The Christchurch Civic Creche Case
	News Reports - Main Index 2003 - Jan-May
	Hon Phil Goff February 24, 2003 Post Cabinet Press Conference: Prime Minister: I will ask Phil Goff to speak first on the latest on the Bain case, and also on the Routley tragedy and the verdict on that in India today. Hon Phil Goff: Thank you very much, Prime Minister. Firstly, with regard to the case of Diana Routley, we are very relieved that finally a verdict has been reached in a trial that began in April 1999. I have been in constant contact with Alan Routley, and I know that having a verdict will come as a great relief to his family. The main culprit has been found guilty. The sentencing will take place today. It may be the imposition of a sentence of death. New Zealand does not support the death penalty, but it is for the system in India to determine what the appropriate penalty will be, and that, obviously, is subject to appeal. We have made a number of interventions with India over that period of time to try to get resolution of a case that has been deeply traumatic for the Routley family. So there has been a step forward today, and the opportunity, we hope, for this to be brought to closure for the Routley family. The second issue is the issue of the appeal for the exercise of the prerogative of mercy by David Cullen Bain. The Executive Council today made an order referring David Bain’s case, on his conviction for the murder of five members of his family, for a full reconsideration by the Court of Appeal. This is the final step necessary to have the appeal heard by the court. It will be heard as if it were a first appeal. The terms of the Order in Council have been agreed upon by Crown Law, and by the legal advisers of David Bain. We would hope that the Court of Appeal would be able to hear that at a relatively early time. The court has had it once in front of it already. It was asked to advise the Governor-General as to how the matter should finally be dealt with. It concluded that while there was cogent and compelling evidence at the trial from which David Bain’s guilt could be inferred, the evidence that it had heard when viewed collectively gave rise to a sufficient possibility of a miscarriage of justice to warrant full reconsideration by the Court of Appeal. Are there any questions on either of those two issues? Media: Given your stand on the Ellis case, and you know what my view on that was, it seems that with David Bain there was a lot of evidence about his guilt, yet he is getting a better review than, say, Peter Ellis, who there wasn’t really any evidence at all against? Goff: In both cases—the prerogative of mercy is an interesting instrument because it involves the executive in an area that is normally reserved solely for the judiciary. It is not my view as Minister that I should unilaterally make a decision overturning the findings of any court unilaterally. In the Ellis case, that was referred to the former Chief Justice, who spent, I think, was it 400 hours reviewing the tapes and the transcripts. He came back to me with a conclusion that it wasn’t even a marginal case. The charges on which Peter Ellis had been convicted were properly found. That was supported by the independent evidence of two international experts in child abuse and the hearing of evidence of child witnesses. Given that advice, there was no other conclusion that I could come to but that the matter not proceed. I have invited Mr Ellis and his advisers and supporters that they are able to lodge a petition for the exercise of the royal prerogative of mercy. The criteria that are required for that are that there needs to be new evidence that has not already been considered before a court of law. In the case of David Bain, it went to the Court of Appeal because there were four or five areas where we were concerned - when I say “we”, I mean the Ministry of Justice and also the advice of Mr Justice Thorp - that some of the evidence presented to the court was in doubt; that there was some concern that that may have influenced the verdict. The Court of Appeal backed that up and said that the matter should be referred back. In both cases the proper procedures were followed. I don’t make the final decision, nor should I make the final decision as to a person’s guilt or otherwise. I cannot give the time to a case that, for example, a retired Chief Justice or a full bench of the Court of Appeal can give, and it is their advice that should be final in this matter. Media: Have you got any indication of when it may get a hearing? Goff: No, the setting of a fixture for that is a matter for the court itself, but given the long delays that have already happened in this case, I would hope that it would be sooner rather than later. Media: And has the executive turned its mind at all to what might happen if the Court of Appeal finds that he is not guilty? Goff: The Court of Appeal can have three possible findings. The first is that it can dismiss the appeal and the conviction stands; the second is that it can quash the conviction and order a retrial, in which case there would be a full new trial of the case; or, thirdly, it can quash the conviction without the order for a retrial. Depending on the nature of the court decision, if it were to do the latter of those three options then consideration would need to be given for wrongful conviction and compensation for that. That is somewhere down the track because the Court of Appeal, of course, hasn’t made a decision in that regard. If it did come to that, then a decision is made on the balance of probabilities as to whether he was