KEY POINTS:
The Privy Council's ruling on the Bain case has been seen in some quarters as a verdict on the New Zealand judiciary as much as on David Bain's conviction for murder. It is neither. It is certainly not a verdict on Bain's guilt or innocence; the Lords want that question to be decided by a jury. They believe the New Zealand Court of Appeal should have come to a similar decision on evidence that was not put to the jury that convicted Bain. But that is not a reflection on the Appeal Court's competence.
Much has been made of the statement in the Privy Council decision that "the (Appeal) court assumed a decision-making role well outside its function as a reviewing body concerned to assess the impact which the fresh evidence might reasonably have made on the mind of the trial jury". The inference some have taken is that the three New Zealand judges, two of whom now sit on the Supreme Court that has displaced the Privy Council in our law, seriously exceeded their jurisdiction, a serious reflection on the competence of any judge.
But the role of an Appeal Court on questions of new evidence is not so clear cut. Every judge asked to rule on whether the evidence might have made a difference to the verdict has to put him or herself in the position of the jury. Those who decide the evidence might have altered the result then are in the happy position of being able to refer the case back for a jury's consideration. Those who believe the new evidence is not enough to outweigh the totality of the prosecution case are inevitably placed in the decisive position.
The implication of the Privy Council's quoted statement is that appeals based on new and admissible evidence should always result in orders for a retrial, since the contrary decision would usurp the role of a jury. The Privy Council might be comfortable with that implication but it is plainly impractical for the administration of justice in this country. Appellate judges have to have the ability to make a jury's likely assessment of new evidence if the system is not to be bogged down in endless retrials of contentious cases.
If the Crown decides not to retry the Bain case, the Privy Council's ruling will be the last judicial word on the subject but it is by no means conclusive. The Lords did not say the new evidence would be bound to give a jury grounds for reasonable doubt that David Bain committed the murders, merely that the evidence could possibly raise sufficient doubt. That must remain a matter of opinion.
The evidence never put to the jury concerned Bain's father's state of mind, his alleged incest with one of his daughters, a prostitute, and further forensic testimony casting doubt on some of the evidence given to the jury. As frequently happens in murder cases, a motive is easier to imagine than to prove. The evidence withheld from the jury enables a motive to be imagined for Robin Bain to have killed family members and himself but a motive alone is not proof.
The Court of Appeal had no doubt that any reasonable jury considering the new evidence with the old would still have found David Bain guilty. The Privy Council concedes that the Appeal Court "applied well-settled principles" in its treatment of fresh evidence. The Lords have quoted the court's recognition that "it is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of ... ruling that the new evidence could not reasonably have affected the result".
The Privy Council believed the new testimony could have had that effect. Our indigenous judges had a different view of what a jury in this country would likely decide. It would require a retrial to say which of them is right.
