Has any crime ever divided New Zealand more than the David Bain case? That said, if a poll was taken providing three boxes to tick, namely "guilty", "innocent" or "fed up with it", then I suspect the latter category would win in a landslide.
Through my friendship with Joe Karam, I unwittingly had a minor involvement in the matter from the outset so I'm writing this solely from my perspective. Karam's near two-decades heroic battle on behalf of Bain is the greatest self-sacrifice I've ever known and unsurprisingly, has taken a sizeable toll on him.
Having suggested that most folk are fed up with it, you may wonder that I'm writing about it now. Here's why. What has fascinated me throughout is the continuing appalling treatment of Bain by our justice system. There's another reason, too, which I explain at the end.
Bain's first trial was a travesty for reasons already well canvassed. When Karam wrote that some detectives had perjured themselves at that trial, as they had, they sued for libel - and lost.
In that first trial the Crown Prosecutor said, in his closing address to the jury, there are 10 reasons why Bain is guilty and he gave them in his order of importance.
Subsequently, beyond doubt, Karam initially proved the first five were wrong and eventually, that all 10 were, but still the authorities refused to act.
Karam was stymied so I arranged a late-night meeting in the then Speaker, Jonathan Hunt's, parliamentary office with then Justice Minister Phil Goff. Also present were Winston Peters and former National Cabinet Minister Max Bradford. Arising from that and the expressed concerns of all present, Phil ordered the matter reopened. Then followed two years' procrastination, hardly surprising to readers given events this year of some government departments' autonomous behaviour.
Eventually they acted and asked the Court of Appeal's Sir Kenneth Keith to conduct a preliminary hearing to decide whether the new evidence suggested a possible miscarriage of justice, and thus justified a full hearing. Despite my scepticism through having just had the Privy Council rubbish an outrageous Keith judgment against me, it must be said that over this long saga's duration this, and the final jury trial, were the only times David Bain ever received justice from our legal system, for Sir Kenneth, after consideration of the evidence, found there were indeed grounds for a full Court of Appeal hearing. This duly occurred, presided over by Justice Tipping who wrote the final judgment. Tipping came out hard against a retrial, producing what he alleged were six compelling reasons for Bain's guilt. Bain was done for. I then involved my friend Michael Reed, QC. Senior QCs understandably have no interest in criminal work but on reading the Court of Appeal instruction brief, and then its findings, Michael shared our outrage and thus in his capable hands it was off to the Privy Council.
Presided over by the late Lord Bingham, widely acknowledged as the greatest law lord ever, after lengthy submissions by Reed and opposing, the Solicitor-General David Collins, the Privy Council produced a devastating finding, noting that Tipping's "compelling" reasons for guilt, far from being "compelling", were in fact "contentious" and that he had essentially substituted himself for a jury, which was beyond his brief. The Privy Council then quashed Bain's conviction and as obliged, proposed a retrial while giving a very big hint that there should not be one, or in other words, that Bain was innocent. But despite that, back home Collins ordered a new trial. In so doing this decision put Bain beyond the Cabinet guidelines for compensation.
Throughout that lengthy hearing in Christchurch, for unrelated reasons, I frequently spoke to Michael Reed and naturally asked how it was going. Apart from anger at the case's reportage, Michael consistently said the jury won't take long and will acquit, which is what occurred. This was a unique experience, for having been involved with many barristers in numerous cases, their understandable attitude during trials is to kick for touch, warn about the vagaries of juries and judges and caution about the outcome. But not so here. So too Michael's associates in the case; Helen Cull, QC, and Paul Morten, both of whom I know and who are fervent as to Bain's innocence. These people are not naive choir boys. And so, after a horrific near two decades, Bain was finally free.
Now arose the question of compensation. The Government wisely concluded this was not for it to decide, given the immensity of the case. So Justice Minister Simon Powell commissioned the former most senior figure in Canada's judiciary to consider on the balance of probabilities whether Bain was innocent or guilty, and if concluding he was innocent, to determine compensation, all of which amounted to yet another trial.
Of course, no amount of money can ever compensate for the loss of a man's 20s and 30s but the reality is that there are no options other than financial.
