Thursday, 18 February 2016

David Bain

It’s actually not complicated.

A retired Australian judge has just issued an opinion on David Bain’s guilt or innocence without the benefit of an actual trial. This makes his opinion about Bain’s innocence no more relevant than you and I.

And whatever else you and I might think about it (and your opinion may well be the same as mine), NZ’s legal system as it’s properly constituted (i.e., without backdoor reports by carefully-selected judges) belatedly found him not guilty of the crime, and therefore locked up wrongly.

And because he was locked up wrongly, he naturally does deserve compensation from the justice system for the injustice.

That is only justice.

So either pay him compensation, Minister, or say out loud that you think the justice system is flawed.

I dare you.

(In other words, my opinion hasn’t changed one bit since this time last year.)

25 comments:

  1. The justice system is flawed (in absolute terms) and I suspect no one would deny that but to give money to someone who is as likely as not to have done the dirty deed goes to far. He was initially and remains now a very obvious suspect. The way some jurors flocked around Bain on acquittal was embarrassing and in itself made me doubt their ability to be impartial. I may well have found him not guilty but would never have got involved with him in such an unprofessional manner.

    That the evidence didn't allow a conviction (twice) is not the only issue. Sometimes you just suck it up and be grateful you got off second time around - this case does not share the valid concerns that appear in, say, the Peter Ellis matter.

    My opinion is, like everyone's, clouded because I think he did it and that means I'm happy to see him being free in these circumstances but not compensated.

    3:16

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    1. Doesn't matter whether you or I think he's guilty. A properly constituted court found him, ultimately, not guilty.

      So either accept the verdict, or accept the justice system is flawed. Those are the only two alternatives.

      But compensate him. Because that's what justice does.

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    2. I agree it doesn't matter whether you or I think he's guilty. It's up to a court or tribunal (or whatever the appropriate mechanism is) to decide if, on the balance of probabilities he was more than likely innocent. He's only entitled to compensation if they determine he is more than likely innocent.

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  2. I'm not sure I agree with that. We can say that the burden of proof wasn't reached in terms of his criminal conviction (and therefore needs to be set free), but on the balance of probabilities was probably guilty (and therefore not entitled to monetary compensation). I see it as similar to the high burden of proof needed for a criminal conviction, versus the lower burden of proof needed to win a civil case.

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    1. You're absolutely right Mark. There is a different burden of proof required for compensation which Bain fails to meet. I don't know why people find it so hard to understand that in the legal system Not Guilty DOES NOT MEAN INNOCENT. This is how the families of OJ's victims sued the shit out of him for wrongful death even though he was acquitted.

      It's ridiculous to believe Bain's acquittal at the second trial makes him innocent, considering the jury were members of his fan club, and had dinner & hugs with him afterwards.

      Of course there is an easy solution to this: All those who thinks he is entitled to taxpayer money can set up a fund & donate their own cash, leaving the rest of us alone.

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    2. @MarkT: Actualy, no, you can't say at all that "on the balance of probabilities [he] was probably guilty" because no civil case has been taken.

      Until and unless it does, the only trials were those criminal trials that ultimately found him not guilty. On which, see my comment above.

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    3. @ Barry: He was found not guilty. It's not complicated: you've heard about the presumption of innocence, I presume?

      Not sure why people find that concept so hard to understand.

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    4. That's right: he was found not guilty. I tried to explain why 'not guilty' is used in the legal system as opposed to the simplistic binary verdict of 'guilty/innocent'

      But it seems some people are as hostile towards education as David Bain was towards his family.

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    5. PC - I'm not pre-judging the matter and saying he is or isn't entitled to compensation. I'm saying the matter needs to be decided by a court or tribunal using a different burden of proof to what's required in a criminal trial - and that in principle there would be nothing contradictory in both a "not guilty" and "not entitled to compensation" verdict in separate courts given the different contexts.

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    6. Barry's right, Peter's wrong. You cannot read "not guilty" as meaning "innocent". It really means "not proven guilty beyond reasonable doubt". The final trial found that Bain was not proven guilty beyond reasonable doubt. "Not guilty" is simply the phrase used to convey that and is not interpreted literally.

      The bar for compensation is poorly defined but one needs to show that one is innocent to some degree of certainty to get it. D.Bain has not done so. In fact there is considerable reason to believe he cannot get near it. Therefore I am personally very comfortable with no compensation being paid.

      Compare to the David Dougherty case where he was comprehensively proven innocent and rightly received compensation. Or compare to Arthur Allan Thomas where serious evidential flaws and police misconduct were found. Nothing like this has been found with the D.Bain case.

      The bar needs to be clearly defined though - that is the flaw in this process. Is it proven innocent on the balance of probabilities or proven innocent beyond reasonable doubt? At the moment this is not defined, and the whole outcome is at the discretion of the Minister of Justice and that person's recommendation to cabinet.

