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The Christchurch Civic
Creche Case |
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The media melee that attended the
release on bail of David Bain looked like the welcoming home of a man
wrongfully convicted and freely pardoned. So it is salutary to remind
ourselves that he is neither. The Privy Council did not conclude
that David Bain was innocent. It did not even conclude that he was wrongfully
convicted. Appellate courts scrutinise decisions of lower courts and make
sure not that they are correct but that they have been correctly arrived at. So the Privy Council has not
cleared Bain. Rather it has expressed the view that evidence presented by
Bain's defence team, if it had been available to the original trial jury, may
very well have had an influence on their verdict. The fresh evidence
"compels the conclusion", they said, that a miscarriage of justice
occurred. In other words, they are not
saying that no conviction could or should occur; they are saying that the
conviction that has occurred should not have. The question of Bain's guilt is
for a jury, they said, "and nothing in this judgment should influence
the verdict in any way". To a lay eye the distinction may
seem footling but its significance is profound. It is a cornerstone of our
law, and one on which Bain's supporters relied, that an accused must be
properly convicted, beyond reasonable doubt. We may have our private opinions
about Bain's guilt or innocence, but it should be decided by a properly
instructed jury that has access to all the evidence. Joe Karam, who has tirelessly
campaigned to overturn Bain's conviction, is wrong to say, as he has, that
the Crown "should not bother" to retry the case. He, of all people,
should be keen to see the matter return to the High Court. He may be
forgiven, at this time in particular, for asking the Crown to be driven by his
passionate belief that Bain is innocent. But the proper resolution of the
case is part and parcel of what he has been fighting for for so long. A
decision to drop it, for reasons that are expedient or pragmatic, would be a
discredit to justice and to Karam's cause. It would also, not incidentally,
leave a cloud hanging over Bain since he could never be proclaimed innocent. It is proper that Bain was
released on bail. The decision tempers justice with mercy in a manner that
poses no risk whatsoever to public safety. A retrial would take months to
prepare and while it remains open to question whether there will be one at
all, it would be unconscionable for a man already unjustly imprisoned to
languish even longer behind bars. But there was something profoundly
distasteful about the impromptu press conference cum scrum on the steps of
the High Court at Christchurch. The sight, in particular, of the presenters
of the two major 7pm current affairs shows fawning over Bain, hoping to
persuade him to swivel in their direction - and thus turn his back on the
competition - was particularly sickening. It must have been doubly nauseating
for supporters of the manifestly innocent Peter Ellis who emerged from
prison, his head held high, having served his full sentence - and was virtually
ignored. Ellis' lawyer, Judith Ablett-Kerr
QC, says she is encouraged by the Privy Council decision in the Bain case
since in her client's case too the jury did not have access to all the
evidence. And this week's decision makes it worth wondering anew at the
wisdom of abolishing New Zealanders' right of appeal to the Privy Council.
Fresh eyes, looking at a case at a geographical remove and untouched by the
history of sometimes rancorous public discourse, can sometimes see with
remarkable clarity. Little wonder that so many Maori felt uneasy about the
removal of that final right of appeal. |
