Editorial: Bain facing a tough but fair challenge

The nub of David Bain's problem is that he now must, effectively, prove his innocence to a Queen's Counsel. Photo / Janna Dixon

Opinion

It has been the best part of a year since a retrial jury found David Bain not guilty of the 1994 murder of five family members. During that time, he must have thought long and hard about seeking compensation for wrongful conviction and imprisonment. He would have been aware that, despite having spent 13 years in prison, there was no guarantee of a payout. Indeed, legal experts have variously concluded that he has "no chance" of succeeding in his claim or, at best, faces "a considerable uphill battle".

The nub of Mr Bain's problem is that he now must, effectively, prove his innocence to a Queen's Counsel, who reports to the Cabinet on the merits of the claim and any appropriate sum of compensation. Establishing innocence on the balance of probabilities is a substantial step up from a jury acquittal based on reasonable doubt. The height of that hurdle has led some to suggest that being found not guilty in the courts should be enough to qualify for automatic compensation.

Such a step would save Mr Bain from another round of stressful legal inquiry. The present process has, however, proved satisfactory in practice. Most importantly, the Queen's Counsel has access to any evidence that may have been suppressed and was, therefore, not heard by the jury.

In the case of the retrial jury, this involved police claims that Mr Bain said "I shot the prick" in his 111 call to report the deaths of his family. Also suppressed was Crown evidence that Mr Bain had told a school friend of a plan to rape a female jogger, using his paper round as an alibi.

When this material was released after the retrial, it caused considerable unease, not least because it pointed to the jury not being fully in the picture. Equally, the first jury had not heard evidence that suggested Laniet Bain was about to reveal an incestuous relationship with her father, Robin. A Queen's Counsel armed with an overall view clearly stands a better chance of arriving at a fair and accurate verdict.

Recent practice reinforces the view that Mr Bain is travelling a difficult road. Last year, the Justice Minister declined to compensate Rex Haig, who spent 10 years in jail for murder before his conviction was set aside by the Court of Appeal. Robert Fisher, QC, reported to the Cabinet that Mr Haig had "failed to show on the balance of probabilities he is innocent of the crime with which he is charged". It remained likely, Dr Fisher said, that Mr Haig was involved in the murder.

For Mr Bain to establish his innocence and achieve, perhaps, $1 million-plus in compensation, he will, essentially, have to prove his father murdered his family. A recommendation for compensation to the Cabinet by the Queen's Counsel will, obviously, signal that this has been achieved on the balance of probabilities. A recommendation not to compensate will signify doubts about the retrial jury's decision. Alternatively, the QC may be unable to reach a conclusion. Either way, Mr Bain must endure another round of legal jousting only a relatively short period after the 12-week retrial.

The decision to go through it may owe something to his financial circumstance. According to his lawyer, he is "penniless". Members of his extended family, who were given significant property and cash when he was convicted, have declined to give this back. Some had given evidence for the Crown at the retrial. That suggests Mr Bain has more than one legal fight on his hands. Such a protracted aftermath prompts a degree of sympathy for him. Nonetheless, a Queen's Counsel's verdict based on the totality of evidence remains a reasonable means of judging his compensation claim.