When revisiting the in and outs of David Cullen Bain's claim for taxpayer compensation, folk would do well to keep a clear head.

Mr Bain was found guilty and convicted in 1995 of the murders of five family members.

The Privy Council quashed the convictions in 2007 and ordered a new trial.

At his second trial in 2009, Mr Bain was acquitted on all counts.


He had spent 13 years in prison and in 2010 applied to then Justice Minister Simon Power for compensation.

Mr Bain was not then eligible to be considered under the cabinet guidelines governing compensation for wrongful conviction and imprisonment.

The Privy Council's retrial order made Mr Bain ineligible under the guidelines.

So Mr Bain relied on an extended Cabinet decision which reserved the Crown's right, in "extraordinary circumstances, to consider claims falling outside the criteria specified...on their individual merits, where this is in the interests of justice."

In 2011 Minister Power appointed former Canadian Supreme Court judge Ian Binnie QC to advise him on the two issues central to Mr Bain's claim.

Mr Binnie was to advise the minister whether he was satisfied that Mr Bain was innocent to the balance of probabilities, as to which Mr Bain carried the onus of proof; and, if he was satisfied to that standard, whether he was also satisfied that Mr Bain was innocent beyond reasonable doubt.

He was also to advise the minister as to any other factors particular to Mr Bain's case that he considered relevant to the Executive's assessment whether there were 'extraordinary circumstances' that made it just to consider Mr Bain's claim.

In 2012 Mr Binnie advised the new minister, Judith Collins, that Mr Bain had satisfied him that he was innocent to the balance of probabilities, but had not satisfied him of that beyond reasonable doubt. [CaseLoad's emphasis]


He also said there were "extraordinary circumstances" that made it just that Mr Bain be compensated, citing "the egregious errors of the Dunedin police that led directly to the wrongful conviction."

After taking further advice Ms Collins instructed former High Court judge Robert Fisher QC to "peer-review" the Binnie report.

Robert Fisher QC. / Photo by Greg Bowker.
Robert Fisher QC. / Photo by Greg Bowker.

Mr Fisher questioned Mr Binnie's method of analysis and recommended a fresh review.

Mr Bain and his advisers, including Mr Joe Karam, did not get a copy of either report until Ms Collins released them publicly in December 2012.

Citing areas of confidentiality, Ms Collins considered that she was not obliged to release the Binnie report to Mr Bain and his counsel any earlier, or to release to them the Fisher report at all, or to consult with them about either report.

Team Bain then applied for a High Court judicial review in January 2013, contending, among other things, Ms Collins had denied Mr Bain natural justice.

At Mr Bain's request the Cabinet put his compo claim on hold almost immediately until the judicial review was resolved.

In a series of eight conclusions delivered in August 2013, Justice Patrick Keane - in a pre-review decision - found Ms Collins had complied with her duty and, except for some peripheral documents to be released, had done everything right.

Justice Keane noted that to succeed in his claim Mr Bain must establish his innocence to the balance of probabilities, and even beyond reasonable doubt, and 'extraordinary circumstances'.

"That will require the Cabinet, or those advising the Cabinet, to re-appraise the evidence given at his two trials, as assessed on his appeals, against the principles of law governing his two trials."

It's worth reading Justice Keane's judgment at David Cullen Bain v Minister of Justice [2013] NZHC 2123 [21 August 2013].

The other day it was announced that Team Bain had dropped its bid for judicial review, Mr Karam giving as a reason the "pugnacious" Judith Collins' earlier resignation as justice minister.

So Mr Bain's compo bid is back with current Justice Minister Amy Adams, the Cabinet and whether they accept or reject the Binnie report and/or Mr Fisher's view of it, or order a fresh review of the Bain Affair as Mr Fisher recommended.

One thing is sure. Not everyone shares Joe Karam's view of the Bain Affair and not everyone thinks Mr Bain should get any money.

A final word from former British Lord Chief Justice Lord Tom Bingham of Cornhill on the "difficult and sensitive question" of compensation:

"Ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly-innocent victim of mistake or mis-identification or may be a serious criminal who is very fortunate to have escaped his just desserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter."

How Humble Hack Caught QC Unawares

Cards and letters of goodwill continue to flow into the Ladies & Escorts Lounge celebrating Divorce Duchess Anne Hinton QC's anointment as a High Court judge.

CaseLoad is reminded of Mrs Hinton's vigorous attack on him when he chanced upon a fascinating divorce case in the High Court a few years ago.

Failing to have CaseLoad ejected from the court, the furious brief bailed him up outside and accused rival QC Lady Deborah Chambers (who appeared for the winning side) of tipping him off that the case was on (nothing was further from the truth).

Mrs Hinton then mounted a futile bid in both the High Court and Court of Appeal to block publication of the story.

The case before Justice Lyn Stevens was Sanders v Sanders and was the first time new law to permit wider reporting of relationship wrangles which reached the High Court was successfully tested.

All that aside, those at the L & E Lounge (where she is always welcome as one of the livelier lassies) wish the lady well.

Justice Graham Pankhurst.
Justice Graham Pankhurst.

Why Knight Old B*ggers?

Noting that distinguished criminal defence barrister Sir Peter Williams (80) was knighted in the feisty twilight of his career the other day, why does it take so long to honour worthy folk who have made an impact in whatever field they excel?

Unwell architect Sir Ian Athfield, 74, for example, died this month within a few days of his knighthood.

CaseLoad's old mate, the late High Court judge Sir Alan Holland (knighted in 1994/95 aged 66, after 16 years judging), reckoned everyone who was made a High Court judge should be knighted early so they could enjoy the title while they were relatively young and not in their dotage.

Recently retired and knighted High Court judge Sir Graham Panckhurst QC, 70, who headed the Royal Commission into the Pike River mine disaster in 2010 and presided over the complications of David Bain's "Not Guilty" second murder trial in 2009, may think there's something in that.

CaseLoad One Step Closer To The Bench

Never one to blow his own trumpet without good cause, CaseLoad was flattered to find - during research into Joe Karam - that free online encyclopedia Wikipedia described his alter ego as "Wellington lawyer Jock Anderson..."

CaseLoad, who himself is often taken for a retired judge, is now confident Mr Anderson - or Judge Jock as he was known to the tabloids - will soon be shoulder-tapped for a well-deserved role on the High Court bench.

"Judicial seat-warmer is more like it," said The Scunner.

Opinion Corner

Coroner Peter Ryan was plain wrong to release photographs taken by Geoff Walker of the 2012 Carterton hot air balloon crash and fire which left eleven people dead.

Mr Walker gave his photos to the police to help with their investigation. He did not want and never intended them to be released.

He rejected big money offers from New Zealand and overseas media.

In CaseLoad's view Coroner Ryan had no legal or moral right to release the photos.

In doing so he not only trampled over Mr Walker's intellectual property rights but fed a ghoulish lust for gory detail - something Mr Walker sought to avoid.