New Zealanders have watched the Bain family murder case unfold over the past 18 years with fascination. For any readers who are unfamiliar with the case of David Bain's trials and imprisonment for the murder of his family, there is a reasonable summary of it in David Bain's Wikipedia entry here. It has all the elements of a classic murder mystery - the horrific, bloody crime itself, family intrigue, suggestions of incest, allegations of planted evidence, and the selfless campaigning of those who believe David Bain to be innocent - particularly that of former New Zealand international sportsman, Joe Karam.
I, unlike David Bain's supporters, do not profess any certainty of his innocence. But I have read enough about the case to be sure that he was only convicted of the crime because of the an incompetent and possibly corrupt police investigation and a determined and one-sided presentation of the evidence at his first trial.
Bain was released from prison in 2007 after his conviction was overturned by the Pricy Council in London (at the time, New Zealand's highest appelate court and since removed in favour of a new local Supreme Court). He was retried in 2009 and acquitted on all charges. Since then he and his supporters have been waiting for the Government to decide whether he should receive compensation for wrongful imprisonment. In New Zealand, such claims are considered by the Cabinet acting on the advice of the Minister of Justice. The process usually involves a senior lawyer or judge investigating the merits of the claim and deciding whether, on the balance of probabilities, the person is innocent. Note that this is both a higher and a lower standard of proof than that which applies in a criminal trial where a conviction requires the case to be proved "beyond reasonable doubt", but acquittal does not require proof of innocence, merely failure to prove guilt.
The Minister of Justice in this case, Judith Collins, commissioned a report from Ian Binnie, a retired Canadian Supreme Court judge, to determine whether David Bain should receive compensation. Binnie reported back in September this year, determining that Bain was innocent on the balance of probabilities and that he should receive compensation.
Many New Zealanders still believe David Bain is guilty and it is obvious Judith Collins is among them. She decided she did not like Justice Binnie's recommendations and has appointed Robert Fisher, a New Zealand Queen's Council (a glorified title for a senior lawyer), to review it. Unsurprisingly, Fisher has decided Binnie's report is flawed. Collins' unwillingness to accept Binnie's recommendations is disappointing but hardly unexpected, given she was Minister of Police during the period covering the second trial and would have been receiving advice from her department that has itself been the subject of accusations of criminal conduct in the case. Even as Minister of Justice, she has a fairly obvious conflict of interest because it is the New Zealand justice system itself that is now on trial.
As I say, I don't know whether Bain is truly guilty or innocent. But I do know a conflict of interest when I see one. New Zealand has not seen such a disgraceful handling of an independent judicial review since Prime Minister Muldoon trashed the report of Justice Mahon into the 1979 crash of an Air New Zealand airplane on Mount Erebus in Antartica. There is a clear conflict of interest in Judith Collins' consideration of the Binnie report and she should recuse herself from any further consideration of Bain's bid for compensation. The Prime Minister should appoint a less-interested minister to make the recommendation to Cabinet, or do the job himself.
I believe that on consideration of the balance of wrongs, David Bain should receive compensation. If he is guilty, he has served 13 years in prison through a conviction that was the result of an incompetent and possibly corrupt justice system - and you might say that is good outcome. But consider if he is innocent - not only did he come home one morning in 1994 to find his entire family slaughtered, he has been suffered the further horror of being tried, convicted and imprisoned for the crime he did not commit, and extreme vilification for that crime ever since. The fact that there is a strong possibility of his innocence outweighs everything else in my mind - this man must receive generous compensation and our humble apologies for what we as a society have done to him.