Not Guilty

253 Responses

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  • Russell Brown,

    The suppressed evidence is now published:

    REDACTED ON LEGAL ADVICE

    It's really quite creepy. But can one of the lawyers explain tome when evidence stops being evidence as to the character of the accused, and starts being "prejudicial"? I'm not clear on this.

    Auckland • Since Nov 2006 • 22850 posts Report Reply

  • Yamis,

    I myself have experienced some traumatic events. One being the discovery of a friends dead body, with all nine pints on the ground. When I telephoned the services, I made Crystal clear sense.

    You hadn't just murdered your entire family (hypothetically speaking) and then jogged around your paper run earlier than usual and opening gates to arouse attention.

    Bain on the phone was groaning and (apparently) very distressed but when asked some questions (address, phone number) his tone of voice suddenly changed and he became very clear with the details as though he was ready to answer them. He gave his phone number faster and clearer than I can do in a normal state. He was clearly listening to the emergency caller despite giving the impression that he was in his own world the rest of the time.

    In saying that I probably would have found him not guilty because of all the cockups with the investigation ruining what could have been a much tighter case.

    And Robin Bain didn't sound like much of a family man!

    Since Nov 2006 • 903 posts Report Reply

  • Yamis,

    It's really quite creepy. But can one of the lawyers explain tome when evidence stops being evidence as to the character of the accused, and starts being "prejudicial"? I'm not clear on this.

    ditto for me. I was confused by that legal guff when I read it and was going to ask the same thing... until dad came knocking with a truckload of firewood to unload. You little ripper, warmth for our wooden tent for another few weeks.

    I would have thought though that the prosecution's case involved the idea that he deliberately used his paper run to create an alibi and here was evidence that he had previously thought of doing that to commit a crime. Don't get how that works. Probably why I've never seen the inside of a court room.

    Since Nov 2006 • 903 posts Report Reply

  • giovanni tiso,

    He gave his phone number faster and clearer than I can do in a normal state.

    Is that what counts as evidence? Who knows how you'd react in a situation like that, you might rattle off your personal details like a robot and be confused about where in the world you are. It seems an awfully tenuous basis on which to judge whether he did it or not. Not that I think he's innocent, mind.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • simon g,

    Some light relief: Wendy Petrie, guilty.

    http://www.stuff.co.nz/entertainment/2479274/Wendy-Petrie-fist-pump-video-hits-net

    I saw this live, as did countless others no doubt. Quite funny, in an OMG sort of way. At least it was before the Bain verdict.

    Auckland • Since Nov 2006 • 1333 posts Report Reply

  • Sofie Bribiesca,

    I was confused by that legal guff when I read it and was going to ask the same thing...

    Surely opinions here are already answering why it would be prejudicial.It wasn't a fact for the case at hand and could cause prejudice, when in fact it was one person talking about another. That can also be construed as gossip. The Defence's case proved reasonable doubt. Years of questions, queries,opinions and theories, time in prison and many supporters of the right to a fair trial, have exposed the investigation of the murders to be rather biased, causing reasonable doubt. I think Steven Crawford's right sir. :)

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • James Green,

    On the issue of compensation, the Dean of Law at Otago considers that he not eligible under current guidelines. Therefore, it would have require that nice John Key, and a change of the guidelines by Cabinet.

    Dunedin • Since Nov 2006 • 703 posts Report Reply

  • Felix Marwick,

    FWIW I covered Rex Haig's application for compensation and on the basis of what I saw in that case I think it'd be very hard for Bain to get compensation.

    Basically the onus is on the claimant to prove their innocence, or at least establish someone else was responsible. David Dougherty (who sought and got compensation) was successful basically because of DNA evidence clearing him and the fact another man was identified as responsible for the crime.

    With Haig the assessment was that while his conviction was unsound there was still the view he could have been involved in, if not be responsible for, the crime. It could be argued the same applies in David Bain's case.

