Joe Karam says in his recently published book that the trial was essentially all over at the completion of the evidence and cross examination of ex detective Sergeant Doyle early in the trial. Doyle was effectively in charge of the investigation, the hands on man. The man who said they hadn't investigated the motives given by witnesses as to why Robin was the killer because they had a 'murder case to solve.' Clearly his enlightened view was that in the case of 2 likely suspects, one who for all appearances had suicided, there was no point in investigating allegations against the deceased Robin Bain and that accordingly all evidence and possible evidence against Robin should be ignored. Copy book investigation? Hardly.
However, if it wasn't during the cross examination of Doyle and his subsequent revelation of the 15 year old evidence of the deceased police Doctor Pryde, that when David was strip searched and subjected to invasive personal tests - during which no scratches were found on David's chest - then the other likely time of the Trial being seen as having only one possible result was when the Crown conceded that Robin might have turned the computer on which recorded his final communication to the world. That concession had been 15 long years in the making, almost everything possible had been done to avoid the truth, Mrs Laney's evidence not properly presented to the 1st trial that she had seen David entering the gate at 7.45, 5 minutes after it was also finally, truthfully, determined that the computer had been turned on despite the police officer present, DC Anderson, not reporting to the Court that his watch was 2 minutes slow because 'no one asked him.' Despite also the evidence of the police computer expert, Klientjes that his 'theory' on when the computer had been switched on had no definitive finishing point in time - that it was in other words, guess work dressed up to suit the Crown's case. He was calculating the length of a piece of string that couldn't be proved by fact but only by his imagination. But before looking at that concession by the Crown further it's worth noting two other major events before the trial where the Crown ought to have not continued with the retrial.
The first of those would be the Privy Council decision that dismembered the Judgement of our Appeal Court in a fashion unprecedented in NZ history apart from the analysis of the Thomas case at the Commission of Inquiry and that of Peter Mahon into the cover up of the Erebus plane crash. The second, would be in my opinion, the letter to by the retired Police Pathologist Doctor Dempster who offered his thoughts on why the intention of having a re-trial was questionable. We now know from 'Trial by Ambush' that Dempster's superior Dr Gywnne had been troubled for years by how a kid could achieve the appearance of a suicide so perfectly, something that didn't fit into the expectation of his scientist's mind. We can well imagine the 2 men discussing it with some dismay over the years as David never lay down and 'died' by admitting a 'truth' that may have relieved both men that the conviction of David Bain was indeed not a miscarriage of justice. Both of these events were of course pre-trial and leaving intact Karam's claim that the it was the evidence of Doyle that shook the Crown case to bits.
Pause for a moment and think about Dempster and his boss Dr Gywnne, consider what drove them overall and compare them with for example Klentjies, the police computer expert, who sought to stretch the possible computer turn on time and half it for a mid point, that happened to suit the Crown case that David had turned the computer on. Klentjies used a theory on which to base his calculation which fixed as one of its determinates an impossibility:
Q. No, no Mr Kleintjes, your mid point is based upon one extreme being an impossibility, you've agreed with that? Yes? Can you say yes to that or no?
A. Yes it is.
It could be judged that Drs Dempster and Gywnne were intent on finding the truth and giving the correct evidence, while an observer could easily consider Kleintjes was intent on moving forward the computer time to the extreme of using what engineers and mechanics fooled 1st year apprentices with by sending them to the machine shop or tool store to gather a 'sky' hook.
So after 15 years of diversion it was the Crown's time to concede that the father could have turned on the computer and as in law 'could have' was an exclusion in the Crown case that David had turned on the computer and written the suicide 'note.' But think what else the Crown were conceding, the overall case in fact, but in finer detail: that the gurgling of Laniet, on which the Crown held its false case for so long, must have been occurring before David arrived home while Robin was in the house, hands blood smeared and knowing his life was already gone, his persistence in writing a note to his oldest son, clearing the rifle of a misfeed with nervous hands knowing he must be quick in killing himself to hide his crimes that the police would never examine.
Why was Robin never investigated. The answer from Doyle was a pathetic misrepresentation of the duties of any police force in the world. Why was Dempster kept out of the house for long hours while inexperienced cops trudged through the evidence, why were his early opinions ignored by 'experienced' police officers who had never dealt with such a case before, why was even the training of those officers about offender's hands overlooked, completely overlooked?
As you said 3 years ago, Nostalgia-NZ, the case should have been thrown out after the 1st day. The judge should have chased the prosecution out of his courtroom, while swatting them with a broom.
