Sunday, March 9, 2014

Is the Court of Appeal of this world?

2 days ago the New Zealand Court of Appeal released a decision that makes me wonder how far from earth the Court may be. This was the case of Daryl Young claiming defamation against Bryan Bruce, Television NZ and others relating to a 'program' in which Daryl Young, a defense witness in the Bain retrial, was characterized as an example of what 'is' wrong within the Justice system by virtue of the dead not being able to speak for themselves. A situation with all the hallmarks of the middle ages and convening with the dead. The fact is in the modern world, a deceased person alleged to have been murdered is 'spoken for' by investigators in the first instance and the Crown if the matter proceeds to Court. The Crown 'take over,' making out the case for murder, offering relevant evidence to that claim and countering any potential claims by an accused person against the deceased.

Before going further I have to say that Daryl Young's evidence was never pivotal to the acquittal of David Bain and therefore the acceptance that his father Robin had killed himself after dispatching 4 members of his family. No conviction would have been entered against David had Young not given evidence, and there was no evidence that Young gave that bore any consequence on forensic evidence that Robin was the killer and that David was not. Also, I admit not having watched the 'show,' primarily because Bryan Bruce's use of music and shaded sets reminds me of a poor relation of 'shows' such as 'Sensing Murder' where folks rub beads or their belly's or some such thing while 'talking' with the dead.

So just to be clear again there was no evidence which Daryl Young gave that was pivotal to the forensic proof against Robin as the murderer of his family. The event which Young described took place in a different location and at a time earlier than the murders. Additionally, it's clear that Young never gave an opinion on the point that Bruce tries to make that the dead cannot defend themselves as though he is the only person in the history of the world that does not follow how the criminal Justice system works. That is The Crown taking the case for the deceased believed to have been murdered, to speak of their demise and prove that another, and still 'quick' person, killed them.

It's frankly amazing that the Court of Appeal (COA) are unable to link that Bruce was effectively saying that it was 'evidence' such as that given by Young which resulted in David Bain being found not guilty leaving his deceased father as the only other 'suspect' and therefore perpetrator. Bruce put the face of the prejudice, he claims befall the dead, on Young. He did that in this show and it would be obvious to the public in general, in fact members of the hate-sites and others immediately claimed that Young was a perjurer and therefore, somehow, responsible for the unexplained blood smears on Robin's palms consistent with him having murdered his family for example. That's what happened in the real world although perhaps not in the space ship where the COA reside.

The Judgement is on line. Much is made of Young's claim of 'ill will' on behalf of Bruce and TV1 which on the face of it appears that there was no 'ill will.' That is of course before 'stepping back' from the details of the program, associated advertising and comment. That a lot of comment arising from the 'speaking ill of the dead unable to defend themselves' centered on Young has completely missed the COA, who, one could say have being either myopic, or sought to favour positions that might remedy in some small ways criticism that Court faced from the Privy Council on an earlier Bain appeal. Whether the 'miss' was deliberate or not, it beggars belief that the COA has not tied the 2 issues into one and has been completely taken in by Bruce's 'submission' of a problem within the system, along with a 'face representative' of that problem.

It goes further though unfortunately. Bruce called for balance between the rights of an accused and the dead. He said that nobody had spoken for Robin when plainly they had, many witnesses giving evidence supportive of the character of Robin Bain - so that 'position' was far from accurate. Even more inaccurate however is that Bruce claimed that hearsay about Robin was unfair, how he managed to do that with a straight face while ignoring the amount of hearsay submitted against David on the other hand was fairly remarkable. The Court said 'Given the capacity of ordinary reasonable television viewers to 'read between the lines' the natural and ordinary meaning of the words complained of includes their inferential meaning. Quite true, as does the sub text that Young was a liar who represented the purge of 'hearsay' that Young was focusing on in his show. The Court continues with what also viewers would reasonably infer from what was said, true again, an inference that Young was representative of those speaking ill of the dead, and a 'liar' to boot.

Let's look at that 'liar' question. First of all Bruce and TV1 would eventually rely on a letter from police that claimed that Young was 'untruthful' in his evidence. I don't think that 'untruthfulness' was specifically pointed out and the police concluded that he would not be charged. Going over that again, the police 'decided' that Young was untruthful - in other words 'convicting' him without the ability to prove it in Court - a dangerous precedent but one which Bruce and TV1 nevertheless used against Young. It seems that Young's Lawyer unfortunately did not 'assemble' for the Court the emphasis and impact of the linking of the 'defaming' of the dead to the denouncement of a 'defamer' in the same show. Nevertheless, it is plainly visible to what the 'reasonable' person the Court spoke of, was able to infer - something the Court chose to ignore without comment.

