Editorial: Bain likely to face more legal jousting

David Bain's lawyer, Michael Reed, QC, says there should be automatic compensation for people who have been wrongfully imprisoned. It is "absolutely ridiculous" that his client, who spent 13 years behind bars before finally being found not guilty of the 1994 murders of his five family members, should now have to prove his innocence, he says. Many people may instinctively agree, if only to spare Mr Bain further legal jousting. Yet the process following any application by him for compensation will proceed down a path that has stood the test of time. There seems no reason to amend it in this case.

An application for compensation for wrongful imprisonment is examined by an independent legal expert, usually a Queen's Counsel, who then advises the Cabinet whether he or she considers the acquitted person innocent. This can be a stiff hurdle, because establishing innocence on the balance of probabilities is a significant step up from a jury acquittal based on reasonable doubt. For the legal advisers to achieve their goal, it is imperative they have access to any evidence that may have been suppressed and was, therefore, not seen by the jury. Only with such a totality of view can a fair and accurate conclusion be drawn.

Early this year, the process resulted in the Justice Minister declining to compensate Rex Haig, who spent 10 years in prison 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, said Dr Fisher, that Mr Haig was involved in the murder. In an earlier case, David Dougherty was awarded $868,000 after DNA tests proved he did not commit a rape and abduction for which he was convicted. He had been imprisoned for three years.

That sum has led to speculation that Mr Bain could receive $3 million to $5 million if he was found to be innocent. But such compensation seems likely only if he was deemed to be the victim of exceptional circumstances. In the case of Arthur Allan Thomas, this involved the planting of police evidence to gain the conviction. The base sum set by the Cabinet for each year wrongly spent in jail is $100,000. That reflects lost earnings and hurt and humiliation but, presumably, also acknowledges the fact that while inmates have no chance of earning an income, they also have no expenses. Any exceptional circumstances that increased the base sum in Mr Bain's case would have to be carefully considered.

More problematic still for Mr Bain is the retrieval of his inheritance. He received nothing from the sale of his family's properties because this would have been regarded as benefiting from the proceeds of crime. Yet, as the surviving member of the immediate family, he stood to inherit assets that, according to reports, included sections in Dunedin, Whangarei and Bundaberg, $60,000 invested with friends, and a substantial amount in an overseas bank account. This was given to members of the extended family when he was convicted.

Mr Reed has appealed to his client's relatives to be "generous" and give back the inheritance. Yet some family members gave evidence for the Crown at the retrial, and others have been notably reticent in their response. If they are unco-operative, there seems little option for Mr Bain but another courtroom battle.

This tying-up of loose ends will frustrate his supporters. Doubtless, there will be further calls for the Government to be legally obliged to pay compensation. They will remain misplaced. Given the nature and circumstances of the crime and the protracted aftermath, there was never likely to be a tidy outcome. For David Bain, a new part of the legal process is about to begin.