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The following can be regarded as a follow up to my previous post here about the Privy Council's decision to quash...


The following can be regarded as a follow up to my previous post here about the Privy Council's decision to quash David Blain's conviction for murdering his family in 1994 at Dunedin, New Zealand.



Why the Privy Council decided the way it did
By KEVIN NORQUAY - NZPA | Friday, 11 May 2007



A combination of nine key factors persuaded the Privy Council convicted murderer David Bain was the victim of a "substantial miscarriage of justice".
MORE INDEPENDENCE IN NZ JUSTICE SYSTEM NEEDED - LAWYER
STRONG DUNEDIN SUPPORT FOR BAIN DECISION


While none alone would have compelled their decision that Bain's convictions should be quashed, the nine taken together were compelling, the five Law Lords said.

That was a slap for the New Zealand Court of Appeal, with the Privy Council decision clear in its opinion that the court erred in its judgments.

A miscarriage of justice occurs if credible new evidence is admitted that might have persuaded a jury to reach a different conclusion.

While the Crown challenged the detail and significance of the nine points, the issue of guilt "is one for a properly informed and directed jury, not for an appellate court," the Law Lords said.

"Even a guilty defendant is entitled to such a trial," they said.

The issue was whether there was new evidence upon which a jury might reasonably decline to convict, they said.

No blame could be attached to the jury or judge in the initial Bain trial, in 1995, the Law Lords said.

"It is, however, the duty of the criminal appellate courts to seek to identify and rectify convictions which may be unjust," the Privy Council said.

"In the opinion of the board, the fresh evidence adduced in relation to the nine points ... compels the conclusion that a substantial miscarriage of justice has actually occurred in this case."

The nine points were: 1. Robin Bain's mental state: At the jury trial Robin Bain was characterised as a "balanced, devout" school principal, with David Bain painted as more likely to carry out a frenzy of killing.

PRIVY COUNCIL: New evidence indicated Robin Bain's mental state was such that he may have lost touch with reality.

2. Motive: At the trial no plausible motive for either Robin or David Bain was established. Evidence from Dean Cottle that Robin Bain had been having sex with his daughter Laniet, who was working as a prostitute, was rejected as unreliable. Subsequently three new witnesses independently gave similar evidence.

PRIVY COUNCIL: Had the jury found Robin Bain to be deeply depressed, and facing public revelation of having sex with his teenage daughter, the jury might have concluded he had a motive for the killings.

3. Sock prints: At the trial a 280mm-long bloodied sock print found outside the murdered mother's bedroom was regarded as that of David Bain, as it was too big to be that of his father.

PRIVY COUNCIL: Fresh evidence throws "real doubt" over who made the print. Had the jury known that it could "reasonably infer ... it was about the length of print Robin would have made".

4. Computer switch on time: Trial evidence was that the family's computer was switched on at 6.44am, after David Bain returned home from his early morning paper run.

PRIVY COUNCIL: The jury should not have been given a precise computer switch-on time, as new evidence showed it could have been earlier, or later. While the Court of Appeal said that did not show David Bain could not have committed the murders, there was no onus on David Bain to prove that anyway. A jury might have considered "David's argument ... to be strengthened, had they known the full facts".

5. Time David Bain came home: The jury were told to treat an eyewitness account by Denise Laney of seeing a man resembling David Bain near the family home at 6.45am, as "at best approximate".

PRIVY COUNCIL: Fresh evidence might have led a jury to infer her identification was not in doubt and her estimate of time reliable. Instead the jury never heard her full evidence, nor was Mrs Laney cross-examined.

6. Glasses: An optometrist at the trial said glasses found in David Bain's room, minus a lens found in his murdered brother Stephen's bedroom, belonged to David Bain. David Bain said in court they were his mother's. After the jury trial the optometrist saw a photo of Mrs Bain wearing the glasses, and accepted he was mistaken.

PRIVY COUNCIL: David Bain was cross-examined on the glasses in a way that questioned his credibility. As the jury could not know the optometrist would revise his evidence they may have reasonably drawn "an inference unfairly adverse to David".

7. Left-hand lens: one lens from the glasses was found in Stephen's room, covered in dust and under other articles on the floor. Evidence presented to the jury placed the lens in the clear, in a visible and exposed position, consistent with the Crown case that it was dislodged in a struggle.

PRIVY COUNCIL: While the third Court of Appeal accepted the jury had been misled about the location of the lens, it said it did not matter as the misleading was not deliberate. This was not the case, the Law Lords said. "What mattered was what the trial jury made of the incorrect evidence ... and, even more importantly, what they would have made of the correct evidence".

8. Bloodied fingerprints on rifle: The jury trial assumed that David Bain's fingerprints on the rifle forearm were in human blood.

PRIVY COUNCIL: While there was human blood on the rifle, fingerprint material gave no positive test for human DNA, and the blood might have been from a possum or rabbit shooting, months earlier. The jury did not get to consider this, or other "highly contentious" related issues. Nor could the Court of Appeal resolve such matters, without hearing cross-examination of witnesses who gave contradictory evidence.

9. Laniet Bain gurgling: The trial jury was encouraged to regard David Bain hearing his sister gurgling as an indication of his guilt, as only the murderer could have heard her death throes. Court of Appeal hearings examined the phenomenon of post mortem gurglings, being told they can take place without the body being moved.

PRIVY COUNCIL: The Court of Appeal dismissed evidence supporting David Bain "without hearing any of these witnesses, and without giving any reason for discounting the evidence of the witnesses relied on by David, the court found it possible to regard the issue as concluded in the Crown's favour...

"The court assumed a decision-making role well outside its function as a reviewing body concerned to assess the impact which fresh evidence might reasonably have made on the mind of the trial jury.