Trials and tribulations

Despite being asked not to bring prejudices into the courtroom, the David Bain retrial was so high-profile jurors may have already formed opinions. Photo / POOL

The first jury found David Bain guilty, the second not guilty. They both can't be right. Or can they?

It is entirely possible both juries did their duty, weighed the evidence put before them and reached a unanimous decision about whether the prosecution case cleared the hurdle we use in our justice system of guilt beyond reasonable doubt.

The term is necessarily inexact because truth is ephemeral.

Bain's champion, Joe Karam, proclaimed on the court steps post-acquittal that "the truth has finally fallen where it has always been".

But no living person - save, perhaps, David - can know the whole truth and nothing but about what occurred in the Bain household on the morning of 20 June 1994.

Karam can claim vindication of a long battle - that the police inquiry was flawed, even that justice has been served and that Bain is entitled to the presumption of innocence. But it is exactly that - a presumption, because after 15 years, two trials, two inquiries, two Privy Council hearings the riddle remains the same: Robin or David?

No surprise there is dissatisfaction. A Facebook group called "David Bain is Guilty" yesterday had 543 members, "David Bain is innocent" had 215. Since it all seemed a game, said a letter writer to this newspaper, "shouldn't it be the best of three?"

How could both juries have been right in their contradictory decisions? Because the evidential picture put before each was markedly different.

The secret evidence

As well as the benefit of far greater scrutiny of forensic and pathology evidence than occurred in the first trial, only the second jury heard the Laniet evidence (raising the possibility that she was about to reveal her incestuous relationship with her father, thus suggesting a motive for Robin).

"You might think that had the same evidence been put before the first jury, the result might have been quite different," says Queen's Counsel John Billington.

Which raises the importance of the part of the process that goes on behind the scenes - the battle over what evidence to put before the jury and what to withhold.

How important is it? "It's fundamental," says Billington, who defended convicted murderer John Barlow in three trials, two of them retrials.

Since the first Bain trial, what were quite rigid rules about admissibility have been somewhat relaxed. More evidence on both sides is being put before juries but, notes Billington, "what properly ought to go before the jury remains a fundamental issue".

And one that is hard-fought. It is so because of the potential for a dramatic piece of evidence to turn the outcome of a case. The Laniet evidence, as Billington suggests.

The public, then, might be excused wondering whether this trial's outcome might have been different had the jury heard two pieces of evidence ruled inadmissible.

Evidence about whether Bain uttered "I shot the prick" under his breath during his 111 call was fought to the Supreme Court, while the Court of Appeal knocked out evidence of two of Bain's former high school friends from which a possible inference was that Bain's paper round alibi for the murders was a sham.

The evidence of Mark Buckley and Gareth Taylor was that in separate conversations Bain spoke of the possibility of committing a sexual offence against a young female jogger he was interested in.

Buckley's evidence was that Bain proposed to use his paper round to get away with it by freeing up time for this offending by arriving at the usual times at houses where he would normally see the residents (thus suggesting a normal delivery round) but deliver papers at other houses much earlier than usual.

Prohibition on publication was lifted this week as the main reason for suppression - a fair trial - was removed with conclusion of the trial.

A fair trial means fair both to the defendant and to the public interest that justice be done. Part of the public's interest is that the jury consider all relevant material.

"All relevant material" is the starting point in deciding what a jury gets to hear. Previous convictions, for example. There was an outcry after it was revealed following the acquittals in the Louise Nicholas case that two of the three accused were serving jail terms for a pack rape.

The relevance of such information is that the person has been held to be capable of such offending, the prejudicial risk is the jury may consequently assume guilt.

"Give a dog a bad name," says Christchurch Queen's Counsel Nigel Hampton, "that's the risk and that's the balance."

Juries are increasingly trusted to sift, weigh and balance conflicting, complicated and technical evidence - such as in the Bain trial. So why are they not trusted - with the guidance of the trial judge - to weigh the probative and prejudicial value of evidence such as that suppressed in the Bain case?

Part of the answer is that more is being put before juries because of a growing confidence they can do just that. "But there is still probably room to go further in my view", says Law Commission deputy president Warren Young. "If we believe the jury system is worth having then we ought also to be willing to trust jurors to weigh up the information in a common sense way."

Having a judge act as referee on what jurors can consider assumes legal training and experience better equips them for the task. Nonetheless they often disagree.

Trial judge Graham Panckhurst, for example decided the evidence of Buckley and Taylor should be included. The Court of Appeal thought not.

"The relevance of Mr Buckley's evidence is that it indicates that about four or five years earlier the accused had in mind to use his paper round as the means for 'getting away with' other criminal behaviour. So viewed, the evidence is logically relevant," Justice Panckhurst said in his ruling.

"A number of Crown witnesses are to give evidence of sightings of the accused in the course of his paper round. This closely mirrors the thought process which the accused outlined to Mr Buckley in the school boy conversation."

The Court of Appeal, however, said the alibi in the killings was not particularly similar to what was allegedly proposed in the sexual offending evidence and was not an essential part of the Crown case.

