No jury trial for Pistorius

February 25th, 2013 at 1:00 pm by David Farrar

writes:

 South Africa doesn’t do trial by jury. The republic abolished the system in 1969, over concerns black people would never get a fair trial. South Africa, along with most of continental Europe, Africa, South America and Asia, uses the Inquisitorial judge-only trial system. 

I’m very relieved. Because Oscar Pistorius can play to the courtroom and the media about how he desperately tried to resuscitate his dying girlfriend after “shooting her by accident”, and weep uncontrollably about his “terrible mistake” until the cows come home. There’s no jury of his peers to sympathise with him. 

I’m not saying Pistorius doesn’t deserve a fair trial. Quite the reverse. Rather unfortunately for him, that’s precisely what he’s going to get. 

He’s going to have to explain to a sceptical judge just how he managed to get out of his bed after hearing a noise in the bathroom in the middle of the night, without checking to see if his girlfriend was lying beside him, shoot four rounds into the toilet door without once inquiring who was in there, before bashing the door down with a cricket bat. 

He’ll have to explain why Reeva didn’t scream, the inconsistencies between his account and witness accounts of heated arguments and screams coming from the property leading up to the shooting, and the alleged 17-minute delay between the first shot and the final three. 

And there will be no gullible jury to listen enthralled by their proximity to such a famous man, to be bamboozled by science and DNA evidence, or to take their own prejudices and stereotypes into the deliberation room. 

Colin makes a strong case I have to say.

We’ve had our own fair share of controversial trials of late, and I’m not sure the jury system has been getting it right either. New Zealand, along with Britain and America, is in the minority in persisting with , and I reckon it’s time for a rethink.

It strikes me as odd that complex fraud and civil cases can be heard by a judge alone but that virtually any criminal trial for an offence punishable by more than three months’ jail has the option of trial by jury.

Off memory that is changing so that only offences punishable by two years or more will have the option.

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113 Responses to “No jury trial for Pistorius”

  1. Graeme Edgeler (3,289 comments) says:

    Off memory that is changing so that only offences punishable by two years or more will have the option.

    Yes. Will take effect later this year.

    Default will be judge-alone for almost all offences (including a number which now must be heard by a jury, such as aggravated robbery/burglary, and rape, and even some life sentence offences such as dealing with class A drugs).

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  2. slightlyright (93 comments) says:

    It is an important balance, Civil trials deprieve persons of their funds, Criminal Trials deprieve persons of their liberty, previously even their life, most criminal cases are matters of disputed fact, which jury’s are better enabled to consider, whereas Civil trials deal with mixed issues of fact and law generally and the Judge is simply called upon to determine which facts are more probable. The standard of a criminal trial beyond reasonable doubt is quite different, in a sense lawyers and judges often serve to confuse jury’s whereas in reality threre is only one question for any jury and that is on the basis of the information that has been presented in this trial can you be SURE that the Defendant did it

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  3. scrubone (3,099 comments) says:

    I’m not saying Pistorius doesn’t deserve a fair trial. Quite the reverse. Rather unfortunately for him, that’s precisely what he’s going to get.

    Reminds me of a well known NZ defendant who was let off after loudly proclaiming he only wanted a “fair trial” while fighting tooth and nail to avoid one.

    I guess it only counts as “fair” if you get let off due to having sympathizers in the jury.

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  4. dime (9,977 comments) says:

    let me guess. half of NZ will insist hes not guilty and this will drag

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  5. peterwn (3,275 comments) says:

    And jury trials deprive jurors of their time and income. In USA jury trials is a constitutional right so jury trials are available for civil cases. Personally if I were charged with a serious crime I did not do I would prefer three judges rather than a jury. I would hope as many issues were sorted before the trial actually started and the prosecution case would probably implode before trial. The judges would quickly see through any bullshit and trial time would be considerably shortened. IMO this option should be made available to defendants with the proviso that the decision is irrevicable – they cannot turn around and seek a re-trial by a jury.

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  6. Chuck Bird (4,895 comments) says:

    @Graeme Edgeler

    What is your view on a judge(s) only inquisitorial system?

    I think it would be a good idea it we could improve the training of judges.

    It would also nice it there was some way of holding judges to account. The Judicial Conduct Commissioner is a farce. Your complaint gets forwarded to the judge and he puts his spin on your complaint and the Commissioner automatically accepts the judge’s version of events. It is an outrage the proceeding are not required to be recorded.

    I think NZ has to improve its judicial system in both the criminal and civil counts before criticizing others.

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  7. Nigel Kearney (1,017 comments) says:

    Judge only and inquisitorial are actually two separate things.

    Judge only is definitely an improvement. There may have been a time and place where judges were significantly more likely than juries to be biased or corruptible, but not any more. Judges are a lot smarter than the people who end up on juries, which is a huge advantage. Also, with a jury trial, relevant but prejudicial evidence often ends up being excluded out of fear that the jury will do something silly with it.

    I don’t know enough about the inquisitorial system to have an informed opinion, but my uninformed opinion is that the adversarial system just gives me the impression of being more likely to arrive at the truth.

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  8. Peter (1,712 comments) says:

    Robin was seen in South Africa. Okay, technically he wasn’t, but he might have been.

    Something to consider, jury.

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  9. Cato (1,095 comments) says:

    What a breath-takingly arrogant column from Colin Espiner – a man who clearly thinks an inquisitorial justice system and a bench trial are automaticall the same thing.

    This is a murder trial – we should be repelled that any murder defendant is not accorded the right to lawful judgment by his equals – not a robed technocrat.

    “Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.”

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  10. Sean (301 comments) says:

    The problem with jury trials is that it requires the rules of evidence to exclude whole classes of information that ordinary people use every day for important decisions; one example is hearsay evidence (‘I heard X say y’); another is previous convictions, which in general cannot be used in evidence (only in certain types of cases where the prosecution wants to show a pattern of a similar method offending, like a burglar with a particular MO). In real life we use hearsay evidence all the time to assess the likelihood of some fact or other being true; and the fact of a previous conviction would be an important element in how we assess a person.

    In jury trials these generally cannot be used. The inquisitorial system has no such constraints, because there is no jury. Thus all evidence can be assessed to determine innocence or guilt.

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  11. kowtow (8,517 comments) says:

    Those evil apartheid era oppresors,imagine doing away with juries out of sense of justice for non whites!

    Who’d a thought?

    And on the note of evil whites,we grew up with Sharpeville being rammed down our necks but now silence reigns when the “rainbow”regime massacres miners at Marikana.Or when the streets of South Africa,once so safe have become a haven for rapists and murderers.

    It’s all academic. The left never cared about South Africans,they only sought the overthrow of the white regime.It didn’t matter what replaced it.

    Now they’ve turned their evil attention to Israel. Throw out the Israelis ,and they won’t care that a hard core extremist Islamic rule will replace it.

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  12. TheContrarian (1,086 comments) says:

    I’d just point that having spent a lot of time in South Africa and marrying into a South African family that if Pistorious really did think someone was in his house it is highly unlikely he would asked questions first. Some of these home invasions are extremely violent, particularly towards woman.

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  13. scrubone (3,099 comments) says:

    if Pistorious really did think someone was in his house it is highly unlikely he would asked questions first.

    I agree – it seems like a no-brainer.

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  14. Fentex (986 comments) says:

    Removing the ability of a jury to render final judgement is putting a lot of faith in the institutions that pass and enforce laws being uncorrupted and free from self serving elites guarding each others backs.

    While it might seem a fair position to take now, will it be in a few decades? Giving away the guarantee of judgement by ones peers in the hopes that authority will always be a trustworthy judge seems fraught with danger to me.

