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Did the Court of Appeal's decision in the Bain case expose a flaw in
our judicial system? Jenni McManus reports on how the case has divided the
legal profession. Deep conflict within the legal
profession about the decision-making and ability of the Court of Appeal has
been revealed by the Privy Council's David Bain ruling. In the one corner are those like
Scott Optican, an Associate Professor of Law at the Optican says both courts are
involved in the speculation business and the fact the Court of Appeal and the
Privy Council produced opposing decisions is not a question of one being
right and the other wrong. "It's a question of process,
of decision- making and the way you look at the facts," he says.
"It's all about the trial process and the appellate process, fresh
evidence and the consequent safety of the conviction. It's simply two courts
asking themselves, based on fresh evidence, whether a reasonable jury could
have come back the other way." But it is not hard to find
detractors. Many senior lawyers and academics complain of inconsistency in
Court of Appeal decisions, especially since its best legal brains were taken
to staff the newly formed Supreme Court in 2004. Fundamentally, they argue, the
Court of Appeal, like other parts of the court structure, has a vested interest
in maintaining the status quo and the sanctity of the system. This makes it unwilling to disturb
decisions from lower courts, especially jury verdicts, meaning, as one lawyer
puts it, appellants may not be getting "a fair suck of the sav". Another, who similarly won't be
identified, says: "Judges have a vested interest in the operation of the
system rather than the integrity of the system. This gets worse the higher up
you go. But they need to engage in some critical analysis to see if the pillars
of the system they support are bearing the weights they are meant to." Yet another worries that a large
number of Crown prosecutors (and a former solicitor-general) have been
appointed to the Bench. "These are very establishment
people who have an almost implicit trust in the police to do their job. This
is a worry when a major motivation for the police is to close a case. Police
will often form a view early in the piece, then work backwards, looking for
evidence to support it," he says. "It's no accident that one of the
most popular crime programmes on television has been Prime Suspect, where the
police work exactly in this way." There are other problems. Three
years ago, District Court Judge David Harvey gave a conference paper spelling
out his concern that Court of Appeal decisions were becoming fuzzy around the
edges. Exacerbated by the explosion in digital technology and the volume of
evidential material now reaching judges' desks, decision-making in the Court
of Appeal was increasingly based on fair outcomes rather than bright-line
rules and principles, Optican, however, does not see too
much wrong with the system. He says much of the
"noise" about Bain has been generated by public confusion about
what the Privy Council meant when it found there had been a substantial
miscarriage of justice. It does not mean an innocent man
has been wrongly convicted and there has been no error of law, he says. At
the moment, Bain is innocent but this is only a legal presumption.
"Whether or not he is factually guilty is a completely different, and
totally open, question," Optican says. Critical to figuring out the two
opposing rulings is understanding how the Court of Appeal and the Privy
Council view and analyse fresh evidence. Optican says the big question is
whether our Court of Appeal adopts an overly restrictive test and takes too
narrow a view of the impact fresh evidence could have on a reasonable jury.
Clearly the Privy Council believed it did. Optican: "The real lesson of
the case is when an appellate court is presented with fresh evidence, should
it take an essentially charitable view of the evidence and not require a
smoking gun to reverse the case? The Privy Council may have been applying a
lower and perhaps more appropriate threshold when new facts are alleged to
have created a miscarriage of justice." Optican cites Arthur Allan Thomas
and David Dougherty as the so-called smoking gun cases, where specific pieces
of evidence points to innocence. He puts Bain into the same category as Peter
Ellis, David Tamihere and possibly Rex Haig, where the evidence pointing to
innocence, or such a lack of credibility in the Crown case that no reasonable
jury could convict, is less strong. This means less judicial
discretion and more bright-line rules, including perhaps a redefinition (and
weakening) of the miscarriage of justice test found in section 385 of the
Crimes Act. The Privy Council, after all, said
it was the duty of appellate courts "to seek to identify and rectify
convictions which may be unjust" and this would occur "where a
defendant is convicted and further post-trial evidence raises a reasonable
doubt whether he would or should have been convicted had that evidence been
before the jury". Optican says US-style jury
selection is essential if Bain is re-tried. Ensuring a fair trial and a fair
jury is one of three critical factors the Crown will consider in deciding
whether Bain should be re-tried and this involves more than "taking the
first 12 people from the courtroom and putting their bums on the seats".
Instead, he says the court must
adopt the American procedure, asking the jury to fill out questionnaires and
putting them on the witness stand to question them about what they know about
the case, any connections they might have to it, their biases on issues
relating to the trial and what they may have gleaned from media coverage. The prosecution, defence and
sometimes the judge ask the questions, either in secret or in open court. If the defendant is rich, Optican
says, specialist jury consultants might be used. A mock trial can be set up
outside the courtroom and various arguments tested in advance to see what
"works". It is expensive but, as Optican puts it: "In a
capitalist system, justice is a capitalist commodity." Contrast this with the Kiwi way.
Counsel gets lists of potential jurors but usually without enough time to
properly vet them. Jury consultants are rarely hired, though wealthy
defendants may use a private investigator. Compared with the The formal voir dire procedure is
extraordinary in New Zealand and the Court of Appeal has produced case law (R
v Sanders) to say, in its opinion, vetting juries is a waste of time.
However, Optican says there is no legal reason why it cannot be done. He also says there is no reason
why Bain cannot get a fair jury. "They managed with OJ (Simpson) and he
had a world profile. They still managed to get a jury that acquitted
him." Two other factors the Crown will
consider will be whether there is sufficient evidence where a reasonable jury
could find guilt beyond reasonable doubt - an issue complicated by the degradation
or destruction of evidence during the past 13 years and the deaths of
witnesses - and public interest factors, which might include the age of the
case, the severity of the crime, cost and the public perception of the
administration of justice. Optican thinks a retrial should be
held if possible. "The Privy Council expressed no view on Bain's guilt
or innocence; we're dealing with a horrendously serious crime and the
interests of finality suggest if we can hold a fair trial and come to some concluded
determination of David Bain's guilt or innocence, we should. The real
question is `can we do it at this point?"' This will have more to do with
Bain's ability to defend himself than with the issue of having enough
evidence to convict. "There has to be enough evidence left for him to
mount a fair defence. If there is not, the case should not go ahead,"
Optican says. It is hard to know when this point
has been reached. Usually it is the defence's job to raise the matter with
the judge but in this instance the Crown may have an independent obligation
to assess whether Bain can get a fair trial. "The Crown will throw a lot
of time, money and resources at this. Public credibility in the system will
require the Crown to pull out all the stops - and it should do because
there's a lot on the line. But public resources should also be spent to
ensure Bain has the best lawyers, investigators and resources. If that means
the biggest grant of legal aid anyone's ever been granted in this country,
give it to him." -------------------- CAPTION: A future in whose hands? David
Bain (right) and supporter Joe Karam the day Bain was released from jail.
Photo: Martin Hunter |
