David Bain has just been found not guilty for the 1994 murder of his family in Dunedin– a series of killings he was convicted for in 1995. He spent 13 years in prison and it was only after a massive and dedicated effort by supporters, in particular Joe Karam, that his initial conviction was quashed and he was free on bail to be retried.
There is a lot of speculation about whether he will get compensation. I'm not going to add my thoughts. What interests me is the many other people in prison for crimes they did not commit. Former High Court judge Sir Thomas Thorp, in his 2006 report into miscarriages of justice in New Zealand, suggested that as many as twenty people might be wrongfully imprisoned for serious offenses in New Zealand. He cited work in 2002 by Bruce MacFarlane, the then Deputy Attorney General of Manitoba, on what factors make a miscarriage of justice more likely.
MacFarlane listed four predisposing factors: public pressure for a conviction, unpopular defendants, lawyers turning the process of trial into a game, and noble cause corruption - that is, persuading witnesses to alter their testimony, or planting evidence, because police genuinely believe that the person charged is guilty.
He also listed eight direct causes. These were: eyewitness misidentification; police mishandling of the police investigation; inadequate disclosure by the prosecution; unreliable scientific evidence; using criminals as witnesses, such as jailhouse informants; inadequate defence work; false confessions; and misleading circumstantial evidence. He said that these factors are present throughout the Commonwealth jurisdictions. There is no doubt that they are present in a number of cases in New Zealand. Personally I believe that the convictions of Peter Ellis and John Barlow also need to be reviewed, but to go further, I am convinced that Scott Watson is entirely innocent of the killing of Ben Smart and Olivia Hope in the Marlborough Sounds in 1997.
Whether he will get a chance to show it is another matter. Wrongful convictions are incredibly difficult to overturn, because of the design of our appeal system. Once a jury has convicted, appeals can only be, by and large, on points of law. There are good reasons for this, but it does mean that substantive problems do not get picked up in some cases.
The last resort in such cases is a petition to the Governor-General for a retrial or for a pardon. These are handled internally by the Ministry of Justice and the process is ad hoc and entirely unsatisfactory. That's why justice Thorp's main recommendation was for an independent Criminal Appeals Review Office, as exists in Canada and the United Kingdom. Many prominent lawyers, the Criminal Bar Association and the Law Society have all echoed Sir Thomas's call, especially in the wake of the Rex Haig and David Doherty cases. Parliament's Justice and Electoral Select Committee backed the idea after it looked into the petitions calling for an inquiry into the Peter Ellis case.
Justice shouldn't rely on the unpaid, some times personally costly, efforts of supporters to bring these stories to light. It's time a Criminal Appeal Review Office was introduced in New Zealand.
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Here's a link to the Thorpe report on David Bain, it makes for some rather damning reading and its clear that Thorpe didn't consider Bain to be one of the innocents wrongfully imprisoned. Any such appeals office would make no difference in this case, as all the legal minds who have reviewed the evidence have had no doubt as to Davids absolute guilt.
It is quite interesting and the factors which make a miscarriage of justice likely, infact you can see them in this case in the reverse in many aspects. Its clear that jurors can be misled and manipulated by both sides, which is one of the major failings of the jury system, perhaps even a panel of judges would be preferable to what is in essence a lottery at the moment depending greatly on the Defendants 'character' and appearence rather than the sole facts and evidence of the matter.
I'd suggest anyone getting caught up in the misconception that a not guilty verdict means that David is innocent and Robin guilty read this report
http://www.justice.govt.nz/pubs/reports/2004/david-bain/thorp-bain.pdf
Thanks Bosc
Personally I would like to see NZ move to something closer to an inquisitorial system, where the objective is to get to the truth, rather than prove who is the cleverer lawyer. That's not to say that inquisitorial systems don't have their own problems (Dreyfuss is a good example).
I'd be interested in your opinion about have a verdict of 'not proven'. It seems to be a favoured approach among much of the public.
The inquisitorial system certainly results in fairer verdicts with less bias, but it doesn't mesh too well with the whole right to remain silent facet of our system.
In the Bain case the only person who knew exactly what happened and protested his innocense didn't say a word in the entire trial all we had was two highly paid professional story tellers arguing with each other and trying to manipulate 12 average people into believing their side. The actual evidence and facts of the case were never put up to impartial scrutiny by someone unbiased such as a Judge. Imagine if David could have been put on the stand and rather than being attacked by a prosecutor been asked relevant and pertinent questions by a Judge?
When you look at the Bain case on its own, taking David and Robins personalitys and portrayed characters out of the question its clear that the evidence beyond reasonable doubt convicts David. However when you introduce the personalies and allow the assasination of characters and introduce emotional manipulation into the equation the actual facts and evidence get lost. Which is the problem in our adversarial system.
In this case it counted heavily in Davids favour and allowed a guilty man to walk free, but had he say had the appearence and personality of Scott Watson or a heavily tatooed Maori whom the Jury felt no emotional attachment with the bias would have been to the opposite and he would no doubt have been convicted and the opposite injustice occur.
A not proven verdict would have been a much fairer outcome and would lessen the confusion of people like Paul Holmes who seemed to think that this verdict allowed him in his ridiculous opinion peice of call Robin a murderer as a matter of fact. It would also lessen the pressure on jurys.
I must take exception to Bosco's first comment. The Privy Council, commonly regarded as a group of fine legal minds, looked at the case and stated that the original conviction was unsafe. They did not say Bain was innocent, but they said there should be a retrial. That makes Bosco's first comment in error in my opinion.
I think this shows the value of the Privy Council and the shame it was removed. With most of it's Judges removed from NZ and more impartial to the publicity surrounding a high-profile case you are more likely to get a sound decision.
I know NZ Judges are world class and the supreme court has done good work so far, I just regret the loss of that more impartial tribunal.
The trouble with the Privy Council is that criminal appeals were almost never heard there. You had to seek leave to appeal and it was rarely granted, as opposed to commercial cases which got there by right.
This means that in reality we never had a final court of appeal for criminal cases beyond the Court of Appeal, which was in my view not adequate for the role.
I was quite interested in a Pacific Supreme Court, and discussed it with Margaret Wilson, who was interested but said that the support from other nations was not there. I still think it could be a way of having a more accessible Supreme Court but incorporating the protections of an international body.
Trouble is, we don't know who's wrongfully imprisoned and who is not. The Bain trial created more questions than it answered and there is no guarantee that Robin Bain is the murderer, either, hardly any of the hard evidence even pointed to him, and there are so many unlikely coincidinces. Far from clear cut.
Someone who is not guilty but though he is wrongfully imprisoned. like wise in your article. Investigators sometime bring the wrong stories in front of the jury which leads to take the wrong decision.
Criminal law firms
The Peter Ellis case should be looked at again. It always seemed to me to have all the balance and fairness of a Salem witch trial.
Phil Goff's ties to this could be dug up as well.
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