Jun 06
Bain Trial: The greatest miscarriage of justice in New Zealand history
Topic is Law and order, Politics, Society, Your money by Brian Mackie | Print it |

David Bain. Picture from his blogsite
The victims were, in truth, each and every one of us, for we must now pay countless millions of dollars for this outrageous farce, which was a 21st Century version of David versus Goliath.

Justice should be blind, but it is easily wrecked by short-sighted politicians. Picture from Dreamstime.com
Some of the deluded left-wingers who wanted an end to Privy Council influence in New Zealand were the same people who foolishly decided to put Bain on trial again. Now that he is rightly freed and exonerated, it is their heads that should roll. They are responsible for raiding the public purse to no good purpose and making our legal system appear cruel, crude and unfair.
Unfortunately, they’ll probably get away with it. As an abuser of public trust, for example, we might accuse Dr Michael Cullen, the Attorney-General beneath whose half-closed eyes this terrible blunder was made. He has already been tossed out by an electorate that was sick and tired of nine years’ fiscal misrule, punctuated by his government’s regular introductions of bad law, over both of which he loftily presided. The highly-paid public servants who starred in the Bain debacle must also be named and shamed. You can be sure that all these people’s taxpayer-funded pensions will be paid, even though they might, deservedly, suffer sleepless nights.

Former Solicitor-General David Collins, who decided to retry David Bain. Where is he now?
Perhaps, after more years of struggle, Bain will succeed in gaining some kind of recompense for a life destroyed by State-funded blunderers. In that case, we as taxpayers will once again pay an enormous price. It would be amazing, but fairer and less expensive for everyone, if the State truly admitted its failure and defeat, and negotiated to compensate this man without further dispute.
David Bain joins the Berrymans and countless others in the club of true victims of a deeply flawed justice system. Sadly, the new administration, in the shape of “Madame Blunderbuss” Judith Collins and her misguided policies, offers little hope of progress.
It all goes to support what we said only recently: The law in New Zealand is an ass, created by donkeys and administered by careless fools who – in almost every respect imaginable – play fast and loose with citizens’ lives, as well as their money.
If you’re ashamed of what was done to David Bain in your name, take a look at
http://www.davidbainfund.co.nz/cms/Home/tabid/38/Default.aspx
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Tagged as Bain Trial, Complaint, David Bain, Dr Michael Cullen, grumpy, New Zealand Supreme Court, Privy Council
Tagged as Bain Trial, Complaint, David Bain, Dr Michael Cullen, grumpy, New Zealand Supreme Court, Privy Council


June 6th, 2009 at 3:58 pm
David Bain was the victim of an extraordinarily evil prosecutorial abuse. Mr Bain should now be compensated; not that any amount of money will undo the harm that’s been done, but it will enable him to get on with what is left of his life.
As for the question “Who killed the Bain Family?” that question should have been asked by the police during the original investigation and at least by the country, its many governments, the many successive Attorneys- and Solicitors-General, prior to the inexplicable decision the police made to destroy the evidence, knowing that there were to be appeals.
In the minds of many New Zealanders, David Bain was not the only party on trial over the past three months. So were the police and those repugnant individuals who hide behind the term “The Crown”. With the verdict of “Not guilty” for David Bain came a (yet to be heard) verdict of “Guilty” for those who have, over the years, mired him and his defence team with untold legal maneouvrings and personal attacks. The case has not been about the truth for the elusive parties behind the Crown and the police. It has been about saving face and it has been an attempt to destroy a dangerous precedent. It was about winning at all costs.
When the legislation surrounding the abolition of the Privy Council was being rushed through Parliament by Margaret Wilson and her disciples, it was obvious – to this observer – that it had little to do with improving or expediting justice; rather, it was a blatant grab for power; the ability to curb precedent; a repugnant tool to enable governments (present and future) to mitigate the fallout from a grossly incompetent and often malicious police force and Civil Service.
This trial and the preceding farce and, no doubt, future wranglings over compensation, should be a wake-up call.
The country urgently needs an independent criminal review process; one that stands alone and at arms’ length from the Government and the courts. The Crown versus Peter Ellis should be the first to attract its attention.
June 9th, 2009 at 8:38 am
There was evidence sufficient to convict David Bain, but the trial process created sufficient doubt and so he got off. That’s what this case is all about. Justice is often a tortuous path. Juries are very good at applying their commonsense; that is a strength of our system. It is silly to endeavour to evaluate the process on a cost analysis basis.
The Privy Council did what a final appeals court is there to do. This case also got to our Supreme Court, on a point arising from the Privy Council outcome and our Supreme Court made an order favourable to David Bain.
Seems to me the system worked very well and that is what should be celebrated.
June 9th, 2009 at 3:52 pm
Knowing that Russell is a highly experienced defence lawyer, with whom I have occasionally crossed swords on political matters, I feel he may be too deeply immersed in the adversarial system of justice practised in this country, where winning the case is deemed more important than seeking justice or establishing the truth. His opinion fits the mainstream of his profession, and must be respected. However, he is wrong in stating that there was evidence sufficient to convict Bain. Evidently, that was not the case. My argument was that the Privy Council had raised sufficient doubt about the original conviction to suggest that staging a retrial would be unwise.
June 9th, 2009 at 5:22 pm
Some matters need a response. First, the Privy Council had the power to quash the conviction and not order a re-trial. It often does this in its guise as the House of Lords. The Council did that, as I recall, with the Christchurch heart surgeon convicted in NZ of manslaughter.
I am drawn to an inquisitorial system as found in France and other parts of Europe.
Here in NZ, we successfully have inquisitorial justice in the Family Court and the Coroner’s Court. My Parliamentary maiden speech advocated a move away from the games of the adversarial system. What I did achieve in Parliament (and not much else!) was to present to Parliament what’s now known as the Evidence Act 2006. This allows hearsay evidence and helped Bain in his retrial – what was excluded at the first one could not be excluded by the Judge at the second. Four people drafted the final Act – Chris Finlayson, now Attorney-General, occasionally the now-hounded Richard Worth, Nandor Tanczos, and myself. It was a special subcommittee that I chaired. In this regard, at least, I’m outside the mainstream view of my profession, many of whom complain about this new liberal approach to evidence. I don’t always agree with jury verdicts, but I trust their collective common sense, including their ability to assess evidence of otherwise dubious quality.
In Bain, the jury chose not to put weight on evidence sufficient to support a conviction and thus did a very good job.
June 10th, 2009 at 2:12 pm
“In Bain, the jury chose not to put weight on evidence sufficient to support a conviction and thus did a very good job.”
I’m confused. Why is it good for a jury to ignore evidence sufficient to support a conviction? Is the jury not supposed to decide its verdict based on the evidence alone?
June 11th, 2009 at 9:32 am
I response to Margaret; yes the jury can only base the verdict on the evidence they hear in Court. But when evidence on the same point is in conflict, the jury have to make decisions about which they prefer. If they can’t decide, then the Judge instructs them how to deal with that problem.
Sometimes another situation arises; evidence not contradicted by other evidence is not sufficiently convincing for a jury to accept and it is proper for them to make a rational decision to reject that piece of evidence.
Every day, we all decide between conflicting versions of events and even how we interpret things and we apply our common sense to assist us. As individuals, we purchase different cars and different houses because one is more appealing to us individually than another, yet that other still meets our needs criteria.
In law, a case goes to a jury if there is a prima facie case to support the allegation. In this sense, a prima facie case requires sufficient factual evidence on which a jury could convict if they were convinced by that evidence. It’s the jury’s job to evaluate the evidence and decide between conflicts. They do this against certain rules based on well established legal principles.