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  15. Cato (1,095 comments) says:

    The thing is, procedural safe-guards aren’t designed to ensure every guilty person is convicted. It’s to preserve limited government by loading the dice against the state – and state officials – who enjoy a legal monopoly on the use of force. That’s why it’s much more a feature of Anglo-Saxon legal systems than continental systems – though most continental systems have jury – or jury components – to the trials of serious crimes.

    Double jeopardy, the right to silence, the presumption of innocence and the rule against hearsay evidence – these are all rules the left and the media (but I repeat myself) think are outmoded because they are: a) old, and b) entrust decisions to ordinary people rather than elite judgment. They remind me of that idiot Nick Clegg who, when told that some bien pensant policy proposal of his ran afoul of the Bills of Rights 1689, dismissed it as “”some law dating from 1689″.

    This, presumably, is the system that the Colin Espiner’s of the world would like implemented: http://www.cps.gov.uk/publications/others/jfawhitepapersum.html

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  16. Chuck Bird (4,895 comments) says:

    @Cato (216) Says:
    February 25th, 2013 at 2:06 pm

    You would not be a lawyer by any chance? If so, spouting Latin on a blog like this shows ignorance and arrogance.

    We need lawyer and judges trained in logic not Latin.

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  17. Cato (1,095 comments) says:

    All I meant to indicate was that this is an old liberty – an ancient freedom not won lightly. We are foolish to give it up just because we think we can do without it now.

    If I am ever accused of a crime – then I want the right to demand the judgment of my equals – and I don’t care for the suggestion I shouldn’t have that right because Colin Espiner doesn’t like Oscar Pistorius.

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  18. Chuck Bird (4,895 comments) says:

    Cato, if you have read the other posts you would see that under the jury system you are not really judged by your peers.

    I think a better system would be three judges for serious crimes but better qualified judges and proper accountability of judges. I am not convinced of the impartiality of judges.

    Judges should be required by law to disclose anything that could be construed as a conflict of interest. They are not as far as I know.

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  19. Carlos (683 comments) says:

    Do juries have to be twelve people? Would it be bad if they were reduced to six people?

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  20. Cato (1,095 comments) says:

    Right – so you are in favour of mandatory bench trials for serious crimes.

    Look, juries are underrated as fact finders. Most jurors take their office seriously. They usually get things right – http://www.guardian.co.uk/uk/2010/feb/17/juries-fairness-research

    But my main point – unanswered as far as I can tell – is that judges are officials of the state – they are magistrates. If you think you’ll get a fairer hearing by a panel of state officials, then by all means you should be able to ask for one. But it does not logically follow that anybody accused of a felony should be denied the right to require a jury trial because of sometimes infamous homicides occur.

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  21. Chuck Bird (4,895 comments) says:

    “But it does not logically follow that anybody accused of a felony should be denied the right to require a jury trial because of sometimes infamous homicides occur.”

    I could agree if the jury got to know the facts. We of course do not want innocent people getting convicted but neither do we want guilty people walking on legal loopholes. i would have been highly pissed off if was a juror on the second David Bain trial where relevant evidence was suppressed.

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  22. F E Smith (3,305 comments) says:

    …because of course if a jury acquits a defendant it is obviously because they are either stupid, blind, didn’t understand the case, or are biased against the Police.

    If you think you’ll get a fairer hearing by a panel of state officials, then by all means you should be able to ask for one.

    This.  Plus everything else that Cato has said. 

    Given the choice, I would take a jury trial any day, especially in the District Court.

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  23. F E Smith (3,305 comments) says:

    i would have been highly pissed off if was a juror on the second David Bain trial where relevant evidence was suppressed.

    The correct term is ‘ruled inadmissible’, not ‘suppressed’.  It is very wrong to say that it was suppressed. The various courts (and in the Bain case our highest court ruled on much of it) considered the evidence against the admissibility criteria that Parliament, in its wisdom, set out in the Evidence Act.  The evidence that was ruled inadmissible did not meet that criteria.  In no way was it suppressed.  Your assessment that it was relevant does not accord with the opinion of the Supreme Court.

    If you have a problem, your criticism is directed more properly toward Parliament, which could have said that all evidence of whatever quality is admissible, but for some reason chose not to do so.

    By the way, there was a ton more stuff ruled inadmissible in the first Bain trial, but I never see many complaints about that.  The jurors in the second trial, whether you agree or disagree with the verdict, had a astonishing amount of evidence before them, way more than the first trial’s jurors did.

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  24. F E Smith (3,305 comments) says:

    @Sean

    In jury trials these generally cannot be used. The inquisitorial system has no such constraints, because there is no jury. 

    This shows an ignorance of the law and of the inquisitorial system.  Even in France the inqusitorial system regularly uses a jury at trial time.  Other inquisitorial systems have mixed bench and lay juries.  There is no single inquisitorial system and you should address that prior to making such statements.

    And your point about hearsay and previous convictions not generally able to be used is also wrong.  The prosecution can apply, if criteria is met, for both to be included.  They do so with success regularly, in both summary and trial jurisdiction.

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  25. Chuck Bird (4,895 comments) says:

    “The jurors in the second trial, whether you agree or disagree with the verdict, had a astonishing amount of evidence before them, way more than the first trial’s jurors did.”

    An example please.

    If the Supreme Court judges would so bright and incorruptible why did we have to import Binnie?

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  26. tas (625 comments) says:

    Juries should stay. I don’t like the idea of giving judges total control. They are unelected and have limited accountability (only to other judges). The law should be for the people and by the people, not by a legal elite.

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  27. Cato (1,095 comments) says:

    The system is deliberately loaded against the prosecution – and juries are a part of that – but that’s deliberate and necessary because of the massive advantages the state enjoys – unlimited money, police powers and so on.

    Sometimes juries do get it wrong – but there’s no evidence to say they get it wrong more often than salaried technocrats do. It is like saying that we should make being a lawyer a pre-requisite of being elected to Parliament because lawyers are best placed to write laws. And yet – the rise of lawyers in politics has coincided with an increase in dense, unworkable legislation.

    I believe that Blackstone’s formulation (better ten guilty men &c) is an overused cliche. As the Chinese professor said: “better for whom?”.

    Nevertheless, the idea that the system should be biased against false-positives (at the expense of the occasional false-negative) is a longstanding and hard won hallmark of our freedoms. We should not give up that liberty so lightly.

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  28. Weihana (4,550 comments) says:

    Sean (257) Says:
    February 25th, 2013 at 2:11 pm

    In real life we use hearsay evidence all the time to assess the likelihood of some fact or other being true; and the fact of a previous conviction would be an important element in how we assess a person.

    In real life people choose lotto numbers based on the birthdays in their family. So what? What people do in “real life” is not necessarily based on sound logic or reasoning. Hearsay evidence is often excluded because such evidence generally does not permit cross-examination. Previous convictions are also excluded for good reason: the propensity to bias far outweighs any probative value.

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  29. F E Smith (3,305 comments) says:

    An example please.

    Check the trial lengths- the first trial took 3 weeks, the second one took 3 months.  Simple logic.  

    For specifics, you can go to any of the Bain threads on this or other blogs.  A very broad example is almost the entirety of the defence’s expert evidence, pretty much none of which (from memory) was presented in the first trial.

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  30. F E Smith (3,305 comments) says:

    The system is deliberately loaded against the prosecution

    Theory is a wonderful thing.  I believed that too, until I began to actually practise.  Cost me a lot of youthful idealism that did.

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  31. F E Smith (3,305 comments) says:

    If the Supreme Court judges would so bright and incorruptible why did we have to import Binnie?

    That was nothing to do with the Supreme Court judges or their intelligence or corruptibility.  The idea was, I understand, to have someone compeltely unrelated to the NZ system, political or legal, to prevent accusations of bias.  Obviously didn’t work. 

    A Supreme Court judge was never going to do the job.

