Someone wants to crush Bain’s compensation claim

Written By: - Date published: 7:34 am, February 18th, 2016 - 142 comments
Categories: Abuse of power, democracy under attack, Judith Collins, national - Tags: ,

david bain

This makes you wonder if the tip line has reopened.  Someone has leaked details to the Herald from the draft report on whether or not to award compensation to David Bain.  From the Herald:

David Bain has suffered another blow in his compensation claim for wrongful imprisonment following a confidential report by a senior judge found he did not meet the threshold of “innocent beyond reasonable doubt”.

The report has just been delivered and the Government has not yet begun any consideration of the latest development in the Bain case, which has divided the country for years.

Ian Callinan, QC, a retired judge from Australia, was asked to advise whether he is satisfied that Mr Bain has proven he is innocent of murder on the “balance of probabilities” and, if so, whether he is also satisfied Mr Bain has proven he is innocent “beyond reasonable doubt”.

His review has been delivered to Justice Minister Amy Adams …

The Herald understands that the judge did not find that Mr Bain is innocent beyond reasonable doubt — the benchmark for “extraordinary circumstances” required for compensation under previous guidelines.

The test, proving innocence beyond reasonable doubt is extraordinarily difficult.  It is appropriate to have as a test for proving someone’s guilt, because there should be some certainty before the state is permitted to punish him or her.  But to have it as a test for compensation makes only the most remarkable cases likely for compensation.

And somewhere along the line it seems that the threshold has been changed.  In February last year the Herald ran this article concerning Bain’s claim for compensation.  It contained this passage based on information supplied by Adams’ office:

To satisfy the compensation threshold, Mr Bain would need to prove his innocence on the balance of probabilities and satisfy Cabinet that the circumstances were “sufficiently extraordinary” that it would be in the interests of justice for compensation to be paid.

There was no mention in that article of proving innocence beyond reasonable doubt.

So Bain needs to prove he is innocent on the balance of probabilities and then show there are extraordinary circumstances by proving his innocence beyond reasonable doubt.  If that is the test the designer has rocks in their head.

The whole episode has been riddled by poor handling by the Government.  Judith Collins egregious breaches of natural justice and the unprecedented attacks on Ian Binnie, the Canadian Jurist who undertook the original review meant that the Government had to scrap the original finding and start again.  I describe the background in this earlier post.

It looks like the Government is moving to refuse Bain’s application.  But if this does I can confidently predict that an application for judicial review will follow.

142 comments on “Someone wants to crush Bain’s compensation claim”

  1. M. Gray 1

    Judith Collins needs to practise what she preaches. She is a hypocrite of the highest order. Our family wrote to Collins asking her why our brothers murderer only got 11yrs despite it being made mandatory in 2003 that 10yr would be the new minimum sentence. Our brother was killed 2013 ten years after this legislation. She wrote back and said quote ” she cant interfere with the judges decision” but she is interfering and has done for many years as she is doing with the David Bain case.
    Her letter expressed no sympathy what so ever because she is a cold hearted cow and so are most of her female colleagues. I had to laugh this morning when Paul Henry said this morning that Tolley cares about the CYFS children and that she has a heart . She is just as bad as Collins heartless and down right nasty.

    • alwyn 1.1

      Um. The Minister is Amy Adams.

    • Lanthanide 1.2

      11 is greater than 10, so I don’t see a problem?

      • M. Gray 1.2.1

        You sound just like them wait till someone bumps of one of yours you wont be so smart Lanthanide

        • Lanthanide 1.2.1.1

          I just don’t see the logic in complaining that a judge hasn’t followed the rules, when they clearly have?

          Sure, you might think the sentence is too short. But that has nothing to do with whether the judge followed the specific rule about minimum sentence length, when they clearly have followed that rule.

          I don’t believe the law passed in 2013 was “+10 years onto every sentence”.

          • M. Gray 1.2.1.1.1

            murder use to be less than 10yrs but in 2003 it was passed to make it a minimum of ten years that means they must serve 10 years before parol can be considered wouldn’t you think that after 10 years of the legislation being passed, murderers would get more than 1 year extra. We appealed to Collins and she basically didn’t give a stuff yet she spouses on about harsher sentences .

            • One Anonymous Bloke 1.2.1.1.1.1

              Yes, she’s a dangerous idiot who ought to know better, whipping up populist sentiment about something as important as penal policy.

              Graham Capill’s pet project – the “get tough on crime” drivel, has failed, just like the smart money said it would.

              Our recidivism rate is a disgrace, and there’s no excuse for that because so many other countries get much better results.

              Politicians are going to have to swallow the dead rats and explain that they’ve been pandering to the lowest common denominator, then enact some genuinely sensible sentencing legislation instead of atavistic vengeance fantasies.

            • Lanthanide 1.2.1.1.1.2

              “wouldn’t you think that after 10 years of the legislation being passed, murderers would get more than 1 year extra.”

              Depends entirely on the particulars of the case. That’s a judge’s job to decide, not mine.

        • One Anonymous Bloke 1.2.1.2

          There’s another issue here, without wanting to diminish the impact of your experience: longer sentences increase the chance of recidivism.

          This country has one of the highest recidivism rates in the world at ~50%. International best practice is currently at ~20%. I’ll leave it to you to find out how that’s achieved.

