The debate over the Bain murders looks destined never to be resolved in the public mind. It certainly has not been resolved by the Government's decision announced yesterday to deny David Bain compensation for 13 years in prison but to make an "ex gratia" payment of $925,000.
Many who believe him innocent will come to regard the payment as at least a token admission an injustice occurred, but the record will not say that. The record will show Bain has been found not guilty beyond reasonable doubt but that he failed to establish his innocence on the balance of probabilities, which is the threshold set for compensation.
To come to both conclusions, the justice system has overturned previous findings. A jury in 1995 found him guilty beyond reasonable doubt. Following his retrial and acquittal in 2009, an examination of his case for compensation concluded he was innocent on the balance of probabilities. That finding, by retired Canadian judge Ian Binnie in 2012, was not accepted by the Justice Minister of the day, Judith Collins, and a second inquiry, by former Australian judge Ian Callinan, QC, gave a new minister, Amy Adams, the conclusions that led to the decisions she announced yesterday.
Not guilty beyond reasonable doubt means Bain is innocent of the charge in the eyes of the criminal law. How can it be, non-jurists can only wonder, that he is not also innocent on the balance of probabilities? The explanation is that the onus of proof in a compensation claim falls on the person who has been imprisoned, and that is a harder task than the person faces in a criminal trial where the Crown must prove its case.
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As Callinan states in his report: "It is the applicant here who must persuade me he did not murder his parents and siblings. This necessarily means the applicant, rather than the Crown, must explain to my satisfaction why I should prefer his version of events to any contrary one. And he needs to refute plausible hypotheses that he was in fact the murderer. The applicant cannot now make a case simply by advancing possibilities and challenging the Crown to [refute] them beyond reasonable doubt."
Callinan goes on to say: "I have had the impression from time to time during my work that the applicant's representatives may not have fully appreciated that they do not establish the applicant's innocence of the crimes merely by raising doubts or even plausible possibilities." That is perhaps the most helpful thing anyone has said to those who have taken sides in this case, which sometimes seems to be just about everyone in New Zealand. To successfully cast doubt on a Crown case does not prove an accused person innocent.
But it does, of course, entitle the accused person to the presumption of innocence. A finding that David Bain has not proven his case for compensation does not deny him the presumption of innocence. He lost 13 years of his life and is to receive only reimbursement for the costs of his application for compensation. If this is the last word on the case, it is hard justice.