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  32. Cato (1,095 comments) says:

    “Theory is a wonderful thing.” – I should have qualified that, agreed. It is notionally loaded against prosecution to compensate for the differences in resources between the two. I am not surprised an obviously experienced person thinks the balance has been upset.

    Tell me – do you think bad legislation has contributed to this? In my small area of the world, I am amazed at the amount of low-quality and complex legislative output. It only advantages the big guys over the little guys.

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  33. Black with a Vengeance (1,865 comments) says:

    Burglars don’t tend to break in and head straight for the shitter to take a dump eh?…jus sayin’

    But what would I know?

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  34. Pharmachick (235 comments) says:

    The very idea of doing away with jury trials is anathema. Particularly with NZ’s current judiciary. I understand that several lawyers and judges believe that a judicial-only system will be more rigorous to the law and less likely to contain the human element of error. That’s precisely why we should keep the jury system at all costs. A jury adds the human element, they are there to ensure that not only the letter of the law is followed, but that judgement is passed based on the current norms of society – that’s very important too, that the general feeling of society is included. Whether we like it or not, lawyers and judges are in a rarefied atmosphere – they may have started out from humble beginnings (and many in NZ have) but they spend their time in somewhat of a bubble. The jurors can come from all walks and creeds of life and maintain an aspect of natural justice and societal norms. And I’ve seen this first hand as a witness at trial.

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  35. Nostalgia-NZ (5,220 comments) says:

    What concerns me though is at a time when there deliberate and public pressure placed on Judges, in fact SST demanding they be ‘accountable’ and so forth is that some groups might see it as a way to ‘control’ Justice by criticising particular Judges for their decisions, knowing full well the message sent out to other Judges who might make similar decisions in the future. It’s vigilante territory, an open attack on freedom and the administration of Justice. I suspect the same people having a case heard by a Judge alone, which went against them, would quickly consider, rightly or wrongly, that the Judge was ‘elitist’ unwilling to listen arrogant and so on. So I don’t think such thinking is a sound contribution.

    Many here are concerned about particular individual cases where they blame a jury for being at fault in someway, yet those making the criticisms were not on the jury and didn’t hear the evidence, were not able to discuss and debate the evidence with other jurors with different life experiences,and so on, a system brings a balanced and human aspect of common sense. Again not a useful contribution.

    Cost is a big issue, and some will be sold on that alone. So cost, making Judges ‘accountable’ and a particular ‘grievance’ about how the system didn’t work or should have worked, all which singularly or collectively have a negative aspect on the value of Justice. Much like townsmen burning down a court house because of a particular decision and not registering the fact that 1000s of ‘good’ decisions had been made compared to the one. Know what you are wishing for.

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  36. Chuck Bird (4,895 comments) says:

    “lawyers and judges are in a rarefied atmosphere – they may have started out from humble beginnings (and many in NZ have) but they spend their time in somewhat of a bubble.”

    That is a lot of the problem. The archaic system of people jumping up and down gets to many of them.

    I do have experiencing with them in the Criminal Court but have had in the Civil Court. The are some very good fair and conscientious judges but there are also some arrogant ones that I do not trust and certainly would not call fair..

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  37. Alan Wilkinson (1,878 comments) says:

    My compliments to Cato and FE Smith above. All too rare to read intelligent and informed comment on these matters. The ignorant, arrogant crap Espiner spouted is much more typical.

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  38. Alan Wilkinson (1,878 comments) says:

    And by the way, “experienced” judges have been found in objective testing to be no better than anyone else on average at judging truth and honesty. They may also come with their own prejudices whereas a juror with abnormal prejudices is likely to be counter-balanced by the rest of the jury.

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  39. Pharmachick (235 comments) says:

    Agree with Alan Wilkinson and Chuck Bird. Cato and FES are making a lot of sense right now, at least to me – likely because I agree with them. And, as an occasionally contacted “expert” witness, I can tell you all that juries are not nearly so dense as a lot of people think. I have known juries to ask questions of the expert witnesses that never occurred to either the prosecution or defense, but are spot on the money.

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  40. F E Smith (3,305 comments) says:

    Cato,

    Actually, with experience in other jurisdictions (both practise and uni tutoring) I have to say that NZs criminal laws are pretty good. There was some dire stuff in the late 90s and under the last Labour regime, and Simon Power was a monumental tool, but to be honest I have few complaints about the actual legislation NZ criminal lawyers work with (legal aid legislation excepted; see my comment on Simon Power). For the most part the High Court and Supreme Court manage to massage out the kinks that might exist with what is mostly common sense. On the other hand, I don’t believe that the Court of Appeal exists in the same universe as the rest of us.

    I know that my civil friends (and you may or may not be one of them) seem to have more issues with their side of things!

    I think that the general bias in favour of the prosecution that exists in the Courts, both bench and jury, comes from a mixture of seeing too much criminal stuff (the judges) and the general tendency of NZers (judges and juries) to have faith in their governmental institutions (which the Poms and the Aussies seem have a healthy scepticism about).

    EDIT: I can say that things are better today than they were. My more senior colleagues can tell tales that will make you cringe.

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  41. F E Smith (3,305 comments) says:

    I can tell you all that juries are not nearly so dense as a lot of people think. I have known juries to ask questions of the expert witnesses that never occurred to either the prosecution or defense, but are spot on the money.

    Seconded.  Great point.

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  42. Flyingkiwi9 (54 comments) says:

    “He’s going to have to explain to a sceptical judge”

    Guilty until proven innocent?

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  43. Graeme Edgeler (3,289 comments) says:

    If the Supreme Court judges would so bright and incorruptible why did we have to import Binnie?

    The advice on applications for compensation of that nature is usually provided by a QC, or occasionally a retired New Zealand Judge.

    It is not the job of current judges (whether Supreme Court or anywhere else) to prepare legal briefs for private clients, and especially not the government!

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  44. Kea (12,841 comments) says:

    Colin makes a strong case I have to say.

    Colin does not make a strong case, I have to say.

    His article is written on the unproven assumption that the accused is guilty. He writes in support of non-jury trials, simply because he believes they will support his guilty-until-proven-innocent approach.

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  45. Chuck Bird (4,895 comments) says:

    @Graeme Edgeler

    You are quite right. I was aware of this but should have worded my post better. Retired Judges like current one are not infallible. Binnie was a Supreme Court Judge. I do not think his facilities have deteriorated greatly since retirement. They were not that great in the first place. I am sure there are some very bright lawyer and judges here as in other western countries. I also there are many judges like politicians with inflated egos who are not all that bright or view points of law more important than common sense.

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  46. Adrian Slobovich (4 comments) says:

    aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, etc

    Thanks, Cato – I agree. At last someone’s said it.

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  47. Adrian Slobovich (4 comments) says:

    Kea says: Colin does not make a strong case, I have to say.

    His article is written on the unproven assumption that the accused is guilty. He writes in support of non-jury trials, simply because he believes they will support his guilty-until-proven-innocent approach

    But he’s laid out the facts the court’s heard, hasn’t he? Given that lot, Ray Charles could see he’s guilty. There’s a bit about the first phone call being to his publicist, I believe. This is Bain all over again: the last man standing performs all manner of unlikely movements before and after calling the cops, and half a million inexplicable clues which could point to no-one else get ignored so the dumber half of the jury (and of the country) aren’t sure. We have so many “beyond all reasonable doubt” convictions overturned in this country, half of those you meet in the street tomorrow will be uncharged murderers.

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  48. ross69 (3,652 comments) says:

    Colin makes a strong case I have to say.

    I disagree. Look at Ian Binnie, supposedly one of the finest legal minds in Canada. Who would have thought someone in his position could be so incompetent? Then there are several Court of Appeal judges and former Chief Justice Sir Thomas Eichelbaum who believe that Peter Ellis engaged in acts of satanic ritual abuse with children at the Christchurch Civic Creche. Their judgment must be called into question. Alas, judges are not infallible.

