KEY POINTS:
The final decision on whether David Bain will face a new murder trial rests with the man who lost the Crown's case at the Privy Council in London, Solicitor-General David Collins, QC.
And while Bain's legal team is putting its hope in an early release for Bain next Tuesday at a bail hearing, the Privy Council judgment emphatically states that "the appellant [Bain] must remain in custody meanwhile".
Dr Collins' Crown Law Office refused to comment yesterday on when a decision about a retrial would be made or how it would be made but it will involve close consultation with the police.
And any decisions on whether Bain should get compensation - if he walks free - would ultimately be the Cabinet's.
But the Government will not be consulted by its top legal officer over whether there should be a retrial, Attorney-General Michael Cullen said yesterday: "The decision is solely for the Solicitor-General to make."
Few lawyers the Herald contacted yesterday believed Dr Collins would order one given that the murders occurred 13 years ago.
But some believed Crown Law would order a retrial to show it was right all along and to restore some confidence in the justice system badly shaken by the Privy Council decision to quash Bain's five murder convictions and implicitly criticise the Court of Appeal for not having ordered a retrial earlier.
Crown Law has its own established guidelines for determining whether to prosecute but they are sufficiently broad to justify a decision either way.
Two main criteria for prosecution are:* Sufficient evidence.* In the public interest.
The criteria for determining whether a prosecution is in the public interest include:
* The effect of a decision not to prosecute.
* The staleness of the offence.
* Whether prosecution might make the accused a martyr.
* The likely length and expense of the trial.
Bain's bail hearing is scheduled for Tuesday at 2.15pm in the High Court at Christchurch.
Bain's lawyer, Michael Reed, QC, said his client was entitled to bail.
"His convictions have been quashed so he's like anyone accused of a crime. He's not guilty unless proved guilty."
Asked if he expected bail to be opposed, Mr Reed said: "I have no idea but if they do oppose it, it would be outrageous."
Detective Superintendent Malcolm Burgess would not comment on whether police would oppose bail.
"Police would have a significant input into any decision around bail. We would take into account all those things listed in the Bail Act."
The legislation lists, among other things, the likelihood to offend while on bail as a factor that might prevent bail being granted.
Mr Burgess said the police would meet Crown Law staff to discuss the evidence.
"We'll be making an assessment on what witnesses and what evidence are available to assist the Crown in reaching its decision," Mr Burgess said.
"I know people have said that witnesses [from the original trial] have died. I'm not personally aware of that - and until we've gone through the exercise of determining the state of the evidence, we won't know the answer," he said.
Dunedin Crown Solicitor Robin Bates, who was involved in the original trial but not in the appeals, believed he would be consulted over a possible retrial. He did not know if any evidence in the original trial would no longer be available for a retrial, but was aware of reports that some witnesses had died.
"Even from the vague recollection I have of the events, I do not know who they are referring to, but that will obviously come out in due course."
Former MP Stephen Franks, who has returned to practising law, said yesterday that if Dr Collins was thinking of the interests of his "client", the Government, "he would say, 'Let it rest'."
That was because of the expense, and because of the doubt there would always be over holding a trial at such distance in time from the killings.
"I can't see an interest-of-justice purpose served by putting a spurious finality over it now."
Wellington barrister Greg King believes Crown Law will be under pressure to demonstrate that "they got it right the first time".
"They will be wanting to say that the man who spent 13 years in jail was a guilty man," he said on One News last night. "I think those pressures are real and I think they should not be underestimated."
Solicitor-General raised eyebrows
The decision by Solicitor-General David Collins to run the David Bain case himself at the Privy Council in London raised a few eyebrows in Wellington.
The view of insiders after he returned was that the case had not run as well as it might have in the hands of a criminal law expert.
Well before the judgment was released on Thursday night, Crown Law had been bracing itself for a loss.
Dr Collins made his reputation as a litigator in the legal medical field.
In the 10 months since he started as Solicitor-General, Dr Collins has earned a reputation for being a hands-on litigator who prefers to run big cases himself rather than to delegate.
He represented the Crown in the case involving the release of Family Court documents around the kidnapping of Hamilton boy Jayden Headley.
Crown Law spokeswoman Jan Fulstow said he had four cases lined up in the Supreme Court but they were not high-profile ones.
The most high-profile cases by Dr Collins' predecessor, Terence Arnold, QC, were representing the Crown at the foreshore and seabed hearings and whether Ahmed Zaoui should be kept in jail while his security status is determined.