innocent or otherwise of that offence. But we take it one step at a time. The Court of Appeal’s decision is the vital factor in determining how the case will thereafter be considered. Media: So does this mean that all the new evidence that his supporters have is going to be considered by the Court of Appeal? Goff: The Court of Appeal is open to the hearing of any evidence, as if this was a matter that had, in the routine way, been referred to the Court of Appeal. This matter, of course, has been once to the Court of Appeal. It was also turned down for the Privy Council, but our justice system does have safeguards. Where there is new evidence that might bring into doubt an earlier verdict, then it can be reconsidered, and I think that is a strength in our system. That is not to say that Mr Bain is not guilty of the offences at this point. The Court of Appeal goes into that with an open mind to see whether the evidence that was relied on in the initial trial, given a number of errors that were made, is still sufficient to uphold the conviction, or whether that conviction should be declared unsafe and quashed. Media: Can I just get back on that point. I am sorry to keep harping on the Ellis case, but there are similar things. The Court of Appeal refused to hear evidence in that case. You are saying that in the Bain case it is open to hearing new evidence, or the evidence that has been bought up? Goff: Whilst there is a parallel in that two people have been convicted and each has a group of supporters that have some doubt about the safety of that conviction, both cases are quite different in terms of the facts. It is up for the Court of Appeal to reach different conclusions in either case. Media: Those terms of reference you mentioned which were approved today, are they pretty much pro forma, standard? Goff: I can read to you the reason for reference, which makes it reasonably clear: “The reason for referring the question of the applicant’s convictions to the Court of Appeal is that there is a possibility, warranting the reference of the question of the applicant’s convictions to the Court of Appeal, that there may have been a miscarriage of justice.” That leaves it relatively open as to what the Court of Appeal will look at, but we are presuming that it will look at the issues that arose when I first referred it to the Court of Appeal on December 19th 2000. That turns on the question of when the computer was turned on. Whoever turned the computer on was clearly the person that was responsible for the murders. It looks at the question of the spectacle lens that was found in Stephen Bain’s bedroom. It looks at the question of bloody fingerprints on the barrel of the rifle and whether that might have been fingerprints from earlier hunting expeditions, and it looks at the significance of the closing submission of Crown counsel that David Bain’s comment that he heard his sister Laniet making gurgling sounds meant that he had to be the murderer. That is not actually a statement of fact. That sound could have been heard notwithstanding the fact that she was already dead. Those were the key issues that the court has already looked at, but they would be able to look at any other issue that they think is pertinent to the case. Media: Do you actually have a private personal view on his guilt or innocence? Goff: Ministers of Justice don’t have private personal views on matters such as this. It would be most unadvisable. Media: I am not asking what it is. I am asking whether you have one that you are not prepared to share. Goff: No, I think you have to keep an open mind on this matter, and most importantly for me I need to keep an open mind on this or other matters that are referred to me. Media: Will the Crown make a presentation to the Court of Appeal opposing the appeal? Goff: The Ministry of Justice won’t. Media: What about the Crown solicitor? Goff: Obviously, Crown Law will want to put forward its views, and the prosecution from the earlier case will want to put forward its arguments in response to the points raised by counsel for Mr Bain. Media: In the case of Diana Routley’s murderer, given that New Zealand doesn’t support the death penalty, if that was the sentence; would you communicate anything to the Indian authorities? Goff: No, the Indian Government is aware of our stance on the death penalty, but we do not have a role in determining what the court decides in India. Having said that the Government and, personally myself, have been quite active in trying to ensure that the court case was brought to finality. I raised the matter on three occasions with the Minister of Foreign Affairs, but there are clear guidelines as to how far you can go. I think it was fair for us to say that this trial had gone on for an unconscionably long time. I don’t think it is appropriate for me to interfere in the sentencing of the person now that he has been found guilty. Media: Are you saying that you have made the Indian Government aware of your attitude towards the death penalty in relation to this case? Goff: Not in relation to this case, no. They are aware generally of our stance, which is a stance of many countries within the United Nations. I have made the Indian Government aware of the fact that this was a trial that had gone one for four years without finality being brought to it, notwithstanding the fact that the chief culprit had confessed right at the beginning to being the murderer, and had led authorities to where the body was hidden. Why it then took four years to reach a verdict is, of course, a very good question. OK, thank you very much.