Justice Binnie, Canada's (now retired) senior Supreme Court Judge duly arrived in New Zealand and for the fourth time, the whole tiresome trial palaver was played out, only this time with a crucial difference. For unlike a criminal trial in which the Crown must prove guilt, now Bain had to prove that on the balance of probabilities he was innocent. This lengthy process included a full day of Bain being grilled by the judge.
The judge delivered his report some months ago. The Government immediately gave a copy to the Crown Law Office but refused one to Bain's counsel, let alone the media. You will see what I mean now about the consistent raw deal Bain has received from go to whoa. But the Binnie report result was leaked to this newspaper and revealed that the judge concluded on the balance of probabilities, Bain did not murder his family.
Traditions are important pillars of our society. The established tradition when Governments commission independent reports, particularly in cases as significant as this and where someone with the stature of Justice Binnie has presided, is that they immediately accept and act on its findings. But not this Government, nor Justice Minister Judith Collins, who has said Cabinet is thinking about it and may respond by Christmas. It's a disgrace.
The police's belligerency on this matter, though, is no surprise. They have a long history of obstinacy when things go against them and of protecting their own, other than in cases (commendably) of sexual misconduct, assault and financial wrong-doing by their personnel. But when it comes to obstinacy they were up against the world champion in Joe Karam.
I experienced this with a funny incident a few years earlier when Joe was living down south so he could be close to Bain in Christchurch's prison. Karam read in the newspaper that I was in town to speak at Lincoln University, rang round the hotels until he found me and said, "I'm taking you to meet Bain". "Not in a million years", I said. "I hate prisons and seeing Bain makes no difference". Half an hour later I found myself disgruntledly, from memory, in the Governor's office. I asked if they had sweeteners for my coffee, and as I hadn't had any lunch, for some biscuits etc. A phone call and soon afterwards a prisoner brought in coffees and biscuits. Thereafter a fairly stilted conversation with Bain, the Governor and Joe occurred, but once back in the car, Joe exploded. "You can't walk into prison and demand afternoon tea. It's unbelievable", he exclaimed.
Years earlier, when my association with Karam became evident I received a letter from the Dunedin Police Chief inviting me down so that they could convince me of Bain's guilt. I replied saying that unless they intended producing evidence not already on the table then there didn't seem much point. I received no reply.
Like all readers I'm absolutely on the police's side and am grateful for their existence. But they're not infallible. No one is. As I said last week as the after-dinner speaker at the conclusion of an international police conference hosted by our police in Wellington, I'm often asked why I've remained living in New Zealand.
Aside from the obvious answer of being born here, I list lots of reasons and one involves the police, which I believe epitomises a special quality about New Zealand life. Where else in the world, I asked, could someone sue the police as I have done at eight-year intervals over the past three decades, and in between, be invited as guest-speaker at police school passing out dinners, detectives' conferences, police reunions and such-like? That says much that's good about our country.
So why do I care about the Bain case and, on a different tack, always maintain an open-minded scepticism about guilt in criminal cases without very clear proof?
The answer lies in something that happened nearly half a century ago when seemingly overwhelming evidence that any jury would have convicted on, had me guilty of arson. I won't bore you with the details but the circumstantial evidence against me for six reasons was clear-cut.
But having decided to arrest me, the officer in charge of the inquiry, as he subsequently told me, was instructed to first go through the motions of knocking on a few nearby doors in case he was asked by my lawyer whether he had done such checks. So he did, and by an incredible chance, an old fellow said he couldn't sleep so at an early hour had gone out to see if his newspaper had arrived, and seen a bloke in the street.
Down to the police station and shown a book of photos he immediately picked out the fellow he'd seen who, surprise, surprise, was an arsonist only just released from prison and who, when confronted, confessed.
I sometimes reflect on how different my life would have been had it not been for that old chap's insomnia.
None of this means that everyone charged with crimes are innocent for in fact 99 per cent are not. But sometimes cases arise, such as with Bain, where all of the face value evidence doesn't stand deeper investigation. Sadly, for that to occur requires a miracle to arise. Bain's life has been blighted by horrendous events but he was enormously lucky for his miracle did appear in the form of Karam; a remarkable human being. Yet, despite all the trials and some of the world's best legal brains clearing Bain, he continues to suffer while our politicians with an eye on the polls, trifle with justice.
Debate on this article is now closed.