  2. vto 2

    The Crown eh ……
    Bow down to the great Crown eh ……
    The Crown who signed te tiriti ……..
    trust the Crown at your peril …….
    The Crown who controls the armed forces ……….
    not us, we don’t have the armed forces …….. the Crown has turned its guns on the citizens countless times and you would be a fool to think it won’t happen again ……

    The Crown …… cold and brutal …..
    The Crown ……. never trustworthy ……. never in history

    The Crown …….. more than anything else in New Zealand the Crown is NOT one of us

  3. Glenn 3

    Mike Hoskin gives the Government a blast about how they went shopping for the verdict that suited them. He says Bain deserves compensation.
    First time I have ever agreed with the man.

    http://www.nzherald.co.nz/video/news/video.cfm?c_id=1501138&gal_cid=1501138&gallery_id=157809

    • Puckish Rogue 3.1

      Its always difficult the first time but it becomes easier the more it happens 🙂

    • Bearded Git 3.2

      Interesting Glenn. Hoskin is right of course (never thought I’d say that).

      Key will look at the votes. Justice will not come into it. Do potential Nat voters think Bain is guilty? No compo. Do potential Nat voters think Bain is innocent? Pay Compo

      My money is on Bain having to lodge a judicial review.

    • Anne 3.3

      For once I agree with Mike Hosking. That is exactly what they did. Bounced from one judge to another until they found one who was willing to give them the verdict they desired. (I wonder what extra incentive they offered him to do their bidding?) They didn’t want to pay David Bain any compensation – pure and simple.

      Is there anything – anything at all – that this moribund government has achieved for the country and the people who live in it? I can think of nothing.

    • Barfly 3.4

      First time I have agreed with him to.

  4. Puckish Rogue 4

    He should still be in prison so (hopefully) stopping him from getting compensation is the very least that can happen

    But don’t worry I’m sure Joe Karam will write another book about it

    • miravox 4.1

      I feel that Bain should still be in prison as well. Though the government can’t just say it doesn’t like one opinion and go get another. If it was an innocent person that would be a huge miscarriage of justice. It has to be a matter of law.

      Oh for a competent initial investigation.

      • Puckish Rogue 4.1.1

        Yeah that’s true *sigh* good point

      • Bearded Git 4.1.2

        According to the law Bain has been found guilty of nothing and yet has spent a long time in prison. This situation alone should mean he is paid compo.

        • dv 4.1.2.1

          And probably the cost of the ‘inquiries’ will have exceeded the cost of compensation as well.

        • Puckish Rogue 4.1.2.2

          Well no he was found guilty the first time then found not guilty the second time

          • Bearded Git 4.1.2.2.1

            In the eyes of the law he is not guilty. You can’t make up the law as you go along.

            • Richard Christie 4.1.2.2.1.1

              The first trial was also found to be deficient.

              • Puckish Rogue

                Considering you had jurors going to the victory party I’d say that’s pretty dodgy as well

                • Richard Christie

                  That behaviour doesn’t indicate any bias on the part of the jury in coming to their verdict. If they had partied with defence or prosecution before the trial, you might have a point, but you don’t, just more in the way of your habit of connecting non-existent dots.

        • McFlock 4.1.2.3

          So someone who is detained on remand deserves compensation if they’re found not guilty?

          • greywarshark 4.1.2.3.1

            McFlock
            No comparison – apples with oranges. Bain has been in court and solemnly charged and pronounced on, and then again.

            Different than being strongly suspected and held on remand, then left go because evidence found to be wrong or lacking. Police powers can need overhaul, but only if someone was badly injured in remand would compensation come into it.

            • McFlock 4.1.2.3.1.1

              So everyone who is released on appeal deserves a payout?

              • Richard Christie

                Why is the word “so” always the introductory word to a strawman argument, logical fallacy or plainly bigoted statement?

                Now that you have been alerted to this, you too will be able to confirm it by observation.

                • McFlock

                  Because it is a logical progression from the previous statements.

                  “Bain has been found guilty of nothing and yet has spent a long time in prison. This situation alone should mean he is paid compo.”

                  Apparently, not quite “this situation alone”: now it’s “Bain has been in court and solemnly charged and pronounced on, and then again”. So now it’s not just the absence of a guilty verdict, the situation which entirely deserves compensation is:

                  a) detention for a period of time; and
                  b) a not guilty verdict that follows at least one previous verdict (“and then again”).

                  i.e. release on appeal, and my only assumption was that the Crown not going for a retrial after that appeal would be equivalent to the retrial ending in a not guilty verdict.

                  But without further qualification, for example, a recidivist drink driver whose QC gets a single conviction quashed on appeal due to technical inadequacies in the analysis would be similarly eligible for compensation for any detention that resulted.

                  • Richard Christie

                    I’ll leave it to readers to decide the validity of your ‘logical progressions’.

                    • McFlock

                      That’s big of you.

                      It’s actually pretty simple: if a particularly broad criterion is a sufficient basis for compensation, then everybody to whom that criteria applies is eligible for compensation. So describing an example that meets that criteria but probably should not be eligible for compensation logically requires that the criterion needs to be narrowed.

                    • Puckish Rogue

                      For what its worth McFlock disagrees with me on pretty much everything and vice versa, on this I agree with him (her?)

                    • Sp OliviaRichard Christie

                      And I usually agree with McFlock, but not on this occasion.

