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> Full coverage of the David Bain caseKEY POINTS:
David Bain should know by early next week whether he will be set free while the Crown decides if he will be retried.
A bail application is set to be heard at the Christchurch High Court at 2.15pm on Tuesday. His legal team want him out of jail as quickly as possible.
Associate Auckland University law professor Scott Optican believes there is sufficient public interest to warrant a retrial.
He believes the public needs a determination of guilty or not guilty, given the seriousness of the charges and to give finality. Mr Optican says there is no reason to believe Bain's case could not be retried fairly.
Detective Superintendent Malcolm Burgess said: "There will certainly be some logistical challenges around such a retrial, but that wouldn't preclude us going down that path."
Mr Optican disagrees with United Future leader Peter Dunne's assertion the Privy Council decision raises issues about the New Zealand legal system.
He believes it is a normal function of the appellant process that sometimes one appellant court can reverse the decision of another.
Careful consideration
Attorney-General Michael Cullen said Crown Law would carefully consider what action would be taken in light of the Privy Council judgment.
"The decision is solely for the Solicitor-General to make and there will be no further comment," said Dr Cullen.
"We don't know when the bail [application] will be heard. I imagine it will be Monday or Tuesday. I don't think it will be today.
"We have got to get some papers ready, we have got to find a judge," his lawyer, Michael Reed QC said.
United Future leader Peter Dunne said the case raised questions about the way criminal trials were conducted in New Zealand and called for the Law Commission to review the rules of evidence and court procedures.
"I am concerned that the Privy Council has identified serious deficiencies in the way evidence is presented to New Zealand courts in cases of this type," he said in a statement.
"The layperson's presumption is that all relevant material is put before the court so that the jury of one's peers can decide guilt or innocence."
Mr Dunne said that the reality was that the process was far more selective and the Bain case was not isolated.
"In the last decade alone similar allegations have swirled around such major cases as the Ellis case, the Haig case, the Dougherty case, the Watson case, and aspects of the recent police rape trials -- not to mention the Thomas case in the 1970s."
A combination of nine key factors persuaded the Privy Council Bain was the victim of a "substantial miscarriage of justice".
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."
- NEWSTALK ZB, NZPA, NZHERALD STAFF
