Time to acknowledge Bain's innocence

18:57, Dec 05 2012

Guess we shouldn't be too surprised. When it comes to the concept of "fairness" this Government has long shown its true colours. Pay cuts for the young; tax cuts for the rich; 89-day sacking laws for youth workers; relaxed industrial relations laws for employers. Much ado about law and order; disgraceful oversight of policing. And so on. Penal measures for beneficiaries, random attacks on teachers. Whatever it stands for, it certainly isn't fairness.

That's why it was hard not to laugh out loud the other day when the Prime Minister put on hold a recommendation to compensate David Bain for wrongful conviction while a second opinion was sought. An independent assessment from an esteemed former Canadian Supreme Court judge apparently wasn't enough. "There will be a lot of public interest in what happens here," says Key. "Obviously the Government needs to ensure it's fair."

Fair? You might have thought "fair" would involve accepting the view of an unconflicted, bipartisan expert, particularly one who cost an arm and a leg to hire in the first place. But no, Key's comment about "public interest" says it all, really. "Fair", to him and his justice minister Judith Collins, seems to have more to do with political expedience than any sense of even-handedness. If it's not considered popular with their faithful, evidently it might not be considered fair.

Never mind David Bain. Sometimes, often because of circumstances well beyond one's control, it's almost impossible to prove your innocence - no matter how many times you might be found not guilty. But the findings of retired Justice Ian Binnie are about as impartial as we'll ever get. According to his report, on the balance of probabilities, Bain is innocent of the murder of his parents, two sisters and brother in Dunedin in 1994.

Happened to be living in Dunedin when all that happened. A more difficult or complex case you'd seldom find; particularly given the police role in the affair. Rightly or wrongly, from an investigating officer who painted "Hang David Bain" on his fence, to suggestions of planted evidence and the destruction of what should have become key exhibits, there was a perception Bain was being forced to play with a loaded dice. It's something that's never really disappeared.

By now, everyone in the country has their own take on the murders. There's been detailed exposure to the initial trial and the High Court appeal in 2002. Then there were the Privy Council findings five years later (a decision that quashed the convictions and ordered a retrial); and the retrial itself, in which Bain was acquitted. No wonder former justice minister Simon Power preferred the compensation claim to be judged by an outside expert.

With this in mind, Bain's lawyer might well ask what sort of fairness the PM and Mrs Collins are speaking of. Justice Binnie's exhaustive review of the case and his consideration of the compensation claim took months, cost hundreds of thousands of dollars and included interviews with Bain. If you include the Privy Council, that's now two independent authorities that have declared a massive miscarriage of justice. What could Mrs Collins know that they don't?

Fairness? David Bain was wrongfully imprisoned for 13 years. That's the only conclusion you can take from his acquittal in 2009. His life has been irreparably damaged through no fault of his own. As if having his close family murdered wasn't traumatic enough, he's then been denigrated and persecuted, and stigmatised for life. Mr Binnie, emotionally unconnected and in receipt of all admissible evidence, reckons it's fair to say he's probably innocent.

For the Government, though? Seems fairness has less to do with justice, and more to do with politics.

» Read more of Richard Boock in the Sunday Star Times.
» Follow Richard on Twitter: @richardboock.

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