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Bain retrial: justice insiders’ self indulgence

  • April 28th, 2009

 The Bain re-trial is a disaster on many fronts. I’ve seen one estimate of a $10m cost to the Crown but a bigger cost may never be recognised. 

So far as can be told from the published media selections some police have been humiliated during the drawn-out cross-examination on investigatory procedures. The defence feasted on apparent slip ups and short cuts recalled from so many years ago. That feasting will have current detectives resolving not to risk ending their careers similarly, to do things more by the book, however tedious and unnecessary it may seem.
Police resources will not necessarily increase correspondingly. That means more cases not investigated, and more distraught victims seeing no remedy for the wrong done to them. It is not clear that text-book processes will reduce the risk of miscarriages of justice. More care may just give the appearance of more certainty without changing the underlying uncertainties.
Police practices do change in response to court criticism. We’re all paying the price for criticism of a bungled investigation of a traffic death in Southland many years ago. The Police close roads and imperviously hold up thousands of commuters for hours as they meticulously photograph and measure at smash scenes. They resist questioning about the relative costs and benefits of grinding away looking for someone to charge for an accident where there is no question of hurtful intent.
Among other unmeasured costs is the loss of mutual willingness by parties in an accident to apologise immediately, irrespective of who is most to blame. We’ve all suffered loss as civility and candour have become only for mugs when prosecution usually follow inadvertence. 
Meanwhile, a few blocks away, deliberate evildoers could be operating knowing the police rarely respond in time to catch them redhanded. Burglars  and their victims expect the police to call the next day, if at all. When did we decide that an accident should merit millions of dollars in investigatory cost (including the time of the people held up) while calculated crime gets a "sorry we’re busy"?
The Bain retrial is an exhibition of blind self importance in the justice establishment, and its consequent immunity to considerations of cost against benefit.
Bain has already served whatever sentence he is likely to get. The only purpose the re-trial can serve is to vindicate our Police and Courts. From the published accounts of the trial to date I believe that possibility may have already gone. Enough doubt has been cast on the prosecution process to sustain the faith of the Bain supporters however flimsy the foundation, and similarly there will be enough for the other side to revive the fervour of those who support the convictions.
I hope the Solicitor General’s decision to spend this $10m was not just an attempt to show that the Privy Council got it wrong. Whatever it was at the end of all this self indulgence there could be just as many believing the system fails the innocent as when they started.
So the Crown has lost already even if it secures a fresh conviction. The Attorney General, as a new broom,  should call the prosecution off now, if he constitutionally can. It would be a dramatic demonstration that justice decisions too must show objectives worth pursuing when vast resources are committed.
The $10m is not the only cost of the countless police hours on the case.
The Elliotts, who lost their daughter Sophie to her murdering economics lecturer in 17 months ago, still have not had the closure of a trial. Police who should have been free for that case have been tied up in the Bain folly. 
Surely there can be only one question – was Clayton Weatherston sane? Our system does not have the wit to discourage a plea of insanity, or the courage to question whether it should still be a defence. It mattered when we had the automatic death penalty for guilt of murder.  Without that penalty the verdict, ‘not guilty by reason of insanity’ should have long ago become “guilty but insane”. The difference should lie only in whether they were detained in a hospital or a prison.

 Many justice insiders believe that what they do is sacred. They are sincere,and it is important.  But they are not challenged as they should be.



“Bain has already served whatever sentence he is likely to get. ”

Personally, I suspect he’ll be found guilty – does this mean he’s likely to walk free either verdict?

  • Carol
  • April 30th, 2009
  • 9:16 pm

You are probably right, but who actually wanted the retrial? I thought it was brought about by the Bain supporters camp. No doubt they hoped for a discharge without a retrial, but they must have known it was a risk they’d face.

  • Jim Maclean
  • May 1st, 2009
  • 12:20 am

Personally I believe the retrial is a good thing. The extraordinary support David Bain has found has called the original verdict into question, and the incident was serious enough and spectacular enough so a great deal of good may well come out of a process which settles the issue in the minds of most of New Zealand. Having said that, I agree wholeheartedly with Stephen’s comments about the Clayton Weatherston case.

  • Nikki Pender
  • May 2nd, 2009
  • 12:06 am

Sorry, Stephen, I have to disagree with you on this one.

Not, of course, on the intolerable delays in getting Sophie Elliott’s case to court, but in the Crown’s decision to have a retrial in the Bain case.

Many of David Bain’s supporters are vocal and extroverted. And, at least since the Privy Council decision, he has enjoyed a fairly slick PR strategy.

Had the Crown not insisted on a re-trial, even if it were for purely pragmatic reasons, this decision would have been greeted as a total vindication for David. The next chorus would have been for considerable compensation; demands which, given the almost messianic thrall in which the mainstream media appear to hold him, the government would have been hard-pressed to resist.

Sure, there may still be a push for compensation, should David be acquitted. However, this claim would be objectively assessed in light of the evidence presented during the retrial.

And, more importantly, this process is not all about David.

What sometimes gets lost sight of in this whole drama is that 5 people are dead, at least 4 of whom were innocent victims of a violent murder. And, there are other members of their immediate family who have spent nearly 15 years grieving, not just the loss of the five who died, but no doubt the loss of David too.

