KEY POINTS:
David Bain's QC does not believe New Zealand's justice system has failed - but he is urging National to bring back the Privy Council if it wins the next election.
Michael Reed said it was "quite usual" for judges to be overturned by a higher authority and that
was what the appeal system was for.
But he thinks the higher authority should reside with the Privy Council in London, not the new New Zealand Supreme Court.
He conceded it was possible the Supreme Court would have ruled exactly the same as the Privy Council in overturning the Court of Appeal's refusal to give his client a retrial.
"All I'm saying is I much prefer to go to the Privy Council because I think they are taken from a pool of 60 million people as against four million," Mr Reed said.
"I sincerely hope National will reinstate the Privy Council. They were against getting rid of it so they ought to reinstate it. The public are hugely in support of the Privy Council, the legal profession is in support and many judges are in support."
But National leader John Key last night ruled out a policy to bring back the Privy Council, saying it would be too difficult to resurrect.
However, he said the decision would have people "questioning the wisdom of abandoning the Privy Council".
"New Zealand has put quite a lot of store in the fact there was always that final appellate court.
"It just gave them a degree of confidence that, in the end, there was always someone divorced from the situation who could look at it."
Chris Finlayson, the shadow attorney-general, said the passage of time made it almost impossible to return to the Privy Council.
"The Supreme Court is well under way and I can't see, practically, how one can undo that. And do you do it on the basis of one case?"
National Party associate justice spokesman Richard Worth said the Bain decision showed concerns about dumping the Privy Council were justified.
"In New Zealand, it is a small profession and the judges are drawn from a small pool. They are competent but that's not the point. There is not the same opportunity for that dispassionate overview that is so important. This is the sort of stuff where you could say 'I told you so'."
Others in the legal profession, though, say the Supreme Court should remain.
Scott Optican, an associate law professor at Auckland University, said that New Zealand was perfectly capable of administering its own justice.
"Just because cases get reversed doesn't mean there's anything wrong with the system."
Though the Privy Council and the Court of Appeal ruled differently on virtually the same crown evidence, they simply came to different conclusions. This did not mean one was right and the other wrong, he said.
Michael Guest, Bain's original lawyer, said the Court of Appeal had been rapped over the knuckles by the Privy Council five times in the past six years over miscarriages of justice, including when the New Zealand court denied victims of Michael Bottrill's botched cervical smears a punitive damages claim.
The latest decision over Bain showed the Privy Council should be reinstated, said Mr Guest, who believes New Zealand is too small a country for judges not to be "subtly" and "unwittingly" influenced by a natural desire to protect the integrity of the police and the system.
Auckland QC John Billington agreed the Court of Appeal had not followed the rules of law in Bain's case. But he said the Supreme Court was performing well and often overruled Court of Appeal cases.
THE NEW EVIDENCE
WHY the Privy Council quashed David Bain's murder conviction:
1) Robin Bain's mental state
The jury did not know that Robin, a school principal, was "seriously disturbed" or that children at his school were writing sadistic stories, including one about the serial murder of family members.
2) Motive
The jury did not know that Robin was facing claims of incest from his 18-year-old daughter, Laniet - a possible motive for murder.
3) Bloodstained socks
David's feet were about 20cm too big to match bloodstained sockprints found all over the house but the prints were the right size for Robin.
4) When computer was switched on
The prosecution claimed the computer was switched on at exactly 6.44am - just after David returned from his paper round - but it might have been turned on earlier by Robin.
5) When David returned home
A witness identified David returning home at 6.45am, possibly too late to have murdered his father.
6) The glasses
David said he was wearing his mother's glasses but the jury was wrongly told they were his own - an error which may have reduced his credibility in their eyes.
7) The misplaced lens
The jury was told the left-hand lens from the glasses was found on the floor on Stephen's bedroom near his body - in fact it was lying under a skate boot and a jacket.
8) The bloody fingerprints
David's fingerprints on the rifle may have been bloody from shooting rabbits or possums months earlier.
9) Laniet's gurgling
The Privy Council said the Court of Appeal was wrong to dismiss defence claims that Laniet could have already been dead when David heard gurgling noises coming from her body.
