The “Bain” factor

Michael Forbes at Stuff reports:

Ewen Macdonald has been acquitted of murder in a court of law but he will still have to overcome the “Bain factor” in the court of public opinion, a top defence lawyer says.

Jonathan Eaton said the best advice he gave clients found not guilty of serious crimes was to accept the allegation would always follow them around.

Mr Eaton had Rex Haig’s murder conviction quashed in 2008 and successfully defended George Gwaze on charges of murder and sexual violation in May.

On Tuesday, Macdonald was found not guilty of murdering his brother-in-law and business partner, Scott Guy, in July 2010 after a month-long trial in the High Court at Wellington.

Mr Eaton said that in Macdonald’s case – where a crime had clearly been committed and police were not looking for anyone else – there would inevitably be members of the public who thought he was “lucky”.

“Regrettably, you’re always going to be tainted; whether it’s applying for employment positions, starting new relationships, moving to a new town – there’s always going to be a Bain factor, which you can’t escape.”

I’m not sure it is a case for regret. I don’t think there is anything wrong with people having an opinion based on balance of probabilities, rather than a criminal sentence which must be based on proof beyond reasonable doubt.

On Radio Rhema yesterday it was suggested to me and Sue Bradford (the panelists) that all defendants should receive name suppression until they are convicted, so they don’t have to wear the stigma of being accused but found not guilty. It was a rare issue where Sue and I both agreed – we were against.

I actually think it reflects well on our society, that we understand the difference between thinking someone did it, and the legal need to prove it beyond reasonable doubt.

I see the Macdonald case as somewhat different from the Bain case, which suggests to me that Macdonald may face much more hostility than David Bain. They are:

  1. In the Bain case, there was a plausible (to some anyway) alternative explanation for the killer. In the Guy killing, there has been no alternative explanation.
  2. David Bain actually served over a decade in prison for the murders, so even those who think he did it, recognise that he in no way “got away scot-free”,
  3. If David Bain did not do it, he was the horrible victim of a framing by his father. With Ewen Macdonald, he has admitted to a campaign of harrassment, vandalism and arson against Scott and Kyle Guy. So regardless of (1) and (2) above he will rightfully be judged badly for the crimes he has admitted to.

It will be interesting to see what sentences are handed down for the six charges Macdonald has admitted to.

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