Some of the extended Bain family gave evidence over the past week. They didn’t want their faces shown and a couple of them asked not to have their voices recorded. Despite this reticence, the news accounts of their testimonies conveyed a quiet dignity and palpable sense of sadness.

Just because they have chosen not to engage the likes of Glenda Hughes and others to represent them, doesn’t mean that the rest of the Bain family have lost their rights under the Victims Rights Act, or otherwise.



I’m interested by the contrast between this statement:

They resist questioning about the relative costs and benefits of grinding away looking for someone to charge for an accident where there is no question of hurtful intent.

and this one:

Our system does not have the wit to discourage a plea of insanity, or the courage to question whether it should still be a defence. It mattered when we had the automatic death penalty for guilt of murder. Without that penalty the verdict, ‘not guilty by reason of insanity’ should have long ago become “guilty but insane”.

You seem to be arguing that if someone shoots someone believing them to be a deer, criminal charges (e.g. injuring by unlawful act, or manslaughter in the event of death) shouldn’t even result, but if someone shoots someone believing them to be the devil, then a guilty verdict is just.

I can’t agree. The insanity defence negates mens rea, if you’re ‘insane’ then you’re not guilty: you may have done the act, but you didn’t have whatever intention is required of the particular offence. If we get rid of it as a special defence, it seems to me that what would be left would be not “guilty but insane”, but “not guilty”.

Obviously, any repeal of the insanity defence wouldn’t work like that, but that really seems to be its purpose. An insane person isn’t guilty, but we want them locked up anyway…

  • Jim Maclean
  • May 4th, 2009
  • 8:48 am

I do see the point above raised by Graeme Edgeler as a simple “truth in justice” issue. Of course he is right that technically without intent someone is not “guilty” of wilfully killing someone, but they have killed nonetheless. The term “not guilty” has lost it’s essential meaning in law in the minds of most members of the public and has taken on the meaning “he/she didn’t do it”.
When it is patently obvious that “he/she did do it” then the worlds “guilty but insane” better reflect what citizens like me absolutely do want. That people who have lost the natural inhibition which stops them killing others are kept segregated from society in future.


Jim – there’s possibly a middle ground. I can see that some people might look at “not guilty by reason of insanity”, and think that there was a denial of the facts.

How about just “insane”?

I do wonder if similar arguments would apply in other circumstances … would people support “guilty, but in self defence”? It may be that that would have ameliorated the feelings of Stephen Wallace’s family … they *know* the cop who killed their son, but have a jury decision that says he was “not guilty”.

[As usual Graeme gets to the core of hard issues. You were right Graeme to highlight the tension between my lack of enthusiasm for carelessness charges in the criminal law (the absence of the guilty intent) and a seeming indifference to the difference between the guilt of a sane defendant and a person deemed to be unable to know the wrong nature of their action by reason of insanity.

I think you are also approaching the reconciliation. One of our difficulties is that the old legal definitions of insanity are not easy to fit intuitively into the tests derived from therapeutic diagnosis. Many of us suspect that people the experts would call insane are also quite conscious of the ‘evil’ in their actions.

So in the end the distinction might be better drawn in the consequence of the verdict, not by finding the charge not proved.SF]

  • Jim Maclean
  • May 8th, 2009
  • 12:41 pm

Good points made by Graeme and Stephen. Unfortunatly I cannot let the comment on Stephen Wallace go by. As one of the public who demand that the Police have the means and the mandate to go and stop a wild rampage where property is being damaged and people threatened, the jury reached the correct verdict in finding the Police officer “Not Guilty” if there is more to be said, it would be “Just doing his job, following a tragic failure of the mental health service and a family in denial”.


Jim – I agree that “not guilty” was the appropriate verdict. “Guilty, but in self-defence” would be at odds with the general understanding of justice.

I raised that case, because I believed such a finding would be incongruous to many, but I also believe that would be a case where the family of the deceased would have some of the grief and anger assauged by such a finding. You have suggested that we might replace “not guilty by reason of insanity” with “guilty, but insane”, in part because this might assauge the grief and anger of some victims or of the public.

For me the suggestion that someone can be “guilty, but insane” is as incongruous as the suggestion that someone can be “guilty, but in self defence”. If someone is acting in self-defence, they are not guilty. If someone is insane they are not guilty.

  • Jim Maclean
  • May 9th, 2009
  • 8:42 pm

If Stephen will forgive me for using his website to debate a point with Graeme, I thank him for providing the medium and hope others may find the debate useful.
I understand the clever analogy, but feel a major point of difference is that in one case a deranged person has put society at risk, and in the other, danger to society has been aleviated to some extent. Put another way, one person was in the act of causing harm and the other forced to take lethal action to prevent it. I do not believe that the two actions should legally be seen in the same light, even if both share the common quality of not being against the law. I am not sure the best way to resolve this, but like many people feel very worried that it is too easy for someone “not guilty by reason of insanity” to subsequently be declared “cured” and then set free to cause further harm despite the misgivings of those who know them best.

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