Let a jury decide

by Pamela Stirling / 21 May, 2007
Joe Karam is one of the most extraordinary Samaritans this country has seen. For 11 years he has campaigned to free David Bain. For 11 years he has backed the innocence of a total stranger at such personal cost that he lost not only his wealth but also his friends. Every morning for the worst two years, he told this magazine, he would wake up, sink to the edge of the bed and cry. "I had to get up and fight the battle all over again by myself ... none of my friends have stuck by me."

At the end of his long, lonely fight for justice, Joe Karam, "the only bugger left", felt that he had staked so much of his credibility on this case that the five Law Lords at the Privy Council were, in a sense, also passing judgment on him.

The judges last week ruled that there had been a "substantial miscarriage of justice". After not one but three appeals in New Zealand, Karam has at last been vindicated. He deserves more than that. He deserves to be honoured.

But there is a time for even Karam to stop fighting David Bain's case. And that time came this week when he announced that the "mood of the country" was such that the Crown would get more credit if it did not put Bain through a retrial. The impression that David had made upon his release on bail was such, Karam indicated, that New Zealanders would not think a retrial necessary.

He cannot, surely, be suggesting that well-dressed, articulate young people with nice loyal friends not be put on trial. The primary criticism of the New Zealand judges by Bain's counsel at the Privy Council was that the court had not, in the words of the Law Lords, "given practical consideration to the primacy of the jury as the arbiter of guilt but had taken upon itself the task of deciding where the truth lay". Surely Karam is not suggesting that mere public opinion be the decider? It is precisely in the heat of powerful public emotion that the legal safeguards count most.

Karam can be forgiven, in the emotion of the day, for his comments about the "miserable, mean-spirited, heartless, cruel" attitude of the Crown in opposing bail and seeking assurances over access to firearms. And yet Crown prosecutors have a strong legal duty to the people of New Zealand to test bail conditions for prime suspects in multiple murders and Bain remains just that: a prime suspect in the murder of five people. The Privy Council has not pronounced him innocent.

And if ever a case should be put before a jury this is it. Both the Court of Appeal and the Privy Council have assessed the same evidence and come up with a different conclusion. That doesn't mean our system of justice is fundamentally flawed - our new Supreme Court might well have reached the same conclusion as the Privy Council in overturning the Court of Appeal decision. It has, on other occasions, done just that. The Court of Appeal itself recently overturned a long-standing conviction in the case of Rex Haig.

It is precisely what is happening now in the Haig case - the relitigation in the media of a case where the courts were not prepared to enter a judgment of acquittal but where a retrial did not occur - that makes it crucial for the Bain case to be put before a jury. In a country so polarised over the evidence, and indeed the role of the police, there needs to be careful cross-examination of every piece of proof and every plausible theory as to what happened on that dark winter's morning in Dunedin in 1994.

It is not true that cases this old cannot be tried fairly. We have seen successful prosecutions in the case where Jarrod Mangels was convicted of the murder of Maureen McKinnel 16 years earlier - he confessed on the sixth day of the trial - and in the case of Teresa Cormack 15 years after she disappeared. Nor does publicity rule out trials. In both the Peter Plumley-Walker and John Barlow cases there were two retrials.

Joe Karam must surely wish for David Bain the chance to establish his innocence forever. Bain's lawyer has talked about the overwhelming response to a TV3 poll in support of his client. It may indeed have been record-breaking. But a case that has taken 11 years and gone all the way to the Privy Council deserves more than to wind up mired in the Court of Public Opinion.

 

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