David Bain was the sole survivor when 5 members of his immediate family were shot and killed in their Dunedin home in 1994. Suspicion at first fell on his father Robin, but four days later the police ruled out the murder/suicide theory and arrested 22-year-old David. Key pieces of evidence were David’s bloody fingerprints on his .22 rifle, a bloody handprint on the washing machine, what appeared to be a suicide note from Robin on the family computer, and eyewitness evidence of David completing his morning paper run around the time of the murders. Despite conflicting evidence and claims, the High Court in 1995 dismissed the murder/suicide theory, and convicted David Bain of murdering his mother, father, brother and two sisters.
What followed is a monument to the integrity and single-minded dedication of former All Black Joe Karam. There was a Listener article about Karam a few weeks ago, which counted the cost of his 13 year quest for justice for this young student, who he had never met prior to Bain’s conviction in 1995. Karam lost up to $5 million, and suffered the breakdown of his marriage and the loss of many friends.
Last night Bain’s murder conviction was overturned by the Privy Council in London, who cited nine reasons why the original trial was biased against Bain. The result is massively embarrassing for New Zealand’s legal system, and a vindication for supporters of London’s Privy Council as opposed to the new Supreme Court – two of the Court of Appeal judges who dismissed Bain’s appeal are now on the new Supreme Court. Without access to the Privy Council, Bain’s trial would never have been overturned. As Stephen Franks said:
The Privy Council decision is also a catastrophic affirmation of the size of our loss when we abandoned our right to neutral international referees. Joe Karam called this morning for the resignation of the two Supreme Court judges who refused an appeal while on the Court of Appeal. That kind of erosion of confidence in the quality of justice in New Zealand was inevitable from the moment the “indigenisersâ€, led by Hon Margaret Wilson, got their hands on the tiller.
Capital punishment
The nine reasons cited by the five Law Lords are nine reasons to distrust the courts in all high-profile cases. For example, relevant evidence about Robin Bain’s mental state and his possibly incestuous relationship with his teen-prostitute daughter was dismissed, and the jury was told that Robin was “balanced” and “devout.” Evidence about the time the computer was turned on could not have been precise. Broken glasses were said to be David’s, where they actually may have belonged to his mother. Fingerprints in blood on the rifle were not tested to see if it could have been rabbit or possum blood. And the jury was told that David’s report of hearing his sister gurgling indicated his guilt, without being informed that dead bodies sometimes produce gurgling sounds.
What it adds up to a bias created by a preconceived idea about what happened. Evidence was manipulated, whether deliberately or not, and the jury was not told all the facts. Even if David Bain actually carried out the murders, the trial was not fair.
Unfortunately, the public has a similar perception of many high-profile cases in New Zealand, for example the Scott Watson, Mark Lundy and David Tamihere murder trials. And of course the infamous 1970s Arthur Allan Thomas case, where police were discovered to have planted the most important evidence. Thomas was lucky enough to have a public campaign on his behalf, a Royal Commission of Inquiry and eventually a Prime Ministerial pardon and $1 million in compensation for jail time, even after two guilty verdicts.
If capital punishment had not been abolished, Thomas, Bain and the others would certainly have hanged. They were judged guilty of some of New Zealand’s most heinous crimes. But questions remain about all of these cases. The New Zealand justice system has proven itself barely capable of investigating potential miscarriages of justice, and the police have never quite managed to take responsibility for problematic investigations. And these trials have been marked by character assassination of the suspects, painting them as creepy, deviant or criminal, discouraging people from speaking out in their defense, even if other evidence is little more than circumstantial.
This is, in my opinion, the only valid argument against capital punishment. The worst murderers deserve death, there is no question about that – Graeme Burton is living (unfortunately) proof of that, and his death after his first murder would have saved an innocent man’s life. But there must be no question as to guilt. Terrorism and war provide exceptional circumstances, but there are dangers in establishing varying standards of proof. A man in jail can be released and compensated if he is exonerated: a man in a grave cannot.
Great post.
“A man in jail can be released and compensated if he is exonerated: a man in a grave cannot.”
I think that effectively captures my own aversion to capital punishment. It’s not about moral standards or the “barbarism” of the penalty, rather the blatant imperfection and fallibility of a human system. It’s never 100% correct but death is 100% final. Exoneration doesn’t mean jack if your pushing up the daisies.
Left by subadei on May 12th, 2007