                    • mickysavage

                      The difference here is that Bain was originally thought to be guilty beyond reasonable doubt. If I was to put a statistical figure on this I would say that it was (say) 95% certain that he committed the offences.

                      Then he gets his conviction quashed and he gets acquitted. This suggests that the proper decision was that he was (say) less than 95% likely to have committed the offence.

                      Then a senior jurist reviews the case and says that he thinks it is more likely than not that Bain is innocent. This means that the senior jurist thinks it is at least 51% likely that he did not commit the offence.

                      There is a significant gap. Some think that such a significant gap shows that the system failed suggests that Bain should be compensated because if the system had got it right he would not have been charged, let alone convicted.

                      The kicker in this case is the Government is now saying that Bain has to prove his innocence beyond reasonable doubt. This means that it is (say) 95% likely that he did not do it.

                      This is an impossible standard. The only case that I can think of where this could occur is where a conviction based solely on scientific evidence was reviewed and the science showed that the charged person definitely did not do it.

                      Should we compensate people when a review shows that the original decision was pretty bad? I think so. But the test the Government now wants to apply is to show that the Court originally thought it exceedingly likely that Bain committed the crimes but he hnow has to prove that it is exceedingly likely he did not commit the crime.

                    • McFlock

                      Mickeysavage:

                      I agree about the verdict gap.

                      But not all looked at the same evidence.

                      But the Binnie review seemed to be based in no small part on the jurist’s interviews with Bain, and apparently excluded other evidence that had been in both trials.

                      So the real gap is probably not so wide as all that.

                      As for the probablity threshhold for compensation, obviously I go for a stronger line

                    • Should we compensate people when a review shows that the original decision was pretty bad? I think so.

                      Should we compensate people who quite possibly murdered multiple people in cold blood? I think not. There’s no certainty that any injustice to David Bain occurred, only speculation – that’s no basis on which to be handing him wads of taxpayers’ cash.

                    • mickysavage

                      Sorry McFlock my original comment was pretty messy and I have amended it to make it more comprehensible.

                      Should compensation be paid? If the accused only just scraped under the line of proof beyond reasonable doubt then no. Most of them should thank their lucky stars.

                      What if they show their innocence on the balance of probabilities? Well every civil case seeking damages uses this standard so why not? There will be a huge number of cases where it was more likely than not that they were guilty so no compensation will be payable.

                      The Cabinet direction suggests that their innocence has to be more likely than not and they have to establish some other criteria to show it was unjust. I am not sure what this could be.

                      What I am interested is in the process. It seems to me the goalposts have been moved a number of times. I would prefer that the position of the goalposts was clearly signposted and that everyone agreed to accept the result.

                    • McFlock

                      ISTR Binnie’s argument was that the simply length of incarceration in this case counted as an exceptional injustice.

                      But this is the upteenth case in how many years? I definitely think it would be reasonable to keep the current cabinet policy/power, but also to formalise maybe the Supreme Court adjudicating petitions for compensation, maybe with a formula that involves the length of incarceration and reputational damage of crime, offset by the probability that the person actually did the deed, the reasonableness of the charge/appeals decisions, and similar factors.

                    • Richard Christie

                      MS my thoughts today ran almost parallel to yours.

                      It’s a no brainer that the first verdict was wrong in terms of “beyond reasonable doubt”. This fact is underscored by the 20 year controversy, the Privy Council and the second verdict.

                      The next question to ask is why.

                      Did the jury simply reach an verdict unsupportable by the evidence?

                      If the verdict was reasonable based on the evidence presented then it remains to ask if the investigation was deficient/unfair or if the the trial deficient/unfair, or both ?

                      Either and both of these last two scenarios represent a failure of the system. This fact is underscored by the Privy Council’s observations and the result of the second verdict.

                      Anybody damaged by the system’s failure should be compensated. To argue otherwise indicates a rather vile moral compass.

                      These judicial controversies simply wouldn’t arise if initial verdicts met the standard of beyond reasonable doubt. When they don’t it almost invariably indicates systemic error. To argue otherwise is admit the jury system is unreliable.

            • Hubert 4.1.2.3.1.2

              Today I had a young man come to the Foodbank. He had been released from Remand after being held for some months and after a court case, found not guilty. He had lost his job of course – and as his family had relied on him, they were on a benefit now. He was sent out the door with nothing, because he hadnt been convicted. So as he said, he couldnt go home empty handed. Something just doesnt seem right does it?

              • One Anonymous Bloke

                These extra-judicial punishments impact most severely upon those who have the least.

                Shame on all of us.

              • greywarshark

                Hubert
                This is definitely a case for social welfare. Compensation is something different, or is meant to be. But showing humanity to others would result in giving food and transport coupons, perhaps $20 food coupon, someone released like this, with nothing, having lost much because of the government actions.

          • One Anonymous Bloke 4.1.2.3.2

            If it’s impacted severely upon their lives, why not?

    • mickysavage 4.2

      Well then the Government needs to run a straight inquiry based on well understood principles and make an informed decision. This continuous undermining of the process is banana republic stuff.

  5. Grindlebottom 5

    Everything about the Bain murders prosecution was completely & utterly bungled by the police. I’m not surprised the government’s doing everything they can think of to not pay out compensation.

