The meaning of not guilty:

Thanks to GNG for this quote from the 1998 Law Commission Report...

. . 'as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence . . . ..

To reach behind the acquittal, to qualify it, is, in effect, to introduce the verdict of “not proven”, which is not, has never been and should not be a part of our law.'

The term 'to reach behind the acquittal' is recognised (as above) in Canada as not being part of the law and that it should never be so. But the Cabinet rules in NZ, amended and tightened by former Justice Minister Doug Graham, allow for the acquittal to be 'reached behind.' The loudest trumpets objecting to David's situation being remedied compare his MOJ with others such as Thomas, Haig, and Peter Ellis all without regard to the fact that none of these men were acquitted by a Jury.

The Royal Prerogative of Mercy historically was the tool by which convicted men escaped the gallows or imprisonment for a number of reasons most often simply because of overcrowding. Of course in modern times we see it as the vehicle by which the Executive in Council (the Cabinet of the Government of the day) might 'remedy' Miscarriages of Justice, order cases to be sent back to the Court of Appeal or to be inquired into by a suitable qualified person or persons. Historically, The Prerogative of Mercy was never intended to allow the Crown to investigate the status of an acquittal, nor so in contemporary times until the 'Graham decision.' An 'excutive' decision by which our Justice system is put out of kilter. The 'decision' saw powers returned to the King which had been removed by the enactment of the Magna Carta nearly a 1,000 years ago in which judgement upon a subject of the realm was given by a jury of 'ones' peers and not the King. It was recognised all that time ago that justice afforded by the word of the king was easily captured by whim, political nuance or hidden advantage of some type.

Lord Devlin put it this way, Prerogative of Mercy is now perforce being used in circumstances for which it wathe s never designed, not for the exercise of mercy but for the determination of justice. The inquiry into the appropriate sentence which, in accordance with all our traditions, ought to be dealt with in open court and with the right of appeal, has to be conducted in camera and without appeal on facts that may or may not have emerged in evidence and been tested in cross-examination... Traditionally, we have insisted that the subject should be protected by forms of law ; that is what we mean by saying that no man shall be condemned save by due process of law. The law does not achieve that by telling those to whom it has denied justice that they can always sue for mercy7.The Law According to Devlin

As mentioned above the Crown's willingness to look behind a verdict began with the then Minister of Justice, Doug Graham, who rejected paying compensation to David Dougherty, another man who was acquitted at retrial after many years in prison despite dna evidence that exonerated him. Although David Dougherty was eventually paid out Graham's cabinet approved guidelines for compensation remain to this point without challenge. Whatever one's feelings about legal remedy/compensation for David Bain, the erosion of due process, whereby the Government arbitrate Jury verdicts, effects us all. If the Government are seen to be 'looking behind' a Jury verdict or any Judicial decision the independence of the Courts and Judiciary is lost or threatened. A person could ultimately succeed on appeal or by trial for compensation because of loss of land, or value of land or property, loss of productivity or similar only to find that the Government of the day decide to 'look behind' the verdict or the Judicial decision for some reason of its own.

It is interesting to note that Lord Devlin says 'The law does not achieve that (justice) by telling those to whom it has denied justice that they can always sue for mercy7' because of course any decision made by Cabinet can be reviewed by Judicial Review as could be expected if the Government don't settle with David. It goes further however, because the issue might be expanded further to show that any decisions, such as to inquire into a verdict or Judicial decision, breach the NZ Bill of Rights.

See below for more reference material;

NZ Bill of Rights

Right to justice
• (1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

Magna Carta
One of the most important clauses that was to have the long lasting effect was Article 39:
No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.

This meant the King must judge individuals according to the law, and not according to his own will.
Equally important was Article 40:
To no one will we sell, to no one will we refuse or delay, right or justice.
The importance of these two clauses, the right to be judged by one's peers, is felt in all English speaking countries today.


American Bill of Rights: Derived from the Magna Carta

No person shall be ... deprived of life, liberty, or property, without due process of law.

In conclusion, Sir Douglas Graham, the former Minister of Justice who dispensed in part with due process, faces fidiciary charges of some nature regarding a failed finance company or similar, for which he might well face trial by Jury. Presumably, his apparent view that a verdict could be 'looked behind' inferring the Crowns pre-imminence in Justice above the Courts and the tradition that one was entitled to the legal judgment of his peers might be something he may further reflect upon.

In the meantime people such as David Bain and David Dougherty who suffer years of imprisonment for crimes their peers have judged them innocent of run the evident risk that a Government of the day might see their acquittal as something overwhich they are empowered to inquire into. And by doing so delay or reject an application by the injured party, an action, which in itself, subverts due process by placing the onus on a victim of a MOJ to go cap in hand to the perpetrator of his injustice for remedy. And if that victim refuses or declines to honour in anyway the perpetrator of the injustice and decide not to go to The Crown, then The Crown will watch silently the victim of its misadventure. Watch the man (or woman) who having been found not guilty by a jury is then be tasked with proving his innocence - New Zealand be aware that we have fallen many centuries into the past and surrendered freedoms and rights.