Report on Bain compensation claim received

Justice Minister Judith Collins has received the report by Canadian Justice Ian Binnie on Mr David Bain’s compensation claim for wrongful conviction and imprisonment. 

Under Cabinet guidelines adopted in 1998, the category of claimants who are eligible for compensation is limited to those who have had their convictions quashed on appeal without order of retrial, or who have received a free pardon. To receive compensation eligible claimants must establish their innocence on the balance of probabilities.

Mr Bain's claim falls outside the guidelines because he was acquitted following a retrial.

However, at the same time as adopting those guidelines, Cabinet decided the Crown should have residual discretion to consider claims falling outside the guidelines in "extraordinary circumstances" where it is in the interests of justice to do so.

Claims under the Crown's residual discretion are assessed on a case-by-case basis.  At a minimum, and consistent with the Cabinet guidelines applying to eligible claimants, a claimant must establish innocence on the balance of probabilities.  But for claims that fall outside the Cabinet guidelines something more is required that demonstrates that the circumstances are extraordinary.

Justice Binnie has considered Mr Bain’s claim against this test.

Ms Collins will now consider Justice Binnie’s report and discuss the recommendations with her Cabinet colleagues.

“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,” Ms Collins said. 

The report will not be released until any decision on whether to compensate Mr Bain is reached by Cabinet.

“I will be making a further announcement on Mr Bain’s claim in due course,” Ms Collins said.

Background

Mr Bain was convicted in 1995 of murdering five members of his family in Dunedin.  In 2007, the Privy Council quashed his convictions on the grounds a substantial miscarriage of justice had occurred and ordered a retrial. 

Mr Bain was subsequently acquitted at a retrial in June 2009. Mr Bain’s representatives formally lodged a claim for compensation with the former Minister of Justice, Hon Simon Power, in March 2010.

Justice Binnie, a retired Canadian Supreme Court Judge, was appointed in November 2011 to assess the claim.

Note:

Attached are a timeline for Mr Bain’s case so far and a Ministry of Justice document outlining the process for compensation for wrongful conviction and imprisonment.

Q+A

How are compensation claims usually decided?

Under Cabinet guidelines introduced in 1998, people may be eligible for compensation if they have served all or part of a sentence of imprisonment and either:

• have had their convictions quashed on appeal, without order of retrial, in the High Court (summary convictions); Court of Appeal (including references under section 406 of the Crimes Act 1961); or Courts Martial Appeal Court; or
• have received a free pardon under section 407 of the Crimes Act 1961.

Is Mr Bain eligible for compensation under Cabinet guidelines?

No, Mr Bain is not eligible under the Cabinet guidelines because the Privy Council ordered a retrial when quashing his convictions.

Because his case falls outside the guidelines, something more is required that demonstrates that the circumstances are extraordinary.

What is the basis for compensating people like Mr Bain who fall outside the Cabinet guidelines?

When Cabinet adopted the guidelines in 1998, it determined that the Crown should have residual discretion to consider claims falling outside the guidelines in “extraordinary circumstances” where it is in the interests of justice to do so.

The criteria for claims that fall outside the Cabinet guidelines are stricter. Being able to establish innocence on the balance of probabilities is a minimum requirement, consistent with the Cabinet guidelines, but the applicant must also show there is an aspect of the case that is extraordinary.