Hampton is unconvinced that judges do any better than a properly guided jury at weighing probative against prejudicial value. "That is so much [down to] the length of an individual judge's foot", he says, "and I'm not being disrespectful."

The jury often got "a very cropped picture" and that carried its own risks. Hampton cites as a prime example the Peter Ellis case in which Ellis argues he was denied a fair trial because the Crown was allowed to cherry-pick the most plausible allegations of the most plausible complainants and to discard the most wild and fanciful.

"It's when those [pre-trial] skirmishes go wrong that the jury trial might go wrong too," Hampton says. "That jury never got to see and feel just how those statements by those children had grown and how they had grown to such an extraordinary and unbelievable extent."

It is why he would like to see as a safeguard against miscarriages a Criminal Cases Review Commission set up, as advocated three years ago by retired judge Sir Thomas Thorp whose research led him to estimate as many as 20 innocent people may be in New Zealand jails.

Can we trust jurors to put aside sentiment?

Bain's team has suggested it was the case of the century. We've lived with it through a decade and a half. It seems everything possible has been written and broadcast about the case, save for an opera. How good are juries at divorcing themselves from the clamour in high-profile cases? Very senior lawyers expressed their serious concern to the Herald about the ability of jurors to put sentiment aside in cases where information and opinion has saturated the media.

Hampton offers the possibility the jury delivered the verdict that it thought the public wanted as one of three reasons for the different verdict this time (the others were the Laniet evidence and far greater scrutiny by the defence of forensic evidence).

He suggests jurors may have harboured an unspoken feeling that after all the appeals, after 13 years Bain spent in jail, after the privy council quashed the guilty verdict, that a significant proportion of the public considered Bain to be innocent. "Those jurors must have carried with them into that jury room an expectation almost."

Hampton is a defence lawyer but his view is shared by a senior prosecutor, who did not want to be named. "You have years and years of controversy," the prosecutor says. "I think there are real dangers."

"You take Bain for example: you wheel down Arthur Allan Thomas to say a few comments outside the Christchurch High Court on the eve of the trial and you ask yourself, why is that being done? What possible purpose is there in doing that?"

The Kahui trial may be another example. Was the unflattering picture that emerged in the media of the mother of the twins significant in the acquittal of Chris Kahui for the murder of their babies?

The need to be objective, to put aside outside influences is impressed upon the jury by the presiding judge but, notes Hampton, "you'd be less than human if you didn't have a reaction." That's not to say juries are not diligent. Now in his fifth decade in the law, Hampton says he can't recall one jury that was less than responsible.

The prosecutor suggests there should be a basis for controversial high-profile cases to be heard by a judge alone.

Judges too carry biases and prejudices and many trial lawyers consider that juries with 12 individuals are better equipped to work through prejudice. But, the prosecutor suggests, because of legal training and experience a judge is better equipped to disregard what is in the media. "I really do think this is something that we should be looking at," he says.

What of the fact that after the verdict some jurors hugged Bain and two visited the defence acquittal party? Billington was not greatly bothered. "I think people now are not overawed by the system and are prepared to express their views.

The prosecutor was horrified. "How would any New Zealander feel if a judge - because that is what a juror is - gets down from their bench and goes up and hugs the accused they have just acquitted?"

What did the jury really think?

One of the first questions the Bain jury asked the judge after beginning its deliberation was about the meaning of "beyond reasonable doubt".

"There are no rules as such", Justice Panckhurst told them. "Reasonable doubt is honest and reasonable uncertainty about guilt, after careful and impartial consideration of evidence."

A view that police flaws raised a reasonable doubt could be equally as valid as the view that there was sufficient compelling evidence to remove that same doubt.

The public doesn't know what jurors really thought, whether they believe Bain to be innocent.

The view that criminal trials can decide what happened is mistaken, says Young. "They never do, unless they decide the accused is guilty.

"As far as arriving at a definitive view, adversarial and inquisitorial systems go no further than deciding that the defendant was responsible or that we can't be sure the defendant was responsible. And if it is the latter, that doesn't mean the defendant didn't do it. It means we are not sure."

We don't have the third option the Scottish system allows of "not proven". Though likely to produce more hung juries, it pushes their "not guilty" verdict closer to a declaration of innocence which could have implications where compensation is sought.

Judges sitting alone are required to give written reasons and their judgments can be appealed. Jurors are not asked to explain.

It would be impractical, says Young. They reach a collective view but each juror may get there for a variety of different reasons. "If each was to write a decision, there would never be an end to it."

"If you believed that transparency, that reasons for decision-making ought to have primacy, then you would ditch the jury system."

Inadmissible evidence, juror and judge prejudices, inequity of resources, the persuasiveness of counsel, the clamour in the media, can all be factors.

It is trusted that the jury system and the high standard of "proof beyond reasonable doubt" tips the balance towards the maxim that it is better to acquit nine guilty than convict one innocent. But if a trial can be seen as a lottery, the indefatigable Karam ensured that this time Bain held many more tickets than in 1995.