"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. Mr Bain was convicted of murdering his parents and three siblings in June 1994 by shooting them with a .22 rifle. He served almost 13 years of his minimum 16-year life sentence. The Privy Council quashed his convictions in 2007 and ordered a retrial. He was acquitted after a three-month retrial in Christchurch in 2009. 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. There are expected to be different views within the Cabinet as to whether to pay nothing at all, or to explore some avenue that might end further litigation, such as assisting with Mr Bain's legal fees. Ms Adams will make the eventual recommendations to Cabinet after sounding out her colleagues. It's the latest twist in a compensation claim which has dragged on since 2010. An earlier inquiry - by retired Canadian judge Ian Binnie - recommended compensation. The Government did not accept the finding after a peer review, by a retired New Zealand judge, found he had parts of the law wrong. Mr Bain challenged the process in court but the case was halted in a confidential settlement with the Crown last year, paving the way for a fresh review of Mr Bain's application for compensation by Mr Callinan. If Mr Bain had been successful in his application, he could have received up to $2 million on estimates from other successful compensation claims......... An estimated $1 million has been spent on hiring the three former judges to consider the compensation application. It has also involved three Justice Ministers: Simon Power, Judith Collins and Ms Adams......... Last night, Mr Bain, who is now married with a young son, said: "I've got no comment to anything at the moment". But long-time supporter Joe Karam said the fight for compensation was far from over. "There is a lot of water to go under the bridge, as the Minister's statement indicates, before the compensation claim is resolved." Mr Binnie told the Herald the Government should take its lead from the court of public opinion and compensate Mr Bain for wrongful imprisonment. "I think they should do the right thing. I concluded that the evidence was sufficient to establish on the balance of probabilities that he was innocent. Another former judge has taken a different view but the Government is ultimately responsible to the New Zealand public and the public has spoken very clearly in favour of David Bain so I don't think the Government is going to be able to hide behind the report of Mr Callinan or anybody else." He said New Zealanders had made up their minds of the guilt or innocence of David Bain. "Everybody seems to have a strong and immovable opinion and, from what I've read from time to time, the majority seem to have concluded that he's innocent. The last figures I saw were somewhere between 65 and 70 per cent thought he should be compensated so really whether he's able to prove his innocence to Mr Callinan's satisfaction 20 years after the event is a matter of argument." He said there were "real problems" with the Government's position especially given the destruction of the Bain house containing essential evidence three weeks after the killings. "The reality is when somebody says David Bain can't prove this or that, we'll he'd be in a better position if they hadn't burned up the evidence. "I don't think these reports are going to resolve the problem for the Government. I think what counts is the court of public opinion and there seems to be a strong majority in David Bain's favour and I think ultimately that will drive the result." He said the Privy Council spoke very clearly the conviction was wrongful and the prosecution proof found wanting. "It strikes me that the message from the Privy Council was the prosecution's proof was clearly inadequate. Again that's the view of five judges on a New Zealand issue. But it is strange, apart from Mr Callinan, that all of the foreign judges who have looked at this case have rejected the prosecution's position."
http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=11591317&ref=rss
Wikipedia entry: Justice Binnie's report: (2012): "In addition to examining the legal issues, Justice Binnie interviewed Bain to ascertain the impact of spending almost 13 years in prison and the endless negative publicity about him. In regard to his time in prison, Bain told Binnie that soon after he was incarcerated, he was assaulted by another prisoner who broke two of his teeth and left him with cuts and bruises. "When I was first imprisoned I was put on suicide watch which involved the prison officers turning on my cell light to check on me every 15 minutes [which] effectively became a means of torture. I suffered constant migraines, depression and loneliness." In regard to the publicity, he said he found it just as hard to adjust to being out of prison: "Everywhere I go, and in everything I do, I am always recognised and either comments are made or people question me... It is not a comfortable thing being known for something as traumatic as the events I have suffered through".[65] Bain also expressed concern at the loss of a possible career as a singer. At the time of his arrest, he had been studying for a degree in music and drama. His music teacher told him he had a "wonderful voice" and had the potential to become an international opera singer.[65] After a year long investigation, Binnie concluded, in a 180-page report,[66] that Dunedin's police had made "egregious errors" and that there were "numerous instances" of investigative ineptitude that led directly to the wrongful conviction. In particular, he described the failure of the Crown to preserve evidence in the murder investigation, by burning down the house, as one of the "extraordinary circumstances" that the Cabinet should take into account.[67] Another was the failure of the police to test Robin’s hands and clothing for residue of firearms discharge.[68] Police also failed to investigate information that Laniet had accused her father of incest and planned to expose him to the rest of the family and failed to follow up on evidence of Robin Bain’s mental instability despite the Detectives Manual specifically instructing police to pursue the issue of motive. They also misled the first jury on where the lens of David's spectacles was found and knowingly gave the jury the wrong time for the switching on of the family computer. Altogether, Binnie identified 12 different mistakes or failings by the police.[69] 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.[72]"
https://en.wikipedia.org/wiki/Bain_family_murders
Wikipedia entry: Justice Binnie's report: (2012): "In addition to examining the legal issues, Justice Binnie interviewed Bain to ascertain the impact of spending almost 13 years in prison and the endless negative publicity about him. In regard to his time in prison, Bain told Binnie that soon after he was incarcerated, he was assaulted by another prisoner who broke two of his teeth and left him with cuts and bruises. "When I was first imprisoned I was put on suicide watch which involved the prison officers turning on my cell light to check on me every 15 minutes [which] effectively became a means of torture. I suffered constant migraines, depression and loneliness." In regard to the publicity, he said he found it just as hard to adjust to being out of prison: "Everywhere I go, and in everything I do, I am always recognised and either comments are made or people question me... It is not a comfortable thing being known for something as traumatic as the events I have suffered through".[65] Bain also expressed concern at the loss of a possible career as a singer. At the time of his arrest, he had been studying for a degree in music and drama. His music teacher told him he had a "wonderful voice" and had the potential to become an international opera singer.[65] After a year long investigation, Binnie concluded, in a 180-page report,[66] that Dunedin's police had made "egregious errors" and that there were "numerous instances" of investigative ineptitude that led directly to the wrongful conviction. In particular, he described the failure of the Crown to preserve evidence in the murder investigation, by burning down the house, as one of the "extraordinary circumstances" that the Cabinet should take into account.[67] Another was the failure of the police to test Robin’s hands and clothing for residue of firearms discharge.[68] Police also failed to investigate information that Laniet had accused her father of incest and planned to expose him to the rest of the family and failed to follow up on evidence of Robin Bain’s mental instability despite the Detectives Manual specifically instructing police to pursue the issue of motive. They also misled the first jury on where the lens of David's spectacles was found and knowingly gave the jury the wrong time for the switching on of the family computer. Altogether, Binnie identified 12 different mistakes or failings by the police.[69] 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.[72]"
https://en.wikipedia.org/wiki/Bain_family_murders
