KEY POINTS:
On June 20, 1994 the brutal murder of five members of the same family shocked New Zealand. The nation demanded someone be brought to justice and within four days someone was. His name was David Bain and today he walks free while others argue about the need for a re-trial.
Many arguments surround this issue, including the idea that a retrial could prove whether David Bain is innocent. This is a fundamental misunderstanding of how criminal justice works.
As it stands now, David Bain is, in the eyes of the law, innocent. He has been convicted of no criminal act and his release on bail confirms this status. This is as good as it will get for Mr Bain.
The problem is that, unlike our beloved courtroom dramas, a criminal trial in New Zealand (or indeed anywhere) does not say whether a person did or didn't "do it". We don't get to see a film of what happened just before the credits roll, or a tearful confession when the accused is confronted with the smoking gun.
The court has no mystical power with which it can find who committed the crime. The only person who knows is the guilty person and, generally, they aren't telling.
Instead, a criminal trial is a very human process, with all the flaws and frailties that entails, to establish whether, on the basis of the evidence presented, the accused can be regarded as having committed the offence "beyond reasonable doubt". This is a highly subjective and flawed approach, but lacking mind-reading abilities or a time machine, this is the best we can do.
What a trial does is to ask a jury to examine the evidence presented by the prosecution and decide whether the case against the individual is, in their eyes, proven or not-proven.
There are woolly edges around this, such as the compassion of the jury towards the individual but, in essence, this is what the jury does. These verdicts (proven and not-proven) were the original ones used in the Scottish system and in some ways are more honest in at least explaining the extent of the jury's verdict.
The jury does not determine guilt or innocence, but states whether, in their opinion, the case against the individual was proved.
Closer to home, the Rules of Professional Conduct for Barristers and Solicitors in New Zealand leaves us in no doubt about the limits of a criminal trial.
Written in the context of when a lawyer suspects or knows that the client committed the offence, he or she is reminded that, "A trial is for the purpose of finding whether the accused person is guilty or not-guilty, not whether the accused is innocent".
The truth is that we will never find out who killed the Bain family and David Bain will in turn never be able to "prove his innocence".
All we will discover at a retrial is whether the prosecution's evidence, now more than a decade old, is enough to convince an impartial jury (if one can be found) that the crime was committed by the individual concerned. Given the nature of that evidence there seems little likelihood of that occurring.
For better or worse, our imperfect system will leave the sad case of the Bain family with no finality. Such is the reality of criminal law. There are no neat endings, no rolling credits, and sometimes we never find out who the bad guys really were.
* Dr W. John Hopkins is a senior lecturer in the Law School at the University of Canterbury.
