You may not play the Calvinball the same way twice

A (former) judge may be going to say that David Bain is not innocent beyond all reasonable doubt. That doesn't necessarily mean he won't get compensation, but it makes it a bit harder to do so.

 According to the NZ Herald, by way of a fortuitous leak to Jared Savage, the report into David Bain's compensation claim by retired Australian Judge Ian Callinan, QC is in the hands of Minister of Justice Amy Adams. (Remember that a previous report on this matter by Canadian ex-Supreme Court Judge Ian Binnie was binned by then-Justice Minister Judith Collins - something I discussed in a really too-long;read-at-your-own-peril post here.)

Savage has been told that Callinan's report finds that Bain has failed to prove his innocence beyond a reasonable doubt. Before talking about what that might mean, note what Savage apparently hasn't been told - whether Callinan believes Bain is innocent on the balance of probabilities. Because, remember, that's all that Ian Binnie concluded in his earlier report. So it's ... somewhat interesting that someone has seen fit to pass on one bit of Callinan's conclusions, but not the bit that actually may matter the most. Read into that what you will.

Anyway, let's for now just take what Savage has reported at face value and assume its accuracy (which may be risky, but hey - I live on the edge). What does it mean, and why is it (as the Herald reports and some moron talked about on the radio) a potential problem for Bain's compensation claim?

The perhaps most important point to note about compensation for wrongful conviction is that it is not really a legal process at all (although the law may have something to say about how certain aspects of it should proceed). There is no explicit legal right to such compensation - New Zealand has not created any statutory or other process to govern it. Instead, the Crown (in reality, Cabinet) has indicated its willingness to make so-called "ex gratia" payments to people who have been wrongfully convicted if-and-when it believes such compensation is (in its opinion) warranted.

(Note that this refusal to acknowledge a legal right to such compensation flies in the face of the International Covenant on Civil and Political Rights, Art. 14(6):

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

However, when New Zealand signed this instrument it reserved the right not to apply this bit as we didn't like how it might impact on our domestic legal order. Apparently something we didn't bother doing with various bits of the TPPA, because that international agreement (apparently) doesn't impact on "sovereignty" ... but now I'm really just trolling, aren't I?)

Of course, Cabinet has set in place some "guidelines" to structure its decision on whether or not to provide compensation in some cases. To summarise, a QC is appointed to look at the case, and if she or he concludes it is more-likely-than-not a person was innocent of the offence, then compensation will be calculated according to a particular formula. The exact status of these guidelines is then a little uncertain ... they certainly aren't "law" in the same way an Act of Parliament is, but by the same token they may have become something that people applying under them have a legitimate expectation will be followed, such that a failure to do so would be "unreasonable". 

The problem is that in David Bain's case these guidelines simply don't apply, as Cabinet has indicated they will be used only for people whose convictions are quashed without having a retrial ordered (or, who get a pardon for their conviction, as happened with Arthur Allen Thomas). And, of course, Bain was acquitted at a retrial ordered by the Privy Council. That means that Bain had to ask for compensation outside of Cabinet's guidelines, which is a harder road to walk down.  

Cabinet prescribed no additional criteria or process for consideration of claims falling outside the Cabinet guidelines.  However, current practice is to ensure that, where relevant, important principles in the Cabinet guidelines are applied in a consistent manner to such claims.

Claimants outside guidelines must show, at a minimum, that they are innocent on the balance of probabilities.  They must also show that there are extraordinary circumstances that justify compensation.

It is this last (bolded) bit that is critical here. Because the Crown (or, rather, Cabinet) says that one "extraordinary circumstance" is that you can "show you are innocent beyond a reasonable doubt". That's what it said back in 2011 when deciding to compensate Aaron Farmer for his wrongful conviction for rape, and repeated the same year when compensating Phillip Johnston and Jayden Knight for wrongful arson convictions: 

The Crown has discretion to consider “extraordinary circumstances” claims that fall outside the Cabinet guidelines where it is in the interests of justice to do so. The discretion is exercised very rarely. [These cases are] the first in which compensation has been paid under “extraordinary circumstances”.

