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The Christchurch Civic
Creche Case |
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Police have said a retrial for
David Bain would be difficult but are not ruling it out as a possibility. Detective Superintendent Malcolm
Burgess said police are still examining the Privy Council's decision to quash
Bain's conviction for murdering five members of his family in Dunedin 12
years ago. He said: "There will
certainly be some logistical challenges around such a retrial, but that
wouldn't preclude us going down that path." Attorney-General Michael Cullen
today said Crown Law would carefully consider what action would be taken in
light of the Privy Council judgment. "The decision is solely for
the Solicitor-General to make and there will be no further comment,"
said Dr Cullen. His lawyer, Michael Reed QC, said
it was unlikely an application for Bain to be released on bail would be heard
today, given the amount of preparation needed. "We don't know when the bail
[application] will be heard. I imagine it will be Monday or Tuesday. I don't
think it will be today "We have got to get some
papers ready, we have got to find a judge," Mr Reed said. United Future leader Peter Dunne
said the case raised questions about the way criminal trials were conducted
in New Zealand and called for the Law Commission to review the rules of
evidence and court procedures. "I am concerned that the
Privy Council has identified serious deficiencies in the way evidence is
presented to New Zealand courts in cases of this type," he said in a
statement. "The layperson's presumption
is that all relevant material is put before the court so that the jury of
one's peers can decide guilt or innocence." Mr Dunne said that the reality was
that the process was far more selective and the Bain case was not isolated. "In the last decade alone
similar allegations have swirled around such major cases as the Ellis case,
the Haig case, the Dougherty case, the Watson case, and aspects of the recent
police rape trials -- not to mention the Thomas case in the 1970s." A combination of nine key factors
persuaded the Privy Council Bain was the victim of a "substantial miscarriage
of justice". While none alone would have
compelled their decision that Bain's convictions should be quashed, the nine
taken together were compelling, the five Law Lords said. That was a slap for the New
Zealand Court of Appeal, with the Privy Council decision clear in its opinion
that the court erred in its judgments. A miscarriage of justice occurs if
credible new evidence is admitted that might have persuaded a jury to reach a
different conclusion. While the Crown challenged the
detail and significance of the nine points, the issue of guilt "is one
for a properly informed and directed jury, not for an appellate court,"
the Law Lords said. "Even a guilty defendant is
entitled to such a trial," they said. The issue was whether there was
new evidence upon which a jury might reasonably decline to convict, they
said. No blame could be attached to the
jury or judge in the initial Bain trial, in 1995, the Law Lords said. "It is, however, the duty of
the criminal appellate courts to seek to identify and rectify convictions
which may be unjust," the Privy Council said. "In the opinion of the board,
the fresh evidence adduced in relation to the nine points ... compels the
conclusion that a substantial miscarriage of justice has actually occurred in
this case." - NEWSTALK ZB, NZPA, NZHERALD
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