Comments on my first post on this deserve a response, particularly Nikki Pender.
I respect her judgment, and there is little of what she says with which I disagree, except the conclusion. And the conclusion illustrates what I think is wrong about the misplaced respect given to lawyers’ values, as opposed to legal reasoning.
We have to keep asking of all activities and value systems that purport high moral worth – what is their outcome? Are the fruits valuable enough to justify the priority we give the activity, compared with the other ways we could employ the same resources?
This Bain proceeding is vain because the outcome is preordained. He has already served the time that murderers of that era serve. He was apparently an obedient prisoner and the Parole Board will not be able to find the necessary basis of threat to the community that is their only authority to hold him in for more time.
And the other purpose of the re-trial, vindication, whether of the original Police case and the convictions, or of Bain, can no longer be served at this distance. The evidence leaves enough handholds to clutch for those of either faith to stick to their persuasion despite any verdict.
There are wrongs that can not be remedied. It is dangerously pretentious for the legal system to be trying old cases. The Bain case is now far after the event and even the most scrupulous will have been rehearsing their memories, consciously or unconsciously. Many trials of old cases, especially sex cases that turn on the word of one person against another (albeit abetted by recovered memory specialists) are a disgrace.
The more we learn of how memory works the more disgraceful these charades become. I do not doubt for a moment that many of them target people who are guilty. But beyond reasonable doubt – too rarely.
So I come back to my view. I hope the Attorney General takes charge of the Crown Law Office and requires it to update the 1992 Guidelines governing the charging discretion. They need to make it more clear that the public interest is not the same thing as the self regard of the justice system insiders.
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Once again I will respectfully disagree. It is important that the public have reason to believe that the Police and those prosecuting are not complete wallys. Over the time since David Bain was released, largely due to the publicity machine and a resourceful and tenacious champion he had found in Joe Karam, many of us were beginning to wonder! Despite some troubles the Police would rather have done without, the vast majority of Kiwis still believe we are generally well served by the rank and file, and for the most part they get the right guy or girl. Having only heard one side of the story, and on the heels of the recent armed response fiascos, it has become more important than ever that even if Bain is not found guilty this time, the very fact that the case for the prosecution seems surprisingly strong in the light of what has come from the evidence given so far, that many like me are once more reassured that there really was a case to answer.
The defence has not yet put it’s case in court this time, but I do believe it put it in the public arena since David’s release.
It is less important now whether David goes back to jail or not, if guilty he has served his sentence, if innocent and unreasonably charged, he deserves compensation. If, it should happen that nothing can be proven beyond reasonable doubt at this stage, but a strong case is shown, then compensation can be lawfully withheld without people like me feeling that Police stand in the way of truth, and I believe that very important public knowlege, is worth ten million of taxpayers money.