    Wellington • Since Nov 2006 • 200 posts Report Reply

  • Steve Barnes,

    This trial aways reminded me of the fate of Timothy Evans I am just glad we don't still have the death penalty.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Stuart Coats,

    It wasn't a fact for the case at hand and could cause prejudice, when in fact it was one person talking about another. That can also be construed as gossip.

    If that is the case, why was one of the relatives allowed to give testimony that a policeman at a family conference had said that David was "the enemy", with the implication that they would do what it took to "get" him? This testimony was then challenged by the prosecution, who got other family members to testify that this recollection was false. But still, how is this recollection allowed to be used in court while the recollection of the schoolfriend was not?

    Wellington • Since Nov 2006 • 192 posts Report Reply

  • ScottY,

    It's really quite creepy. But can one of the lawyers explain tome when evidence stops being evidence as to the character of the accused, and starts being "prejudicial"? I'm not clear on this.

    It's been many years since I did Criminal Law at University, but I'll have a go.

    Under section 43 of the Evidence Act 2006, evidence of a propensity (REDACTED ON LEGAL ADVICE) will only be admissible if the evidence has a probative value which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

    In other words, if the evidence is potentially weak but could be explosive, it may be ruled inadmissible. I assume that was the case here.

    West • Since Feb 2009 • 794 posts Report Reply

  • philipmatthews,

    Something seems to have happened to those stories about suppressed evidence. Do a google for "Bain suppressed evidence" and you get a handful of results but none of the links actually bring up the story, including the Herald one and TV3's.

    Christchurch • Since Nov 2007 • 656 posts Report Reply

  • Mike Graham,

    With regard to the suppressed evidence, we now have a situation where it is being speculated about, but was never tested under cross-examination. In my view, we now get a potentially distorted view the relevance and accuracy of this "evidence".

    There is also some other evidence that seems to be under a permanent suppression order.

    Auckland • Since Nov 2006 • 206 posts Report Reply

  • Sofie Bribiesca,

    But still, how is this recollection allowed to be used in court while the recollection of the schoolfriend was not?

    I don't think it's about recollection Stuart, it's possibly about relevance to the case.Someone talking about what David may have said about something entirely different to the murders can cause prejudice,which it seems were this case. Recollection from family deals directly with the murders or doubt of. Difference it is, but hey, I no lawyer .

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Yamis,

    Now if your house burns down while your down at the dairy buying the <sunday star times:) and then when you arrive home, attempt to douse the flames, but realizing that the fire is out of control, you ring the fire brigade in a hell of a fluff, blabbing about the house being on fire, how its out of control, please hurry... Then the operated asks "where is the house?" OH! its at 25 River Cross Track, Canvas town.

    Then, by coincidence you had just recently amended you insurance policy, your copy of the Sunday Star Times has some real-estate properties circled in pink ink (pervert) and you have a trashy crime novel in your cars glove-box. Your school mates say your eyes used to light up at fireworks night, and witness A says you complained of the cold, starting " I hate my house, its freezing cold" Secret witness be says you said " it's tempting to just burn the thing down and start again, rather than putting good money after bad" And you have said on a blog leasing up to the event "You little ripper, warmth for our wooden tent for another few weeks."

    :) But in all seriousness, Where you also born in a tent. I was unfortunately born in a hospital, its one of my life's regrets. If I do it again, I'm going to be born out at sea.

    muhahaha.

    Nice work, I was really getting into it.

    If I can wreck the (happy) vibe your post gave me and get serious again ... I realise that deciding he's guilty on that 'piece of evidence' (if you could indeed call it that) is ridiculous. Lets just say it was the straw that broke the camels back for me. For others I'm sure it was but a straw in a pile of straw.

    @giovanni, the person who took the call was also surprised at the conversation and they deal with people in stressful situations day in and day out. You're right, I have no idea how I would react but I'd be surprised if I came across like that.

    As a side note I had to call an ambulance to my neighbours house twice last week and the person taking the call sounded rather puzzled when I told them the address to send the ambulance to was number 23 and not number 25 (given they know where you are calling from). I could tell they thought I'd ballsed it up, so I quickly clarified that it was for my neighbours who have no phone or car and wouldn't mind an ambulance getting there fairly quickly so bubs has a decent entry to the world (in a hospital, not their wooden tent). All that gave me a view into our emergency services though. They shut the ambulances down in Te Atatu around 5:30 I hear and the ones sent to their house on each day had to come from New Lynn somewhere and took 30-40 minutes both days.

