One hat fits all.

Time to move on from the idoicy of Taylor and Parker, one can be too easily distracted by fools.

One hat fits all. That's what our current compensation process is, something like a mixed metaphor of stupidity. An example of this is the often touted case of Rex Haig, which the sisters like to rely on in their fear that David will be paid out.

Rex Haigh was never exonerated, probably impossible for him to have ever realistically overcome the fact that he was involved in some way in the murder which he was convicted of. Now, to draw a parrallel between that case and the Bain case is sheer lunancy. David was acquitted and there was no suggestion at any point that if wasn't the killer he was still somehow involved, yet both men have to endure the same onerous process to gain compensation that uses, what increasingly will be seen, as an 'artifical' law or set of rules drawn up for the Crown to have protection from claims against it for false imprisonment, miscarriages of justice and so forth. The ambiguity of that 'duel' role one cap fits all is that David has already been found to have suffered an actual miscarriage of justice, gone on and been acquitted by the supreme arbiters of guilt and innocence, a jury. Yet he must line up for the same procedure to exercise in his 'case' as Haigh who was never accquitted.

I admit to being outspoken about compensation, that we don't have it as a right, that's it's process is not enshrined in law but rather by rules applied by the Government of the day. It's a black mark on NZ and must be a dilemma for David who has publically, and correctly said, that he's proved his innocence. My view is that the rules should be challenged, an application made that challenges the rules but also sets out the basic ingredients of the forensic proof which proved Robin's suicide and that he had blood on his hands before he died. Then if the claim is rejected seek Judicial Review of the process, with the supporting argument of the forensic evidence. The primary argument would remain constitutional, denial of due process etc, but supported with the obvious - Robin's suicide.

This would bring it back to the Courts, all the way to the Privy Council if necessary to give some clarity, and hopefully an Act from the Lawmakers, for all such cases in the future, including an individual body made up of a number of independent people and professionals able to more quickly deal with cases of alleged false imprisonment of which it seems we have at least 5 and perhaps up to 10 each year. We need it as a modern and safe society that protects all its members and independent of politicians or their nominees.

Aah, the stakes increase.

Mr Power still wants the role of King in pre Magna Carta times, how quaint for him and how expensive for the country.

Forwarded by a correspondent...

http://www.trademe.co.nz/Community/MessageBoard/Messages.aspx?id=343730&p=57
1&topic=7
This thread continues to be defamatory, despite having been very frequently
brought to your attention.

example posts only: the thread is defamatory as a whole.
#28511 by supersleuth: alleges that David Bain committed perjury.
#28505 by lucky_trader says that David Bain committed the murders of which
he was acquitted at trial.
#28501 by sophier8 alleges evidence against David Bain (which is distorted)
and claims he is guilty of a crime of which he has been acquitted
#28514 supersleuth states by implication that David Bain is guilty.
#28523 by supersleuth refers posters to the JFRB facebook page and sketches
that supersleuth (Mike Stockdale) commissioned purporting to depict how
David Bain murdered his father
#28527 by dcameron claims that having read the transcript, the Crown case
did not succeed because their presentation of their case was 'poor' thus
defaming not only David Bain but also Crown counsel.
#28528 by jeeves-50 doing the same, saying Crown counsel were unprepared and
complacent.
#28530 by mazurka (and repeated in #28531 by goldnkiwi) linking to an
animation by poster mazurka of how David Bain committed the murders:
implicitly stating he did so.
How far do these posters need to go before TradeMe recognise their
obligation to stop this nonsense?

In answer to 'how far do these posters need to go before TradeMe recognise their obligation to stop this nonsense.' I think we may well see some recognition by Trade Me of their obligations in the next week, but certainly in the new year. They will obey the law, and these scumbags hate-siters will be routed.

So the Crown settle over a case that was never concluded into Judgement.

The Crown paid out Bill Wilson, albeit he lost his career (or so it seems) through no fault of his own judgement. But the conclusion to the situation was not determined in a Court of Law, the only judgment I am aware of was the High Court invited the Judiciary Conduct Commissioner to review the decision regarding Bill Wilson, a Judicial Review in other words of a decision found wanting.

