-
David Bain appears in court. - Source: Breakfast -
Watch Video
-
Related
A criminal law expert says that David Bain's compensation claim for wrongful conviction and imprisonment is particularly complicated because it relies on him showing "the balance of probabilities that he actually was innocent".
Yesterday, Justice Minister Judith Collins announced that a decision on Bain's bid for compensation will be made by the end of the year.
Collins said that she has now received advice from Canadian judge Ian Binnie, who was appointed in November last year to investigate Bain's claim.
Dr Chris Gallavin from Canterbury University told TV ONE's Breakfast this morning that Bain's case for compensation is "complex" because it relies on him showing "the balance of probabilities" that Bain is innocent.
Gallivan said that although there is "no actual legal right to compensation in New Zealand", under cabinet guidelines, claimants can make a claim if they have had their convictions quashed on appeal, without order of retrial, or receive a free pardon.
However, Bain falls outside the guidelines because he was acquitted following a retrial.
Yet, the Crown can choose to consider claims, such as Bain's bid for compensation, in "extraordinary circumstances".
"It's really difficult, we can't underestimate the complexities of trying to prove innocence as opposed to raising reasonable doubt, which is all that you have to do in a criminal trial. This is quite different," Gallivan said.
"David Dougherty, who I think was the last time anybody received compensation was a good example of how this normally works, because there you had DNA evidence and an acquittal on a second trial.
"[Dougherty's case] is the type of case that we normally see compensation being paid, but here of course... there's a plausible story that it might have been David, and a plausible story that it might have been his father, Robin," Gallivan told Breakfast.
"This is much more complicated, as there is no one piece of evidence that you can say categorically, that David is innocent," he said.
Only when Bain is successful in establishing his case, "then we get into the quantum of what he receives [in compensation]," said Gallavin.
Collins said the details of the report would not be released until Cabinet had come to a decision, which is expected to made by the end of the year.
"I want to thank Justice Binnie for his very comprehensive work. I will be meeting with him in the next two weeks to discuss the report," Collins said yesterday.
Bain was acquitted of murdering five of his family members in June 2009 after the Privy Council quashed his convictions and ordered a retrial.
His representatives formally lodged a claim for compensation with the former Minister of Justice, Simon Power, in March 2010.
Gallivan also told Breakfast that it be "the end of the road for compensation" for Bain if the Crown rejects his claim.