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No compensation for David Bain; $925,000 ex gratia payment

By Kurt Bayer, Isaac Davison

David Bain is disappointed with the decision that he will not receive compensation for wrongfully spending 13 years in prison.

Justice Minister Amy Adams said today that retired judge Ian Callinan had found that Bain was not innocent "on the balance of probabilities".

Speaking to the NZ Herald at his Christchurch home today, Bain professed his innocence.

"Quite frankly, the only thing I have to say is that Mr Callinan, Ms Adams and everybody that's been involved in the case to date have got it wrong: I am innocent. That will always be my only comment and there's nothing else I have to say on the matter," Bain said.

He refused to answer any more questions.

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As a result of the decision, the Government would not be making an apology or compensating Bain for his time spent in prison.

However, Adams also said that Bain's team had promised to make a legal challenge to Callinan's report.

In an unusual move, the Government has agreed to make an ex gratia payment to Bain in the interests of bringing closure to the long-running claim. A full and final payment of $925,000 has been accepted by Bain's team.

Adams stressed that the payment was not compensation, and had been offered solely to avoid further litigation and costs to the Crown.

Longtime Bain supporter Joe Karam issued a statement saying he was constrained as to what he could say at this stage.

"This morning Ms Adams stated that the Government has agreed to pay Mr Bain $925,000.00. She further stated that Mr Bain has accepted this payment in full and final settlement of all matters," he said.

"As yet the payment to Mr Bain has not been received by his lawyers.

"I am constrained from comment until the Government completes settlement as stated by Ms Adams."

In announcing the decision, Adams said the Bain case was one of the most complex and unique cases ever witnessed in this country.

Even after the latest report, New Zealanders were likely to be divided about the case, she said. But it was in the interests of everyone to bring some closure to the claim, given that the murders occurred 22 years ago.

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Adams said Bain's legal team had made it absolutely clear they intended to legally challenge Callinan's 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," she said,

"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."

Bain had accepted this payment in full and final settlement of all matters.

"This resolution is a pragmatic one that recognises the unique circumstances of this case and a desire on all sides to bring this matter to a close," Adams said.

"While many New Zealanders hold strong views on the case, the complexities of the evidence and the opinions that evidence has given rise to, are such that those views are likely to continue to be firmly held without clear resolution.

"While the issue has divided opinion in New Zealand, I am satisfied that the matter has at least now been concluded."

Bain's mother-in-law Carolyn Davies was emotional today when she told the Herald that she hoped her school teacher daughter Liz and her husband Bain, who have a 20-month-old son together, could now move on.

"We are just pleased it's all over. We just want to get on with our lives," said Davies, a long-time Bain supporter who visited Bain in prison and billeted him during his second trial in the High Court at Christchurch.

Justice Minister Amy Adams announcing the government will not pay compensation to David Bain. Photo / Mark Mitchell
Justice Minister Amy Adams announcing the government will not pay compensation to David Bain. Photo / Mark Mitchell

The ex gratia payment for Bain is likely to stir further debate about another compensation case, for Teina Pora.

Pora was last month found innocent on the balance of probabilities and was awarded $2.5 million for wrongfully spending 20 years in prison. His legal team is now challenging that payout, saying it should have been adjusted for inflation.

Adams defended the decision to award Bain $925,000 despite him not meeting the threshold for innocence, saying that the money reflects the time, cost, and "desirability" of avoiding future legal challenges.

The result of David Bain's long fight for compensation for wrongful imprisonment was revealed this morning.

Justice Minister Amy Adams held a press conference at the Beehive this morning.
Retired judge Ian Callinan, from Australia, was tasked with deciding whether Bain was "innocent beyond reasonable doubt".

Based on previous awards, Bain could have been entitled to at least $2 million if Cabinet approves compensation.

The Herald revealed in February that Callinan had found that Bain was not innocent beyond reasonable doubt.

But the final decision on compensation rested with the Cabinet.

It is the latest chapter in a long-running battle between Bain and the Government.

A 2012 report by former Canadian Supreme Court Justice Ian Binnie recommended compensation based on the view that Bain was probably innocent - not innocent beyond reasonable doubt.

Binnie said today that the $925,000 payment was not enough to pay for the 13 years Bain spent in jail and full compensation should have been awarded.

He said the ex gratia payment was a compromise aimed at halting further legal challenges from Bain but was not enough.

"It is not uncommon for Governments to make ex gratia payments when they don't want to admit fault but where the Government's case doesn't pass the smell test. $925,000 is a lot of money for passing the smell test.

"But he's entitled to more. To turn around to a man you've put in prison which your highest court says you did wrongfully and to say you get zero compensation seems to me well below the international standard."

A former Canada Supreme Court judge, Binnie's 2012 recommendation that Bain had met the threshold for compensation was rejected by then Justice Minister Judith Collins.

He believed the Government was determined not to admit Bain was wrongfully convicted.

"They did not want to concede in any way that an innocent man had been wrongfully prosecuted and put in jail for 13 years.