    • Wensleydale 5.1

      Agreed. It’s funny how the usual National Party refrain is “You can’t solve the problem by throwing money at it!”, and yet when you don’t like the outcome of a criminal trial and don’t wish to pay compensation to a man who was possibly imprisoned for 13 years for a crime he didn’t commit, then that bucketful of taxpayer’s cash comes in rather handy. They have and will continue to fling wads of it at the Bain case in order to avoid having to scrape egg off their faces.

      And to think, it’s usually the dirty “socialists” who are so often accused of being free and easy with other people’s money.

  6. McFlock 6

    Compensation should be given to people who are demonstrably innocent. Not people who might merely be lucky about the duty roster in the police station that day.

    • alwyn 6.1

      The person I feel deserves compensation the most is Peter Ellis. He got royally screwed in a case of mass hysteria.
      There is absolutely no-one involved in that case who has clean hands.

      • McFlock 6.1.1

        damned straight

        There are others, too.

        But if a ruler had been appropriately placed in one or two evidence photos, toss a coin as to whether Bain would have been completely exonerated or unquestionably convicted.

      • millsy 6.1.2

        It seems that one is taking forever to reach the Privy Council.

        • Richard Christie 6.1.2.1

          It seems that one is taking forever to reach the Privy Council.

          It seems that Peter Ellis thought so too, he recently changed his Counsel from Judith Ablett Kerr to Nigel Hampton OC and associate Kerry Cook.

          Hopefully we may soon see some movement.

      • Puckish Rogue 6.1.3

        Yes, absolutely yes

    • Kevin 6.2

      “Demonstrably innocent”.

      Glad you are not a judge.

      • McFlock 6.2.1

        A compensation verdict is different from guilty/not guilty verdict, I understand that much.

        • Kevin 6.2.1.1

          But you tied the two together in the same sentence.

          • McFlock 6.2.1.1.1

            No, I didn’t.

            Let me put it another way: whether the courts find “beyond all reasonable doubt” that a person did a specific act is not the same as whether the person, quite plainly, could not have done that act (what I meant by “demonstrably innocent”).

            I believe that compensation should be paid when the initial verdict was well outside the normal grey area of a group of people coming to a determination in good and competent faith.

            Many verdicts can go either way perfectly reasonably, depending purely on who or what was more credible on the day. As a society, we just have to try to ensure that the false positive and false negative rates are roughly balanced, because humans aren’t going to magically improve their detectoring abilities.

            But if the Crown, for example, were to hide or manipulate evidence of the accused person’s innocence, or a jury made a manifestly incorrect decision based on a person’s race or sexual orientation, then the person deserves compensation. For example, ISTR the initial Dougherty trial included a forensic expert who claimed that two DNA samples matched when they quite clearly didn’t, i.e. the samples not only did it not show that he was the person who left that DNA during the crime, but it conclusively showed that someone else was responsible.

            • Lanthanide 6.2.1.1.1.1

              “As a society, we just have to try to ensure that the false positive and false negative rates are roughly balanced, because humans aren’t going to magically improve their detectoring abilities.”

              Actually, society generally tries to minimise false positives as much as possible, at the expense of incurring some false negatives.

    • Lanthanide 6.3

      Agreed.

      It seems to me most likely that Bain committed the murders, whether he remembers it or not.

      But the police royally screwed up their investigation, so now we can’t be sure either way.

      • Kevin 6.3.1

        Have you read the Binnie report Lanth?

      • One Anonymous Bloke 6.3.2

        One of the ways the Police screwed up – according to Binnie – was by ignoring Robin as a suspect. Let that sink in.

        • Lanthanide 6.3.2.1

          Yes, so that theory was never given the proper scrutiny in court that it deserved.

          Hence why we can’t be sure one way or the other.

          • One Anonymous Bloke 6.3.2.1.1

            …and why compensation is justified.

            • Lanthanide 6.3.2.1.1.1

              Depends if, under the balance of probabilities, he can be considered innocent or not. That’s kind of what this whole thing is about.

              As McFlock outlines at 4.1.2.3.1.1 and subsequent, having spent time in jail is not sufficient criteria to award compensation.

              • One Anonymous Bloke

                It is when that’s a result of police/prosecution negligence and/or bias.

                • McFlock

                  That police negligence and/or bias (as you put it) made it impossible to determine beyond a reasonable doubt who committed the murders.

                  But then there’s a very reasonable probability that the result of that negligence and/or bias was the end to the incarceration, not the beginning of it.

                  • One Anonymous Bloke

                    So what?

                    Are we going to have the rule of law or the rules of reckons?

                    • McFlock

                      We have the rule of law.

                      Innocent people should get compensation if they are unjustly convicted. Guilty people should not get a reward if they are unjustly released. Whether it’s “balance of probabilities” or “beyond reasonable doubt”, that’s the system of determination being gone through at the moment.

                    • One Anonymous Bloke

                      We have the rule of law.

                      In fact, according to the Law Society, the National Party has degraded the rule of law.

                      That’s not the issue though: read Geddis’ summary. These are the rules of reckons, irrespective of the National Party’s innate corruption.

                    • McFlock

                      So maybe what you’re really after is some formalised mechanism by which courts adjudicate compensation based on a variety of factors?

                      I can go with that.

                      But I do think there’s a place for ex gratia payments from Cabinet, too, as a backstop for when an injustice falls through the cracks.

                      Heh – it seems there have been that many people falling through the judicial cracks over the last 20-odd years that maybe they should make a new legal footpath and leave Cabinet to backfill other much smaller cracks should they arise. Seriously, it’s beginning to look like a judicial sinkhole.

