Justice lacking for David Bain
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.