Bain offer no surprise

December 28th, 2010 at 12:00 pm by David Farrar

I have said for over a year that I would be amazed if the defence team pursue their compensation claim through the normal channels, as this requires a QC to inquire into the case and determine whether Bain is innocent on the balance of probabilities.

There is a massive difference between reasonable doubt and balance of probabilities.

So I was not surprised to read today in the Herald:

Mr Reed told the Herald that Mr Power had informed the Bain camp that it had to prove that “on the balance of probabilities” Mr Bain was innocent.

Because Mr Bain did not have his murder convictions quashed on appeal without order of retrial, and was not given a free pardon, he must also show his compensation bid meets the standard of “extraordinary circumstances”.

“This is going to involve a huge case, which in our estimation may end up costing everyone about $10 million, with an overseas judge to be appointed,” Mr Reed said.

“We have offered a short cut, but that has been rejected. The short cut is that we talk to the Government about a negotiated settlement, because we are concerned that the cost of proving David’s innocence – which we are quite confident we can do – is going to be much greater than the amount of any compensation we would be claiming.”

That’s very noble of Mr Reed to worry about the cost to the taxpayer and generously put aside his own ability to charges thousands of hours of work, by offering to settle the claim without that minor technicality of proof of innocence on balance of probabilities.

I am sure in no way at all, are they worried about having to convince a QC that the “Robin did it theory” is not just plausible but in fact probable.

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20 Responses to “Bain offer no surprise”

  1. wreck1080 (3,865 comments) says:

    Cost to taxpayer is a good point though.

    If a failed claim will cost taxpayers 10 million anyway, then I’m all for throwing bain a 1 million dollar bone instead.

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

    I’m prepared to offer the bastard life in prison.

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  3. peterwn (3,239 comments) says:

    I already commented in ‘general comments’.

    A legal action can often be ‘cut off at the pass’ if one side shows that it has no hope of success on the undisputed evidence at hand. In this instance thre Crown will no doubt argue that any Executive’s (ie Cabinet’s) decision to pay or not pay compensation is simply not reviewable by the courts. Applies similarly to availability of legal aid except the threshhold is probably much higher ie perhaps a reasonably probability of success.

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  4. Right of way is Way of Right (1,129 comments) says:

    I think that the Ministry of Justice should simply work out exactly what the full cost of such an judicial process would be, taking in to account the cost of legal counsel for David Bain, counsel for the Crown, judges salaries, court time, and so on and so on.

    I am sure the bill for that alone will come to more than a few Million.

    They should then simply write a cheque for the full amount.

    And give it to Peter Ellis!

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  5. BlairM (2,317 comments) says:

    If a failed claim will cost taxpayers 10 million anyway, then I’m all for throwing bain a 1 million dollar bone instead.

    Well giving in to blackmail is usually cheaper and less costly than the alternative. That is why people do it! And that is why we must not give in to it.

    Justice is a legitimate role of government. I’d rather that government legal aid were abolished for appeals and petitions alltogether. But that not being the case, I would rather spend ten million dollars on establishing once and for all that that scoundrel murdered his family than allow him to bully us into giving him a smaller portion of that. The latter would be an incalculable travesty. How much should our souls cost?!

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  6. Dexter (285 comments) says:

    One would have thought that the Bain team would actually be pushing for the claim to be judged by a QC, as that would surely put to rest any doubts people have as to his guilt, rather than publicly pressurizing the government and trying to subvert due process. And surely there would be no need to recall all the witnesses, just transcripts of the evidence would suffice.

    It’s pretty clear they fear what will happen when the evidence is examined by an independent learned legal mind ie another Thorpe report.

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  7. Kent Parker (451 comments) says:

    If the claim is to be judged by a QC, then what is all this talk about a trial, witnesses and overseas judges?

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  8. Kent Parker (451 comments) says:

    I might have to add as an after-thought or a disclaimer, that since running the site at http://davidbain.counterspin.co.nz we have been approached by at least one person who has supplied us with new testimony which we converted into an affidavit which was sent to the ministry. This testimony, for me, answered all questions of incest and murder and I have no doubt about the probability of guilt in this case. If the case was retried then we would be making every effort to get this evidence heard and we have every confidence that such a case would fail on the basis of this evidence and other evidence that would come forth and because this time round there would be a lot more support for the prosecution side than there was in the 2009 retrial.

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  9. lilman (949 comments) says:

    One has only to look at New Zealand and wonder why we are where we are.
    This person ,who was wrongly convicted is a saint,I believe he must be!!!
    Where in any court in the modern world is HEARSAY and speculation allowed to sway common sense and fact.
    If he was innocent why didnt he take the stand,a simple question ducked by anyone who wants convenience and excuse.
    Pay him what he deserves ,with the lash.