  7. Ed 7

    Teh :Jutice System” is made up of the police, the courts, the Justice Department, the Law Commission and probably various other bodies. but importantly there is also Parliament, which has a part to play to make sure that overall results are what was intended, and that the principles on which we seek to achieve justice are as far as possible implemented.

    The reasons why the system ended up with a judgement that Bain be released due to an unsafe decision are now I think largely irrelevant – whether it was accident or mis-judgement, a New Zealander has spent time in prison that the court says was at least in part wrong.

    There should be clear principles for compensation – we have fairly clear principles for EQC and ACC, and courts elsewhere deal with damages claims. Where there is contributory negligence, it is fair that comensation be adjusted. I personally don’t think that politicians are good at making that sort of decision; just as the growth in professional tribunals with a panel with a mix of backgrounds suggests that others have felt a better system of judging others is needed than leaving it to “leaders.”

    That the government have gone shopping for the decision they wanted is just another confirmation that this government does not want to listen to independent advice, and is consistent with ministers editing public sector reports to favour their political views.

    I believe that Labour and the Greens have the opportunity to suggest a better way.

    For Bain, to give no compensation would in my view be wrong, but the requirement to produce evidence of absolute innocence is so difficult in the majority of cases of inadequate court decisions that it is such a very high threshold for compensation as to offend against New Zealanders sense of fairness. Probabilities are very difficult to determine; but a specialist bench or tribunal for such rare cases may be the way to go. Alternatively a decision could be made by our Supreme Court.

    What at lest two of the three “Justice” Ministers under National have done is wrong – time for New Zealander to do better.

  8. millsy 8

    If Bain is innocent, then he deserves every cent on compensation. He after all, spent what should have been the best years if his life in prison.

    If he is innocent, of course. I thought he was innocent, but now I have my doubts. Those who think that David Bain is a weedy nerd need to think again. While this doesn’t necessarily prove his guilt or innocence, there was a fact that came to light that had planned to abduct and rape a woman who would go jogging in the neighborhood where is lived, starting/finishing his paper route at a different time to cover. I don’t know about anyone else, but to me that kinda gives a big clue as to what the guy is like.

    I don’t think we will ever know what happened in that cold and frosty morning almost 22 years ago, and it seems that Bain is keeping is mouth well and truly shut about his side of the story.

    It doesn’t help that the case was poorly handled end to end, and I wasn’t all that impressed by the behavior of some of the jurors after the retrial (I sometimes wonder if a not guilty verdict was the plan all along).

    As Mark Lundy found out, just because the Privy Council overturns your conviction doesnt mean you are innocent.

    • Tarquin 8.1

      The fact he wouldn’t take the stand at his trial speaks volumes.

      • Puckish Rogue 8.1.1

        and not explain why he washed his clothes after the paper run

      • Sp OliviaRichard Christie 8.1.2

        The fact he wouldn’t take the stand at his trial speaks volumes.

        Your comment certainly speaks volumes of your poor understanding of the Court process and issues surrounding testimony.

        • Tarquin 8.1.2.1

          I actually have a very good understanding of legal matters. In a case like this not taking the stand did him plenty of damage. What could a paper boy possibly have to hide? Why won’t he tell? How can he feel wronged if he won’t tell the truth and clear the air? To be honest I don’t claim to know if he did it or not, but if he didn’t he must be incredibly unlucky and his father must be double jointed. I suppose only one person really does know.

          • One Anonymous Bloke 8.1.2.1.1

            You certainly have an understanding of vacuity.

            • Tarquin 8.1.2.1.1.1

              Why do you have to keep proving you’re a complete wanker?

              • One Anonymous Bloke

                Vacuity, which is to say that you used a seven line paragraph to say absolutely nothing at all, other than that you’ve chosen a side.

                The very stuff of verbal self-abuse, in fact.

                • Tarquin

                  You spend far too much time in an echo chamber to be in any position to judge others. As I have said before you spend more time attacking people and driving them away rather than adding anything useful to a discussion. You are a complete twat.

                  • One Anonymous Bloke

                    Can’t deal with having your behaviour and opinions criticised? Lashing out at me instead soothes hurt feelings? There there.

  9. Bill 9

    Ah well, in the absence of a ‘not proven’ option in the NZ legal system….

  10. Compensation should be given to people who are demonstrably innocent. Not people who might merely be lucky about the duty roster in the police station that day.

    Absolutely, and that’s a standard Bain can’t possibly achieve – there’s a yawning chasm between “not proven guilty beyond reasonable doubt” and “demonstrably innocent.”

    The person I feel deserves compensation the most is Peter Ellis.

    Yes. If there’s to be a well-compensated poster boy for demonstrating what’s fucked about the NZ justice system, Ellis is a way better candidate for the job than Bain.

    • tony 10.1

      Full respect to Peter Ellis, however he didn’t lose all of his family members to murder then gets wrongfully convicted of the crime.

      • McFlock 10.1.1

        And if we could be sure that the circumstances you describe are applicable to David Bain, I would support any compensation claim.

        But the alternative is that someone murdered their family, got caught but a former all black fronted a lengthy appeals process which he got lucky with, then the guy gets rewarded for his efforts.

        Which version is true?

