David Bain must prove innocence to get payout

David Bain is now penniless, says his lawyer. Photo / Janna Dixon

David Bain - who spent 13 years in prison for the murder of five family members before being acquitted in a retrial - has lodged a compensation claim that could cost taxpayers more than $1 million.

Justice Minister Simon Power received notification from Mr Bain's lawyers yesterday afternoon of a claim for "wrongful conviction and imprisonment".

Mr Bain's lawyer, Michael Reed, QC, last night told the Herald his legal team was "inviting dialogue with the minister" on a case he called "probably the worst miscarriage of justice in New Zealand history".

Asked how confident he was of success, Mr Reed said: "We wouldn't be putting it forward unless we thought it was deserved."

There was "no magic" in the timing of the claim ... "We have just got around to dealing with it."

Mr Reed would not discuss how much compensation was being sought or Mr Bain's current circumstances. He said Mr Bain was "penniless".

Long-time Bain supporter Joe Karam last night also refused to talk about the compensation claim or discuss where Mr Bain was.

The Ministry of Justice puts the base rate for wrongful-conviction compensation payments at $100,000 for each year spent in prison.

The Ministry is still considering how it will deal with the bid, however according to its compensation guidelines to the Cabinet, Bain does not appear to be eligible.

Cabinet guidelines require claimants seeking compensation to "have received a free pardon or have had their convictions quashed on appeal without order of retrial".

Last June, Mr Bain was acquitted at a retrial of murdering his parents Robin and Margaret Bain and his three siblings, Laniet, Arawa and Stephen, in their Dunedin home in 1994.

Because Bain does not appear to meet the cabinet guidelines, the Ministry of Justice must assess whether there are "extraordinary circumstances" to allow the bid to continue.

If extraordinary circumstances are found, the Ministry can recommend an amount of compensation to the minister of Justice. The Minister than takes the application to Cabinet to make a decision on whether or not compensation should be paid.

Bain's legal team has previously raised the prospect of trying to claim the inheritance from his family that went to other relatives.

Mr Reed said last night: "We are very disappointed the family has not seen fit to refund the money that properly should have gone to David."

Asked if legal action to try to recover this money was being considered, he said: "Indeed it is."

One of David Bain's uncles, John Boyd, said last night that the compensation bid seemed a matter between the Crown and his nephew's lawyers and it was not for him to comment.

However, he added: "David has never denied to any of us aunts or uncles that he committed the crime."

A leading lawyer, who would not be named, said last night that Mr Bain had "no chance" of succeeding in his claim for compensation.

And Stuart Grieve, QC, who played an independent role in one wrongful-conviction case, played down Mr Bain's chances of success.

He said Mr Bain faced "a considerable uphill battle".

"He's got to prove on the balance of probabilities that he is innocent - that is, that he did not do it. And that is a very different thing from being found not guilty."

Mr Grieve was involved in determining compensation for David Dougherty, who in 2001 was awarded almost $900,000 after being wrongfully imprisoned for the abduction and rape of an 11-year-old girl.

Last night, a University of Otago criminal law professor said Mr Bain's fight for compensation would involve proving that his father Robin Bain murdered his family.

Professor Kevin Dawkins thought Mr Bain could receive between $2 million and $3 million, "but, crucially, he has to pass the first hurdle".