The Significance of the Bain Verdict

Some Lessons from the Trial

It would seem as if there are only two categories of people in New Zealand--those who believe that David Bain is innocent and those who believe him guilty. The verdict of Not Guilty delivered by the jury last night appears not to have changed the views of people in either category.

Well--that is an exaggeration. No doubt there is a third category--those who simply did not believe either way, and will accept the verdict as authoritative.

For those of our readers who are not from NZ, the Bain case is probably the most high profile ever to have occurred in the country. Originally convicted in 1995 of murdering his parents and three siblings, Bain served 14 years in prison. Last year, the Privy Council (the Law Lords of the House of Lords in the UK) declared that a substantial miscarriage of justice had occurred. Bain was released, but a second trial was ordered by the Solicitor General. That trial has now concluded and Bain declared Not Guilty.

We at Contra Celsum thought we would opine on some of the more general issues surrounding the case.

Firstly, it is deeply troubling that it took the Law Lords (amongst whom many testify are some of the finest legal minds in the world) to rule that a substantial miscarriage of justice had taken place in the New Zealand courts. Not just a miscarriage--but a substantial miscarriage. (Again, for our non-NZ readers, the Privy Council in the UK until recently served as the highest court of appeal for New Zealand.)

The Bain case and the original verdict had been appealed and reviewed by appellate courts and various authorities in New Zealand. In summary:

December 19, 1995: the Court of Appeal dismissed Bain's appeal.

May 1996: a petition seeking leave to appeal to the Privy Council failed.

November 25, 1997: the Police conducted an independent review of their investigation and procedures, and conclude that there were no serious flaws in the police investigation and that criticism of the police being incompetent was unjustified. (This conclusion has now been shown to be tendentious at best, given what has come out at the most recent trial.)

September 2003: Court of Appeal again reviews the case. It decides a retrial was not needed on the grounds that the new evidence would not have changed the jury's verdict.

May 10, 2007: Privy Council declares a mistrial.

The judicial and investigative reviews carried out in New Zealand, for whatever reason, failed to see the substantial miscarriage of justice. That represents a huge lacunae.

In this light, it remains deeply troubling that our judicial system has had the Privy Council removed as a highest and final court of appeal. It was removed effectively by fiat, through the actions of Helen Clarke and Margaret Wilson, without public consultation, debate, or discussion. It was a truly revolutionary move.

The failure of our appellant system to see a "substantial miscarriage of justice" begs questions of competence, and equally importantly, of bias and cant. New Zealand remains a small country, with the judicial system open to charges of fiefdom and an "old boy network." The pool of judicial talent is too small. There appears to be a deep reservation for career judges to criticise fellow judges and their opinions and actions. "What goes around comes around" appears to be alive and well. "If I rule against a court or justice, effectively criticising their legal competence, it will come around to bite me. I will offend said judge's colleagues and friends who will one day sit in judgment upon my decisions and actions."

The judicial system appears to find great difficulty sitting in competent, credible and disinterested judgement upon itself. This is to be expected. In most countries this is alleviated by the breadth and depth of judicial talent. In New Zealand it was checked and balanced by the Privy Council. Justice in New Zealand was weakened and undermined the day Clarke and Wilson prorogued the Privy Council.

We believe there needs to be a thorough re-assessment of what New Zealand actually lost when the Privy Council was removed, and a thorough and dispassionate review conducted by non-members of the judiciary, as to whether the new Supreme Court is sufficiently detached and removed from collegiality with the rest of the judiciary.

Secondly, the Bain trial shows the strength and wisdom of trial by jury. While there are those outside the courtroom who have very strong and emphatic opinions one way or the other, it is only those twelve people who hear all the evidence, and observe the "soft" testimony as well in which the evidence is framed--the body language, the tones of voice, the mannerisms--all of which make up a picture of credibility or believability. In the end, they have made a judgment. They are the only ones competent to make it. In making it, the matter is over.

Thirdly, some have argued for the introduction of a third verdict category which is employed in Scotland--a verdict of "Not proven." We think that this might be a salutary development. It certainly reflects more accurately the reality of requiring a burden of proof that puts a matter beyond reasonable doubt. This, coupled with the requirement of a unanimous verdict from twelve people, is a high and exacting standard, which is exactly as it should be. The "Not proven" category allows a jury to suspend judgement upon whether the accused is guilty or innocent, and instead allows them to state that the evidence presented is not substantial or compelling enough to convict.

However, in order for "Not proven" to be acceptable requires that society at large accept that justice in this life is a limited, desultory, incomplete, and often inadequate. Now for Believers, this is both expected and fundamentally right. All that man does is limited, finite, creaturely, and dependant. We can so often only speak of probabilities, not certainties. But the citizens of Jerusalem know that the law courts of this life are preliminary courts only. They are not final courts in any sense. Therefore, Christians are very sanguine about "Not proven" in this life because they know that it is not the end of the matter. A court is to come which will infallibly and certainly just, judging with absolute truth, which has exhaustively and comprehensively revealed to it all actions, thoughts, and motives. Nothing shall remain hidden or doubtful. Justice will be final and complete and exhaustively exacting.

Unbelievers, however, find the notion of incomplete and inadequate justice in this life deeply troubling, because for them the justice of Man is all that there is. The inadequacy of justice reflects poorly upon their view of the status of mankind as a semi-divinised and autonomous being. Therefore, one wonders whether the "Not proven" option would in the end become a pretext for slandering and unfairly criticising the police and the prosecuting authorities.

Fourthly, we have been reminded again about how forensic and expert evidence can be a wax nose. It so often does not give the certainty that appears at first blush. Hearing experts confidently pronounce that one of the victims had to be alive when David Bain returned to the house because he had heard a gurgling noise appears definitive and therefore convincing, until other more experienced experts testify that it has been known to happen for dead people to make such noises--and one (from Australia) saying that he had actually heard it himself, and it was not uncommon.

Another example was the expert testimony that Robin Bain's suicide with the rifle was impossible, only to have other, equally expert witnesses testify that it was not impossible at all. What appeared to be completely certain was suddenly not so certain any more. All of this reinforces the need for care, circumspection, and a thorough, contested review of all testimony from experts.

Finally, one cannot help be grateful, yet sympathetic toward the jury members. They have had to give up nearly three months of their lives. It is a sacrifice which we all salute and acknowledge. However, it raises the issue of how jurors are funded and remunerated. So many people are virtually forced to turn down jury service because they cannot afford it. To expect employers to carry employees over long trials such as the Bain trial is naively unrealistic. If we are to continue with jury trials--and we strongly support their continuance--it is essential that jurors (or their employers) be properly funded, so that the pool of jurors can be truly a cross section of the community.

We fear that far too many juries these days are largely made up of people who are state welfare beneficiaries of one kind or another (unemployed, retired, or "official" invalids") because they are the only ones who can afford to devote the time to jury service. With all due respect to folk in these circumstances, it introduces a potential bias into juries which is unsavoury.

As Forrest Gump would say, "That's all we have to say about that."