Test Set Out For David Bain’s Compensation Claim

Justice Minister Simon Power has written to the lawyers representing David Bain in response to a claim for compensation for wrongful conviction and imprisonment.

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 of a substantial miscarriage of justice and ordered a retrial. In June 2009 he was found not guilty at a retrial.

Mr Bain’s lawyers wrote to Mr Power on 25 March notifying him of a claim for compensation. They wrote a second letter on 9 April regarding the process for their claim.

Mr Power replied today, outlining the established test that claims for compensation must meet.

“It’s now up to Mr Bain to meet that test.”

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.

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.

“Mr Bain’s claim falls outside the guidelines because he was acquitted following a retrial. However, it is open to him to meet the extraordinary circumstances test,” Mr Power said.

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.

“I have instructed officials to work with Mr Bain’s lawyers to devise a workable process for the assessment of Mr Bain’s claim.”

ENDS

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