The case might prove interesting for Bain case followers. Here are some of the contrasts, David's case was concluded through the courts following a finding that there had been an actual Miscarriage of Justice, David was found not guilty by his peers, having earlier been found to have been denied due process by the Peerage (Law Lords.) In any event one conclusion follows a finding that there was a denial of due process (a MOJ) and that the case was then tried before a Jury and found wanting. The other (Wilsons) was abridged to a settlement with the Government (well, a month following) after it was found by the High Court that natural justice had been denied the now former Judge, not a Judicial decision (the settlement) but rather a political one to discontinue any proceedings on the basis of an 'offer' by Bill Wilson to resign. It should be obvious the case against David and all the admissible evidence resulted in him being found not guilty. On the other hand, we might never know the true circumstances of what was alleged against Bill Wilson short of the fact that the allegations were prematurely and unfortunately made public and 'tried' to some degree in the media.

Of course David has been 'tried' in the media for years, and remains the victim of a campaign from hate-sites that include as members paedophile supporters, ex police or persons with an interest in maintaining a facade that evidence hadn't been manufactured or withheld against David, nor that the investigation had fallen far below expected, professional, standards. Despite that, David prevailed, because a lot of 'evidence' against him wasn't evidence at all, or was represented in way that was beyond logical reality or cognisance. The man was found innocent, having already been found to be the victim of MOJ. Now a Government 'tries' him again in a manner that undermines all traditional principles of Law, tries him in Camera as a small band of nuts continue an absurd campaign against him.

So while the contrasts are great, but both men fall to the same side when matters are clearly analysed, both were denied due process (David at least initially, and if the need for a retrial is overlooked) but when due process was fully applied both were found blameless - David, though in respect of procedure by a fully informed Jury of his Peers, while Bill Wilson was able to say, argue, that in his case the true principles of Law had not been followed and that no true or just result or Judgement could therefore be determined.

Bill Wilson ultimately used Judicial Review to crack open the MOJ that had been launched against him. That process of Review is, and remains open to David, many of the same principles are at stake for David as were for Bill Wilson or any person before the law, in David's case he returns somewhat wounded and campaign wise from a prison nightmare, while Bill Wilson had not become fully submerged in an ongoing Judicial Process because of erroneous 'evidence' put in the public arena by a former Judge for some apparent sanctimonious, self-satisfaction. In Bill Wilson's case the Government cited financial costs and pragmatism for its reason for 'withdrawal,' issued a figure of around $2 million. In David's case it is more than $20 million and rising, where is the pragmatism, the recognition of due process or false imprisonment, for David? Will it be in a Minister's decision in Cabinet, or will it be in the Courts. Should it ever have been a Minister's decision to try again a person acquitted under the law after 15 years? Either way, he will win.

Double jeopardy for the nutters?

First of all Kenty girl has been told that what leaks from his hate-site is his responsibility, indeed whether the leak is in Contempt of Court or defamatory. But how is this, 2 whizz bang nuts, soppylips and dustforbrains, are citing the arrival of court restrained information into their care. Just for the drrh brains, Contempt is criminal, like stalking that dustproof, superidiot and spewpoo have undertaken, defamation is civil - these guys, thanks to campmother have got all the bases covered.

Judicial Fisticuffs.

Justice Wilson, a High Court Judge, has sought a review of a decision by the Judicial Conduct Commissioner to forward a proceeding against Justice Wilson to the Judicial Complaints Panel. This follows what seems an extraordinary effort by the retired Judge Sir Edmund (Ted) Thomas to involve himself in what Justice Wilson disclosed, or ought to have disclosed to Counsel, at a hearing he was presiding over along with two other Judges. This related to business dealings between Justice Wilson and one of the Counsel, Justice Wilson made an informal disclosure about this. I understand this informal disclosure became an issue on appeal on the matter that was being decided.

Step in Sir Ted. Having had a confidential conversation with a QC friend of the Counsel at the hearing, had the information brought to his attention in a situation where the QC had been seeking advice, presumably legal advice. Sir Ted eventually decided to break that confidence, and complained to the Judicial Conduct Commissioner about his take on the informally disclosed relationship between Justice Wilson and the Counsel.