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  10. peterwn (3,239 comments) says:

    Kent Parker – What I think will happen is David Bain’s lawyer will take a legal aid application right up to Supreme Court where the SC will confirm decisions not to grant legal aid as there is little prospect of any substantive case being successful. He will want all judges previously involved (Tipping J would be first in the ‘firing line’) to stand aside. Hence the talk of overseas jusges which is just that.

    Secondly he will argue that Cabinet’s policy and prosesses involving compensation are justicable (open to review bythe court). Whether they are is a matter of law and the SC will almost certainly rule they are not.

    Hence whether Robin did it, etc, etc will never see the light of day in the courts.

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  11. Kent Parker (451 comments) says:

    Surely questions of who did it play a part in the prospect of any substantive case being successful or not?

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  12. Yvette (2,763 comments) says:

    When Joe Karam first became involved in the David Bain case (c. 1996) he paid for the then legal counsel, Michael Guest, to take the case to the Privy Council in London. In the process he also secured an agreement to a share in the earnings that David Bain might one day earn from the proceeds of the case. (Karam confirms this himself on page 20 of his book David and Goliath). This is an unusual step for someone who is on a crusade for justice.”
    http://davidbain.counterspin.co.nz/income

    Income to date estimated for Karam: $ 697,520

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  13. ross (1,454 comments) says:

    > what is all this talk about a trial, witnesses and overseas judges?

    No mention of a trial, but I am bemused by Reed’s call for an overseas judge. I don’t know why such a judge is needed. As for a cost of $10 million, Reed has plucked this figure out of the air. He assumes that Legal Aid will give him this sum. That’s a big assumption to make. Personally, I’d say to Reed that since he’s so confident of proving Bain’s innocence, he should front up with the costs and Legal Aid will reimburse him when he’s won his case!

    I agree with Dexter – Bain supposedly wants to prove his innocence. He won’t be able to do that if he takes a handout from the government.

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  14. ross (1,454 comments) says:

    peteren @ Hence whether Robin did it, etc, etc will never see the light of day in the courts.

    Well, the defence tried to pin the crime on Robin at David’s re-trial. The trouble is that in trying to pin it on Robin, the defence turned a blind eye to evidence incriminating David.

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  15. Mark (497 comments) says:

    The government should is correct to say no, as David Bain should not profit from his crime.

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  16. GPT1 (2,116 comments) says:

    The Robin did it theory is ridiculous and there should be 12 very ashamed jurors out there. He should STFU whilst he is ahead although Reed’s arrogance is unlikely to allow him to let the matter rest out of the limelight for long. Good luck proving it was more likely than not that Robin killed him (ie: more likely than not that David did not).

    Heh, if Reed is so sure that they can show Robin did it why not agree to let Pankhurst J decide? He saw and heard all the evidence and is an extremely experienced Judge. Double dare…

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  17. tvb (4,320 comments) says:

    Bain was given his life back through a gold plated defense paid for by the tax payer. They had an unlimited budget to fly in experts from overseas to bamboozle the amateur jury. Many people in the health system die because of limited funding issues Bain had no limit spent on regaining his life. His claim for compensation against the background of his taxpayer funded defense is audacious at best.

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  18. Swampy (273 comments) says:

    The Crown has set this ridiculously high bar simply in order to have to avoid paying out in cases of wrongful imprisonment. There’s no grounds at all why innocence should have to be proved. The basis of our legal system is that the prosecution has to prove guilt, not that the defence has to prove innocence. The standard set by the Crown is one more example of the disproportionate power that the State wields in the justice system and the lengths to which it will go to avoid challenges to its superiority over the system.

    Compensation is reasonable on the basis of loss of earnings over the period concerned, etc.

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  19. Brian Marshall (201 comments) says:

    Swampy, if the crown paid out for every f^%$*r who was found not guilty we’d be working for the legal system instead of ourselves.
    The legal bar is set high and for a good reason. Lots of guilty parties get off scott free. Looking at the facts of this case one can not come to the conclusion that Robin Bain killed all his family except his eldest son, then killed him self after cleaning all the DNA evidence unless you have your head up your ar$e.
    Sorry for the language DPF, but the facts evident that on a prima facie case, it needed to go to trial.

    Oh, and why did the defence go to court to get evidence excluded from the retrial if they went to the highest court to get other evidence included in the same retrial?????? it surely isn’t to make justice open, only to win the case. Am I wrong?

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  20. wreck1080 (3,865 comments) says:

    I don’t think many people are found not guilty after being jailed.And , certainly very few with the profile and cost of the David Bain story.

    It reminds me a little of workplace laws. Where, dismissed employees sue their ex-employers for wrongful dismissal – often the ex-employer makes an out of course settlement to avoid the costs of going to court, even when the employee was justifiably sacked. Yes, justice is not being done, but, thats the system and at the end of the day the employer must be fiscally responsible.

    Of course, fiscal responsibility and government do not go hand in hand.Easy to spend other peoples money to uphold your high and might principles, isn’t it?

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