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  49. Nostalgia-NZ (5,220 comments) says:

    Stop you’re crap ross. This isn’t a Bain thread you dimwit, get a life.

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  50. ross69 (3,652 comments) says:

    By the way, there was a ton more stuff ruled inadmissible in the first Bain trial, but I never see many complaints about that.

    Really? You’ve previously said you haven’t followed the Bain case, but now you’re speaking like you know the case well. So, what is all this stuff from the first trial that was ruled inadmissible? I note that it was Joe Karam who demanded that jurors hear everything. So, imagine my surprise when at the retrial jurors did not hear that David Bain had planned to rape a jogger and use his paper run as an alibi, or that David was intimidating his family with a gun. I note that the Court of Appeal criticised Helen Cull, acting for David, because she wanted to suppress a witness’s entire evidence despite the fact the evidence was relevant and helpful. If the defence had had its way, very little evidence would have been allowed. But I digress…

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  51. Nostalgia-NZ (5,220 comments) says:

    You”re obviously very lonely ross. Buy a blow up man doll and treat yourself to a bit of company.

    [DPF: 20 demerits]

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  52. muggins (3,787 comments) says:

    Does the last post mean the person who wrote it is an expert in blow-up dolls?

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  53. Nostalgia-NZ (5,220 comments) says:

    Only ones called aunt fanny.

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  54. muggins (3,787 comments) says:

    Does the last poster mean that he has a blow up doll that he has named after one of his aunts?

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  55. F E Smith (3,305 comments) says:

    You’ve previously said you haven’t followed the Bain case

    I haven’t, but that doesn’t mean that I am totally ignorant of the case (and I have read the Privy Council decision, which was, from a lawyer’s point of view, pretty damning of the whole case up to that point).  I just have no opinion on the guilt or innocence of David Bain or Robin Bain.  Don’t know, don’t care.

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  56. GPT1 (2,122 comments) says:

    One of the best summaries of why jury trials should be retained was (believe it or not) from a client; “The Judge is part of the system that put me there, if I have done something wrong I want a jury to tell me it’s wrong”.

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  57. Chuck Bird (4,895 comments) says:

    ” I just have no opinion on the guilt or innocence of David Bain or Robin Bain. Don’t know, don’t care.”

    I take from that you do not care if he gets compensation or not?

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  58. GPT1 (2,122 comments) says:

    FES – the Privy Council was right to order a retrial but even run correctly (and notwithstanding Michael Reid’s cheating) it was pretty clear that the jury was not entirely correct. But we don’t make policy based on outliers. Well I don’t. Simon Power seemed to.

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  59. GPT1 (2,122 comments) says:

    I care re compensation fwiw and remain utterly stunned by the Binnie report. Even after reading it.

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  60. ross69 (3,652 comments) says:

    Don’t know, don’t care.

    But you said that “there was a ton more stuff ruled inadmissible in the first Bain trial”. I’m still waiting for you to cite all that inadmissible stuff. And don’t you think it odd that Joe Karam bleated incessantly that the first trial didn’t traverse all the evidence, while prior to the retrial Helen Cull was doing her best to ensure jurors heard almost nothing?

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  61. F E Smith (3,305 comments) says:

    Chuck,

    Nope, don’t. He doesn’t qualify under the criteria, and cannot do so simply because I don’t think he can prove his innocence beyond reasonable doubt. However, I have no problem if the Government decides to give him compensation, either, and think that a perfectly acceptable reason for doing so does actually exist (that doesn’t take his guilt or innocence into account). But, no, I don’t care one way or the other.

    GPT,

    Perhaps, but it isn’t something that I am concerned about. The fact was that there was a trial, it was exceedingly fair (because Panckhurst J made sure of that, I am told) and the jury arrived at a verdict that was open to it. That is good enough for me. Had he been convicted I would say exactly the same thing. As to his actual guilt or innocence? Don’t care, not my problem.

    With regards Reid cheating, well, what is sauce for the goose is sauce for the gander. I have seen enough cheating by the Crown to not worry when that accusation is made of the defence. If Panky allowed it, then good enough.

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  62. Chuck Bird (4,895 comments) says:

    ” However, I have no problem if the Government decides to give him compensation, either, and think that a perfectly acceptable reason for doing so does actually exist (that doesn’t take his guilt or innocence into account).”

    Please explain the perfectly acceptable reason.

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  63. F E Smith (3,305 comments) says:

    Please explain the perfectly acceptable reason.

    A man spent 13 years in prison as a result of convictions that arose out of a miscarriage of justice.  At retrial he was acquitted.  That acquittal has not been appealed by the Crown.

    Personally I think that is a more than acceptable reason.  It doesn’t consider his guilt or innocence, nor does it have to. It merely acknowledges that there was a miscarriage of justice. Of course, you will disagree with me, but you have view on his guilt or innocence.  

    On the above basis, I also think that Rex Haig should have been given compensation.

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  64. Chuck Bird (4,895 comments) says:

    Firstly, I would like to see evidence that supports your first assertion. It is quite likely that if some of the evidence was allowed at the first trial such as they allegation of incest by Laniet’s pimp was allowed the jury could have come to the same conclusion as the judge that he was an unreliable witness. I know there were other grounds but it was quite possible the first jury would have found him guilty.

    There was jury misconduct that was not known till well after the trial so I do not put the same weight of the second jury’s verdict as you do.

    Reasonable doubt is not usually defined by a judge. I understand it was in the second trial and incorrectly by the judge. Aside from that if i was on a jury and thought there was between a 1 or 2% chance someone was not guilty I would give them the benefit of the doubt and vote not guilty.

    Your point view is subjective. I would view paying compensation to someone who my have been found not guilty if the police and prosecution had done a better job but was highly like guilty repugnant to justice.

    However, I may agree with you in regards Rex Haig. I would love to see Fisher’s report on Haig. It should be on a public forum.

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  65. F E Smith (3,305 comments) says:

    Firstly, I would like to see evidence that supports your first assertion.

    The Privy Council decision.  That is the definitive position on the first trial.

    Reasonable doubt is not usually defined by a judge.

    That is incorrect.  In New Zealand it is regularly defined for the jury.  The jury is told that it means that they are sure that the defendant is guilty.  If they are not sure that the defendant is guilty then they should acquit.

    I understand it was in the second trial and incorrectly by the judge.

    Panckhurst J is one of NZ’s top criminal trial judges, and was an outstanding Crown Solicitor and then QC before he was elevated to the Bench.  I highly doubt that he got it wrong.

    Your point view is subjective.

    Not really.  I stated that it doesn’t take considerations of guilt or innocence into account.  My formula is in fact objective.  Time in prison as a result of miscarriage of justice + subsequent acquittal or decision not to re-try = compensation.

    I would view paying compensation to someone who my have been found not guilty if the police and prosecution had done a better job but was highly like guilty repugnant to justice.

    Now that is a subjective view. Plus I am not sure that it says what you want it to say.  Do you mean may have been found guilt if police/prosecution had done a better job?  Does that refer to the first trial or the second?  Either way, it is highly subjective.

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  66. Chuck Bird (4,895 comments) says:

    FES, I am sorry if I was not more clear. I meant I would view paying compensation to someone who may have been found not guilty if the police and prosecution had done a better job on the first trial but was highly likely to have been guilty would be repugnant to justice.

    The idea of paying people who are likely guilty compensation because the police made a few mistakes in my view is wrong. That is subjective but yours also appears to be.

    I am not certain of the Judges comments as they are not online. However, I understand he said beyond reasonable doubt is no doubt. If that is true the great learned judge was wrong. He is not infallible like the Pope.

