Trial by Ambush: The Prosecutions of David Bain
I am reasonably new to the criminal justice system, having been appointed a judge in 2010, and seem to be one of the few people in the New Zealand legal system to have had nothing to do with this case. This is not to say that I, like everyone else, have no curiosity about what happened on the morning of 20 June 1994. I, like everyone else, was not there, and can only piece together what happened from the information made available to us. This book collects together a lot of that information, and invites, or rather leads, readers to an inevitable conclusion. I hasten to add that the information presented is unashamedly from the defence perspective. The blurb on the back cover leaves no one in doubt: “This compelling new book explores . . . why it took 12 years to right this dreadful wrong”, and claims that who committed the murders “will be put to rest once and for all”.
It was certainly daring of the editors of New Zealand Books to ask a sitting judge to review this book, and many would say foolhardy of a sitting judge to agree, which is why this is less a book review than a series of musings on our criminal justice system, and why it occasionally produces such causes célèbres.
I am not reviewing the book to assess the truth of its contents. Suffice to say it musters a lot of detail in order to convince the jury of the New Zealand public that David Bain is innocent. There is so much detail, in fact, that a reader could be forgiven for occasionally losing sight of the forest. That the purpose of the book is to establish innocence emphasises, I think, one of the fundamental reasons our criminal justice system occasionally produces cases such as this, resulting in campaigns and books about “dreadful wrongs”: the criminal justice system is not designed to prove innocence.
Some blame the “presumption of innocence” for members of the public and much of the media believing that a verdict of “not guilty” means factual innocence. Ideally it will coincide with factual innocence, but what it actually means is that the judge or the jury has come to a decision that the prosecution has not rebutted the presumption of innocence by proving its case beyond a reasonable doubt. The flipside of that coin is that legal guilt does not always coincide with factual guilt, which is what the author of this book believes happened in R v Bain.
The theory underpinning the presumption of innocence is that it forces the prosecution to prove its case beyond a reasonable doubt, thereby setting a high evidentiary bar. This is meant to protect the innocent from wrongful conviction and reflect what may or may no longer be a widely held consensus: that it is better that 10 guilty people walk free than one innocent person be convicted of a crime he or she did not commit. Society, apparently, used to tolerate all these guilty people walking around, having got away with murder (or more likely something less dramatic) as the price we, in a democracy, were willing to pay for our freedom.
Lately, this consensus has been eroded by political discourse and lobby groups calling for a tougher stand on crime, and by media constructions of simplistic good-versus-bad narratives. The appeal of such cases to the media is that they can be spun into a rip-roaring David-versus-Goliath tale of good conquering evil, and the underdog overcoming injustice. Who can forget the news reporter punching her fist into the air when the jury came back with its verdict in Bain’s second trial, or John Campbell beaming at the prospect of interviewing Bain as a free man? The erosion happens at both ends of the debate, though, and in a contradictory fashion: tougher stands on crime generally require the removal of rights that are considered to safeguard the presumption of innocence, thereby creating at the same time greater opportunity for so-called Bainesque miscarriages of justice to occur and be spun by the media.
All of this tends to mask an inquiry into whether there is something about the presumption of innocence itself that contributes to the creation of these causes célèbres. Certainly the advent of DNA testing in the United States has revealed that there are far more factually innocent people who have been convicted in the criminal justice system than most members of the public would feel comfortable with. We may have been unduly optimistic in thinking that 11 guilty people on the street meant that only one innocent person was in jail. Misunderstanding of the role that the presumption of innocence plays in the criminal justice system may be to blame.
There is a theory floating about. The presumption of innocence imposes a burden (putting the word “heavy” before “burden” is both unnecessary and indicative of apparent partiality – burdens are by definition heavy) on the prosecution to gather evidence to satisfy a judge or jury that a defendant is guilty beyond a reasonable doubt. The burden is obviously less able to be discharged by the gathering of evidence that tends to prove innocence, and anyway, surely that should be the job of the defence. However, because it is up to the prosecution to prove its case, the defence is possibly more passive than it ought to be, with the result that evidence of innocence is less likely to be collected by either side. This opens the way for others to take up the cause, but the cause will only be taken up after a guilty verdict has been produced.
Against this are safeguards built into the system. Evidence gathered by the police is checked by the prosecution before it is brought to court. Once produced in court, its reliability can be tested by defence counsel. And of course, there is nothing preventing the defence producing its own evidence of innocence the reliability of which can be tested by the prosecution. Nothing except, of course, cost, and the need to believe that in a democracy we have the right to be presumed innocent until proven guilty, and that the prosecution must prove its case beyond a reasonable doubt, and that judges and juries are the only people on earth who never make mistakes.
Criminal appeals do not determine innocence or guilt. They determine only if convictions are “safe” by hearing argument on the soundness of the process by which legal guilt was determined. This may be thought to be an inadequate safeguard if the presumption of innocence itself, and erosions of that presumption, create unintended consequences.
In New Zealand, the provision of legal aid and the creation of the Public Defence Service address to a greater or lesser extent the potential of injustices produced by cost. As a result of campaigns to free the Birmingham Six, the Criminal Cases Review Commission was created in the UK in 1997. It independently reviews claims of wrongful conviction on the basis of new evidence or new science that a jury did not know about, or new legal argument not put to the trial or appellate judges, and it refers appropriate cases to the Court of Appeal. As the Bain compensation case continues to occupy the media, with other cases such as Peter Ellis, David Tamihere and Scott Watson popping up every now and then to claim some of the alleged wrongful conviction limelight, the creation of such a Commission in New Zealand could well be an idea whose time has come.
Regardless of what view one has of the substance of Karam’s book, its silver lining is that it has kept discourse about how our criminal justice system affects individuals in the public eye. That can only be a good thing.
W K (Bill) Hastings is a judge in the District Court.