If David Bain is innocent of the murder of his parents, two sisters and brother he deserves to be compensated for the 13 years he spent in prison. If he is guilty he does not deserve a cent.
The concerns raised by Auckland QC Robert Fisher about retired Canadian judge Ian Binnie's report on the case are such that it cannot be used as the basis to compensate Mr Bain.
Justice Binnie is an eminent Canadian jurist. He is a former associate deputy minister of justice and served on the Canadian Supreme Court for 13 years.
His report on the case, for which he was paid $400,000, was released yesterday. In it, he concludes that it is "more likely than not" that Mr Bain is innocent of the killings and that, therefore, he should be compensated.
However, Dr Fisher's review of his report - commissioned by Justice Minister Judith Collins - suggests Justice Binnie misunderstood his brief and misunderstood the principles under which wrongful imprisonment claims are assessed. It is difficult to conceive of a more damning critique.
According to Dr Fisher, Justice Binnie made fundamental errors of principle in assessing whether Mr Bain was innocent or guilty. Foremost among those was his decision to disregard any item of evidence that was not proved on the balance of probabilities, rather than to consider all the evidence in totality and then decide whether or not Mr Bain has established his innocence.
As a consequence, Dr Fisher said, Justice Binnie had excluded a great deal of evidence that others regarded as significant, among it: the bloodstains on Mr Bain's clothing, the broken glasses, Mr Bain's fingerprints on the murder weapon, his father's motive and mental stability, Mr Bain's admission that he heard his sister gurgling, Mr Bain's gloves and his knowledge of the whereabouts of the key that unlocked the trigger guard to the rifle.
Some of that evidence pointed to Mr Bain's guilt; some of it pointed to his father's. But it is difficult for the layperson to understand why any of it should have been summarily discarded.
As those who have taken even a cursory interest in the case over the past 18 years know, there is a considerable body of evidence pointing to Mr Bain's guilt and an equally sizeable body of evidence suggesting he returned from his paper round to find his father had shot his siblings and mother and then turned the rifle on himself.
It would seem sensible to consider all the evidence in totality before reaching a conclusion.
Mrs Collins has said she is not prepared to make a recommendation to Cabinet on the basis of what she considers a "fundamentally flawed" report. A decision on how to proceed will be made in the New Year.
The delay is unsatisfactory for the public and even more unsatisfactory for Mr Bain. As Dr Fisher has noted, the flaws in Justice Binnie's report do not mean Mr Bain is guilty.
However, for Mr Bain's sake as well as for the justice system's, it is vital that when a decision is made it is based on reasoning that withstands scrutiny.
- The Dominion Post