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  67. F E Smith (3,305 comments) says:

    someone who may have been found not guilty if the police and prosecution had done a better job

    and

    The idea of paying people who are likely guilty

    Well, that pretty much covers any person who is ever accused of a crime.  On that basis even A A Thomas shouldn’t have been compensated.  After all, he was convicted twice and of course he could actually be guilty…

     I understand he said beyond reasonable doubt is no doubt

    I very, very much doubt that.  If it is true, then I would be extremely surprised.  The Court of Appeal (on which Panckhurst J sits on a regular basis) has said otherwise.  All he had to do was read from the Bench Book and he would get it right.  

    Where do you get your information from?

    EDIT: In fact, I really struggle to believe that. Had the Judge done that then I would expect Crown Counsel to have raised it as an issue at the end of the summing up and a correction made to the jury.

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  68. Nostalgia-NZ (5,220 comments) says:

    Maybe you should know what you are talking about both before you comment, and long before you make up your mind Chuck Bird. That’s the normal course of events. Saying you are ‘not sure’ of the Judge’s comments shows you willingly comment without being informed.

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  69. Judith (8,534 comments) says:

    Even if there wasn’t a jury in the second Bain trial, the verdict would have still been the same.
    The Crown was unable to prove their case. Within a few hours of the first day they had made a mockery of much of their own evidence.

    Panckhurst would have reached the same decision as the jury. The prosecution case was a mess. They were unable to sustain their chosen scenario and didn’t have a ‘plan b’. They could not explain certain evidence and the failure of the police to conduct an efficient investigation was blatantly obvious.

    It must be remembered that by law in NZ you are innocent until proven guilty, and the Crown did not, by any means, even come close to proving David Bain was guilty.

    Whilst it is fine to examine the evidence after the event and draw conclusions, it is what is presented in Court that matters, and that is what the Judge must make his ruling by, if there is no jury.

    In fact, I would go so far as to say that it would have been more probable to get a not guilty verdict with just a Judge, as his experience would have allowed him to detect the mess the police investigation was, more than the jury would have.

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  70. F E Smith (3,305 comments) says:

    Even if there wasn’t a jury in the second Bain trial, the verdict would have still been the same.

    I do not think that is a safe statement.  I would not be at all sure that it is correct.  It certainly doesn’t accord with what I have heard on the quiet.

    Not that I have head anything directly from Panckhurst J, I hasten to add, so it might be my information that is incorrect, but it is still not a statement that I would have any confidence in making.

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  71. Nostalgia-NZ (5,220 comments) says:

    Pankhurst did try to ‘put away’ the footprint evidence in such a way that could have been appealed had David been found guilty. On the other hand his inquiring, but basic question, to the witness about the DNA found inside the rifle could indicate he might have been struggling in following the narrative. Despite what F E Smith has said, I don’t think it was a top performance by Pankhurst by any means.

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  72. F E Smith (3,305 comments) says:

     Pankhurst did try to ‘put away’ the footprint evidence in such a way that could have been appealed had David been found guilty

    and

    could indicate he might have been struggling in following the narrative

    Again, both in my opinion highly unlikely. As in, I would be very surprised if either was correct.

    EDIT: How the hell did this turn into a Bain thread??? Enough!!!!

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  73. Judith (8,534 comments) says:

    F E Smith (2,347) Says:
    February 26th, 2013 at 9:09 pm
    ——————————

    I think I know what you are referring to, and you are right regarding the ‘safe’ statement, however, having read the trial transcripts I am convinced that Panckhurst would have been unable to justify a guilty verdict. The Crown’s case was disorganised, messy and did not establish guilt. Panckhurst would have been left with the other two options. A mistrial? On what grounds? Still think a not guilty would have been the choice.

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  74. F E Smith (3,305 comments) says:

    would have been unable to justify a guilty verdict

    Ok, one more: that is a fair statement.  A judge alone must justify his or her verdict with explicit reasoning, so that might have been less easy, but I still go with my original indication as to Panckhurst J’s position, although it is merely hearsay (which apparently is ok).

    Now, no more!!!

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  75. ross69 (3,652 comments) says:

    Even if there wasn’t a jury in the second Bain trial, the verdict would have still been the same.

    Well, you would say that. I’d rather the opinion of someone who sat through the retrial and who has shown that (unlike Ian Binnie) they can reason logically. Someone like Martin van Beynen. He said that David got lucky, and I’m inclined to agree.

    You and I both know David will never get compo. His repeated lies have been the final nail…

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  76. ross69 (3,652 comments) says:

    Indeed, compensating David would be a travesty.

    http://www.stuff.co.nz/the-press/opinion/8075386/Compensation-for-Bain-would-be-a-travesty

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  77. Rowan (2,409 comments) says:

    “i would have been highly pissed off if was a juror on the second David Bain trial where relevant evidence was suppressed.”

    Chuck, this was not relevant evidence, what two school boys may or may not have said to each other in 1989 is not corrobatable or ‘evidence’. I know you like to cling to it because its pretty much your whole argument, ‘the goat’ and ‘Mark Buckley etc’ seem to decide the entire case for you. You are obviously pretty desperate if you are trying to call this ‘evidence’
    Do you think you can hear ‘I shot the prick’ in the 111 call?
    The defence had some of there witnesses supressed to, what was Margaret worried about her husband doing to the family again?

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  78. Rowan (2,409 comments) says:

    “I’d rather the opinion of someone who sat through the retrial and who has shown that (unlike Ian Binnie) they can reason logically”

    Like you Ross! don’t make me laugh, your naive weak reasoning ability is clearly over influenced from the site of lies you source your ‘facts’ from. Talk about a brainwashed fool!

    ‘You and I both know David will never get compo. His repeated lies have been the final nail…’
    Amazing how many ‘factual’ opinions people have on this, You haven’t proven David has lied once and only that you have plenty.
    This is not going to be decided by the court of public opinion contary to your idiotic belief!

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  79. Rowan (2,409 comments) says:

    Anyway as this is not a Bain thread just a couple of comments to keep the idiots in check.
    Judge only trial for Pistorius is probably a good thing, the expectations on the jury are expected to go through in the NZ system is huge, at the end of the day they are only individuals, the amount of pressure is huge and you’ve got the court of public opinion who knows that the jury is ‘wrong’ and there ‘right’. NZ system needs improving

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  80. Chuck Bird (4,895 comments) says:

    “Well, that pretty much covers any person who is ever accused of a crime. On that basis even A A Thomas shouldn’t have been compensated. After all, he was convicted twice and of course he could actually be guilty…”

    FES, I am surprised you use A A Thomas as a comparison. There may be a few old police who may believe Thomas is guilty. I meet on in a pub about a year ago.

    For a start it is accepted that there was corruption in the Thomas. There is none proven in the Bain case but some serious mistakes were made.

    I am sure I got the reference to judge’s summing up regarding the “no doubt” comment. I will check it out.

    I am off to tennis for the morning. One of the luxuries of being retired. I will look into it later.

    BTW – you raise a good point about judge only trials requiring written reasons. This is another good argument for judges over juries.

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  81. Judith (8,534 comments) says:

    ross69 (2,066) Says:
    February 26th, 2013 at 9:56 pm
    Even if there wasn’t a jury in the second Bain trial, the verdict would have still been the same.

    Well, you would say that. I’d rather the opinion of someone who sat through the retrial and who has shown that (unlike Ian Binnie) they can reason logically. Someone like Martin van Beynen. He said that David got lucky, and I’m inclined to agree.

    You and I both know David will never get compo. His repeated lies have been the final nail…

    Martin van Beynen has repeatedly shown himself to be biased in his reporting of the case. He is also closely related to a top Police man from Dunedin, and I think has lost his ability to be rational – as demonstrated by his disgusting performance in Perth – that was so bad, other media representatives shunned him.

