Longtime David Bain supporter Joe Karam has said the acceptance of a $1 million payout was a "bittersweet pill to swallow", while acknowledging his fight to establish Bain's innocence was over.
David Bain 'aggrieved' judge deciding his compensation bid did not interview him and made 'extremely hurtful' comments.
David Bain was "disgusted" with the Australian judge for refusing to meet with him while considering his compensation bid for wrongful imprisonment.
Bain said his rights were "completely abused" by Justice Ian Callinan QC who made "extremely hurtful" comments in finding Bain did not prove his innocence "on the balance of probabilities" of killing five members of his family.
On this advice, the Government rejected Bain's compensation application for the 13 years he spent in prison before his convictions were overturned but agreed to pay him $925,000 to put an end to any further legal action.
Documents obtained by the Weekend Herald under the Official Information Act show the application was heading back to court - for a second time - with Bain's advocate Joe Karam describing the Callinan report as a "train wreck".
Karam listed errors in evidence, as did the Crown, some of which were later corrected by Callinan but pointed out Bain was never interviewed despite the judge making negative comments about him.
Failing to allow a witness to respond to criticism was one of the reasons a 2012 report by Canadian judge Ian Binnie QC, which found Bain to be innocent on the balance of probabilities, was discarded by the Government.
Joe Karam says the Government paid David Bain $925,000 to avoid further embarrassment. Photograph / Michael Craig.
"[Bain] is seriously aggrieved at the interpretations placed on his behaviour and utterings in the report. He disputes much of what has been said and feels his rights to natural justice has been seriously breached," Karam wrote to Justice Minister Amy Adams in October last year.
"I suggest that if you were to analyse, even relatively superficially, the contents of the Callinan report, in light of the information in this letter and compared with the claim and submissions which it purports to assess, you will see that it is extremely unsatisfactory and will not withstand scrutiny.
"Accordingly, the report must be either discarded or independently peer-reviewed so that proper and detailed criticisms can be presented and answered.
"It is our opinion that the report is so defective as a result of the errors described herein that a formal review would be a waste of further public money. In plain language it is a train wreck."
Bain was interviewed by Binnie for an entire day for the original compensation report and the Canadian judge described him as a "credible witness".
Former Australian judge Ian Callinan QC found David Bain did not establish his innocence. Photo / Supplied.
But Bain said Callinan placed "damning interpretations" on statements he had made, or others made about him, without speaking to him.
He took exception to a particular comment by the judge about Bain "hating" his father, Robin, whom the defence blamed for the five deaths.
"This is extremely hurtful. I did not hate my father, ever, then or now," according to an affidavit signed by Bain.
"I had said, that in the context of having just been told by the police that if I didn't do it, then it must have been my father who killed everyone. I was reacting to that information, and I meant that I hated him 'if he had done this'."
"These are just examples of where Mr Callinan has failed me and abused my right to natural justice by not giving me any opportunity to respond to the extremely negative slurs against me in his report.
"I repeat what I have stated on many occasions under oath and in public. I did not kill any members of my family. I loved them and still grieve for them.
"I am disgusted that the present inquiry could presume anything about my innocence or guilt without interviewing me."
Justice Minister Amy Adams announces the government will not pay compensation to David Bain. Photograph / Mark Mitchell.
Amy Adams replied to say there was no need to discard or peer-review the Callinan report, as Karam suggested, because it was a draft only.
She suggested Karam write directly to Callinan with any concerns.
When Callinan's final report was released in August this year, a second document was released where he responded to Karam's complaints.
He chose to "offer no comment" on many of the criticisms but noted where corrections were made to the draft report.
On the matter of whether David Bain should have been interviewed, Callinan said no request was ever made to him and "no 'expectation' that I do so was ever suggested to me".
"Had any expectation on the part of [Bain] that he would be personally interviewed been communicated to me, I would have needed to consider whether that would be appropriate and helpful, having regard to several matters."
These included whether to interview Bain in an inquisitorial way, if the Crown should cross-examine him, and if this would turn the process into a "de facto trial".
In announcing Bain would receive no compensation for wrongful conviction and imprisonment, Adams said the $925,000 ex gratia payment was to bring the matter to an end.
Bain and his advisors "made it absolutely clear" they would legally challenge the Callinan report, said Adams, and while the Crown was confident of its position it was "clearly desirable" to avoid another expensive court battle.
"In my view, no one benefits from this matter continuing to drag on."
The compensation claim had dragged on for five years before Callinan was appointed by Adams in 2015, after Bain's team took her predecessor Judith Collins to court over her decision to discard the Binnie report.
Binnie found Bain was innocent on the balance of probabilities and therefore eligible for taxpayer compensation under the Cabinet guidelines.
But Collins did not accept the finding after a peer review, by a retired New Zealand judge Robert Fisher, found mistakes in how Binnie applied the law and errors in the evidence.
Former Justice Minister Judith Collins discarded the findings of Canadian judge Ian Binnie. Photograph / Mark Mitchell.
Bain challenged the process in the High Court alleging Collins acted in bad faith but the legal case was halted in a confidential settlement with the Crown, paving the way for the second review.
While Adams said the $925,000 payment was a "pragmatic resolution" to avoid further cost in a complex case which has divided opinion in New Zealand, Karam said this was "political spin".
"The real reason the government settled on this basis was to avoid a further judicial review which would have been extremely embarrassing for Cabinet," said Karam.
"Mr Bain for his part despaired at continuing to deal with a politicised process where he felt the cards were overwhelmingly stacked against him, and so decided to accept the offer."
David Bain and Liz Davies are now married and have a young son. Photograph / Herald on Sunday.
David Bain and Joe Karam shortly after the jury found him not guilty. Photograph / NZPA.
The Bain saga
1994 - David Bain's parents, two sisters and brothers are shot and killed in their Dunedin home.
1995 - Jury finds Bains guilty of murdering his family. He is sentenced to a mandatory life term and a minimum of 16 years in prison. Court of Appeal dismisses appeal.
2007 - Five-day Privy Council hearing in London begins. The Law Lords quash his convictions and a retrial is ordered.
2009 - Bain is found not guilty on five counts of murder, following a retrial which lasts three months.
2010 - Bain asks the Government for compensation for the 13 years he spent in prison,
2012 - Retired Canadian judge Ian Binnie QC finds Bain is innocent on the "balance of probabilities" and recommends Cabinet pay compensation.
Justice Minister Judith Collins asks Dr Robert Fisher QC, a former High Court judge, to peer review the Binnie report. He finds a number of errors and Collins rejects the recommendations.
2013 - David Bain launches legal action against Collins and asks for a judicial review of how his compensation bid was handled. Any final decision by Cabinet is put on hold.
2015 - Bain agrees to drop judicial review after confidential meeting with Justice Ministry, in order for the compensation application to resume. New Justice Minister Amy Adams sets aside all previous advice and appoints retired Australian judge Ian Callinan QC to head a new compensation inquiry.
2016 - The Callinan inquiry finds Bain not innocent on "balance of probabilities" and Government rejects application for compensation. However, to avoid a second judicial review, Bain is given $925,000 ex gratia payment.
