Bain case a humanity question - former judge
Tue, 11 Sep 2012 8:09a.m.
Robert Fisher QC has been involved in compensation claims for wrongful conviction and imprisonment before.
The former High Court judge was asked by the Government to look into whether Aaron Farmer, who was wrongfully accused of rape, should receive compensation. Last year he found in favour of Mr Farmer, who was subsequently awarded over $350,000 by the Crown.
Mr Fisher says it is possible that David Bain could be awarded compensation under an extraordinary circumstances clause.
“It’s done out of a sense of humanity,” he says. “How it normally works is that you can get compensation if you have a successful appeal without an order for retrial.”
However Mr Fisher says the Government is not legally bound to award anything at all.
“I think the starting point is that these are discretionary payments. There’s no right that anybody ever has to compensation in this situation,” he says.
Watch the video for Firstline’s full interview with Robert Fisher QC
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16/09/2012 4:34:33 p.m.
A pair of damaged glasses were found on a chair in David Bain's room. One lens was missing. One would think that those glasses belonged to the person whose room that was. In this instance they did not. They were a pair of his mother's glasses that he had worn before when his were unavailable. His glasses were unavailable that weekend because they were in being repaired. So one would think he would have been wearing those glasses instead,as he had done before. He said in court that he wasn't ,he couldn't understand how they came to be in his room. He said he had previously used thoe glasses to watch TV. He said he watched a video on the Sunday night,even though,without glasses, he could only see 30cm without things becoming blurry. An impartial observer might think that he must have been wearing those glasses to watch that video.Then we have the evidence given by the aunt he was staying with after the killings. She said David had told her on the Tuesday morning that he had been wearing a pair of his mother's glasses while his were in being repaired. He told her they weren't perfect,but they got him by. He asked if someone could pick up his glasses on the Thursday and she called her husband in from the next room and he said he would pick them up.Furthermore,his lawyer at the first trial said that David had told him he would be admitting to wearing those glasses that weekend. He advised the Crown prosecutor of this. Both men were surprised when David Bain said on oath,that he hadn't been wearing those glasses.Of course a pair of damaged glasses on a chair does not link David Bain to any murders,but when the lens that was missing from those glasses was found in Stephen's room,it certainly does. Together with those scratches on his torso he can't account for. And his brother's blood on his clothes that he can't reasonably account for. And those bruises on his head that he can't reasonably account for.How can he be innocent on the balance of probabilities?
15/09/2012 4:11:16 p.m.
What an extraordinary claim. If you look at all the evidence (not the rumour, not the hearsay, not the books and the hype not the sheer incredulity or naivety of decent people, but the actual evidence) then ‘on balance’ it appears more probable that Bain is guilty of the murder of his parents, two sisters and younger brother. On the basis of the evidence alone I would convict David Bain of those murders. Karam, with typical hyperbole, says that the evidence in favour of Bain being innocent is “overwhelming”. That is surely absolute nonsense. In fact the evidence which, ‘on balance’, tends to favour Bain’s guilt is by far the more overwhelming. From Karam/Bain’s position the evidence argued is at very best contentious. In the atmosphere of considerable media hype, including Karam’s repetitive books, a Christchurch jury, even when presented with strong evidence to the contrary, apparently found it difficult to believe that ‘the boy next door’ could possibly be a multiple murderer. The actions and words of some of the jurors after the trial confirm that not all of the jurors were clear headed throughout, which calls into question the quality the second verdict. At least two of them publically indicated that they sympathised with Bain (possibly at a very early stage, perhaps even pre-trial?) and seemed to indentify with him rather too emotionally as ‘the poor victim’. For many of the public, the character assassination of Robin Bain with unsubstantiated and salacious rumour and hearsay succeeds in making him the more unlikeable of the two and to those less discerning minds that is enough with which to condemn him over his son. Relentless blunting of Ockham’s razor by Karam in his books with his particular and much publicised interpretation of the evidence, I would argue, advances the idea that Bain should be considered innocent not just on reasonable doubt but even on the remotest and possibility of it, (Shades of the O.J.Simpson defence), and that this has worked to cultivate the same naïve view in the minds of many. Rather like in the gladiatorial atmosphere of reality TV shows (and dare I say, national elections) where everyone roots for their favourite personality for the least examined and therefore most suspect reasons here too the hype and confusion have done their job. The retired Canadian judge has met Bain. I have also met him (before the murders) and the carefully managed persona of him as now quiet, gentle, unassuming, smiling and ever so polite is neither the person I met nor the person many knew. For Bain to be granted compensation it would have to be far more than just political expedience or the amount of pressure Joe Karam and his publicity machine can bring to bear on public opinion. Despite the absurd and grotesque popularity contest that for many this has become it surely must take far more than just a show of hands or howls of support from those watching on their T.V. sofas, so to speak. It must be a most serious appraisal of the evidence which in itself must very strongly indicate that ‘on balance’ he is probably innocent. That is not possible in this case because to anyone who has actually read the evidence there are just too many unresolved factors, which individually and even more strongly “on balance” point to Bain probably being guilty.
12/09/2012 11:26:37 a.m.
Has Bain ever proved his innocence & in he innocent based on the balance of probability...I think I know what the opinion of the majority of the New Zealand legal fraternity is, regardless of what this Canadian guy thinks.
11/09/2012 10:02:03 p.m.
It takes guts to allow peoples views to be made sometimes...forget your own personal views.
11/09/2012 3:40:01 p.m.
geoff s wrote:
The legal system has let him down alraedy over a long period of time.
Perhaps it is time to pay David out for him to be free from the legal pressures for ever
11/09/2012 1:29:35 p.m.
Pamela A wrote:
I think the police should pay the compensation, not the government. The police need to "get it right" or suffer the consequences.
11/09/2012 1:15:49 p.m.
Give him free rail in the North Island for one year.
11/09/2012 11:42:18 a.m.
Instead of money why not give him wind ownership?
11/09/2012 11:14:03 a.m.
I think that in this situation it is not about the money to be awarded but to be grateful what you have today
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