    Do not forget that there were other people present, who sat through the entire trial, that don’t support you. Among them a Jury who delivered a verdict of not guilty. MVB is just one man, albeit one with the ability to effect a lot of people with his personal biased views.

    The fact is, the prosecution did not present a tidy case. In the end they had to drop their scenario and were left with an inconclusive case. Within the first day they had excluded the viability of any of the photographic evidence, by the end of the second day they had demonstrated they had muddled tests, not taken tests they should have and couldn’t answer some very basic questions put to them. Their own forensic experts were arguing over who had done which test, and when.

    They did not prove guilt, which was their task. Innocent until proven guilty – regardless of whether it is a judge or jury trial.

    You can, and do discuss this case using evidence presented at the first trial, but you have to remember that in the second trial much of that was challenged, and some of it not even presented by the Crown.

    The only evidence either a judge or jury can make their decision is based on what is heard in the court. Based on that, the verdict given was the only possible one, and even if there was no jury, IMO the same would have happened. The Crown did not prove guilt.

    I think David will get compensation, so please refrain from suggesting I think otherwise. There is yet to be any reliable proof offered that he lied. However, this thread is not about the Bain case. But judge and juries.

    The Bain case is just an example of how no matter who was deciding the verdict, the same conclusion would have been reached.

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  82. ross69 (3,652 comments) says:

    I think David will get compensation, so please refrain from suggesting I think otherwise. There is yet to be any reliable proof offered that he lied

    If you think David will get compo you should buy yourself (and him) a Lotto ticket.

    There is plenty of proof that he lied. But we all know that even if David confessed to the crimes tomorrow, you wouldn’t believe him. In your eyes he cannot do a thing wrong.

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  83. muggins (3,787 comments) says:

    Judith,
    It is not Martin van Beynen who has lost his ability to be rational ,it is you.
    But I don’t want to turn this into a Bain thread, so I will say no more than that unless you decide you want to carry on .

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  84. ross69 (3,652 comments) says:

    Meanwhile, Daryl Young, former photocopier salesman, reckons TVNZ and Bryan Bruce defamed him in Bruce’s 2010 documentary about the case. Young must be feeling optimistic, like the Bain cultists who reckon David will receive compo.

    https://docs.google.com/viewer?a=v&q=cache:UmBi-FRNZfwJ:www.adls.org.nz/filedownload?id%3D17925288-07b0-4658-80f5-06880d6daf66+daryl+young+high+court&hl=en&gl=nz&pid=bl&srcid=ADGEESjOc3AkZ6Ha4zM3W9N1z6GguHU4mq_dhwd7gi9PtTCPGb1QttnGOjXskmJaTxGHF4NPyawkvvyjaCFIrjtfBrDmwBOxxJdqjvsStUEjSRtsR9CNWmtZEeyxUOVdOjvRRIdAbdvD&sig=AHIEtbT1gS4NpbGvYo3Sj-J1Oo1OUqKSpQ

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  85. Nostalgia-NZ (5,220 comments) says:

    ‘muggins (2,270) Says:
    February 27th, 2013 at 8:51 am
    Judith,
    It is not Martin van Beynen who has lost his ability to be rational ,it is you.
    But I don’t want to turn this into a Bain thread, so I will say no more than that unless you decide you want to carry on .’

    Stop threatening people you a hole.

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  86. Chuck Bird (4,895 comments) says:

    It appears that the media have not recorded Justice Panckhurst’s directions accurately or at least some of them haven’t at they are different.

    I understand that his directions are not part of the transcript which is a shame.

    If the first quote in the Herald is correct it should be a concern. I hope FES sees and comments on this.

    “It can be redefined in this way: Is it proven beyond reasonable doubt that David killed all five members of his family including Robin,” Justice Panckhurst asked.

    He told jurors that if there was uncertainty in their minds they must acquit David Bain.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10576417

    Justice Panckhurst said proof beyond reasonable doubt is a very high standard.

    “It is met only if at the end of the case you are sure that the accused is guilty. It is not enough that you are persuaded that he is probably guilty or even very likely guilty,” he said.

    http://tvnz.co.nz/david-bain-news/bain-jury-asks-judge-doubt-2769792

    Justice Panckhurst said it was not enough to come to a conclusion of
    “probably guilty” or “likely guilty”.

    “You’ve got to be brought to the point where you are sure,” he said.

    He said if there is “reasonable uncertainty” then they must acquit Bain.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10576367

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  87. ross69 (3,652 comments) says:

    If the first quote in the Herald is correct it should be a concern

    Why? It doesn’t seem unusual.

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  88. Chuck Bird (4,895 comments) says:

    How about very, very likely? Or very, very, very likely?

    I think if the word reasonable is in front uncertainty it does change the meaning of the judges direction to jury considerably.

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  89. Dennis Horne (2,403 comments) says:

    Bain. The mass of evidence and the condition “either Robin or David” make this case different, almost unique. If it is agreed the killer is Robin or David, then you can forget the “beyond reasonable doubt” requirement.

    Simply ask: Who is the more likely?

    Maybe a second question would be: Do you think this is obvious, very likely, likely, probable? To assess the degree of confidence. Only if the answer is “don’t know” do you have no answer.

    Nothing of substance points at Robin, nearly everything suggests it wasn’t. To me it’s so obvious I must put dissension down to money and madness.

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  90. Rowan (2,409 comments) says:

    The ‘mass of evidence’ you have to laugh at the nutters! A complete mass of nothing that doesn’t amount to anything either individually or collectively unless ‘twisted’ and misrepresented to fit ones guilty mindset like the fruit loop above.
    Which is more likely? well just by looking at the evidence in the lounge and working out who shot Robin shows us exactly what happened in the Bain case and all you need to know, Impossible to explain the lounge as a murder scene as the degree that Robin would have had to cooperate in his death is ridiculous. The crown can’t explain it, neither can the witchsniffers because there is only one explanation and that is that Robin shot himself. QED Robin is the killer!
    Despite what the spinners would like you to believe there is nothing at all that excludes him from taking his own life, and its just so ‘obvious’ thats exactly what he did!

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  91. Dennis Horne (2,403 comments) says:

    So, Rowan, four easy questions for you.

    1. Explain why, when called a cunning killer, David Bain said, “The judge was kind to me.”

    2. David says:”It is my core belief I was not there.” What does he mean?

    3. What did Robin gain by sparing David?

    4. If some big strong fellow had a gun at your head, what would you do?

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  92. Kanz (1,419 comments) says:

    1. Explain why, when called a cunning killer, David Bain said, “The judge was kind to me.”

    He probably meant the Judge was kinder to him than any of his extended family, because “cunning killer” was not all the Judge said and did.

    2. David says:”It is my core belief I was not there.” What does he mean?

    It means he KNOWS he was not in or near the house when the old man shot his family and himself.

    3. What did Robin gain by sparing David?

    He gained the use of his son’s gun because the son was out of the house.

    4. If some big strong fellow had a gun at your head, what would you do?

    Kick him in the nuts. I wouldn’t stand there, lift one leg, lean my head against the gun and say just do it.

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  93. Rowan (2,409 comments) says:

    Good answer Kanz
    I find trying to justify everything rationally a ludicrous argument, the chance of the killer doing so would be around zero.
    Good to see you’ve calmed down a bit Dennis, Question 1 & 2 Kanz has answered pretty well, as for

    3. What did Robin gain by sparing David?
    Who knows, maybe he didn’t intend to or to commit suicide, I don’t believe there was any significant planning to any of the events. Again why do we have to provide a ‘rational’ explanation?

    4. If some big strong fellow had a gun at your head, what would you do?
    What you’ve abandoned the ‘shooting from behind the curtains’ theory, where Robin would have been totally unaware, thats progress! but if this happened I certainly wouldn’t wait for him to change over the magazines and give him a second go, as Kanz said you could kick him in the nuts but would you really stand there with your leg bent at the knee on the chair and lean downwards against the gun and wait for him to do it!

