Editorial: Bain case shows juries failing

David Bain. File photo / Pool, Christchurch Press

It is little wonder that the television programme The Case Against Robin Bain, which screened on Tuesday evening, has caused such a fuss among those close to David Bain.

The programme, by documentary maker and celebrated cold-case investigator Bryan Bruce, carefully avoided venturing a view on the guilt or innocence of David, who was convicted in 1995 and acquitted in a retrial last year of the 1994 murder of all five members of his family; it purported only to examine the case against his father. But in questioning the case against Robin it pointed the finger at David.

Bruce's challenge to David to answer questions about the case is dramatic, but quite out of line. David has discharged his obligation to answer the charges against him by going to trial.

The state must prove the case against a citizen, not the other way round - and those who doubt the wisdom of that principle might like to ask themselves how they would feel about it if they stood accused. By precisely the same token, nobody acquitted by a court should have to face trial by media.

Michael Reed QC, who led the defence at last year's trial, has indicated a willingness to take part in a debate with Bruce but it is far from clear that it would be of any use. Reed is, by definition, a defender of David, not a prosecutor of Robin. That the latter is implied by the former is true only in the public mind. At law, where a man must be tried, it is a fiction.

There remains a deep public disquiet about the Bain case. We are, regrettably, used to the instinct that someone may have been wrongly convicted but not the idea that someone might have been wrongly acquitted - particularly in the case of a headline-grabbing crime. Yet it may be something we must live with as a society.

It is no doubt deeply distressing to Robin Bain's family that he has been implicitly and posthumously convicted without a trial or benefit of defence. But in the gap between the irrefutable truth and what can be legally proven or disproven beyond reasonable doubt, lies a territory of uncertainty. Endlessly relitigating the Bain case through interviews, columns and documentaries is never going to change that.

What we might more usefully address is the framework within which we try to get at the truth of what happened in criminal cases. Justice Minister Simon Power, who has been a vigorous reformer since he took up the portfolio, visited Germany and Austria last month to study their criminal procedures and has said that he is interested in exploring the idea of adopting elements of those systems here.

In those countries, trials are wholly or partly inquisitorial rather than adversarial. Thus a judge, with the assistance of counsel, tries to discover what really occurred rather than simply adjudicating a contest between competing lawyers seeking to persuade a jury of the defendant's guilt or innocence. This approach does not focus on winning or losing a case, but on solving a crime, which is what society, not to mention the victims, would want.

Without imputing any discredit to either of the juries in David Bain's trials (though it is worth noting that one of them must have been wrong), the principle that one is entitled to be judged by one's peers is now almost a millennium old. In the age of DNA fingerprints and forensic psychology, it may be useful to wonder whether its provisions are sacred.

Juries, sifting through the details of complicated white-collar crimes or the scientific evidence in sensational murder cases, can find themselves out of their depth. And there is nothing to prevent them from returning verdicts based on their gut feeling about a case.

In the 21st century, legal principles of medieval origin may warrant revisiting and Power's announced plans are commendable. If nothing else comes out of the controversy about the Bain case, it will be worthwhile.