Bain faces steep hurdle

April 20th, 2010 at 4:00 pm by David Farrar

Simon Power has announced:

Justice Minister has written to the lawyers representing in response to a claim for compensation for wrongful conviction and imprisonment. …

Under Cabinet guidelines adopted in 1998, the category of claimants who are eligible for compensation is limited to those who have had their convictions quashed on appeal without order of retrial, or who have received a free pardon. To receive compensation eligible claimants must establish their innocence on the balance of probabilities.

However, at the same time as adopting those guidelines, Cabinet decided the Crown should have residual discretion to consider claims falling outside the guidelines in “extraordinary circumstances” where it is in the interests of justice to do so.

“Mr Bain’s claim falls outside the guidelines because he was acquitted following a retrial. However, it is open to him to meet the extraordinary circumstances test,” Mr Power said.

Claims under the Crown’s residual discretion are assessed on a case-by-case basis.  At a minimum, and consistent with the Cabinet guidelines applying to eligible claimants, a claimant must establish innocence on the balance of probabilities.  But for claims that fall outside the Cabinet guidelines something more is required that demonstrates that the circumstances are extraordinary.

This is quite significant. Even if David Bain qualified under the guidelines, he would still have to establish his innocence on the balance of probabilities.

In my opinion, that test in itself is a considerable hurdle. There is a large difference between saying there was reasonable doubt over whether David did it, to saying that you think it is more likely Robin Bain was the killer, than David Bain.

But Bain has to go beyond even balance of probabilities. That is the minimum test he would face. As he is outside the guidelines, he has to demonstrate extraordinary circumstances on top of innocence on the balance of probabilities.

As I have said before, I look forward to a QC being appointed, investigating the case, and reporting his or her opinion on the balance of probabilities as to whom was the killer. But before that can happen, a process for establishing what qualifies as extraordinary circumstances needs to be developed.

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56 Responses to “Bain faces steep hurdle”

  1. Pauleastbay (5,035 comments) says:

    he has to demonstrate extraordinary circumstances on top of innocence on the balance of probabilities……………..

    He was found not gulity not innocent.

    A third trial Judge alone or three Judges, juries are flawed too much emotion as was seen at the re-trial debacle.

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  2. MT_Tinman (2,993 comments) says:

    If there was a god the first hurdle the bastard would face would be 12 foot high and topped with razor wire.

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  3. peterwn (3,164 comments) says:

    Normally, a term like ‘extraordinary circumstances’ means what it says legally. Cabinet is not bound by the 1998 policy, it can dispose of the matter as it pleases, although Cabinet would want to handle the matter in a principled manner. If he met the ‘blance of probabilities’ test, I think compensation should be paid especially as there were fairly significant goof ups in the way the whole matter progressed. Presumably the QC will report on both aspects in parallel.

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  4. backster (2,081 comments) says:

    Who pays for the preparation of his application?

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  5. Michaels (1,317 comments) says:

    The whole things just seems to bizare for me.

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  6. RKBee (1,344 comments) says:

    Under our new NZ legal system don’t the NZ Crown Judges now have to consider the spirit of the law.
    Meaning that the publics overall thoughts and opinion on the case will be consided and demonstrates that the circumstances are extraordinary. Therefore qualify David Bain under the those guidelines for a claim for compensation anyway.

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  7. toad (3,669 comments) says:

    Looks like an unfair process to me.

    What legitimate legal reason could there be for someone whose convictions are quashed on appeal and is acquitted by a jury on a retrial having to meet a higher standard of proof of innocence to get compensation than someone whose convictions are quashed on appeal with no retrial ordered?

    Justice demands that the standard of proof in either case to receive compensation for time spent in prison should be that, on the balance of probabilities, the person is innocent of the alleged crime.

    I’m not blaming Simon Power – he inherited this mess. But Power should do something about it and get Cabinet to review the guidelines to ensure they are fair in all circumstances.

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  8. ben (2,396 comments) says:

    This is sad. His guilt on balance of probabilities may never be tested at all. If the first test is extraordinary circumstances, they may be used to prevent the question of his guilt ever being tested. The record will show he was acquitted.

    This is off point, but two things convince me beyond any doubt it was David. First, the day before his murder, Stephen told a friend he woke up in the middle of the night to find David in his room. David said, “bang, you’re dead.” Stephen said he wasn’t sure if he was dreaming. Either that is a hell of a coincidence. Or a rehearsal.

    Second, David explained to a friend two years (I think) before that if he was going to rape somebody, he would use his paper run as cover. Another extraordinary coincidence.

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  9. Pauleastbay (5,035 comments) says:

    The jury couldnt find him guilty beyond resonable doubt, there was no mention he was innocent!!!!!

