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In the wake of the David Bain
case, Derek Round recalls the bizarre legal back story to another famous The Privy council's quashing of
David Bain's murder convictions has put under the spotlight the position of
crown prosecutors who are appointed Judges in The late Justice Nell Williamson,
who presided at both the Bain and Peter Ellis Christchurch Creche trials, had
been crown prosecutor in A prosecutor's job is to attempt
to get a conviction and questions have been and are being asked as to whether
it Is appropriate that many of them are then appointed as judges, committed
though they are to acting fairly and impartially on the bench. In the Bain and Ellis trials,
Justice Williamson. who held strong moral views arising from his family's
Catholic background, ruled as inadmissible evidence which defence counsel
argued unsuccessfully was crucial to their case. In the Bain case, that included
evidence that David's father Robin Bain was alleged to be having an
incestuous relationship with his teenage daughter Laniet. The Privy Council ruled that, had
the jury found Robin Bain to be deeply depressed and facing public revelation
of having sex with Laniet, it might have concluded that he had a motive for
the killings. Justice Williamson had joined
Raymond, Donnelly and Brown as a young law student shortly after the
sensational 1954 Parker-Hulme murder trial when Pauline Parker and Juliet
Hulme were found guilty of killing Parker's mother by bashing her with a
brick in a stocking in Parker and Hulme's defence counsel,
Alec Haslam and Terence Gresson, both of whom later became judges, argued
they should be found not guilty on the grounds of insanity because they
suffered from a state known as folie a deux, associated with a lesbian
relationship. Before he began his summing-up
[at] the trial, Mr Justice (later Sir Frances) Adams (a former Dunedin crown
prosecutor) saw Hulme's junior counsel, the late Brian McLelland, and the
assistant crown prosecutor Peter Mahon in his chambers and told them he did
not intend to put the insanity defence to the all-male jury in his summing
up. (Many of the young law students
attending the trial heard for the first time the words "lesbian"
and "dildo" - words not in common use in The attitude of many of the police
at the time was exemplified by Inspector Jack Fletcher, the gruff but genial
police prosecutor in the Magistrate's Court who once said to me as the last
of the defendants he had prosecuted was led to the cells: "As far as I'm
concerned they're all guilty or they wouldn't be here." That attitude is relevant to the
police attitude in the Bain and Ellis cases. Shortly after the Parker-Hulme
trial, crown prosecutor the late Alan Brown, who had led the prosecution,
began behaving in a strange manner which was very much out of character and
included brandishing a shotgun. Brown's partners, As Brown's behaviour became more
alarming, his friend and fellow lawyer Ted Taylor (later New Zealand
ambassador to Japan and Christchurch coroner) asked me to apply for an order
to have Brown committed under the Mental Health Act. I was a 19-year-old law student
and the most junior member of Raymond, Donnelly, and Brown's staff at the
time. Feeling acutely embarrassed and uncomfortable, I saw stipendiary
magistrate the late Rex Abernethy in his chambers and signed the necessary
application for Brown's committal. He was admitted to Ashburn Hall (now
Ashburn Clinic), a private psychiatric hospital in Ironically, the director of Ashburn
Hall, Dr Reginald Medlicott, had been the principal medical witness for the
defence in the Parker-Hulme trial and
was aggressively cross-examined by Brown. Now Brown was his patient. Medlicott told a colleague:
"There were times during the trial when I thought I was the only sane
person in the courtroom." Medlicott told me Brown had been
suffering from a disorder for some time before the Parker-Hulme trial and
this had been exacerbated by the tension of the trial which attracted
worldwide publicity and brought many foreign journalists to The disorder was probably what was
then known as manic depression, now known as bipolar disorder, which is
notoriously difficult to diagnose, but can be successfully treated with a
number of drugs which were not available at the time. His illness did not affect the
outcome of the Parker-Hulme trial, but it raises important questions: What if
the judge, defence counsel or a witness in a similar trial had been suffering
from a disorder which was not apparent at the time? Could this be grounds for
a subsequent appeal? They are questions which I believe
the New Zealand Law Society and the Law Commission should address with some
urgency. Brown was eventually discharged
from Ashburn Hall, resigned as Crown Solicitor and retired from Raymond,
Donnelly and Brown. He was struck off the roll as a
barrister and solicitor - a decision the Law Society probably would not have
taken if it had been aware of the full medical background - but later
restored to the roll before he died. Hulme's counsel, Terence Gresson, took his own
life after he became a judge. Detective Archie Brian Tait, one of the
detectives on the case, also took his own life years later, apparently
because a man against whom he had given evidence had been convicted when Tait
believed he was innocent. |
