By Middle Eastern standards we would on the harsh punishment scale rank between Islamic State (ISIS) and Saudi Arabia.
Why is it that the David Bain saga Saga brings out the worst in us ?
Let’s briefly remind ourselves of events over twenty years back. One day in 1994 young David Bain went on his early morning paper run to find on his return all his family shot dead by the Bain .22 calibre rifle. He made the 111 call and we later heard his distraught voice. A few day later he was arrested for the murder of his family. It all made no sense. We were told by the prosecution that they did not need any motive, which might be legally correct but of course is totally ridiculous. Just watch any detective story or murder trial and motive is the first thing the police is looking for and presenting to the jury.
Finally after 13 years in prison the Privy Council squashed the conviction because of a miscarriage of justice. In a retrial he was duly acquitted. And here the matter would have rested at least in a civilised country where the state cannot make the mistake to imprison you for 13 years and just say Oops, tough luck if you can’t “prove” your innocence.
And here lies the craziness of the New Zealand criminal “justice” system. We have the presumption of innocence as long as you don’t expect to be compensated for wrongful imprisonment. Then all of a sudden the presumption is that you are guilty unless you can prove your innocence. According to the rules of logic it is actually impossible to prove a negative as in this case. He was there, he found the bodies and made the call. It is possible that he did it. How can he “prove” the negative that he didn’t ?
To find a way out of this conundrum the system lowered the burden of proof to that of “on balance of probability”, which means that it is more likely that you did not do it.
However this is not much help to the Bain team. In his case he would need to “prove” that his father Robin did it and then committed suicide with the same rifle. How can he possibly do that after 21 years.
An amateur detective recently pointed to obviously overlooked police photographs showing distinct marks on Robin’s fingers, which pointed to him using the rifle. This evidence, which to me as a frequent user of a .22 rifle appeared pretty convincing, was immediately dismissed by a very defensive police. They do not seem to accept the acquittal and are hell bend in trying to hold on to the initial miscarriage of justice.
The Prime Minister is quoted as saying “To get compensation, the Bain team has … to basically prove Robin [Bain, David Bain’s father] did it and then has to provide exceptional circumstances.” After finding your whole family murdered, been arrested totally traumatised and put into prison for 13 years for a heinous crime you did not commit what more exceptional circumstances is Mr Key thinking of ?
But why do you have to prove anything ? Isn’t it for the prosecution to prove their case. If they fail to make it stick why should you suffer the consequences by not only having 13 years of your young life taken from you but not getting a cent compensation for it ? This is a really nasty twisted logic and morally bankrupt attitude to what is fair and just.
In the country where I practiced criminal law after an acquittal you get compensation for any imprisonment as a matter of course. The law sets the minimum amount per day – you can get more if you can prove that you suffered a greater financial loss – and a judicial clerk just adds up the days and signs the cheque. And everybody accepts that that is not only the law but fair and just. Anything else would be outrageous to every fair minded person.
And this outrageous situation is part of the New Zealand’s “justice” system.
And in the Bain case it only goes downhill from there.
The then justice minister didn’t like the recommendation of an eminent senior judge from overseas and got the New Zealand ex (porn) Justice to write a review, which was later described by the Canadian judge as “very partisan (not ‘peer’)“.
From now on every step by the government is tainted as the overseas judge rightly points out. “The problem now is that the Government has made it loud and clear what answer it wants and anybody taking on the assignment would see what happened to me for giving an answer that the Government didn’t want.
From 10,000 miles away, it looks like a familiar pattern lawyers encounter. It’s not uncommon among clients to keep going through lawyers until they find someone who agrees with them.”
University of Canterbury’s dean of Law agrees with the eminent judge. A previous victim of not only a wrongful conviction but police corruption Arthur Allan Thomas
who spend a similar time in prison before being pardoned and compensated said :
“It should have been settled long ago. They need to stop mucking around and compensate him, end of story.”
The present Justice Minister is quoted as saying “We’re not satisfied in terms of what’s in front of us now, and in our view the only sensible way forward to make a decision that’s defendable, either to the public or Mr Bain, is to seek a new inquiry.” Why is there any decision to be made ? The jury has done it at the end of the retrial. Why does any decision needs to be “defendable” to the public ?
And the problem is with the New Zealand public. A glimpse at the commentariat and the letter pages shows a very divided public. Part of which are still not and will never be convinced of David Bain’s innocence and want the case re-litigated. A recent text poll of the current affairs TV program Campbell Live had 38% saying No to compensation.
It is of course true that there remains the possibility that David Bain is guilty. However the logically undeniable “possibility” is the same as “suspicion”. We do not punish people or deny them compensation just on suspicion.
Civilised countries governed by the rule of law accept ten wrongful acquittals – the system is after all human and therefore fallible – rather than one wrongful conviction. There is nothing worse imaginable than languishing in prison for a crime you have not committed (thank God for having got rid of the death penalty). That is what ‘presumption of innocence’ and ‘proof beyond reasonable doubt’ are all about to rather let guilty people walk free before you put one innocent person in jail.
Many New Zealanders seem to rather tolerate ten wrongful convictions than one wrongful acquittals (and compensation).
This seems to be part of the punitive attitude of the New Zealand society. We are after all the country with the second highest incarceration rate of all Western civilised countries by a big margin just behind the USA. By Middle Eastern standards we would on the harsh punishment scale rank between Islamic State (ISIS) and Saudi Arabia.
Is that really the place where New Zealand wants to be ?