Legal experts cast doubt on Bain's payout bid

Joe Karam (left) says David Bain has emailed to say he's `safe and sound' in Britain. Photo / Herald on Sunday

As David Bain starts a new chapter of his life overseas, legal commentators at home are casting doubt over his chances of getting compensation for wrongful imprisonment.

Mr Bain, 37, acquitted in June of the 1994 murders of his parents and three siblings, left last weekend for Britain, where he will travel with friends and then consider where he wants to spend the next part of his life working and studying.

His chief supporter, Joe Karam said: "I just had an email to say that he had a great journey, that was all, and [he was] 'safe and sound', and arrived safely, so that's all I know."

While Mr Bain is away, his legal team in New Zealand will be working on his bid for compensation.

A payment will be sought for the nearly 13 years he spent in jail after being convicted of the murders in 1995, and could be a multimillion-dollar sum.

But a lawyer who succeeded in getting compensation for a high-profile client, and a legal expert both say Mr Bain will find it very difficult to get compensation because he is required to prove his innocence "on the balance of probabilities".

Mr Karam said anyone who did not know the full facts of the Bain case was making ill-informed comment on the subject.

"How can they know what is difficult for David, and what's not?

"The evidence in the trial, I am saying, supports unequivocally that David Bain, on the balance of probabilities, is innocent of these crimes."

David Dougherty was compensated with almost $900,000 for wrongful imprisonment in 2001, after DNA evidence acquitted him of the rape and abduction of an 11-year-old girl.

Nicholas Reekie was later convicted of the rape.

Mr Dougherty's lawyer, Murray Gibson, said his client had science on his side in his bid to prove his innocence.

"It's an extraordinarily high test to have to achieve," Mr Gibson told the Weekend Herald.

"The test is going to be beyond [Mr Bain] I suspect, because he's just dealing with the facts, and his case was really promoted on the basis that there was doubt as to whether someone else might have committed the crime."

Auckland University associate law professor Scott Optican said it was unclear if Mr Bain met the criteria set out by the Government for those seeking compensation.

Being acquitted in a criminal trial was a "far cry" from proving innocence on the balance of probabilities, and the burden of proof shifted from the prosecution to Mr Bain when it came to compensation.

"So those factors combined, in David Bain's case, would probably make it very difficult to seek compensation unless he can find a real silver bullet piece of evidence that could definitively establish his innocence," he said.

Mr Bain is also expected to try to claim his family inheritance.

Members of his wider family who received the money could not be reached or refused to comment.

INNOCENCE KEY TO QUEST

* David Bain must apply to the Minister of Justice for compensation. If the minister decides it merits further assessment, he will refer it to a Queen's Counsel to investigate.
* The QC will then report to the minister, certifying whether he or she is satisfied that the claimant is innocent "on the balance of probabilities".
* If The QC concludes this is the case, he or she will recommend a compensation sum, taking into account factors such as the claimant's conduct and the length of jail time served. The base rate is $100,000 for each year served in jail.