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  94. Dennis Horne (2,403 comments) says:

    Kanz (1,088) Says: February 28th, 2013 at 6:49 pm

    1. Explain why, when called a cunning killer, David Bain said, “The judge was kind to me.”

    He probably meant the Judge was kinder to him than any of his extended family, because “cunning killer” was not all the Judge said and did.

    2. David says:”It is my core belief I was not there.” What does he mean?

    It means he KNOWS he was not in or near the house when the old man shot his family and himself.

    3. What did Robin gain by sparing David?

    He gained the use of his son’s gun because the son was out of the house.

    4. If some big strong fellow had a gun at your head, what would you do?

    Kick him in the nuts. I wouldn’t stand there, lift one leg, lean my head against the gun and say just do it.

    Nothing of substance points at Robin, nearly everything suggests it wasn’t. To me it’s so obvious I must put dissension down to money and madness.

    Add stupidity.

    1. “Gee, thanks, Your Honour, for locking me up for something I didn’t do.”
    2. So “My core belief” = “This is a fact but I can’t say it”?
    3. What stopped Robin shooting David when he returned?
    4. What evidence is there the magazine was changed at Robin’s time of death?

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  95. Chuck Bird (4,895 comments) says:

    I just received this link from a Robin Bain supporter.

    http://www.nzherald.co.nz/nz/news/video.cfm?c_id=1&gal_objectid=10576604&gallery_id=105967

    It looks like one cannot count very much on reporters interpretation. I can accept there was reasonable doubt. However, when I take into account the disallowed evidence combined with the rest I do not accept their is reasonable doubt.

    I can understand people may disagree. However, I real difficulty acceptably that David is innocent on the the balance or probabilities let alone almost definitely innocent as the Karamites claim.

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  96. Nookin (3,353 comments) says:

    What is the copnnection between Bain and Pistorius?
    Why do we have to scroll thru an endless diatribe from the Banals and Robinites to see if there is anything remotley relevant to the thread?

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  97. Chuck Bird (4,895 comments) says:

    The issue is whether a different type of legal system would provide better results.

    Pistorius’ story seems as absurd as David Bain’s story. It will be interesting to see if a three judges produce a better result than a jury.

    I understand with judge(s) only trials there is not the disallowed evidence as in jury trials like the David Bain trials.

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  98. Kanz (1,419 comments) says:

    Pistorius’ story seems as absurd as David Bain’s story. It will be interesting to see if a three judges produce a better result than a jury.

    “A better result” being one that Chuck Bird agrees with, I take it? Nothing to do with what is the correct verdict then?

    Meet Chuck Bird, the man who knows better than anybody…….

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  99. Judith (8,534 comments) says:

    Chuck Bird (3,094) Says:
    February 28th, 2013 at 9:26 am
    It appears that the media have not recorded Justice Panckhurst’s directions accurately or at least some of them haven’t at they are different.

    I understand that his directions are not part of the transcript which is a shame.

    If the first quote in the Herald is correct it should be a concern. I hope FES sees and comments on this.

    Chuck, Panckhurst’s advice to the jury was standard stuff.
    High Court Judge William Young’s report on Summing up to Juries states :

    In New Zealand, there is no absolute prescription as to how judges should explain
    the standard of proof to juries. Judges usually tell jurors that they will be satisfied
    beyond reasonable doubt if they “feel sure” or “are sure” that the defendant is
    guilty.Judges also usually indicate that a reasonable doubt is a doubt that the jury
    regards as reasonable in the circumstances of the case.

    It appears internationally that the words ‘feel sure’ or ‘are sure’ are frequently used as a measure for juries. They must be ‘sure’ of guilt otherwise they must acquit. Of course that has to be the measure here, as a person is innocent until proven guilty, and if the Prosecution has not been able to prove guilt, then that is going to make the jury unsure – have doubts and acquittal is required.

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  100. Chuck Bird (4,895 comments) says:

    “have doubts and acquittal is required.”

    It depends on what sort of doubt Judith.

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  101. Rowan (2,409 comments) says:

    “However, when I take into account the disallowed evidence combined with the rest I do not accept their is reasonable doubt. ”

    Yes Chuck, no reasonable doubt, Robin did it
    The ‘disallowed’ evidence being the ‘supposed’ schoolboy conversation in 1989 and the witnesses who didn’t come forward for 20 years to give their stories, amazing the prosecution proves nothing at the retrial, yet the suppressed ‘goat’ story decides the case once and for all BRD!!
    Maybe if you look at the case logically and the lounge scene then you might see that it is virtually impossible for Robin to have been shot by anyone other than himself (this may require a few more braincells than you have)

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  102. Rowan (2,409 comments) says:

    Chuck
    How much doubt is ‘reasonable doubt’ in this case
    What sort of prosecution brings in ‘experts’ to discredit their own expert witnesses! The two additional pathologists trying to discredit Dr Dempster were a joke and clearly did not know the storyline they were meant to portray properly.
    The prosecution would invite the jury to believe Kim Jones claims about fingerprints and disregard Peter Hentschels (despite Jones admitting he used a deliberate misstatement in the 1995 trial so that the jury would better ‘understand it’)
    The prosecution would ask the jury to accept that Hentschels footprint evidence from 1995 was ‘wrong’ but now suddenly ‘right’
    Jim Doyles admission that the ‘copybook’ investigation was actually a shambles, The alternative explanations are much more straightforward.

    Doubt on every claim put forward by the crown yet the case is somehow ‘BRD’ for you, LMAO

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  103. Dennis Horne (2,403 comments) says:

    Rowan (778) Says: March 1st, 2013 at 11:03 am
    … Maybe if you look at … the lounge scene then you might see that it is virtually impossible for Robin to have been shot by anyone other than himself …

    Robin died by the curtains, body by the beanbag, no blood on body or clothes, no bruising on torso from fight with Stephen, no prints on rifle, Stephen’s prints on suppressor not smudged, 400ml urine, magazine under a table a metre from beanbag, no prints and not knocked over by nearby hand, used cartridge case in alcove, silly message on computer…

    Versus: A man in a funny hat with an arrow attached danced a jig with one leg in the air, showed eventually that with a bit of practice and a lot of luck one might possibly duplicate the shot that killed Robin, but not a skerrick of proof this is anything more than a total fabrication.

    Yep, no contest, really. Really? Really.

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  104. ross69 (3,652 comments) says:

    What is the connection between Bain and Pistorius?

    They’re both violent narcissists, perhaps?

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  105. F E Smith (3,305 comments) says:

    I can’t believe that this is still going!

    Chuck, re your 28th Feb at 9.26am, there is absolutely nothing wrong at law with what the media reported Panckhurst J to have said.  Watching his answer to a jury question a bit further down merely confirms that. 

    I would point out that what the media reports tell us he said is pretty much what I speculated that he would have said.

    I understand with judge(s) only trials there is not the disallowed evidence as in jury trials like the David Bain trials.

    That is incorrect.  Precisely the same rules apply.  If the Bain trial had been a judge alone trial then the disallowed evidence would have remained inadmissible.

    it appears internationally that the words ‘feel sure’ or ‘are sure’ are frequently used as a measure for juries.

    To my knowledge, NZ is very much in the minority in allowing reasonable doubt to be defined. 

    What sort of prosecution brings in ‘experts’ to discredit their own expert witnesses! 

    One that has been taken by surprise, or has found its experts initial position to be wrong.  See, for example, the trial of Tim Taylor for the murder of Lisa Blaikie.

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  106. Chuck Bird (4,895 comments) says:

    FES, thanks for you post. It is quite informative.