"I think in most countries putting somebody in jail for 13 years on a wrongful conviction warrants compensation. New Zealand is paying zero compensation."

Binnie said his view Bain deserved compensation was stronger now than when he wrote his report.

"It's pretty clear the Police messed up and I don't think the Government was willing to admit that."

Collins ordered a peer review of the 2012 report by QC Robert Fisher, who found that Binnie had made several errors of law.

Bain's legal team sought a judicial review of Collins' handling of the claim, which was later discontinued after a confidential settlement.

After Adams took over the justice portfolio, she launched a fresh inquiry, led by Callinan, and said all previous advice on the matter would be set aside.

Bain was convicted of murdering his parents and three siblings in June 1994. He served 13 years in prison before the Privy Council quashed his convictions and he was acquitted in a retrial in 2009.

Law expert Professor Chris Gallavin welcomed the ex-grata payment of $925,000 to Bain as a "pragmatic and realistic fix to a messy problem".

While he says the figure is similar to the amount Bain would've received if compensation was granted - a starting figure of $100,000 per year of imprisonment - the difference is that it does not come with an apology.

"With this payment, the case is now, once and for all, finally, finished," said Gallavin, Deputy Pro Vice-Chancellor, College of Humanities and Social Sciences, Massey University.

"I am sure David himself is delighted along with the Minister, the public and perhaps also the extended family of the victims who have lived with this case in the media for more than 20 years."

However, Gallavin said the case shows that the compensation process needs to be revised.

Irrespective of what one thinks of Bain's guilt or innocence, there has been two reports from eminent international jurists who reached different conclusions, he points out.

"The question I am therefore left with is the fairness of requiring someone who is possibly the victim of a miscarriage of justice having to 'prove' their own innocence particularly where the team needed to mount such an application will need to largely act pro bono," Gallavin said.

He advocates for a Criminal Cases Review Panel as a "proactive and positive tool for the smooth operation of the system - away from the currently awkward and unsatisfactory process".

Long fight for compensation:

• May 1995: David Bain convicted of killing five family members in Dunedin.

• June 2009: Conviction quashed in a retrial after Privy Council appeal.

• Nov 2011: Canadian judge Ian Binnie investigates compensation issue.

• Aug 2012: Binnie concludes Bain should be compensated. Justice Minister Judith Collins seeks a peer review from Robert Fisher QC.

• Dec 2012: Fisher review says Justice Binnie's report was inaccurate and cannot be used.

• July 2013: Bain's legal team seek judicial review of Collins' handling of compensation claim.

• Sep 2014: Amy Adams is made Justice Minister.

• Jan 2015: Judicial review discontinued after confidential settlement between Govt and Bain's team.

• Feb 2015: Adams confirms the compensation process will start afresh, with all previous advice put aside.

• Feb 2016: Herald reveals new report has found Bain is not "innocent beyond reasonable doubt".

• Today: Govt reveals compensation decision.

Crown payouts

2016

David Bain - $925,000 (ex gratia payment)
- Wrongfully spent 13 years in prison for murdering his family in 1994. Did not meet innocence threshold for compensation.

Teina Pora - $2.5m compensation and Crown apology
- Wrongfully spent 20 years in jail for murdering and raping Susan Burdett in 1992. Later found innocent on balance of probabilities.

2011

Aaron Farmer - $369,000* compensation and Crown apology
- Spent 2 years in prison for raping a 22-year-old woman in Christchurch in 2005. Conviction quashed in 2007.

2001

David Dougherty - $1.2m* compensation and Crown apology
- Spent 3 years in jail for abduction and rape of 11 year-old girl, before being acquitted by DNA evidence.

1979

Arthur Allan Thomas - $4.8m* and a Royal Pardon
- Twice convicted of murders of Harvey and Jeanette Crewe and spent 9 years in jail. His convictions were later quashed. The payout took into account the loss of his farm.

• adjusted for inflation

The brother of Arthur Allan Thomas, pardoned after spending nine years in prison for the 1970 murders of Harvey and Jeanette Crewe, slammed the decision not to award compensation to Bain.

Younger brother Des Thomas believes Bain is entitled to compensation given that he was cleared by a jury.

"What's the point in a fulla being found not guilty, isn't that what the jury is for? If he's found not guilty, then he's not guilty," Thomas said.

"The problem that we have in this country is that once the police plant or manufacture evidence, or get a case wrong, and then you are convicted, then no-one will accept responsibility.

"Justice Minister Amy Adams says the system works, but how can the system work if Arthur spent nine years in jail, Pora spent 21 years in jail, Bain 13 years in prison, and now Scott Watson. It's not right and no-one is interested in correcting all of this? It's unbelievable. You wouldn't think we are a democracy. I blame the politicians - I believe they are too gutless."

Thomas accused the government of "shopping around until they get a finding that suits themselves".

The decision will be a blow to Bain, not just because of the money, but because "all the innuendo will carry on".

- NZ Herald

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