KEY POINTS:
The media melee that attended the release on bail of David Bain looked like the welcoming home of a man wrongfully convicted and freely pardoned. So it is salutary to remind ourselves that he is neither.
The Privy Council did not conclude that David Bain was innocent. It
did not even conclude that he was wrongfully convicted. Appellate courts scrutinise decisions of lower courts and make sure not that they are correct but that they have been correctly arrived at.
So the Privy Council has not cleared Bain. Rather it has expressed the view that evidence presented by Bain's defence team, if it had been available to the original trial jury, may very well have had an influence on their verdict. The fresh evidence "compels the conclusion", they said, that a miscarriage of justice occurred.
In other words, they are not saying that no conviction could or should occur; they are saying that the conviction that has occurred should not have. The question of Bain's guilt is for a jury, they said, "and nothing in this judgment should influence the verdict in any way".
To a lay eye the distinction may seem footling but its significance is profound. It is a cornerstone of our law, and one on which Bain's supporters relied, that an accused must be properly convicted, beyond reasonable doubt. We may have our private opinions about Bain's guilt or innocence, but it should be decided by a properly instructed jury that has access to all the evidence.
Joe Karam, who has tirelessly campaigned to overturn Bain's conviction, is wrong to say, as he has, that the Crown "should not bother" to retry the case. He, of all people, should be keen to see the matter return to the High Court. He may be forgiven, at this time in particular, for asking the Crown to be driven by his passionate belief that Bain is innocent. But the proper resolution of the case is part and parcel of what he has been fighting for for so long. A decision to drop it, for reasons that are expedient or pragmatic, would be a discredit to justice and to Karam's cause. It would also, not incidentally, leave a cloud hanging over Bain since he could never be proclaimed innocent.
It is proper that Bain was released on bail. The decision tempers justice with mercy in a manner that poses no risk whatsoever to public safety. A retrial would take months to prepare and while it remains open to question whether there will be one at all, it would be unconscionable for a man already unjustly imprisoned to languish even longer behind bars.
But there was something profoundly distasteful about the impromptu press conference cum scrum on the steps of the High Court at Christchurch. The sight, in particular, of the presenters of the two major 7pm current affairs shows fawning over Bain, hoping to persuade him to swivel in their direction - and thus turn his back on the competition - was particularly sickening. It must have been doubly nauseating for supporters of the manifestly innocent Peter Ellis who emerged from prison, his head held high, having served his full sentence - and was virtually ignored.
Ellis' lawyer, Judith Ablett-Kerr QC, says she is encouraged by the Privy Council decision in the Bain case since in her client's case too the jury did not have access to all the evidence. And this week's decision makes it worth wondering anew at the wisdom of abolishing New Zealanders' right of appeal to the Privy Council. Fresh eyes, looking at a case at a geographical remove and untouched by the history of sometimes rancorous public discourse, can sometimes see with remarkable clarity. Little wonder that so many Maori felt uneasy about the removal of that final right of appeal.