Standards of Proof

Compensating David Bain

Children are frequently entertained by "find the mistake" type puzzles.  We have found a howler of the genre for you to puzzle over.  It occurs in the ruminations of one Sir Bob Jones--an opinion writer in the NZ Herald.  We quote the article below.  See if you can find the childish mistake.  (We should note in Sir Bob's defence that he has been known to sit in his office of an evening conversing with many a glass of high quality shiraz, so maybe he wrote this piece whilst under the influence.) 

Firstly, Sir Bob informs us, his dear readers, that he is a man of astute and careful judgment when it comes to New Zealand politics and politicians. 

Age and experience have a moderating effect and teach one never to rush to judgment on issues without the full facts.  It's certainly the case with me, which may surprise readers. But analysis of my columns will show that while I may use colourful or comic comment if a strong view is expressed, it's invariably supported by the facts.

My life-long interest in politics dates back to the 1949 election and the shock as a small boy of seeing tears in my father's eyes following the defeat of the Labour government. I recall every subsequent election and have known nearly all of our prime ministers, commented in hundreds of articles and books on our politics and participated in the process.

So, Sir Bob is in firm possession of the "full facts".  From his peculiarly endowed perspective he unleashes a harsh and extreme criticism as follows:

So with that background and the moderation rider I mentioned, I have no hesitation in saying there has never been a more disgraceful political action in the post-war years than the behaviour of the Justice Minister Judith Collins over the Bain compensation matter. Its breath-taking arrogance is without precedence.

Sir Bob does not intend this to be hyperbolic.  He apparently wants his judgements to be taken seriously.  What on earth could Justice Minister Collins have done to warrant such an indictment of "breathtaking arrogance without precedence"?  It turns out she is only doing her job--watching out for the justice of awarding compensation for David Bain, former convicted as a murderer, now acquitted.  Since a jury determined that David Bain was not guilty of murdering his family, it is absolutely clear cut to Sir Bob.  He needs to be compensated for his time spent in prison.  There is no question of whether compensation should be given; it is only a matter of how much.

She has effectively said she disagrees with a jury's findings after an exhaustive three-month trial, disagrees with the widely regarded greatest law lord of the past half century and his Privy Council, and disagrees with Canada's (former) top judicial figure after his three-month investigation.

Of course Sir Bob knows the difference between a criminal trial and a civil trial. Of course he knows that there is a different standard of proof.  Of course he knows that in a criminal trial the very high standard of proof requires "beyond reasonable doubt" whilst for a civil trial the standard is lower, and more easily satisfied--"on the balance of probabilities".  This means that not infrequently one may get a favourable outcome in a civil action but fail in a criminal matter.  Sir Bob knows all this.  He is just poking borax for the fun of it.  Shiraz can do that to you. 

In fact, Minister Collins appears to be doing her duty to uphold the law extremely capably and with great diligence.  Especially as one of our more acclaimed jurists delivered such a damning indictment upon the Canadian judges recommendation for compensation.  Whilst Tom Cruise may vehemently assert, "I know the law!" it appears that Justice Binnie from Canada did not--at least with respect to the law in this country.  Imagine the damage done to justice in New Zealand were Minister Collins blithely to accept Justice Binnie's recommendation, as Sir Bob is demanding.  Binnie's report, upon being released, would have created a storm of outrage from the legal profession.  In effect, Minister Collins and the government would have been saying there is no difference between the standards of proof required between criminal and civil matters. 

If that had been done, if that had been the consequence there would be only one outcome over time--that progressively and insidiously standards of justice to convict in criminal trials would be lowered to match the lower "balance of probability" in civil trials.  And that would have shredded a fundamental principle of justice in this country--that an accused person has to be proven to be guilty of a crime beyond reasonable doubt, not just proven likely to have been guilty.  As it is now, many a juror struggles with just this distinction, requiring careful delineation for their benefit by trial judges. 

For our part we, without resort to shiraz, are bold enough to say that Minister Collins has acted with the rectitude appropriate to her duties as Minister of Justice and may well prove to be one of our finest to hold that office in our country's history.  The assertion of proof in this case, we hasten to add, is merely on the balance of probabilities.  There is no certainty intended.