The Court referred to claims by 2 persons associated with Mr Young who were either interviewed or quoted in the programe. 2 people, who of course, unlike Daryl Young, did not give evidence and were not cross examined. Again however, looming in the background of what the 2 persons said wasn't the fact that the police had no proof of the standard to warrant a prosecution against Young, but rather the image of the deceased Robin Bain, maligned and unable to speak for himself - that was the inference, white versus black, good versus evil - a 'game' in which Young was entrapped and with no actual recourse to defend himself on one hand without evoking anger for something he was not in any way responsible for.

We then move to the 'importance' of a ambush style phone call by Bruce to Young with effectively an ultimatum that Bruce didn't know if Young had told the truth because there were 2 individuals or had conflicting versions. At which point Bruce in the program speaks about balance. Yes balance, Young somewhat ambushed and Bruce expecting him to co-operate with a party who is a 'believer' in the innocence of Robin Bain, and who in fact has spoken about talking to people who found Robin to be kindly, but who had apparently not spoken to people who found Robin, toward the end of his life, to have been withdrawn and angry - even aggressive. The Court then goes onto state that the watched the programe and could not find anything to make them disagree with an earlier decision by Gilbert J as to the contents of the show that it inferred Young was a liar. Ahem, so relying on another view that looked at detail rather than the overall picture in which is included from Bruce's own mouth that he does not believe that Robin Bain killed his family, balance? Sure.

Where on behalf of Young, Mr Morten, points that Young's evidence was the 'piece de resistance, climax or sexy bit the Court disagrees. Describing the part dealing with Mr Young's evidence as the 'sub set' rather than concluding the obvious that Young's was the face to put the 'despair' of Robin (the dead) being 'defamed' (something that actually cannot happen under our Law) characterizing a failure within the Legal system. One which by Bruce's definition, may have led to Robin being held responsible because of David's acquittal. The face of Young had little to do with Robin's role in the murders as decided by the majority of the Jury and everything to do with his hands exhibiting that he been in a bloody fight that morning before he handled the magazine found beside his body.  For 'balance,' as described by The Court, that is a place where Bruce needed to be. He needed to be saying to the viewers that of course the conflicting stories of Young and the 2 others didn't touch about the thrust of the forensic evidence which implicated Robin and exculpated David. That's balance, an overall picture of the important evidence in the case - something which it appears that Bruce totally ignored while plucking at the heart strings of those that have trouble following the Law and who speaks for who.

The Court continues with discussion about the role of Law Makers in terms of the Defence not being required to list their witnesses in the way The Crown are required to do. A fair point, however the COA seem unable to comprehend that it is Young's face that many in the public will have linked to this apparent ambiguity, one which neither David Bain or Daryl Young are responsible for. To this point I begin to see that which has happened to David Bain as being very similar to that which has happened to Daryl Young In Young's case that it appears deliberate and calculating on the part of Bruce who focused on what suited his 'arguments and inferences' and ignored the more significant amount of material that did not - no balance despite his 'clever' use of the word. Where did he speak about Robin's dna being found in the rifle or the blood smears on his palms - no where. Additionally, where did he put in context that David would have been found not guilty anyway despite the evidence of Young because The Crown were unable to overcome the evidence contained in the lounge and on Robin's body which showed it was he who had been involved in a bloody fight that morning.

The ironies that remain, despite this Judgement, is that the letter from the police saying that Young was 'untruthful' and later distributed by both Bruce and TV1 remains an 'alive' issue in his claim. Also that both Bruce and TV1 now say that they were not claiming that Young was a liar, mmmh, well why didn't they declare that in their 'balanced' show to remove all inference. Not a good analysis by the COA, and a complete failure to 'step back.' Also deciding what a Juror might decide was, or was not defamatory - as incapable of having particular meaning. It is not for The Court to place themselves in a Juror's mind as the COA did in an earlier Bain decision which was overturned. A particular meaning can be 'evoked' by a particular scenario as was portrayed by Bruce and TV1. That isn't speculation because 1000s of on line claims were made along with talk-back comment after the show saying that Young had lied - that's the real world, not an artificial one when a 'program' is made by a certain producer that has a 'stance' and goes out to prove it, lacking all balance.