        • Sp OliviaRichard Christie 10.1.1.1

          That’s the alternative?

          So much thinly disguised bias…

          but a former all black insert any occupation of your choice, we’re not bothered

          he got lucky with lucky? yes, I guess that is how you’d prefer the process to be viewed

          gets rewarded for his efforts as the luck aspect is implausible hyperbole and certainly unsupported, then so is this outcome.

          • McFlock 10.1.1.1.1

            Your own bias seems to be interrupting with your ability to read.

            Either Bain did it or he didn’t.
            If he did it, my version is true.
            If he didn’t, your version is true.

            Nobody knows which version is true. It can’t be proved one way or the other.

            Letting a guilty person go free rather than accidentally imprison an innocent person is one thing. Giving “compensation” to someone who has a reasonable chance of having murdered their family but benefited from that margin for error is another thing entirely.

            • One Anonymous Bloke 10.1.1.1.1.1

              margin for error

              Nope. Police/prosecution incompetence and/or bias prevented the murders from being thoroughly investigated. That’s not “margin for error” it’s prejudicial.

              • McFlock

                That’s broadly why he got the retrial.

                But it has nothing to do with whether or not he actually did it – the shortcomings in the investigation could equally have merely been the grounds for a guilty person to successfully appeal, rather than the cause of imprisoning an innocent person in the first place.

                • One Anonymous Bloke

                  Read what Prof. Geddis has to say on the matter re: Calvinball.

                  Our opinions of Bain’s role in this deserve no standing whatsoever. I’d rather the guilty be compensated than create loopholes for the National Party and their enablers to jump through, because make no mistake – it’s Cabinet’s decision, and you and me – we ain’t members of the Club.

                  • McFlock

                    So your support for Bain being compensated has little to do with whether he actually did it?

                    I would have thought it was a primary consideration in whether one were for or against a specific compensation decision.

                    • One Anonymous Bloke

                      Under what circumstances would you have thought that?

                      He should be compensated for the simple fact that it’s Cabinet’s decision (aka wingnut reckons), let alone any other considerations.

                    • McFlock

                      now you’re just on drugs.

                    • One Anonymous Bloke

                      Read Geddis, then tell me you’re sure Bain’s case doesn’t turn on “the optics”, as determined by David Farrar.

                    • McFlock

                      In which case, why were you worried about “Police/prosecution incompetence and/or bias”?

                      It now seems that you don’t care about any of that, just that Key and co shouldn’t be making the decision.

                    • One Anonymous Bloke

                      I’m not so much “worried” about it as convinced that when it happens there had better be consequences.

                      The fact that this Prime Minister and his lickspittles are involved is a perfect illustration of why Cabinet has no business here: cf: the optics.

                    • McFlock

                      The ultimate backstop for the courts should be the legislature. And vice versa.

                    • One Anonymous Bloke

                      Cabinet already passed the ball to Binnie. Bzzzt!

                    • McFlock

                      Hey, if you want to have a new formal process to handle most cases like this before it gets to cabinet, I’m cool with that.

                      But if you want a possible/probably quintiple murderer to get a payout just because you don’t like john key and with no regard to the specifics of the case… that, I’m not so cool with.

                      And cabinet can spend as much within its own budget line item as it wants

                    • One Anonymous Bloke

                      Murderers getting off as a result of negligence. You’re saying we can improve negligence by making sure there are zero consequences?

                      Clearly the potential for convicting the wrong man isn’t incentive enough.

                      Edit: we did this. Our taxes continue to fund the whole thing. Don’t you feel the least bit ashamed?

                    • McFlock

                      How is the government paying compensation a consequence for whatever the police did/failed to do?

                      But you said above you don’t care about any of that, you just don’t like it being in the hands of the nats. Now you’re concerned that he’s might be innocent.

                    • One Anonymous Bloke

                      How is the government paying compensation a consequence for whatever the police did/failed to do?

                      I expect that would result in consequences for police procedure, etc.

                      But you said above you don’t care about any of that, you just don’t like it being in the hands of the nats.

                      Nope, what I said was it’s the rules of reckons irrespective of National’s innate corruption.

                      Now you’re concerned that he’s might be innocent.

                      Nope, I’m saying that the potential for miscarriages of justice isn’t incentive enough to investigate crimes properly as it is; the consequences are random and based on reckons.

                    • McFlock

                      The compensation doesn’t come out of the police budget, does it?

                      It’s possible none of the officers originally involved are still cops, so they won’t be affected either.

                      “Investigating crimes properly” is easy to say, just like “flying a plane properly”. But saying it doesn’t mean that you understand how to design systems and protocols that can be readily adapted by a person who has been suddenly confronted with an extreme situation. I think you’ll find the police manual has been adapted since 1994, so cabinet jumping up and down now will be met with “issues have already been addressed”.

                      You’ve come up with a nice line in “the rules of reckons”. Unfortunately, it doesn’t affect anything to do with criminal investigations or whether compensation will be paid in this case, and I’ve already said that I’d support a formal judicial process to be established to sort out the growing number of compensation claims for injustice.

                      But the overriding factor in these claims should be determining with strong probability just who the injustice was against: the person initially imprisoned, or the victims and surviving relatives.

                    • One Anonymous Bloke

                      determining with strong probability just who the injustice was against

                      Which is impossible in this case, chiefly because the initial investigation was so flawed. That stands every chance of being the case again; your over-riding factor may turn out to be a nice-to-have in most examples. What then?