Being able to establish innocence on the balance of probabilities is a minimum requirement, consistent with the Cabinet guidelines. There are stricter criteria for claims that fall outside the Cabinet guidelines, which include an applicant being able to establish their unequivocal innocence (i.e. innocence proved to the higher standard of beyond reasonable doubt).

The same test applies to David Bain’s application for compensation. Mr Bain’s application is being considered under Cabinet’s residual discretion as, like [these cases], his case falls outside the Cabinet guidelines.

Now, you may query, why does "exceptional circumstances" mean "innocent beyond all reasonable doubt"? Well, it does because Cabinet says it does. And because Cabinet is only giving compensation out of the goodness of its heart, as it were, it gets to make up whatever rules it wants to, or interpret those rules as it sees fit. If this sounds a little bit like Calvinball, well ... I can't really help that.

Note, however, that showing your innocence beyond reasonable doubt is not the only sort of "exceptional circumstance" that may put you in line for compensation outside of Cabinet Guidelines. Back in 2000, David Dougherty (who was, remember, finally acquitted of rape after 5 years in jail and some fine crusading work by Donna Chisholm and others) received compensation despite the QC who examined his case finding only that he was innocent on the balance of probabilities. Of course, we learned subsequently in 2003 that Dougherty was completely, unarguably innocent of the crime when Nicholas Reekie was convicted for it. But at the time compensation was agreed, innocence beyond a reasonable doubt was not required.

Furthermore, when Justice Binnie was brought in to examine Bain's case back in 2011, the letter of appointment he got from Judith Collins stated:

Although there can never be an exhaustive list of the kind of circumstances that might be regarded as “extraordinary”, the mere fact that an appeal has been allowed could never, of itself suffice. To qualify as extraordinary, the circumstances must include some feature which takes the claimant’s case outside the ordinary run of cases in which appeals have been allowed. Examples of such circumstances include, but are not limited to:

a. Unequivocal innocence – i.e. cases in which it was demonstrable that the claimant was innocent beyond reasonable doubt, for example, due to DNA evidence, strong alibi evidence, etc.; or

b. No such offence – i.e. the claimant had been convicted of an offence that did not exist in law; or

c. Serious wrongdoing by authorities – i.e. an official admission or judicial finding of serious misconduct in the investigation and prosecution of the case. Examples might include bringing or continuing proceedings in bad faith, failing to take proper steps to investigate the possibility of innocence, the planting of evidence or suborning perjury.

6. The test of “extraordinary circumstances” is inherently open‐ended and the list above cannot be treated as exhaustive. There may be rare cases where there are other extraordinary features that render it in the interests of justice that compensation be paid

And recall that Justice Binnie then went on to conclude that there were "extraordinary circumstances" in Bain's case (even though he didn't think him innocent beyond all reasonable doubt) due to the flaws in the way his case was handled: 

605: Of course in many cases where appeals are allowed there will be instances of Police investigative failures. It is the number and cumulative importance of errors here that should, in my view be seen as constituting extraordinary circumstances.

606. The sheer length of David Bain’s incarceration takes the Bain prosecution “outside the ordinary run of cases in which appeals have been allowed”.

607. This is not a case where my respectful recommendation, the Cabinet ought to say to David Bain “tough luck” and “move on”. The state authorities and in particular the Dunedin CIB, were seriously complicit in this miscarriage of justice.

All of which means that, yes, if Callinan really has concluded Bain is not guilty beyond a reasonable doubt, then it makes his case for compensation harder because it takes away one of the "exceptional circumstances" that Cabinet requires be shown before paying compensation in cases like his. And it's the only exceptional circumstance that Cabinet has accepted so-far when paying out compensation to people acquitted at trial.

However, there always are other possible exceptional circumstances that Bain may claim instead, such as the ones that Binnie identified in his report. Those circumstances, however, appear to involve Cabinet accepting that the Police and prosecutors really, really screwed up their jobs. A conclusion which, you can bet, the institutions involved will fight against tooth-and-nail. 

Boy-oh-boy ... this really is the case that just keeps on giving, isn't it?