The Government faces a barrage of criticism whether or not it awards compensation to David Bain, so why doesn't it bite the bullet and make a decision? Public opinion on this classic whodunnit is polarised. Farming it off to yet another "expert" is not going to change that or deliver the enlightenment Justice Minister Amy Adams seems to expect.

As University of Canterbury dean of law Dr Chris Gallavin says, plans for another "independent" inquiry have turned the situation into a fiasco.

To Dr Gallavin and retired Canadian Supreme Court judge Ian Binnie, the Government is "shopping around" for the decision it wants.

Justice Binnie was retained in November 2011 by then Justice Minister Simon Power to consider whether Mr Bain deserved compensation. The minister sought an eminent jurist from abroad to bring fresh and unbiased eyes to this cause celebre, sensibly reckoning that every New Zealander, lawyers and politicians included, already had an opinion on it.


A year later, Prime Minister John Key announced that Justice Binnie had delivered a recommendation that then-Justice Minister Judith Collins "doesn't agree with, or at least has concerns about".

Justice Binnie had decided Mr Bain was probably innocent and recommended he be compensated for the 13 years he had spent in prison for murdering his family.

A smarter politician than Ms Collins might have appreciated there was no "right" answer, and grabbed the non-political life raft her predecessor, Mr Power, had launched.

Instead, she sank it.

In May 2007, the Privy Council had concluded "a substantial miscarriage of justice" had occurred, and ordered a retrial. Two years later, a Christchurch jury acquitted Mr Bain of five counts of murder.

Now, an outside jurist had decided Mr Bain was not only "not guilty" but most likely innocent as well.

Instead of accepting this, Ms Collins couldn't resist, it seems, giving in to her own doubts and commissioned retired New Zealand High Court judge Robert Fisher, QC, to conduct a peer review.

Dr Fisher found flaws in his "peer's" reasoning and analysis, ruling that "in assessing innocence, Binnie J made fundamental errors of principle". This week, Justice Binnie said Dr Fisher's review was "very partisan (not 'peer')".

The report and subsequent rebuttal cost taxpayers $600,000. Now, Ms Adams is to spend $400,000 for yet another report. Justice Binnie quipped it's not uncommon for clients "to keep going through lawyers until they find someone who agrees with them".

A more kindly interpretation would be that the neophyte minister believes if she searches hard enough, she'll find the definitive answer.

But short of such a miracle, she fails to accept that no matter how many experts sift through the old evidence, there is no magic answer.

After the vicious criticism Justice Binnie received, it will be hard to find another jurist willing to volunteer to become next target on the government coconut shy. Come out in support of Mr Bain and you risk government approbation, oppose compensation, you risk being labelled a government stooge.

Otago Law School dean Mark Heneghan suggests it's a job for more than one judge. "At least with a panel of judges they can reality-check each other and make sure they are not being influenced by one thing." How that panel would fit into the hierarchical court structure is hard to imagine.

But in the end the buck still stops with Ms Adams and her colleagues. And having so politicised the issue, they've left themselves with nowhere to hide.

Because the Privy Council ordered a retrial, rather than quashing Mr Bain's conviction, he's not automatically entitled to compensation. He first has to "establish innocence on the balance of probabilities" and show there is an aspect of the case that is "extraordinary".

On television before he was appointed to conduct his peer review, Dr Fisher said that in such circumstances, compensation payouts were "done out of a sense of humanity".

It's a message the politicians could heed. In 2007, the justice system finally admitted it got it wrong in 1995 when it found Mr Bain guilty of murdering his family. Why is it so hard for the politicians to show a little humanity and do the same?

Debate on this article is now closed.