                    • McFlock

                      What then?

                      Exactly what we do to everyone else who puts their life on hold for an unknown period of time, loses their career and reputation as they work through the system, only to be spat out the other end without any major conviction: we say “you’re free to go”.

                      And we say to the other parties involved “sorry, we will never know for sure who murdered your loved one / we couldn’t send your attacker to gaol”. But we should try really hard to avoid saying “we couldn’t send your attacker to gaol so we gave him a cheque instead”.

                    • One Anonymous Bloke

                      spat out the other end without any major conviction

                      Nope. Found guilty then acquitted after time served (at least partly), because the initial investigation was so flawed as to constitute a miscarriage of justice and/or an unsafe conviction.

                      Such cases deserve automatic compensation from the Crown. Will that perhaps leave police and or politicians grinding their teeth because some villain got a cheque? No doubt. Incentive enough to investigate properly and/or provide effective oversight?

                    • McFlock

                      Nope. Found guilty then acquitted after time served (at least partly), because the initial investigation was so flawed as to constitute a miscarriage of justice and/or an unsafe conviction.

                      Appeals are all part of the process. Sometimes the process takes days, other times weeks, months, years or decades. The end result is the same.

                      Such cases deserve automatic compensation from the Crown. Will that perhaps leave police and or politicians grinding their teeth because some villain got a cheque? No doubt. Incentive enough to investigate properly and/or provide effective oversight?

                      The police involved would be long gone. The politicians probably wouldn’t give a shit, because it wasn’t their error. The people who would really care would be the victims and their families: the cops fuck up the case, so the crim walks free and gets a bonus payment to boot.

                    • One Anonymous Bloke

                      the crim

                      🙄

                    • McFlock

                      ok, I’ll rephrase:

                      The people who would really care would be the victims and their families: the cops fuck up the case, so the person who shot their cattle, raped their dog, stole their house and burned their bible walks free and gets a bonus payment to boot.

                      Happy now?

                    • One Anonymous Bloke

                      I didn’t realise we were talking about Mike Sabin.

                    • McFlock

                      lol

                      But you get my point – automatic compensation upon successful appeal wouldn’t incentivise change, but it might compund (rather than in some way redress) the injustice.

                      Sort of replacing “rules of reckons” with “rule by robots”.

                      I’d suggest a higher court process inserted prior to Cabinet involvement as pencilled out here.

      • Psycho Milt 10.1.2

        Full respect to Peter Ellis, however he didn’t lose all of his family members to murder then gets wrongfully convicted of the crime.

        We don’t know that David Bain did, either.

  11. Richard@Down South 11

    You’d think they would love to believe retired Canadian Supreme Court Justice Ian Binnie’s report never happened:

    Binnie decided the evidence established that “the miscarriage of justice was the direct result of a police investigation characterised by carelessness and lack of due diligence”[70] and wrote: “in what is essentially a circumstantial case, it is noteworthy that the Police chose to exclude the one suspect (Robin) who was alleged to have a plausible if challenged motive, and pursue for 15 years the other suspect (David) for whom they had found no motive whatsoever.”[71] He concluded that “on the balance of probabilities” Bain was innocent of the murders in 1994 and should be paid compensation for wrongful conviction and imprisonment.

    • Kevin 11.1

      Agreed.

      I think the one piece of evidence that stands out but never seems to get mentioned is the bloody footprints in the hallway.

      Unless David Bain’s feet magically shrunk by around 20mm during the murders so as to leave the footprints and then returned to normal after, then he, as Binnie concluded, cannot have done it ‘on the balance of probabilities.’

  12. tony 12

    How about someone really reputable starting up a “give a little” or similar funding for David Bain. That would give an accurate picture of the Public support he actually has?

  13. Smilin 13

    Outrageous is the only description to describe once again the govts ability to change outcomes without sufficient grounds to judge or as far as Im concerned authority
    How can they do this when the police have destroyed evidence
    All the other processes have acquitted him and yet this so called govt just cant do whats right
    At the time of the crime Dunedin police were, in my opinion, the most right wing law breakers in the NZ police force. Their behavior during the 70s and 80s and into the 90s was absolutely beyond belief.
    Thanks Gordon for using the police force to support the National party and its racist stance on the 81 TOUR to the detriment of many peoples lives and for not dealing with or investigating other crimes properly.
    Without going into detail they were a law unto themselves so its no wonder David Bain got stitched for the crime.
    Arthur Thomas’ case should have been enough to know it could happen again seems the police didnt get the point then so on it goes
    Thanks National for running down our resources

  14. Keith 14

    Take Bains guilt or innocence out of this for a moment and look at the process.

    National tend to order custom made reviews that they know the result of before it begins, just like Judiths own express clearance inquiry from wrong doing with the SFO. But they picked the wrong man in Binnie so it was back to the drawing board, whist throwing Binnies reputation under a bus.

    Everything but everything is corruptly stage managed! And I just can’t imagine who leaked that information.

    • Richard Christie 14.1

      Take Bains guilt or innocence out of this for a moment and look at the process.

      Dead right. But look at it going right back to the day of the shootings.

      Creating arguments over the standards to be met relating to Bain’s current status as innocent or otherwise is part of a confidence trick to stop the public examining the shortcomings of the system.

      Wake up people, we’re being gamed.