    Huge difference,

    Spirit of the law is something ethereal, it has no standing in any Court in New Zealand

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  10. slightlyrighty (2,496 comments) says:

    Regardless of what you think of Bains guilt or innocence, the fact is he spent 13 years behind bars, effectively without conviction. The conviction was quashed, he was found not guilty at retrial.

    Compensation should not be open to debate and deliberation. In the eyes of the law, based on verdict, and the assumption of innocence, he is innocent.

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  11. krazykiwi (9,189 comments) says:

    Spirit of the law is something ethereal, it has no standing in any Court in New Zealand

    I’m not so sure. How about Treaty entitlement for tribes that never signed?

    Edit: Second thoughts, please reply at GD not here – don’t want to incur any threadjack discontent from our kindly host.

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  12. slightlyrighty (2,496 comments) says:

    Pauleastbay, the law states that a person is innocent until PROVEN guilty. According to the law, he is innocent, wether you or I like it or not. The burden of proof required for compensation is far too high in this case.

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  13. Kieran_B (81 comments) says:

    I can’t believe the paper run evidence that ben mentioned was suppressed from the trial. Bain told a friend about a specific girl he had the hots for, and he had a plan to rape her. This was to do his paper run a lot faster than usual, commit the crime, then claim innocence because he couldn’t have performed the rape, because he would have still been on his paper run during the time that it occurred.

    Sound like a similar defence from the trial? What a crock of shit.

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  14. dad4justice (7,790 comments) says:

    I can’t believe Dunedin CIB were shagging David’s sister.

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  15. noodle (151 comments) says:

    Bain is self-deluded, naive and poor. Karam is a deluded opportunist having the biggest bang of his life and he’s dragging his pitiful ” opportunity” around on a leash because he, for whatever sad reason, cannot let him go. Apparently, he went to visit Bain in prison and said words to the effect of, “I looked into his eyes and knew he was innocent.”

    Dunno about the law, but I know human frailty when I see it.

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  16. big bruv (13,314 comments) says:

    Toad

    “I’m not blaming Simon Power – he inherited this mess. But Power should do something about it and get Cabinet to review the guidelines to ensure they are fair in all circumstances.”

    So it would be fair for the tax payer to fork out 1 million dollars because Bain MIGHT NOT have killed his family?

    Fuck that!, I have no issue with the money paid to A A Thomas, that bugger deserved every cent however I do not want Bain getting one penny of my money.

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  17. Put it away (2,888 comments) says:

    I think his steepest hurdle is going to be being guilty as fuck

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  18. toad (3,669 comments) says:

    @d4j 6:47pm

    Tell us more d4j. I usually dismiss your comments as being ideologically rather than evidence based d4j, but it looks like you know something here. If this one has any evidence behind it, let us know.

    Maybe the Dunedin Police were corrupt rapists like the Rotorua Police back in those days.

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  19. big bruv (13,314 comments) says:

    “were corrupt rapists like the Rotorua Police back in those days.”

    Based on the evidence of an out and out slapper you mean?

    How can you believe a word that female has to say Toad?

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  20. Put it away (2,888 comments) says:

    toad – translation “I think you’re a liar, but you just said something that agrees with my prejedices, so I’m happy to believe you this one time”. Is this what you call “evidence based” ?

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  21. Brian Marshall (188 comments) says:

    Toad says “Looks like an unfair process to me.

    What legitimate legal reason could there be for someone whose convictions are quashed on appeal and is acquitted by a jury on a retrial having to meet a higher standard of proof of innocence to get compensation than someone whose convictions are quashed on appeal with no retrial ordered?”

    Did you read the trial evidence Toad????? You can Fkn pay him compensation out of your own pocket, but I think the 2nd jury got it wrong and the police were right to charge him and the 1st jury were right to convict him.

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  22. reid (15,954 comments) says:

    Those Cabinet guidelines sound like they were written by lawyers under heavy advice from more lawyers and approved by ignorant bystanders and more lawyers who’d never suffered wrongful conviction nor knew at firsthand (i.e. family-length) the details of anyone who had.

    A vigorously defended vested interest disguised as an intellectual conviction once again raises the spectre of its ugly head on the balance of probabilities but not beyond reasonable doubt.

    Seriously, there are a mere handful of widely-held-to-be “uncomfortable” serious convictions within the last 20 years in NZ. There are probably many others in fact which never appear on the public radar but nevertheless, despite this tiny handful, there is an absolute stonewall reluctance of Madam Justice to acknowledge even the possibility of a mistaken conviction.

    Perhaps in times past this was necessary in order to preserve confidence in the system. These days, with numerous well-educated very literate intelligent men and women who exist outside the rarified field of the legal profession, WHO ACTUALLY KNOW HOW MANY BEANS MAKE FIVE AND AREN’T NECESSARILY UNEMPLOYED LOUTS OR FEEBLE-MINDED PENSIONERS OR IDIOT LEFTIES, perhaps it’s time to look again at those rules and recognise that THESE DAYS its not only the legal profession that understand the arcane world of “justice, seen to be done.”

