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David Bain's tribulations are not
over, but there are compelling reasons for his retrial. The small matter of
whether or not he is guilty of five killings should not remain unresolved if
it is answerable. Either David Bain killed his
family or his father Robin did, in a murder-suicide. The new trial, ordered
by Solicitor-General David Collins, QC, will not simply regurgitate the
elements canvassed in the old one, it will also involve information that did
not go before the original jury. The Privy Council has overturned
Bain's conviction, nearly 13 years into his sentence, because it accepted
that rulings during his trial, and subsequent appeal, had created a
miscarriage of justice. This didn't amount to an emphatic
conclusion on whether Bain was innocent or guilty -- the Law Lords were
deliberately and inscrutably silent on that point, which they said was still
a matter for a properly informed jury to determine. The Privy Council instructed that
the Solicitor-General determine whether a retrial was in the public interest.
Having considered high-minded principles of justice, and plain
practicalities, he has decided yes, and he is right. It would be intolerable if the
Crown, still believing it had fingered the right man, were to give up because
further pursuit of its case might be unpopular or expensive. However, the
killings happened in 1994 and the passage of time may have corroded the
ability to stage the trial afresh. Prosecutors reckon they are good
to go. It becomes important, then, that Bain and his team, championed by Joe
Karam, are themselves adequately resourced to pursue their goal of an acquittal.
To this end they must receive sufficient legal aid. The taxpayer will have to stump
up. The pursuit of public interest sometimes carries a significant cost to
the public. Another issue Dr Collins had to
consider was whether Bain could receive a fair trial, given the vigour with
which the details of the case have been raked over by the media. Short
answer: yes. It is certainly a case that has
polarised public opinion, and one in which revelations that were not
presented in court have detonated into the public consciousness. Much of the
concern about the initial Bain trial -- and for that matter, the Peter Ellis
case -- was that potential evidence that struck to the heart of the matter
did not go before the jury. However, we should reject the cynical argument
that the potential jury pool is now too tainted by what is already known, or
perhaps half-known, about the case. The jurors will very likely arrive
knowing something, perhaps even a good deal, about the case. Some may even
have shared with family, friends or acquaintances what they reckon. But our
justice system, with ample and demonstrable justification, puts a great deal
of faith in people's ability to understand and abide by the need to make a
decision based on the evidence presented in front of them, in court. The Police Association's
suggestion for the entire trial to be televised goes too far. Witnesses,
particularly in high-profile cases, are already under considerable pressure.
The awareness that not only what they say, but how they say it and how they
"come across" could be broadcast to the nation does have an effect.
It's not so much that they perform for the cameras, but they act differently.
A significant and unnecessary
complication. |