  15. ianmac 15

    http://www.pundit.co.nz/content/you-may-not-play-the-calvinball-the-same-way-twice
    Andrew Geddis has put up a more definitive post on Bain Compensation. Not quite cut and dried yet.
    “Savage has been told that Callinan’s report finds that Bain has failed to prove his innocence beyond a reasonable doubt. Before talking about what that might mean, note what Savage apparently hasn’t been told – whether Callinan believes Bain is innocent on the balance of probabilities. Because, remember, that’s all that Ian Binnie concluded in his earlier report. So it’s … somewhat interesting that someone has seen fit to pass on one bit of Callinan’s conclusions, but not the bit that actually may matter the most. Read into that what you will.”
    Mmm! Exactly. Mischief afoot. (Not you Judith- surely not.)

  16. Jenny Kirk 16

    “Mischief afoot” ….. ianmac ? ? I thought the leaking of the Bain report could well be distraction from the troubles in the Nat caucus.

    • ianmac 16.1

      Jenny. It is possible that the “not innocent” part was leaked so that the Public Opinion could get steered in the politically desired direction. What the headlines say is what the people will get in their heads. Later correction is too late.
      Anyway the leak must have come from inside Cabinet. Two leaks in two days?

      • McFlock 16.1.1

        a leak tomorrow equals a collander

      • Anne 16.1.2

        That was exactly my reaction ianmac. Whoever leaked it wanted to instill a perception in the heads of the more gullible, perhaps in an attempt to reduce the amount of angst when they turned down compensation. Amy Adams and her cohorts (including JK) have no intention whatsoever in granting David Bain any compensation. Indeed I would go so far as to say the initial leak came from her office and possibly with her tacit consent.

  17. Jollo 17

    If Binnies report wasn’t so poorly written, researched and in places simply factually incorrect, we wouldn’t be in this mess in the first place.

    I mean jesus he even talks about the empty cartridge found by Robins hand right next to a photo of the actual cartridge with rounds in it.

    I’m not sure if David did or didn’t do it, and I’d like to think he didn’t, however a report that riddled with errors and with a clear emotional bias (just read the section about his meeting with Bain) simply couldn’t be left to stand as a decisive, conclusive declaration about innocence or not.

    Lets just hope this new one, regardless of it’s finding, actually stands the test of scrutiny and we haven’t wasted hundreds of thousands more dollars on a dud.

    • One Anonymous Bloke 17.1

      a decisive, conclusive declaration about innocence

      Is that what you think you’re going to get? Or are you just setting impossible goals so that you can complain about the outcome no matter what?

  18. John Shears 18

    The report was commissioned by the National Party.
    It was completed by the Aussie Judge 6 months late.
    The NZH says it was a “Confidential Report”
    This implies that the Judge would have only divulged his findings to the person/s who commissioned it as one would expect.
    The leak must therefore have come from the person/persons who commissioned it the National Party.
    Unless the Judge or his assistants were responsible for the leak?
    It’s another dead cat to grab the headlines and divert opinion away from some other matter.

  19. Smilin 19

    Its use to be innocent until proven guilty game over now its innocent beyond reasonable doubt .no mention of proof of guilt
    Who’s pullin the chain on this one
    Lost evidence and police ineptitude got anything to do with it
    Or just another mistake that no one can be bothered about
    Sorry Dave looks like same old with this govt

  20. Smilin 20

    Quite frankly the whole business of the legal fuck ups should have nothing to do with the govt
    It should be dealt with by the methods that the legal profession deal with any other legalities
    The govt arent legal experts and they shouldnt even be allowed to create laws in the way they do.
    Even if they are lawyers it shouldnt give them power to intervene over the law profession when this stuff has been thru the most reputable systems available
    The judiciary are like any other business their experience is a better judge than that of any govt and if it comes down to it the judiciary should call for a nation wide decision if needs be instead a fuckin flag referendum which opens a new twist on Keys dirty tricks in gettin his own way
    Oh no not David Bain again I thought id buried that yeah right with your BS flag
    From the bottom up not the top down

  21. John Shears 21

    My Apologies for the multiple post above.
    Some problem with system at 10.25pm 18.2.16
    Tried but was unable to cancel.
    No edit facility available.
    This loaded in normal fashion.

    [I have deleted the repeat comments. Machine obviously had a hissy fit! – MS]

  22. It looks like the Nats have finally got the “legal view” they paid for. They should’ve just been clearer to Justice Binnie what view they really wanted.

  23. belledejourNZ 23

    Shopping for a verdict they wanted? I could say that about the David Bain -Joe Karam crew, they got 3 Appeals, 2 cracks at the Privy Council , 2 trials and a whole boatload of other expensive (to taxpayer) enquiries, judicial review, the whole 9 (+ 3,987 ) yards.

    I blame Phil Goff. HE (much as i do respect the man, usually) was the one who caved to Karam pressure and took the brakes off many years ago.
    Look at the timelines of the Bain case.
    If he does not get compo (not entitled, govt not obliged to pay him any) do you seriously think Joe Karam is not going to keep pushing the multimillion dollar shopping trolley up and down every aisle, every future justice Minister, every future Governor General. ?
    They were bloody lucky to get a retrial, (even then they tried to stop it happening!) – nothing wrong with the first trial, or the first verdict.
    The guy shot 5 people and he is taking the piss. No Compo!

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