Millions in reparation possible for David Bain

David Bain could receive compensation but he would have another battle on his hands. Photo / Pool

David Bain could receive a multi-million-dollar compensation payment after being acquitted of the murder of his family - but he would have another battle on his hands.

Legal experts say Mr Bain would have to prove his innocence to receive a payout for spending nearly 13 years in prison, rather than being acquitted of the crime as he was last night.

Precedent-setting compensation cases include Pukekawa farmer Arthur Allan Thomas, who received $1 million in 1980 for the 10 years he spent in jail for the murders of Jeanette and Harvey Crewe. Peter Williams, QC, who played a key role in Mr Thomas' pardon, said any payout calculation would include loss of wages, loss of potential earnings and comparable payouts for wrongful incarceration.

However, the Cabinet had since toughened the rules so that the "onus of proof" was now on the applicant to prove innocence, said Mr Williams.

"The mere fact that you were acquitted does not entitle you to damages. There has to be more to it than that."

The Cabinet has set a base sum of $100,000 for each year wrongly spent in jail, which could be increased in "exceptional circumstances". In the Thomas case, Mr Williams said an aggravating feature was that police planted evidence to gain a conviction.

In another high-profile case, David Dougherty was awarded almost $900,000 in 2001 after being jailed for the abduction and rape of an 11-year-old girl. DNA evidence later proved him innocent.

Stuart Grieve, QC, who was involved in determining compensation for Mr Dougherty, said Mr Bain could get $3 million to $5 million if he could prove his innocence. Any payment would be "ex-gratia" said Mr Grieve, meaning the Government has no legal obligation to pay compensation, but would most likely follow the precedents of the Thomas and Dougherty cases.

However, he highlighted the recent case of Rex Haig, whose plea for compensation for wrongful conviction and imprisonment was rejected by Justice Minister Simon Power. Two years ago, the Court of Appeal quashed his 1995 conviction for murdering Mark Roderique on his fishing boat off the West Coast. But Mr Power declined the application on the recommendation of Robert Fisher, QC, who said it was more probable than not that Mr Haig was involved in the killing.

Auckland University law professor Bill Hodge cited the Akatere case, in which three teenage girls were wrongfully imprisoned for aggravated assault when the "victim" lied to police. The girls each received $135,000 for the seven months they spent inside.

Although found not guilty, Mr Bain would still have to prove that his father, Robin, killed the family and then committed suicide, said Mr Hodge. "If a jury comes back and finds David Bain not guilty, that's not the same as a jury finding that Robin did it and David is innocent. There's a big difference."

Mr Bain may also seek to get his family inheritance back. The inheritance, which included the proceeds of the sale of his parents' section, was distributed to members of his extended family after his conviction in 1995.

It is estimated to be less than $65,000, the section being the only asset after the Bain home in Dunedin where the murders happened was razed at the request of the extended family and approved by Mr Bain while in prison.

Mr Bain's lawyer Michael Reed, QC, told the Herald in 2007 that claiming back the inheritance would be part of any compensation claim.