Back in the 1990s The New Zealand Law Commission made a recommendation for compulsory compensation to be paid in false imprisonment cases. However, the Government of the day and the Justice Minister of the time not only ignored the advice, they also refused to sign a United Nations mandate making compensation mandatory and introduced a set of Cabinet rules for compensation. This set of rules requires an applicant to prove on the balance of probabilities their innocence. In the case of David Bain it makes no difference that he was found not guilty by a Jury at a retrial following an earlier trial determined to have been an actual Miscarriage of Justice. With some 13 years between the trials in which David was held in prison his life had been forever altered because of a Miscarriage of Justice orchestrated by the same officials, or their successors, later given the opportunity to assess and comment on a process many would accept they have no right to be involved in - having disqualified themselves for in fact being responsible for the false imprisonment.
When David Bain applied for compensation the Government chose an international Jurist, Ian Binnie, to conduct an inquiry into David's guilt of innocence. Simply, the Government started off a process under their own rules, rules which ignored the whole Judicial process of trial by Jury - choosing to engage in a Trial by independent inquiry, indeed holding up their model of a process that falls short of international standards and which ignored a recommendation by its own Law Commission. In doing this they generated a bizarre situation where a person found not guilty by a Jury had to prove his innocence. There is no plausible grounds upon which to ignore the Justice system whilst in tandem applying Justice for which no one is accountable, that is in itself unjust, breaches Natural Justice, due process and the protection of the Human Rights Act. David Bain must have thought he had no other remedy when he went to the Government that represented earlier Governments in power when a Miscarriage of Justice was perpetrated upon him for crimes the Government has never been able to prove against him.
One could argue, as I have in the past, that David Bain should simply have sued the Government rather than take part in a process that defies common sense and International standards of automatically paying compensation for false imprisonment. The whole compensation process in NZ is self protecting, a deliberate act by Government to control what the Government may or may not be liable for - in fact a standing that may not only transgress the rights to access to the Courts for remedy, but a process that is open to political manipulation.
When David made his application he was, because of the HRA and Natural Law, entitled to have his application treated fairly and in way consistent with due process and the Law. That never happened. The details of the Bain compensation bid are well known and on going, the critical point is that the Jurist the Government itself appointed, recommended David be paid compensation but the Government refused to do so, thereby breaking a deal earlier made with the Bain team, but also revealing the callousness and misuse of Prerogative Power in such a way that is most likely unlawful.
Without going further into such breaches in detail, I would just point out that David has been disqualified from a process in which he had no control of the rules and those making the rules presented no accountability for what they would do or not do. On this point I think he should simply sue the Government for deliberate false imprisonment by its agents Crown Law. Susan Couch did this against the Justice Department for placing herself in danger of harm from a paroled prisoner who severely injured her and killed 3 others. While that case was eventually settled, whether intentionally or not, Susan trail blazed a passage in precedent that dented the self-indemnity our Governments hide behind. David Bain has an excellent chance of doing the same.
I would like to point out here the way this Government and its predecessors have never taken steps to clarify a key issue in the Bain case. That is the situation where some in the population, who one would say are relative ordinary people (not speaking about the hate groups here of course), concerned that the dead, in this case Robin Bain, cannot defend themselves. While a lot of bad feeling is generated over this, no Government has clearly stated that for the Law to do its primary role - determining guilt or innocence, it must allow all evidence to be tested during a trial and that any accusations made against a dead victim (conditional use of that word) are defended by the Crown. I have written about this before, Robin Bain was defended by the Crown against accusations that it was he, and not David, that killed the Bain family. It's in the public interest that be made clear to those that struggle with the situation, the message from the Government that the Crown undertake to speak for the dead. At least in part because that message hasn't been made clear, despite it being fairly obvious, the Government benefit with their meddling in matters of Compensation, by some in the public, incensed with the idea that nobody 'speaks' for Robin Bain.
The situation that follows from this is modern day farce and tragedy which sees the Government benefit from the disquiet about no one 'speaking' for the dead in the Bain case. Something which would never arise in say the Peter Ellis case, someone also denied compensation for false imprisonment, despite an almost universal opinion, that he is innocent of the crimes he spent a long time in prison for. So stepping back a little, a Government with a self-appointed power to rise above the Courts on matters of Justice, at least in the Bain case benefits from an opinion abroad that nobody speaks for Robin Bain. Of course there is no argument about nobody speaking for the other victims, Margaret, Arawa, Laniet and Stephen, some of whom are in fact attacked by one group seeking to uphold Robin's 'good' name. How does that practically work when taken to its natural conclusion?
Here's how, David Bain cannot argue his innocence without a group of New Zealanders saying that he shouldn't be allowed to accuse his father of the mass killings. So in this process of open Justice, and fairness in righting wrongs, the Government encourages (by its silence) a group that don't want David to have the right to defend his innocence for a second time, not in the Courts but in a public arena where the Government 'Judge' apparently on behalf of this group of people using 'rules,' breaking promises and, and as I've argued above, the Law. This whole process of compensation is now revealed as a sham, the Government give undertakings then renege on them, the Government does not obey the Law, but makes Law of its own for matters arsing out of Lawful or Unlawful application of Statute. The Bain case arises from the Judicial system, the place in which it must be put right, not pulled away to a secret Cabinet meeting, but dealt with out in the open, in Court where every man and woman has the right to take a grievance to either put right or be denied under due process and the Rule of Law. That's where the Bain case should go right now, breaking new ground as Susan Couch did, giving access to the Law back to those affected by it - time for Justice to be seen to be done.
Joe Karam is not by nature a ditherer, above all else he a defender and fighter of the highest calibre. I hope he liberates himself from the downward pressure of the bloody silly 'rules' of compensation and takes it to the Courts where has had incomparable success in not only having 5 murder convictions overturned but that decision endorsed by a Jury of David Bain's peers. Time for Joe to get back in the ring where he is master of unpicking deceit or obscure logic and reasoning. Joe may have found David Bain locked away unlawfully and rescued him using the truth. That truth is even more strongly based now than it was at the retrial, and there is no reason in my opinion to wait while on a Government likely to change the rules again, a Government perhaps shopping for a decision it wants rather than the truth. Waiting compounds the pressure because the wait in this case has no certainty of direction, on the other hand the Courts are bound by Law and processes many centuries in the making, not off the cuff cabinet decisions reminiscent of the times before the Magna Carta was enshrined to take 'King like' powers away an elite and return Justice to its natural home, the Courts.