall outside the cabinet guidelines something more is required that demonstrates that the circumstances are extraordinary.

"I have instructed officials to work with Mr Bain's lawyers to devise a workable process for the assessment of Mr Bain's claim."

NZPA
Tue, 20 Apr 2010
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Bain must meet 'extraordinary circumstances' test
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