David Bain could get $2m compo
MARTIN VAN BEYNEN
David Bain stands to receive nearly $2 million if the judge appointed to consider his compensation bid finds in his favour.
Justice Minister Simon Power yesterday announced the appointment of retired Canadian Supreme Court Judge Ian Binnie to assess Bain's claim for compensation for wrongful conviction and imprisonment.
Under Cabinet guidelines Bain could be entitled to three different kinds of compensation:
Compensation for loss of liberty and emotional harm based on a starting figure of $100,000 for each year in custody.
Compensation for loss of livelihood and future earnings.
A public apology or statement of innocence.
Bain was in jail for 13 years and might have been expected to earn about $40,000 a year on average during that time. He will have to establish his innocence on the balance of probabilities, which means he will have to show it is more probable he is innocent than guilty. He will also have to show "extraordinary" circumstances.
Power said in a statement that Bain's lawyers had sought legal aid to pursue the compensation application, but were now proceeding without it.
"Due to the long-running and high-profile nature of the case, and after consultation with Bain's lawyers, it was decided a judge from outside New Zealand would be appointed," Power said.
Justice Binnie was appointed a QC (Ontario) in 1979 and served as the Canadian Associate Deputy Minister of Justice from 1982 to 1986. He served on the Supreme Court of Canada for more than 13 years. Canada had a similar compensation regime to New Zealand, Power said.
"Justice Binnie's appointment is a significant step in attempting to resolve Mr Bain's claim for compensation and a step towards achieving finality in this case," Power said
Bain was convicted in 1995 of shooting five members of his family in Dunedin in 1994. In 2007, the Privy Council quashed his convictions on the grounds of a substantial miscarriage of justice and ordered a retrial.
In June 2009 a Christchurch jury found him not guilty.
Power said Bain's claim for compensation fell outside existing Cabinet guidelines because he was acquitted following a retrial.
"However, there's still a residual discretion to consider claims outside the guidelines in `extraordinary circumstances' where it is in the interests of justice to do so, and Justice Binnie will assess Mr Bain's claim under this residual discretion.
"The compensation framework requires claimants to prove their innocence, and at a minimum, under Cabinet guidelines, Mr Bain will need to establish his innocence on the balance of probabilities.
"But because his case falls outside the guidelines, something more is required that demonstrates that the circumstances are extraordinary, and Justice Binnie will decide the best process for assessing Mr Bain's claim against this test."
Justice Binnie will begin work on the case before the end of the year. Binnie will report to the minister of justice who will make a recommendation to the Cabinet, which makes the final decision.
The officer in charge of Bain's re-trial, Detective Inspector Ross Pinkham, said police would be available to help Justice Binnie.
"The police staff involved in the investigation since 1994 have a wide understanding of the issues involved in the case," Pinkham said.
The police file on the case was held in Dunedin and all exhibits held by the High Court in Christchurch.
- © Fairfax NZ News
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