ReplyDeleteRight from the word 'go' they (the police, the Crown)have made an all too common mistake:
ReplyDeleteInstead of the detectives thinking 'we have an unusual crime here, who did it?', they thought 'we are sure who did it, how do we prove that?'. So they collected incriminating information and evidence, and ignored that which suggested it was not David.
Instead of the officers in charge thinking 'Is the detectives' hunch proved, have they looked at the alternatives properly?', they thought 'they are sure who did it, have they proved it?' So they went along with not not checking the evidence against Robin.
Instead of the prosecutors thinking 'Is the case sound, has it properly proven the case against David, does it accommodate all the evidence?', they thought 'we are sure who did it, how can we make the case compelling?'. So they didn't disclose evidence to the defence which might undermine the Crown case, and they misrepresented evidence and they permitted witnesses to mislead the jury.
After the first trial, the police were sure that the conviction was correct in getting the culprit locked up, so they did what they needed to do to protect that conviction: they destroyed evidence that might have undermined it at appeal.
The PCA was sure that the police had got the right person and so they fudged and obfuscated in the PCA review and made it appear that the investigation had followed proper process.
The police were sure they had the right person, so when further investigation was needed they concentrated on proving that further with evidence such as Mr Kleintjes analysis: thorough and detailed as it was, it made a stupid 'mistake'. Mr Kleintjes should have chosen a much earlier end point for his calculations of the mid-point. Without that 'mistake' it supports the defence case!
The Appeal Courts were sure that the conviction had got the right person, so they overlooked the evidence to the contrary and made an improper judgement (as the PC later found).
You see, they were all 'sure' they knew who did it, and they saw their duty as making sure that he (David) received what they thought were his just deserts. And here was their mistake: their duty was NOT to decide who did it: that was for the jury. Their duty was to ensure that the investigation was properly and fairly done; that the evidence was properly disclosed; that the case was properly put at the first trial; that evidence was properly preserved; that complaints were properly investigated; that appeals were properly considered. That is, that the case against David was properly conducted overall. It wasn't, and it is shameful.
And what is even more shameful is that the Government guidelines for compensation operate along the same lines: there is an implicit confidence that the right person was convicted, and the onus is on David, without benefit of the enormous resources at the disposal of the criminal justice 'system' to prove that they were all wrong.
How does this give us confidence that we all have access to 'justice'? Where are the checks and balances? Who is there who can call them to account when this arrogance pervades the whole system from the emergency services through to Cabinet?
You've covered a lot of detail. In short we can have no confidence that we all have access to justice. Particularly so when there is no action taken against Doyle, Weir, Anderson and others. To this point they've got away with diverting from the true course of justice, the Crown and the Courts have been complicit in that. There is a case reported in today's Herald where Justice Rodney Harrison threw out drug charges that had resulted from an illegal search. There was no need for the search to have been conducted illegally and the officer involved, Senior Sergeant Rod Carpinter, had conducted himself unlawfully in the same manner on another case of illegal search. Whether Justice Harrison knew about the earlier case or not he was ruthless in his determination that the law needed to be obeyed, equally he discarded the plea from Carpinter that the officer had been endeavouring to ensure the 'safety' of someone at the searched address. The Judge clearly saw the framework of the illegality and de-constructed it.
ReplyDeleteThere were warning lights present throughout the whole prosecution of David Bain, about the prematurity of his arrest before the suicide scene test results had been concluded and understood. I have fairly well known basic obsessions about the case, including the two men's hands, ones damaged and bloodied and the others clean and injury free, and why Robin wasn't investigated. How investigating officers could ever been forgiven those oversights is chilling, why with their experience they could overlook such things is even more chilling and could be potentially explained as that they were framing David to cover up something about themselves, the father who someone they were associated with. I repeat the mystery of Laniet's electronic diary about which there was evidence is was given to Weir, or was in his possession and yet he denied all knowledge of it.
Advancing forward to the final rejected appeal and what do we discover in this 'complex' case? The COA unaware even that there was no exit point from Robins shot to the head, yet they refer to it at least twice. No sharp questions about the hands, about the destroyed and hidden evidence as per the example of Justice Rodney Hansen who grasped the framework of the case before him, in fact rather one of the most pathetic judgements probably ever to arise from a New Zealand Court, and one which was deciphered and shredded for the arrogant miscarriage of justice it was by the Privy Council.
My point is that is the men and women within the Justice system, not just the deceitful investigations that sometimes occur, that fail the country and the safety of our rights by a persuasion of not rocking the boat and complying with 'the ends justifies the means'that is destructive to Justice. When men or women will not say, 'hold on, that makes no sense,' or questions such as 'did you consider from the outset that the body of Robin Bain held all the evidence of his guilt or innocence?'