Herald on Sunday editorial: Let Bain review be done quickly

David Bain. Photo / Simon Baker

Opinion

David Bain has been adjudged not guilty beyond reasonable doubt of the murder of his family. He therefore has to be presumed innocent. Presuming he is innocent, he must be wondering what he has to do to convince the Government he deserves compensation for 13 years in prison. He is not alone.

But he will likely have to wait another year after Cabinet this week decided to drag out the question of compensation with a third legal inquiry at public expense.

The first, by Canadian Supreme Court judge Ian Binnie, came to the conclusion Bain was innocent on "the balance of probabilities" but not "beyond reasonable doubt" , the degree of certainty required for criminal convictions. Former Justice Minister Judith Collins rejected Justice Binnie's recommendation and had his work reviewed by former High Court judge Robert Fisher who found Binnie's reasoning to be flawed.

Now Justice Minister Amy Adams says she cannot rely on Binnie's findings and needs a new inquiry. When she read Fisher's report she discovered that Binnie had gone beyond his terms of reference and, more seriously, had not followed the principles that are supposed to guide assessments of circumstantial evidence.

Exceeding his terms of reference did not do much harm. Binnie had been asked to find whether there were any factors in the investigation and prosecution of the case that would help the Cabinet decide whether there were "extraordinary circumstances" warranting compensation. It was supposed to be the Cabinet's decision whether the factors amounted to extraordinary circumstances but Binnie went ahead and decided they did amount to extraordinary circumstances that warranted compensation.

Fisher's criticisms that Binnie's conclusion depended too heavily on one item of evidence in Bain's favour -the sock print that did not fit him - and the judge's failure, in Fisher's view, to weigh up the totality of evidence for and against Bain, was more worrying.

Fisher was not asked whether he thought the case warranted compensation. That is for the inquiry Adams is about to commission.

Let it be quickly done. The bill for lawyers is fast approaching the amounts previously paid in compensation for prisoners acquitted, and Bain has waited too long for a decision.

Compensation should not be automatic in all cases, but nor should Cabinet be fishing for a report that comes to the conclusion it wants.

On the balance of probability it is delaying the inevitable.

Debate on this article is now closed.