Skip to Content »

Bain – told you so

  • June 5th, 2009
In 2007 I posted on the news that Bain would be retried.

"No surprises in this evening’s TV ONE coverage. The QC showed the common court lawyer belief that costs are irrelevant when “justice” is at stake. To him it was imperative to retry Bain simply because otherwise serious offences would go unresolved. He showed no apparent recognition that the evidence has now been trawled, the battle lines are drawn.

Why would a new jury change any minds? Those convinced of Bain’s guilt will not change if a jury is persuaded now to feel that it can not be proved beyond reasonable doubt. Those who already feel the evidence did not meet that standard will be similarly unmoved by another $10m spent rummaging through stale evidence and rickety memories.

Bain has served most of his sentence. By the time he is reconvicted it will have virtually expired. The Crown is not obliged to compensate him. He has not asked for a new trial to clear his name.

This sleeping dog should be left to lie. It has been rolling in ordure. Nobody will want it near them, whatever they may think from a distance."

I followed up twice on 28 April and 2 May this year. Long before that I’d tried to persuade a Solicitor General and an Attorney General to apply more cost/benefit assessment in old cases, where the limitation period should probably preclude a trial anyway.
Instead they’ve wasted money and exposed many dedicated police to deep disappointment, by purporting to serve the interests of justice when they’re really displaying only self importance in the justice establishment.
In April I mentioned " 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. …
 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 [by demanding that they prioritise]."
The Bain retrial was a scandalous mis-prioritisation. If resources were unlimited perhaps it could be justified. In my opinion Bain probably did it. But at this distance ‘reasonable doubt’ is the prudent conclusion.
There are many  wrongs that go unremedied. While current criminal trials are held years after the event the use of scarce resources for another crack at Bain was inexcusable.



Stephen, this bit I don’t get.

You say he probably did it?

The Police clearly think he is the offender.

At what point does the justice say……er sorry too hard?

Surely a very dangerous precedent to set?

[Clint – Justice often says “too hard” – the Police frequently have suspicions so strong that they feel they “know” who did it, but not enough admissable evidence to secure conviction, guilty people are frequently acquitted because of technical flaws in prosecution. Justice is a system of rules designed to keep the number of false convictions to the level consistent with not permitting too many guilty to go free. In the famous phrase – “better that 10 guilty go free than one innocent be convicted”. That is not the same as believing that 100 guilty should go free to uphold the rules that protect 1 innocent from being convicted.

It is childish to think that a human system can be devised that completely avoids either type of risk. The best we can do is balance those two risks.

There are many legal rules that can be justified only because they are pragmatic, the only way that a system can work. The Solicitor General’s Prosecution guidelines direct the Police to look at the chances of success and other practical outcome assessments.

Think, for example, about the rule that people are deemed to know the law, even when patently many can not. We uphold that rule because of the practical outcome if ignorance of the law were a defence – the courts would soon hear that we were all ignorant. SF]

  • Jeremy Laurenson
  • June 5th, 2009
  • 11:25 pm

Of course he bloody did it. One has only to read the pankhurst summing up and thanks Kiwiblog to see what the jury had to ignore to get to their conclusion. But if each piece of evidence is reasonably refuted by the defence rather than the big picture what will the jury say. Spare me but maybe the jury are unemployed, beneficiaries or other people who have the time to spend 3+months on a trial…?Just kick for touch and say reasonable doubt..after 3 months I just want to go home.
Is a review of the jury system now due?

  • Sally
  • June 6th, 2009
  • 9:47 pm

I have big concerns when I hear that members of the jury were at the celebration party. I believe one was filmed hugging Bain.

Something wrong here I beleive,

  • Jim Maclean
  • June 7th, 2009
  • 9:40 am

I do feel much reassured by this trial. The main reason being that information from the media and Joe Karam’s dogged campaign to combat what he saw as an injustice cast serious doubt in the mind of many that the Police were capable and disinterested parties in the investigation.
I would have had to see all the evidence (as the jury did) to be sure, but I have seen and read enough to see that the Police case was more than reasonably brought, and it is much more likely than not that David did it.
It is true that after this time it is possible for doubt to be created in the minds of jurors and it obviously was. I doubt that David will recieve any significant compensation and once more people will learn that juries can be denied information which may trouble them later.
No system is perfect, and with his well laid out analysis of the issues, I can well understand Stephen’s frustration, but I also believe this has been an expensive but necessary lesson for the NZ Public, many of whom are shockingly naive about human nature and the cost and conduct of the Justice system. The facts emerging from a compensation claim may well give those Jurors who celebrated some sleepless nights.

  • Mike Dennehy
  • June 11th, 2009
  • 4:58 pm

Is there any prospect in NZ law of a wrongful death lawsuit being brought as a private prosecution? We know that the burden of proof in a civil action has a lower threshold than in a criminal trial and I for one would like to see Bain held accountable for the murders I firmly believe he committed.

  • peterquixote
  • June 11th, 2009
  • 7:53 pm

it was pretty strange all right dude,
famous upper court Nigel Hampton was dancing and talking to TV1, saying that the jury represented NZ public prejudice,
the ridiculous karam krap had his power intact
and he is disgusting,and the killer had a smile on his face,

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>