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    7. So you're arrested, and a court finds you not guilty.
      Does this mean the court knows you're innocent? No , that is epistemologically impossible. It means that the evidence available does not prove your guilt--and you are quite properly released.

      That's what justice looks like.

      So you're arrested, and a court finds you guilty and you are as a consequence locked up -- and after many years another properly constituted court finds that verdict incorrect.
      Does this mean the court knows you're innocent? No , that is epistemologically impossible. It means that a proper appraisal of the evidence available does not prove your guilt, and indicates you were therefore wrongly imprisoned--and you are quite properly compensated for the state's error.

      That's what justice looks like.

      So either compensate the poor bastard, or fix the justice system. Those are the only two just alternatives.

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  3. "What if we indeed allowed ourselves to be blinded to all but our own self-interest?”

    This is what happens - we want our own way. Sometimes its fine but sometimes its not.

    3:16

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  4. I agree with Peter - he should be paid compensation because he was wrongly imprisoned for 13 years.

    It's just another example of "government by opinion poll and focus group" by the National party, and fairly disgraceful the way they are trying to weasel out of it.

    Imagine if the "balance of probabilities" standard was applied to Richard Worth, Aaron Gilmore, Pansy Wong, Simon Power ....or Mike Sabin

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  5. So-called libertarians arguing that David Bain is entitled to millions of their tax dollars.

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    1. Check your premises, Dave. Libertarians are in favour of a functioning justice system. One that does dispense justice.

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    2. Or you might become a philosophy professor like Tara Smith of UT Austin,

      State university. Not a good example.

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    3. Dishing out tax dollars to someone who most likely murdered his family is not justice. It is not consistent to respect the not guilty verdict, while at the same time ignoring the different threshold required for compensation.

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  6. No, Dave, millions of your tax dollars haha!

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  7. I agree completely Peter. I think he murdered his family, but that's completely irrelevant. The worst part of it all is the appalling way Judith Collins and now another government operative leaks confidential reports to discredit their opposition. Collins behaved terribly when the Binnie report came out.

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  8. I do not see how justice can ever be anything else but potentially flawed. Compensation is a political matter. I don't want to pay compensation to a family murderer.

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  9. I agree with Paul S and think the term justice does not really reflect to our criminal laws and transgression legislation. To me the concept of justice is a punishment that exactly and perfectly fits the offence knowing all the circumstances and this is decided by someone outside our sphere of influence who knows right and wrong in absolute terms. What we have is inevitably a shadow of that justice hence the bickering about cases between people who are paid to do so. I guess the Christian (and other religions as well to various degrees) address that with a concept that when you stand before your maker you'll get what you deserve and you'll know its fair - nothing will be hidden and everything you thought you'd swept under the carpet and got away with will be on show. Of course its all rubbish to many but I suspect most of us long for a day when every mongrel that dumped on us and got away with it gets what they deserve while forgetting that someone thinks that about us.

    3:16

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  10. What bothers me about this whole matter is why the Crown case against David Bain was questioned in any way, by the Jury or anyone else.

    It is so....plausible *wink*

    A witness saw David Bain on the street at 6:45am (the witness the Police supressed at the first trial).

    This was 3 minutes after the infamous computer had been started, but in any event it would have taken David Bain several minutes to walk from where he was seen down the street to his house, due to the black ice....(I was in Dunedin that day and can assure you the city was saturated with black ice. Walking 'fast' was not an option unless you wanted to slip over and break your leg)

    Upon returning home Mr Bain - in a period of TWELVE MINUTES - (I assure you I am not making this up: the Crown seriously expected the Jury and other nutters to swallow the following)..... undertook some domestic chores such as putting on a load of washing (matters not disputed by the Crown, by the way) before he then proceeded to murder 5 people in cold blood - one of whom put up quite a struggle.

    He then composed himself and makes a 111 call.

    Please note this was not Rambo, or James Bond, or some character out of an Agatha Christie novel - but some limp dick wuss: David Bain

    As I say I am mystified as to why this is open to any dispute, as to why Jury members didn't swallow it whole, as to why debate as to Mr David Bain's guilt continues to linger.

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  11. That's right it's not complicated Peter. But you've still managed to misunderstand what is going on.

    Presumption of innocence applies only to the trial itself: the crown has to prove guilt, not vice versa. That's it.

    It does not apply pre-trial (hence people awaiting trial for serious charges are locked up) or post-trial. The determination of compensation is a separate legal proceeding.

    I would have thought a libertarian of all people would understand why there is a very high bar for taxpayer compensation to someone who very likely killed his family.

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    1. But there has been no separate legal proceeding, has there Mike.

      Nor, under this minister, is there likely to be one.

      And that, really, is the point.

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  12. The biggest flaw in the system is the cabinet process that re-litigates the trial. The justice system is based on "innocent unless proved guilty". The cabinet process turns this on its head. It is deeply unjust and should be removed. The decision of the court should be enough to award compensation.

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