    As any lawyer will tell you, there is a difference between reality and law. You can in fact commit the offence but not be guilty in law and vice versa.

    Well, if Bain is guilty, apparently the law doesn’t agree. Ergo, compensate him. Change those Cabinet Rules.

    If you think doing so will open the floodgates, then how many convictions that have resulted in imprisonment, are reversed on appeal.

    Regardless of the number, perhaps giving the State an incentive to get the fucking thing legally correct in the first place, is not a bad thing.

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  23. toad (3,669 comments) says:

    @Put it away 7:44 pm

    Hey, evidence is evidence. It depends what the test is. In science it is 95% statistical significance (but climate change deniers deliberately misinterpret that by shortening the sample to get the statistical significance below that level). In criminal law it is “beyond reasonable doubt”. In civil law, it is “on the balance of probabilities”. That is the test that I believe David Bain should have to meet to get compensation – i.e. is it more likely that someone else killed his family than that he did?

    Regardless of whether he actually committed the crime, and I have an open mind on that, from what I have read, he has been acquitted and the process for his claim for compensation should follow the normal tests in law, rather than some higher level of test that has been dreamed up by the Cabinet in 1998 but never been given any legal status other than a Cabinet minute.

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  24. Psycho Milt (2,267 comments) says:

    I particularly enjoyed 3News’ claim that for Bain to get compensation, he must “prove that his version of events is the most likely to be true.” Er, his version of events? I’ve never heard of him giving his version of events. Joe Karam’s given his version, and various defence lawyers have given theirs, but the man himself has never had anything to say on the subject. His first hurdle’s going to be actually coming up with some version of events he can call his…

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  25. Inventory2 (10,104 comments) says:

    Milt – Bain did give evidence at the first trial; he has been silent since.

    No, that’s unfair; Joe Karam has been his voice since.

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  26. toad (3,669 comments) says:

    Oh, and by the way, I was never one of those clamouring about Bain’s innocence.

    Rex Haig, now freed, was a much worse case, as were those of David Tamihere and Scott Watson, who I believe were fitted up to ensure they never got fair trials so the Police could look good by getting a conviction. As with Bain, I don’t know if they “did it”, but on any objective test “beyond reasonable doubt”, there was inadequate evidence of their guilt to properly secure a conviction. Both of them, however, were characterised in the media at the initiative of the Police as arseholes (probably correctly) so they never stood a chance with a jury, regardless of their guilt or innocence.

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  27. malcolm (2,000 comments) says:

    I hope David Bain has the good sense to talk Joe Karam out of a compensation bid. He’s got away with murder as far as I can see. If I was him I wouldn’t push my luck.

    Anyway where’s the retrial for Scott Watson – sure he’s probably a complete wanker but I don’t think he could have done it. Also one of the police’s secret witnesses has since recanted his story.

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  28. big bruv (13,314 comments) says:

    David Tamihere and Scott Watson are exactly where they should be, I suspect that neither of them are guilty of the crimes that sent them down but every once in a while the public get a little bit of natural or poetic justice going their way.

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  29. Psycho Milt (2,267 comments) says:

    Bain did give evidence at the first trial; he has been silent since.

    Ah, thank you. I was out of the country for the first trial and saw nothing of it, so shouldn’t be making comments as though I had.

    Interesting, though – having looked through the records of the first trial and assessed the effect of Bain’s testimony, his defence lawyers for the second trial decided he was best served by remaining silent. That doesn’t suggest excellent prospects for “his version of events” being judged the most likely on the balance of probabilities, you’d think…

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  30. dad4justice (7,790 comments) says:

    big blouse your last comment clearly indicates you are a mental nutbar. Get treatment you nitwit.

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  31. Guy Fawkes (702 comments) says:

    As there is a case for all the evidence to be reviewed in Chambers, let it be so.

    I wasn’t there at the time of the horrendous events, and neither were most of the commentators here.

    Just let due process happen.

    The good guys win in the end. If he is not innocent, then he should get nothing.

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  32. big bruv (13,314 comments) says:

    You think Tamihere and Watson are fine upstanding members of our community do you D4J?

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  33. dad4justice (7,790 comments) says:

    Injustice sucks big blouse. But you would know better being a know all blow hard coward.

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  34. Brian Marshall (188 comments) says:

    So Toad, should we be paying the Waihopai three compensation for the time they were remanded in Custody???

    And while we are at it, could you find that there is Anthropological Global Warming beyond reasonable doubt??? Will I be entitled to compensation for being taxed for being cautious and taking actions just incase it really happens, if it turns out it’s rubbish??

    Will I have to pay for that also?

