Hurdle 'too high' for Bain to get payout

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

The hurdle is too high for David Bain to get compensation for 13 years wrongly spent in jail, say people involved in New Zealand's other historic retrials.

Mr Bain - who was sent to prison for the murder of four family members in his Dunedin home before being acquitted in a retrial - lodged a compensation claim to Justice Minister Simon Power yesterday that could cost taxpayers more than $1 million.

Other prominent overturned convictions in New Zealand history include:

* Arthur Allan Thomas, pardoned in 1979 for a Waikato double-murder and compensated $1 million after it was found police had planted a rifle cartridge on the scene as evidence;

* David Dougherty, awarded almost $900,000 in 2001, four years after DNA evidence cleared him for the abduction and rape of an 11-year-old girl;

* Rex Haig, who had a conviction for a murder on his fishing boat quashed after 10 years in prison but was refused compensation last February.

Peter Williams, QC, who helped free Mr Thomas, said Mr Bain's application for compensation was "necessary" and he had proved his innocence enough in the courts already.

"I think the bar has been placed too high to prove one's innocence," Mr Williams said.

"An ordinary man on the street could be charged erroneously with a crime and he can't prove innocence."

In Mr Thomas's case, more than 30 years ago, compensation had been vital to help him get back on his feet after nine years in prison, Mr Williams said.

Mr Thomas has settled on a dairy farm in Waikato. He appeared at Mr Bain's trial in Christchurch last March to support him, saying "it has been four decades since my injustice and nothing has changed since".

Mr Haig, who had been convicted in 1995 for the murder of Mark Roderique on his fishing boat off the West Coast, spoke on Radio Live today saying he did not think Mr Bain could get compensation.

"My experience with the Ministry of Justice and the Crown Law office and the Government justice system and part of the judiciary - the chief justice and all that - I wouldn't trust them as far as I could throw them," Mr Haig said.

"And the obvious thing, the obvious fact with David Bain is that Joe Karam and David fought the justice system in New Zealand for years and got nowhere, then they went to the Privy Council who ordered a retrial.

"Now David is back with the New Zealand justice system and this Cabinet criteria nonsense and I don't believe he'll get dealt fairly with."

Stuart Grieve, QC, who played an independent role in Mr Dougherty's wrongful-conviction case, also 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 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 Mr Bain's 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".

Because Mr 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 then takes the application to Cabinet to make a decision on whether or not compensation should be paid.

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.

His 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.

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".

with Herald reporters Vaimoana Tapaleao and Jarrod Booker and NZPA