David Bain has served a debt to society that he did not owe, according to the verdict of the jury at his retrial. Having taken 13 years of freedom from him, does society now have a debt to him that the Government ought to honour with a substantial sum in compensation? Many say yes. But on that ground, everyone who serves time in prison and is subsequently found not guilty beyond reasonable doubt would have a right to compensation from the taxpayer. Many would say yes again.

READ MORE: Compensation blow: David Bain not 'innocent beyond reasonable doubt'

The Government obviously does not agree. It appears to have set a higher bar for compensation. The Herald learned last week the latest judge to look at Mr Bain's case for compensation has concluded there are no "extraordinary circumstances" that could prove his innocence of the murders of five members of his family in Dunedin 22 years ago. Proof of innocence, even if only on the balance of probabilities, is a very tall order but not an impossible one. New evidence such as DNA findings or a belated confession that can be corroborated would surely meet the standard.

But proof of innocence cannot be the only criterion for compensation. Arthur Allan Thomas was paid compensation after a royal commission concluded evidence against him had been planted by police detectives investigating the Crewe murders. That police action was indeed extraordinary, causing a miscarriage of justice. Teina Pora, who served 21 years after confessing to the 1992 rape and murder of Susan Burdett, is seeking compensation on the basis of a subsequent psychological diagnosis of fetal alcohol spectrum disorder that made his youthful confession unreliable. His circumstances seem extraordinary too.


But the Bain case is more typical of decisions reversed on review. The original police investigation may have had its flaws but nothing that has called for a royal commission of inquiry. The evidence compiled by the police was open to conflicting explanations that have been rehearsed so often in books, articles and general discussion that just about everyone seems to have decided the case for themselves.

Justice is an imperfect science. Investigators, prosecutors, judges and juries can only do the best they can. Both juries in the Bain case came to reasonable verdicts on the evidence given to them. The second verdict is the one that stands. Mr Bain is not guilty beyond reasonable doubt. That is all that can fairly be said. The Government is said to be reluctant to pay compensation in the absence of extraordinary circumstances, but might agree to meet legal expenses Mr Bain has incurred in his compensation claim.

The Government is said to have spent $1 million on three judicial inquiries. It has left itself open to the charge that it is "shopping" for the conclusion it wants, even if only the first and third judges have looked into the claim. The second examined whether the first had exceeded his brief by finding Mr Bain innocent "on the balance of probabilities" and recommending compensation. The Cabinet simply needed to know the extraordinary circumstances, if any, and make its own decision. If it is now in a position to do so, it is about time.

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