Jus­tice lack­ing for David Bain

Kapi-Mana News - - OPINION - GOR­DON CAMP­BELL

Al­most 21 years af­ter the mur­der of the Bain fam­ily in Dunedin, David Bain’s claim for com­pen­sa­tion has en­tered a new and ( hope­fully) fi­nal phase.

Ian Cal­li­nan, a re­tired judge of the Aus­tralian High Court, has been ap­pointed by Jus­tice Min­is­ter Ju­dith Collins to as­sess Bain’s com­pen­sa­tion claim for his 13 years of wrong­ful im­pris­on­ment.

The Cal­li­nan in­quiry comes two- and- a- half years af­ter a pre­vi­ous re­port, by the Canadian judge Ian Bin­nie, had con­cluded Bain was prob­a­bly in­no­cent.

Af­ter tak­ing fur­ther legal ad­vice, Collins chose to shelve Bin­nie’s find­ings.

Cal­li­nan has now been asked to start again from scratch and – cru­cially – he has also been asked to sub­ject Bain’s claim to a dif­fer­ent test.

Whereas Bin­nie had been asked merely to ex­am­ine whether Bain was ‘‘prob­a­bly in­no­cent’’ as the min­i­mum stan­dard for com­pen­sa­tion, Cal­li­nan is be­ing asked to de­ter­mine whether Bain is ‘‘ in­no­cent be­yond rea­son­able doubt’’.

To most peo­ple, this would seem a re­mark­ably high hur­dle.

Clearly, be­ing found not guilty is not quite the same thing as be­ing found in­no­cent, and Cal­li­nan has been asked to pitch his tent in that grey area.

Thanks to the legal pro­ceed­ings to which Bain was sub­jected, the orig­i­nal pre­sump­tion of in­no­cence no longer ap­plies, and the onus on the state to prove his guilt be­yond rea­son­able doubt has been shifted en­tirely back on to Bain – who, if his com­pen­sa­tion claim is to suc­ceed, will need to dis­pel ev­ery rea­son­able doubt about the over­turn­ing of his ini­tial con­vic­tion.

In ef­fect, Cal­li­nan will have to de­cide that the orig­i­nal jury’s find­ing of guilt was, on the ev­i­dence, un­rea­son­able. It seems un­fair. How­ever po­lit­i­cally un­pop­u­lar it may be to pay out Bain, and what­ever one may pri­vately spec­u­late about his guilt or in­no­cence, the re­al­ity is that our legal sys­tem has found him not guilty of the charge for which he was im­pris­oned for so long.

In other words, the state’s con­tention – sup­ported by the orig­i­nal jury – that he was guilty be­yond rea­son­able doubt was proven to have been un­founded at his re­trial in 2009.

To many peo­ple, that fact alone should en­ti­tle Bain to com­pen­sa­tion.

If, in fu­ture, the stan­dard test be­comes ‘‘ prove af­ter­wards that you were in­no­cent be­yond rea­son­able doubt’’ then it is hard to see how any­one’s claim for com­pen­sa­tion could suc­ceed.

If he had been sub­jected to this test, it seems un­likely that Arthur Allen Thomas would have re­ceived any com­pen­sa­tion at all, re­gard­less of the ‘‘ planted car­tridge’’ fac­tor in his orig­i­nal con­vic­tion.

Un­for­tu­nately, the public could be for­given for think­ing that the is­sue of Bain’s com­pen­sa­tion claim has been run by the Gov­ern­ment as an at­tempt to re­lit­i­gate his ac­quit­tal, and to avoid the im­pli­ca­tions of that de­feat for the Crown.

When Bin­nie found in Bain’s favour, his find­ings were set aside, and a new in­quiry kit­ted out with a more strin­gent test has been launched.

How on earth is this sup­posed to pro­mote trust in the im­par­tial­ity of our legal sys­tem – or faith in the im­par­tial­ity of our cur­rent Jus­tice Min­is­ter, for­merly the Min­is­ter of Po­lice?

Nearly six years have elapsed since Bain was ex­on­er­ated.

As the Gov­ern­ment strings out his claim for com­pen­sa­tion and shops around for a means of avoid­ing pay­ing it, its ac­tions are look­ing like a fur­ther ex­am­ple of injustice.

Newspapers in English

Newspapers from New Zealand

© PressReader. All rights reserved.