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  35. Chuck Bird (4,684 comments) says:

    BB, what terrible things has Scott Watson done that you could call it natural justice for him to spend years in jail for murders he did not commit?

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  36. dad4justice (7,790 comments) says:

    Chuck, big blouse is not well in the head.

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  37. big bruv (13,314 comments) says:

    What would you know about injustice D4J?

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  38. dad4justice (7,790 comments) says:

    Sorry big blouse – don’t answer cowards who don’t have a real name. Get a grip you ego cowardly blogsmear.
    Peter Burns.

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  39. big bruv (13,314 comments) says:

    Typical, you never answer questions D4J…

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  40. dad4justice (7,790 comments) says:

    Peter Burns does not answer questions from blog cowards like you big blouse.
    Ask me face to face a question and I will answer. Not your style eh cowardly smear. What a disgrace you are. Get some help.

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  41. Chuck Bird (4,684 comments) says:

    BB, you never answered my question.

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  42. nickb (3,659 comments) says:

    Care to elaborate on WAtson and Tamihere BB? Havent followed these cases much.

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  43. dad4justice (7,790 comments) says:

    We are all waiting big blouse. Why people bother with the crackpot is beyond belief. The know all is a blow hard tugger.

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  44. Haiku Dave (273 comments) says:

    i think the bains were
    killed by david, robin, phil
    goff or redbaiter

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  45. Haiku Dave (273 comments) says:

    i hear scott watson
    was rude to girls and didn’t
    file his tax return

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  46. Haiku Dave (273 comments) says:

    as for david wayne
    tamihere – he’d be best
    in a secure zoo

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  47. dime (9,458 comments) says:

    Peter Burns seems to speak about himself in the 3rd though. thats my routine dammit!

    Kiwis are a funny lot, dont like crims, but dont like to believe a convicted murderer is a murderer either…

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  48. dad4justice (7,790 comments) says:

    dime should get a spine
    he took my line
    go whine to a pine

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  49. Short Shriveled and Slightly to the Left (762 comments) says:

    “Kiwis are a funny lot, dont like crims, but dont like to believe a convicted murderer is a murderer either…”

    bang on

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  50. malcolm (2,000 comments) says:

    David Tamihere and Scott Watson are exactly where they should be, I suspect that neither of them are guilty of the crimes that sent them down but every once in a while the public get a little bit of natural or poetic justice going their way.

    How is it natural justice if the real killers have gotten away scott-free, at large to kill again, the families never know what happened to their children or get their bodies back, someone spends ‘life’ in prison for murders they didn’t commit and the lives of their families are ruined?

    But that’s ok. Scott Watson was a bit of a wanker. Apparently. At least that’s what I heard from rumours, many of which it turns out were put about by police.

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  51. GPT1 (2,090 comments) says:

    In no way do I think Bain can come close to showing innocence on the balance of probabilities but I am a little concerned by the high threshold. If you’ve been locked up for a few years and you can show on balance that you are innocent then you should be entitled to compensation. That’s the standard to right any other civil wrong so I do not see why it should be different for someone found Not Guilty in a re trial.

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  52. Haiku Dave (273 comments) says:

    imitation is
    sincere form of flattery
    but not a haiku

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  53. Haiku Dave (273 comments) says:

    the cops who put dave
    in THAT sweater should get a
    comedy award

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  54. Murray (8,838 comments) says:

    Innocent until proven guilty… unless it costs the government money to cock up a case.

    Having said that Bain is really pushing his luck and the Joe Karam traveling road show of victimhood should pack up its tent and stop peddling snake oil.

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  55. Kent Parker (449 comments) says:

    Go here: http://davidbain.counterspin.co.nz/news/explanation-of-extraordinary-circumstances for an explanation of extraordinary circumstances in this case.

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  56. bobberesford.com (12 comments) says:

    Our justice system sucks…badly. it operates as an Employment Scheme for lawyers, while truth is often suppressed. Really it’s often a contest of which side can lie best or pull the best legal tricks. The fact that judges are ex lawyers who have therefore routinely lied and re-arranged reality at huge hourly rates ( $150 an hour on legal aid up to $1000 an hour for a QC ) doesn’t help.

    It was always clear there’d be a big claim for millions in compensation …and Joe Karam would want to do a movie ( David never did ) after years of ‘Trial by Television ‘. Main thing now in a compensation case would be to get David to talk.

    I was inside this case for years and visited David in prison, as one of his main benefactors, though gratefully never part of JK’s publicity campaign. It’s complex, and the ‘facts’ are often quoted wrongly but there’s certainly strong indicators pointing to David – for at least some of what happened.

    This case has cost the country a heap, incl in the legal aid, so it probably deserves an unbiased enquiry. ( The Brian Bruce doco was wrong on some things, right on some, inept on others. And that last witness is obviously lying. )

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