A million dollars for David Bain – just don’t call it compensation

The $925,000 government payout is intended to close a long and messy chapter in the David Bain whodunnit, though it will only reiginte the eager Bainologists. Law professor Andrew Geddis explains how we ended up here.

In a perhaps vain attempt to replicate Kang’s (in the guise of Bob Dole) solution to another intractable issue that divides society into fundamentally oppositional camps, Justice Minister Amy Adams has announced that the government is going to give David Bain $925,000 without compensating him for his imprisonment.

It is, on the face of it, a fairly odd outcome. David Bain was considered not to have proven that he was innocent on the balance of probabilities, yet still gets near to a million dollars from the government after spending 13 years in jail. Teina Pora was considered to have proven that he was innocent on the balance of probabilities (and even to the higher standard of beyond reasonable doubt), and gets only two-and-a-half times that amount for some 20 years of imprisonment. So what is going on?

David Bain leaves the Christchurch High Court following his not guilty verdict passed down today at Christchurch High Court on June 5, 2009 in Christchurch, New Zealand. Bain was convicted for the 1994 murders of five members of his family, his parents and three siblings, and served 12 years of his life sentence. On his final appeal in 2007 the Privy Council quashed his convictions and recommended a retrial. (Photo by Martin Hunter/Getty Images)

David Bain leaves the Christchurch High Court following his not guilty verdict on June 5, 2009. Photo by Martin Hunter/Getty

Let’s start with today’s revelation as to what Ian Callinan, a retired Australian judge, has to say about David Bain’s compensation request. After being tasked to consider the matter, he concluded Bain had failed to meet the minimal threshold for compensation under Cabinet’s guidelines of proving his innocence on the balance of probabilities.

The announcement of this finding was a little bit surprising, as I (and others) had interpreted an earlier leak about Callinan’s report as suggesting that he believed Bain had met that threshold. But without going through all 144 pages of the now released final report (plus a response to challenges to it from David Bain’s team), Callinan concluded that David Bain couldn’t show on the total evidence that it was more likely than not that his father, Robin Bain, carried out the murders. That was a different question than the one asked in David Bain’s criminal trials; there the Crown had the burden of proving beyond a reasonable doubt that David (and not Robin) Bain did the deeds.

As David Bain couldn’t (on the balance of probabilities) prove Robin Bain was the murderer, then (on the balance of probabilities) he couldn’t show that he was innocent of the crimes. And as he couldn’t do that, the government’s compensation guidelines say they don’t have to give him anything for his time in prison – as Rex Haig found out back in 2009.

So why, then, is the government still going to give David Bain $925,000 even though the guidelines say he should get nothing? Well, according to the Q&A sheet on the decision:

[I]t became clear that Mr Bain contested Mr Callinan’s findings. Mr Bain also advised he would legally challenge any decision by Cabinet to decline his application in reliance on Mr Callinan’s advice, which would inevitably lead to further cost and delay.

Cabinet has agreed to make an ex gratia payment to Mr Bain in recognition of his significant expenses during the compensation process and the length of time that he has spent pursuing compensation since his application was lodged in March 2010 and to avoid the likelihood of further litigation.

Mr Bain, in turn, has agreed to forgo any legal action against the Crown and related parties in relation to his prosecution, convictions, imprisonment, and application for compensation.

So, in essence, the government has decided to give David Bain a fairly hefty chunk of money to cover his costs in his chasing compensation to which he is not entitled, so as to make the issue go away. Which leads me to make a couple of observations.

Amy Adams

The fairness question: Amy Adams announces the government decision to media. Picture: RNZ livestream

First, I think this is a tacit acknowledgment that the compensation process in his case was badly stuffed up. After all, if the 13 years he spent in jail for a crime the courts found he did not commit is not thought worthy of any compensation, then why does the government consider payment is appropriate for the more-than six years he spent pursuing the matter following his acquittal? The only answer can be that the government is content that the system “worked” as it was supposed to in regards the former issue – but that errors for which it is responsible occurred in relation to the latter.

Second, there’s a good case that paying out $925,000 not to continue pursuing a legal claim of dubious merit actually is pretty stingy. For as David Slack twitted in a tweet:

More seriously, it creates an interesting precedent for the future. As much as the government tries to portray David Bain’s case as being “unique in its complexity”, the next time a Rex Haig or other unsuccessful applicant for compensation comes along, why can’t they expect to have the costs of their application covered by the crown? Also, why does Amy Adams think it “fair” to pay David Bain money that previous unsuccessful applicants for compensation did not receive, but it would not be “fair” to inflation index Teina Pora’s compensation payments because this did not happen in previous cases?

Let me close this off with a final note about closure. The report by Ian Callinan will provide ample fodder for amateur Bainologists to pore over for days, weeks and probably months to come. But it is worth quoting his final paragraph:

No matter which view a person might take as to who the perpetrator was here, there will be some unexplained or “loose ends”. In the fiitional murder mysteries that Mr Robin Bain was reading before his death, all of the ends are tied, and the crimes elegantly solved. People in real life and the courts that adjudicate upon conflicting facts know that all of the questions cannot always be answered, and all of the issues neatly resolved. This is such a case.

As much as it may upset expectations honed on sources that range from Poirot to CSI: Wherever, sometimes the answer to “whodunnit?” is “we just don’t really know”. So may it ever be for the crimes committed at 65 Every St, Dunedin some 22 years ago.

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