    May I ask you in a judge only trial disallows the evidence?

    “To my knowledge, NZ is very much in the minority in allowing reasonable doubt to be defined. ”

    From my very limited experience as a jury I thought that reasonable doubt was not defined. I think his summing up from the video below added to confusion.

    Chuck Bird (3,096) Says: March 1st, 2013 at 8:08

    I just received this link from a Robin Bain supporter.

    http://www.nzherald.co.nz/nz/news/video.cfm?c_id=1&gal_objectid=10576604&gallery_id=105967

    The judge where I was a juror simply said a reasonable doubt is a reasonable doubt.

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  107. F E Smith (3,305 comments) says:

    May I ask you in a judge only trial disallows the evidence?

    Do you mean how do they disallow evidence in judge alone?  There are two ways: in the first, a separate judge can hear pre-trial argument and make ruling.  If the argument occurs mid-trial, then the trial judge will hear the evidence on a voir dire (a separate trial within a trial focussing only on the disputed evidence) and make a ruling.  If the evidence is disallowed then the judge will ignore it and not use it in his/her reasons for their verdict.

    From my very limited experience as a jury I thought that reasonable doubt was not defined.

    It might not have been defined, but in NZ it is the norm to do so.  It is not compulsory, however.

    I think his summing up from the video below added to confusion.

    I disagree with you on that.  Firstly, just so you know, that was not his summing up, it was a response to a question from the jury after they had been deliberating for a time.  This would already have been addressed during the summing up.  Secondly, Panckhurst J gave a pretty much textbook answer, one that I don’t think was confusing at all. 

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  108. Nostalgia-NZ (5,220 comments) says:

    Chuck is now trying to blame the judge and one of his hate-site girlfriends is sending information. How cosy, next they’ll be sending addresses and stalking. So it’s the system’s fault, the Judge’s fault, the Jury’s fault, counsel’s fault, the PC’s fault, Dempster’s fault and Binnies’ fault. Could it be just the fault of a few obsessed nutters trying to protect a dead daddy instead?

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  109. Rowan (2,409 comments) says:

    Dennis
    The helmet was actually a crown exhibit that they used to (attempt to) show that Robin couldn’t commit suicide, didn’t quite work for them.
    “but not a skerrick of proof this is anything more than a total fabrication.”
    I’m still waiting for any of you lot to give the explanation that Raftery couldn’t to show how Robin ‘must’ have been ‘murdered’ so far not ‘a skerrick of proof’ to back up that Robin ‘couldn’t have done it’.

    Raftery was very quiet on the non-suicide, Bates said in his opening address that they would show it impossible but this didn’t work out very well for them did it, there own key witness agreed with the defence that there was no difficult contortions for a man of Robins build to reach the trigger and replicate the wound in his temple in a number of ways quite easily as shown in the demonstration

    If you look at other controversial cases e.g. Jeanette Crewe, there are quite a lot of factors that would make the suicide very difficult, none of them apply here, there was that very obscure case on Sensing Murder a few years ago where Lesley Calverts death was written of as a ‘suicide’ by the investigating cops. This is not about whether or not the pyschic explanations of what happened are likely or not, I am not trying to provide any explanations of what happened, but to believe the death was suicide is completely ridiculous. There was a couple of other episodes in the series where the death also written of as suicide which there were a number of factors that would make suicide extremely unlikely. As I said this is NOT about proving what the clairvoyants said happened or didn’t just an example of how the death was very unlikely to be suicide.
    None of those reasons apply in the Bain case, wonder why the crown at the retrial avoided the lounge and the spinners have no explanation for it either.

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  110. Dennis Horne (2,403 comments) says:

    @Nostalgia. Of course this outcome is the fault of the system. Binnie is a complete dunce, swallowing Karam’s line hook and sinker, even though he knew a juror was concerned enough about the trial to contact him. I cannot imagine a scientist ignoring such a warning and pocketing $400,000 for such a pathetic report. The broken glasses are not evidence. Yeah, nor is the rifle, then, nothing ties it to Robin. Nothing.

    The second trial was a farce. No other profession or organisation could make such a mess of things and get away with it; consider it sound. A comedian in a funny hat with an arrow and a leg in the air shows it’s possible to shoot yourself but not a skerrick of evidence it happened. Against a mass of evidence showing that it didn’t happen.

    The Privy Council demanded a jury to hear evidence the NZ courts determined would have made no difference to a jury’s decision. No suggestion Bain was not guilty. Just a bunch of Toffs in London giving an opinion seemingly rooted in a belief Bain would not incriminate himself. Yeah, like: “The judge was very kind to me.” For locking him up for a good long time.

    Well, Judith Collins knows a scam when she sees one, and so does John Key. Don’t you worry about the ‘”obsessed nutters” – they’re in good company. This government ain’t going to pay Bain, nor is the next.

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  111. Dennis Horne (2,403 comments) says:

    @Rowan. I have explained numerous times why I think it is about as likely Robin killed himself as it is for me to win Lotto. Actually, less. Just the lack of fingerprints and lack of smudging Stephen’s prints on the suppressor would cause anyone with any intelligence to be deeply suspicious of the pantomime. Try guiding a rifle fitted with telescopic sights to your temple at that sort of angle and see how difficult it is.

    Fortunately it doesn’t matter a stuff what you believe or want to belief. You can even believe Bain thought the judge was kind to him locking him up for something he didn’t do.

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  112. Judith (8,534 comments) says:

    F E Smith (2,353) Says:
    March 1st, 2013 at 2:35 pm

    To my knowledge, NZ is very much in the minority in allowing reasonable doubt to be defined.

    Yes, it appears a definition is not standard, unless specific instruction is requested by the jury.
    According to the criminal law review article mentioned above:

    In England and Wales, judges have been reluctant to discuss this indeterminacy
    with juries. So judges, when summing up, focus on what is required to justify
    conviction as opposed to what justifies acquittal. A standard formula is along the
    lines that a jury should only convict “if the prosecution has made you sure of the
    defendant’s guilt”. Often the wording “satisfied so that you are sure” is used. Judges
    do not elaborate on the meaning of “reasonable doubt” (except perhaps if
    specifically asked by the jury in which case a judge might say that a reasonable doubt
    is the sort of doubt which would affect a juror in dealing with matters of importance
    in his or her own affairs).

    In Australia, judges direct juries that the prosecution must establish beyond
    reasonable doubt that the defendant is guilty and that the defendant is entitled to
    the benefit of any reasonable doubt and does not have to prove his or her
    innocence. If the prosecution case is circumstantial, it may be necessary to tell the
    jury that it must acquit if the facts proved leave innocence as a reasonable
    possibility…

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  113. Rowan (2,409 comments) says:

    Dennis
    At the end of the day it doesn’t matter what you or I or anyone else believes, I think David shooting Robin is about as likely as winning lotto next week or Arthur shooting Harvey Crewe through the louvre windows on the police Crewe murder reconstruction scenario.
    Yes you have explained why you don’t think Robin’s death was self inflicted but you havenot explained how David shot him. Suggestions such as Ferris’s ‘shaking’ the dead body are ridiculous, look at the photos in D & G in your local library, (No need to read any of it) look at the blood trail from Robins temple. It is clear and pristine, and clearly not shaken but at the end of the day believe what you like!
    If you look at the reconstructions impartially you will see that Philip Boyce could easily reach the trigger with any of his fingers or thumb and have as much as 10-11cm overreach. Yes it might have been an ‘unusual’ shot for self inflicted but no there are no rules for it and what you would have to believe if the shot was inflicted by David is far far more difficult.
    You use the ‘core belief’ and the ‘judge’ statement as though they are some sort of confession! really, what do they really tell us?
    For a ‘calculating’ pyschopath who carefully planned this and set out to incriminate his father, why has David not blamed his father for anything at all!

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