Imagine if David Bain Really is Innocent

New Zealanders have watched the Bain family murder case unfold over the past 18 years with fascination. For any readers who are unfamiliar with the case of David Bain's trials and imprisonment for the murder of his family, there is a reasonable summary of it in David Bain's Wikipedia entry here. It has all the elements of a classic murder mystery - the horrific, bloody crime itself, family intrigue, suggestions of incest, allegations of planted evidence, and the selfless campaigning of those who believe David Bain to be innocent - particularly that of former New Zealand international sportsman, Joe Karam.

I, unlike David Bain's supporters, do not profess any certainty of his innocence. But I have read enough about the case to be sure that he was only convicted of the crime because of the an incompetent and possibly corrupt police investigation and a determined and one-sided presentation of the evidence at his first trial.

Bain was released from prison in 2007 after his conviction was overturned by the Pricy Council in London (at the time, New Zealand's highest appelate court and since removed in favour of a new local Supreme Court). He was retried in 2009 and acquitted on all charges. Since then he and his supporters have been waiting for the Government to decide whether he should receive compensation for wrongful imprisonment. In New Zealand, such claims are considered by the Cabinet acting on the advice of the Minister of Justice. The process usually involves a senior lawyer or judge investigating the merits of the claim and deciding whether, on the balance of probabilities, the person is innocent. Note that this is both a higher and a lower standard of proof than that which applies in a criminal trial where a conviction requires the case to be proved "beyond reasonable doubt", but acquittal does not require proof of innocence, merely failure to prove guilt.

The Minister of Justice in this case, Judith Collins, commissioned a report from Ian Binnie, a retired Canadian Supreme Court judge, to determine whether David Bain should receive compensation. Binnie reported back in September this year, determining that Bain was innocent on the balance of probabilities and that he should receive compensation.

Many New Zealanders still believe David Bain is guilty and it is obvious Judith Collins is among them. She decided she did not like Justice Binnie's recommendations and has appointed Robert Fisher, a New Zealand Queen's Council (a glorified title for a senior lawyer), to review it. Unsurprisingly, Fisher has decided Binnie's report is flawed. Collins' unwillingness to accept Binnie's recommendations is disappointing but hardly unexpected, given she was Minister of Police during the period covering the second trial and would have been receiving advice from her department that has itself been the subject of accusations of criminal conduct in the case. Even as Minister of Justice, she has a fairly obvious conflict of interest because it is the New Zealand justice system itself that is now on trial.

As I say, I don't know whether Bain is truly guilty or innocent. But I do know a conflict of interest when I see one. New Zealand has not seen such a disgraceful handling of an independent judicial review since Prime Minister Muldoon trashed the report of Justice Mahon into the 1979 crash of an Air New Zealand airplane on Mount Erebus in Antartica. There is a clear conflict of interest in Judith Collins' consideration of the Binnie report and she should recuse herself from any further consideration of Bain's bid for compensation. The Prime Minister should appoint a less-interested minister to make the recommendation to Cabinet, or do the job himself.

I believe that on consideration of the balance of wrongs, David Bain should receive compensation. If he is guilty, he has served 13 years in prison through a conviction that was the result of an incompetent and possibly corrupt justice system - and you might say that is good outcome. But consider if he is innocent - not only did he come home one morning in 1994 to find his entire family slaughtered, he has been suffered the further horror of being tried, convicted and imprisoned for the crime he did not commit, and extreme vilification for that crime ever since. The fact that there is a strong possibility of his innocence outweighs everything else in my mind - this man must receive generous compensation and our humble apologies for what we as a society have done to him.

Government's only legitimate function...and it can't even get that right

Every now and then we see a criminal case that it so utterly appalling that it stands out even amongst the murders, assaults, rapes and burglaries that are all-too-common in our smug little "God's own country" down here in the South Pacific.  Such a case was the killing of Christie Marceau by Askay Chand.

These are the raw facts of the case.  In September 2011, Askay Chand kidnapped and threatened to rape Christie Marceau, who lived nearby.  Chand was imprisoned on remand for those offences but was released on bail after he wrote a letter to the judge expressing his remorse, despite the police and prosecutor strongly opposing his release.  Two months later he returned to Christie Marceau's house and stabbed her to death in front of her mother.  Yesterday in the Auckland High Court Chand was found not guilty by reason of insanity.

As a parent of two daughters, this case horrifies me.  After the first attack, Christie and her mother must have been living in abject fear that Chand would be released and would return to attack again.  They would have put their faith in the criminal justice system to protect them.  In New Zealand we have no choice but to trust that system - we are not allowed to possess the means of our own defence (even pepper spray is illegal).  Chand's return must have been like living through the worst nightmare for Christie and her mother - a nightmare from which that neither of them awoke.

I believe the state has one legitimate role - that of protecting its citizens from the initiation of violence against person and property.  Whether or not you believe that the state has other legitimate roles such as redistributing income to the poor,  you probably believe that the role of protecting citizens against violence is paramount.  If the state can't  get even this right, then there is something seriously wrong with our form of government.  Sure, people make mistakes, but there is no excuse for what happened to Christie Marceau after the signs were so obvious in the first attack by Askay.

At the very least, the judge who granted Askay bail should resign.  Under the doctrine of ministerial responsibility, the minister of justice should also resign.  There has been a call for a "Christie's Law" to tighten bail requirements by criminal justice campaigners, and Christie's mother has appeared at a Parliamentary select committee to speak in favour of this.  While I am seldom in favour of knee-jerk legislative responses to social issues, I think tighter bail laws is the least we can do as a society to ensure Christie's death was not in vain.