Lawyers for David Bain have failed to convince the Justice Minister to short-circuit Mr Bain's claim for compensation for wrongful imprisonment. A financial settlement, they argued, would be a good deal less costly for the taxpayer than the case they say they could bring to establish their client's innocence.
"We are concerned that the cost of proving David's innocence - which we are quite confident we can do - is going to be much greater than the amount of any compensation we would be claiming," said Michael Reed, QC.
He is almost certainly correct. Even if compensation is denied, the process will be costly for the taxpayer. Nonetheless, Justice Minister Simon Power was right to have nothing to do with the proposal.
Mr Bain's legal battles before he was found not guilty last year of the 1994 murder of his parents and three siblings have already proved very expensive. His High Court retrial last year, after 13 years in prison, cost $2.3 million in legal aid. A further $456,000 was paid for his appeals, including to the Privy Council, which quashed his original convictions.
Now Mr Reed says Mr Bain's compensation bid, for which he will seek legal aid, "may end up costing everyone about $10 million". Compensation of about $2 million is expected to be sought, based on a benchmark rate of $100,000 for every year spent in prison, plus expenses incurred or money lost.
The compensation process is neither speedy nor sparing. Essentially, it will involve Mr Bain having to prove his innocence "on the balance of probabilities" to a Queen's Counsel, who reports to the Cabinet on the merits of the claim and appropriate compensation. That burden of proof is a substantial step up from acquittal by a jury based on reasonable doubt.
And because Mr Bain did not have his murder convictions quashed on appeal without order of retrial, and was not given a free pardon, he must also show his compensation bid meets the standard of "extraordinary circumstances".
Mr Reed presumes this will mean "calling about a couple of hundred witnesses from all around the world". With precedent suggesting legal aid will be provided, a heavy cost looms. Yet this process has proved satisfactory in practice.
Equally, as Mr Power says, this is not appropriate territory for some sort of short cut. The Cabinet guidelines provide for none, and neither should one be contemplated. Indeed, to do as Mr Reed suggests would mean handing Mr Bain a sizeable sum without him having had to prove his innocence on the balance of probabilities. A precedent that effectively guarantees payouts in such cases would have been set. Sidelined would be the sterner test, despite its desirability when compensation is being sought.
Adhering to the current process is also justified by the immense public interest in the Bain case. Indeed, the access that the Queen's Counsel will have to any suppressed evidence should throw more light on it. Both the first jury and the retrial jury were denied evidence that has been variously interpreted as aiding or hurting Mr Bain's cause. A Queen's Counsel who has everything at his fingertips clearly stands a better chance of arriving at a fair and accurate verdict. The public will be wiser for his work.
There is reason to sympathise with Mr Bain's plight. As Mr Reed says, he will effectively remain in limbo until his bid for compensation is decided. However, any short-circuiting of that process would have to be based on tenable judicial grounds, not justice on the cheap.
Mr Bain faces a high hurdle of proof but not an unreasonable one for a claim that could run to millions of dollars. His case should take its course.
(part of the following is used with permission)
Having the Government involved in deciding quilt or innocence is a mediaeval concept dispensed with by the Magna Carta. For all the editor's preening and posturing about proper consideration, it remains that Politicians are interfering with due process with an opportunity to find public 'favour' by its decision. Due process, which to this point has scaled the ultimate test of guilt or innocence, ie trial by one peers and not by the King (or in our case, the Government.) Here the Government have invited elephant sized complexities into a case that is straight forward, firstly by its own evidence and secondly by having already been judged in the time - honoured way. Once again, we allow dithering over people being extracted from miscarriages of justice while continuing with a haste that allows continued mistakes in the 'public interest' and dire, death like, consequences for the falsely imprisoned.
Mr Power's decision may yet be Judicially reviewed, or any later decision may be reviewed. What remains patently obvious is that we don't have an appropriate facility to correct miscarriages of justice, and have not empowered the Courts with one. We remain relying on an outdated concept that proposes the Government of the day, and The Crown, are not one and the same. We stand and watch the Government interfere both in the realm of the Courts and with the principle of due process. The use of executive power in this way makes us all subject to serfdom and the whim of the King.
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