    That seems a bit bullshit to me given we are fairly well slap bang in the middle of (West) Auckland suburbia.

    Since Nov 2006 • 903 posts Report Reply

  • Sofie Bribiesca,

    the person who took the call was also surprised at the conversation and they deal with people in stressful situations day in and day out.

    People who take those calls can also send a taxi instead of police assistance, but I digress. :) nevermind.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Yamis,

    And sometimes Richie McCaw drops the ball and Kobe Bryant misses a shot, but I digress. ;)

    Since Nov 2006 • 903 posts Report Reply

  • George Darroch,

    In other words, if the evidence is potentially weak but could be explosive, it may be ruled inadmissible. I assume that was the case here.

    Can you explain the reasoning behind that?

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • ScottY,

    George, the jury is asked to decide on the facts of the case, so a person's past acts are usually regarded as irrelevant. A jury may be swayed by a person's past conduct, even if the facts of the case may not themselves support a conviction.

    This is why prior convictions or actions are usually not admitted in evidence.

    Take the example of a prior conviction. If police could say "he's done it before," would the jury look as critically at the facts? In many cases they might just decide "he's got past form, so he must have done it this time."

    That said, in some cases past actions are relevant if they show a pattern or proclivity. I don't know the details of the suppressed evidence, so can't comment on the Bain case and what arguments might have been raised.

    West • Since Feb 2009 • 794 posts Report Reply

  • Yamis,

    This sort of stuff was OK for the trial though...

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10571594

    Since Nov 2006 • 903 posts Report Reply

  • ScottY,

    This sort of stuff was OK for the trial though...

    Yes, but that's a different issue. The rules about prior convictions and acts are there to protect the accused from being unfairly prejudiced.

    Bain's defence team was entitled to produce evidence to show someone else might have committed the crime.

    West • Since Feb 2009 • 794 posts Report Reply

  • Yamis,

    Yes, but that's a different issue. The rules about prior convictions and acts are there to protect the accused from being unfairly prejudiced.

    Bain's defence team was entitled to produce evidence to show someone else might have committed the crime.

    I can definately see the difference. I just find it a bit stink for Robin Bain (not that he's going to be affected by it) that essentially the defence was trying to get David Bain off by pinning the murder on him when he's not around to defend himself and that they are able to bring in the same type of evidence that the prosecution is not able to use against their client. Not really a level playing field given at the end of the day it was a David? or Robin? scenario.

    Playing devils advocate it would be interesting to see what David Bain and supporters would make of a trial where the crown was trying to convict Robin Bain (post humously) of the killings and they found HIM not guilty.

    Gunman on the grassy knoll ;)

    Right, 6:55, could be time for a beer, then that wine that needs finishing and then some more beer.

    Be better when there's some bloody rugby to watch on TV though (OZ v Barbarians doesn't count, well not unless they play real Barbarians. That would be pretty awesome seeing a few Aussies meeting their demise on the end of a battle axe).

    Since Nov 2006 • 903 posts Report Reply

  • Yamis,

    looks like I'm not the only one with a few drinks on the mind...
    http://www.stuff.co.nz/national/crime/2479481/Jury-members-join-Bain-victory-party

    Since Nov 2006 • 903 posts Report Reply

  • Danielle,

    This thread has given me the most *persistent* George Harrison earworm.

    Charo World. Cuchi-cuchi!… • Since Nov 2006 • 3828 posts Report Reply

  • Sofie Bribiesca,

    looks like I'm not the only one with a few drinks on the mind...

    Sorry Yamis, how tardy of me. T'other half was enjoying beer and Wild Turkey, so I thought I better start Monkey Bay Merlot,in keeping with the feel of PAS this week, but it's you that is a bit late. Cheers :)

    here and there. • Since Nov 2007 • 6796 posts Report Reply

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