On Monday, 20 June 1994 at 7:10 AM I was still asleep in my cold central Dunedin flat, which was not unusual as my law lectures did not start until 11 AM that morning. A relatively short 6 kilometre drive away was David Bain who had just made a 111 emergency call. He was unable to tell the emergency operator which service he needed. He then told the Telecom operator that his mother, father and all of his family were dead. 25 minutes later the police arrived at 65 Every Street, Anderson Bay to find David Bain still on the phone to the operator. He told the police that his parents and siblings were dead. The police then searched the house to find his mother, father, two sisters and brother had all be shot in the head. The police also found a .22 rifle next to David Bain’s father, Robin Bain. Later that morning the police believed they had found a suicide note in the form of a message which had been typed on the family computer which read “SORRY YOU ARE THE ONLY ONE WHO DESERVED TO STAY”. On Friday, 24 June 1994 the police arrested David Bain and charged him with five counts of murder. To sum up the next 15 years, David Bain was found guilty on all five counts after a three week trial. David Bain was then sentenced to a mandatory life term of imprisonment with 16 year minimum non parole period. David Bain unsuccessfully appealed his convictions in the Court of Appeal. He pursued an unsuccessful petition for leave to appeal to the Privy Council. The Court of Appeal lifts a suppression order relating to the evidence of Dean Cottle which was not presented during the trial which related to allegation that David Bain’s oldest sister, Laniet had told him that she was having an incestuous affair with her father that she was about to disclose to the family. A former All Black, Joe Karam becomes interested in David Bain’s case. The police investigation is cleared by the Police Complaints Authority. David Bain petitions the Governor General for a pardon. The then Justice Minister refers four aspects of the case to the Court of Appeal. The Court of Appeal determines that a retrial is not required. Michael Reed QC and Hull Cull QC join David’s legal team replacing Colin Withnall QC and Kelvin Marks . David obtains leave and successfully appeals that decision in the Privy Council who quashes his convictions and ordered a retrial. David Bain is found not guilty by a jury of all five charges of murder. Joe Karam lodges a claim for compensation on behalf of David with the former Minister of Justice, Simon Power. Simon Power appoints retired Canadian Supreme Court Judge Justice Ian Binnie to provide Cabinet with advice on Mr Bain’s claim. We have now arrived in September 2012 and so has Justice Binnie’s report which is in the hands of the Minister of Justice Hon Judith Collins. I should step back to 1998 when Cabinet adopted a set of guidelines which stipulated the categories of eligible claimants for compensation as being limited to those who had their convictions quashed on appeal without order of retrial, or who have received a free pardon. However, the key requirement to be eligible for compensation from the Crown is that the claimant must, on the balance of probabilities, establish their innocence. David was acquitted following a retrial so technically he does not fall into the category of eligible claimants. The guidelines do provide the Cabinet with a discretion. Claimants must first satisfy Cabinet that their claim is based on extraordinary circumstances. I make no comment about that aspect. Here is a simplistic explanation as to the difference between the criminal standard of proof and the civil balance of probabilities. i.e. Judges and juries are not psychic. The best system we have devised is that in Criminal proceedings the issue is not whether or not the defendant is innocent, but rather whether or not guilt has been proven to be so overwhelmingly likely that the jury is left with no reasonable doubt that the defendant did not commit the crime. Whereas, in civil proceedings, the Court (and sometimes jury) is tasked with determining what probably happened, - i.e. in this case whether the most likely probable explanation for the evidence is that it was, or was not, David Bain who killed his parents. Why is the civil standard used to assess whether compensation should be paid? It is because the focus of the inquiry is not on whether or not David Bain is innocent, but instead on whether or not the evidence against David Bain was ever strong enough to pass even the lower threshold of the civil standard (the balance of probabilities) i.e. if the Crown was never even going to be able to prove that David Bain probably killed his family, then the Crown should never have brought Criminal proceedings in which it would need to establish beyond all reasonable doubt that David Bain killed his family, and nor should any jury have ever held that the Crown had proved beyond reasonable doubt that David Bain did kill his family. A finding that David Bain did not, on the balance of probabilities, kill his family is not a finding that he is innocent, but is a finding that the prosecution against him should probably never have been brought, and that the jury should not (if they had all the currently available evidence before them) have ever delivered guilty verdicts. The factor that interests me at the moment is whether David could ever establish on the balance of probabilities that he is innocent. It is an extremely long way from raising a reasonable doubt as to ones’ guilt to arriving at a finding of innocence on the balance of probabilities. Although, it has been done. David Dougherty was wrongly convicted of rape in 1993. He was acquitted after being imprisoned for three years as a result of DNA evidence that was not available during his trial. The police successfully prosecuted the actual offender. The Dougherty situation was relatively straight forward. I think I am on safe ground to state that the Bain family were killed by either David or his father Robin. There has never been any credible suggestion of an unidentified killer as having murdered the Bain family. Likewise, it has never been argued that they both took part in the killings. The jury in the retrial are the only ones who actually know why they concluded that a reasonable doubt existed as to whether the killer was David. Our adversarial system of trial by jury is not perfect. The system more geared to protecting the innocent from wrongful conviction as opposed to ensuring that the guilty do not escape conviction. I do not see anything wrong with a degree of imbalance. Good reasons exist to keep a system that has served us well long before the rule of law arrived in New Zealand. The gulf between guilt beyond a reasonable doubt and innocence on the balance of probabilities in the Bain case is, unlike the Dougherty claim, far from straight forward. I have suggested on more than one occasion that if you take piece of paper and draw a line down the middle, write David on the top of the left column and Robin on the top of right column then start listing down all of the evidence that tends to suggest the identity of the killer. It is important to allocate some degree of weight to each piece of evidence as every piece is not necessarily equally probative. Once finished, stand back and consider what is revealed before you. The first striking fact that you will notice is that you will have run out of paper in terms of the David column. The second fact is that the relative weighting results between the two looks closer to the game score of a match between the All Blacks and Finland. I see David’s prospects of being awarded compensation based on a finding that he was, on the balance of probabilities, innocent as being as likely as Finland winning the 2015 Rugby World Cup. If I am wrong then the New Zealand tax payer may find that the financial cost of the killing of the Bains may not have ended at the conclusion of the retrial. I do not know exactly how many millions of tax payer dollars were spent by the prosecution and defence teams alone over the past 15 years. It is anyone’s guess the costs incurred by the police, the Ministry of Justice, the corrections service and every other tax payer paid individual and organisation that became tied up in determining whether David was guilty or not. There is of course the impact on friends and family of those who were killed. Some believe that David is not innocent. It is possible that David’s compensation claim, if it fails, may not be the last act in the tragedy that is the killing of the Bains. The estates of the victims have not exercised their legal rights, if any. Although, it is very rare but this whole saga is extremely unusual, the estates could consider pursuing David for the wrongful death of his family if the limitation difficulties could be overcome. I am not sure what the advantage would be to the estate(s) in having a Court find David guilty for the wrongful death of one or all of his immediate family. No doubt the Hon Judith Collins will give us some indication as to Cabinet’s reaction to Justice Ian Binnie’s report at some point in the future. Like any judge his ability to determine what he believes are the essential facts and how they should be treated will have been limited by the information and argument placed before him. One thing is for certain Joe Karam is unlikely to have focused on the evidence that tended to suggest that David was the killer. It would be interesting if Joe Karam put the claim for compensation that he prepared and put forward for David in the public domain. Of more interest would be the opposing argument.
By Chris Patterson