OPINION: Three years after a jury in the High Court in Christchurch found David Bain not guilty of the murder of his mother, father, brother and two sisters, and 18 years after the shootings, the case continues to be a cause of hot contention. According to Prime Minister John Key the Minister of Justice, Judith Collins, has "some concerns" about a report she has received on Bain's application for compensation for the years he spent in prison after being found guilty by the first jury that heard the matter. Collins has referred the report to one of New Zealand's most eminent barristers for another opinion before making a recommendation to the Cabinet.
The report has not been made public but it has been widely reported that retired Canadian judge Justice Ian Binnie found Bain was innocent, on the balance of probabilities, of the murders and that he should receive compensation. Supporters of Bain have suggested that Collins dislikes this result and is shopping around for an opinion she agrees with.
That is unfair. The decision on compensation will be a highly contentious and political one, whichever way it goes. If she has misgivings about the report she has been given, it is entirely proper that Collins should seek further advice before she makes any recommendation to her Cabinet colleagues.
It is in keeping with the odd trajectory of the case that even this part of it should be abnormal. Under the Cabinet guidelines for deciding whether someone is eligible for compensation, Bain does not qualify. A first requirement is that an applicant should have had his or her conviction quashed on appeal without an order for retrial or have received a free pardon. Bain did not get either of those but rather was acquitted by a jury at his retrial. This means that to get compensation he must show both that he is innocent on the balance of probabilities and also that there are "extraordinary circumstances" such that it is in the interest of justice for him to be compensated.
The task of assessing this was, surprisingly, outsourced by an earlier Minister of Justice, Simon Power, to Canada's Justice Binnie. The aim was to get an opinion from someone entirely outside the New Zealand justice system but it was odd, particularly in light of the fact that New Zealand had not long before ended one of the last vestiges of colonial practice by abolishing final appeals to the Privy Council in London. There are few people who would dissent from the view that it was right to establish the Supreme Court and make the entire justice system a domestic one.
To seek a foreign opinion in one of the most celebrated cases of the century looks like a strange and unjustified loss of confidence in the integrity of those who serve in that system. It is difficult to believe that it was impossible to find a retired judge within the country with the intellect and the integrity to be able to deliver a sound decision. That is, in fact, what Collins will be seeking from the man to whom she has now referred the matter, Robert Fisher QC, a former judge of the High Court and widely recognised as one of New Zealand's pre-eminent legal minds.
The final decision, though, on compensation for Bain will be made by the Cabinet and only one thing about that is certain. Whatever the decision is, a large proportion of the country will be unhappy with it.
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