At about the time of the complaint, Sir Ted either sought an interview or was interviewed by the NZ Herald. In that interview, which was published, and which I recall reading at the time, Sir Ed painted an unflattering picture of Justice Wilson and drew conclusions as to his interpretations of the disclosed relationship. Justice Wilson from memory made no comment, as one might expect when a one-sided public attack had been made against him. Sir Ted, I remember from the article, implied that Justice Wilson was 'beholding' in a precarious financial way to the Counsel, sheeting home what could be read as an almost desperate financial situation which, in Sir Ted's view, was a matter of grave concern to him as a former Judge.

Probably like any reader I was interested, in the albeit one sided, take on Justice Wilson's behaviour. Also that he seemed to being isolated from what I would expect to be normal protocols afforded a current Judge (or anyone really) in having allegations publicly levelled against them, particularly from a former Judge who one would assume understood the tenet of natural justice. From reading of the situation I was left with the impression that the whole affair was done and dusted, an absolute, so I interested to later read of the decision of Justice Wilson to have the decision of his 'case' to be forwarded to the Judicial Complaints Panel to be reviewed by The Judiciary.

The review has been taking place over the last few days, one of the issues is that Justice Wilson has been denied natural justice and it would be hard to argue that he hasn't. He has been subject to media scrutiny without the right of reply and before any actual proceeding had taken place let alone before any finding had been made. Also he has clearly been 'peer' judged by Sir Ted in a situation where it seems clear that Sir Ted did not have all the relevant information and where Sir Ted's view of Justice Wilson's 'conduct' can't have been fully informed. It probably goes further than that, as there could be the subtle implication that the other two Judges with whom Justice Wilson was hearing the matter were also some how 'effected' by Justice Wilson's relationship with the Counsel who by implication is proposed to be regarded as having some 'influence' over the Judiciary who were 'beholding' to him. Taken to it's extreme, Judicial corruption was apparently rife. On the face of it, and because of the public perception in reading the various material up to this point, Sir Ted might have approached the sanctity of upholding the good name of The Judiciary in the wrong way and contributed to the opposite situation.

Small comfort to Justice Wilson, denied natural justice, a right of reply, the opportunity to have the details suppressed before the proceedings have been completed.

Closer to reality?

A surrender to the apparent likelihood that David will be compensated for unlawful imprisonment?

David won't get compensation based on being 'innocent' but I think it is posible he may get compensation based on the 'bill of rights' in so far that he had to wait too long for his trial. I base this on the view that the first trial was squased so technicaly the last trial may be classed as his only trial. I don't know how this stand up to legal scrutiny but one day we will find out.

Quotegamefisher (687 ) 4:25 pm, Tue 17 Aug #21254

Interesting to note that due process is not completely beyond the 'hangbainers.' Also that there is an acknowledgement that there are no certainties to which course David's efforts for legal remedy might take. Due process, The Bill of Rights and the Magna Carta all have a stake in this process, and progress in our law. One, also by now, might be able to see that the failure of the 'king' to act fairly and non beyond the law is intertwined in the fate of Mr Bain. Because the 'king' to this minute recoils from his duty having sent his soldiers on an errant task.

Justice Thorp - deliberately myopic?

Quote: Sir Thomas Murray Thorp - In His Police Complaints Authority review of the Bain case.

That the glasses which were in working order the previous day but were subsequently found damaged, as to the damaged frame and one lens in the petitioner’s room and as the other lens in Stephens Room, could have been damaged in some fashion unrelated to the struggle between Stephen and his killer. And whereas it would have been normal for the short-sighted petitioner to have worn glasses when operating his firearm, since he had only half a metre of clear vision without them, it would be contrary to all common sense for his long-sighted father to wear glasses which would only have impaired his vision.
In my opinion they do not adequately recognise the significance or Mr Guest’s advice that he had been told by the petitioner that he had been wearing the glasses the day before the murders.

I bet Sir Tom was a good bloke, I bet he did all he could to present as a good and fair bloke. But I don't know of any evidence that said that Margaret's old glasses were in working order the day before the Bain murders. Anybody that knows of such evidence might wish to email me.
In the meantime Sir Tom seems to be in error as to what David would have been able to see without his glasses. In Sir Tom's view David couldn't see more than half a metre without them, but that's not what witnesses at the trial said. He concludes on this point that it would be 'contrary to all common sense' for his (David's) long-sighted father to wear glasses which would have only impaired his vision. Well, I would have thought it was 'contrary to all common sense' to answer a proposal that was never forwarded. I don't think anybody, apart from Old Tom, has ever said that Robin was wearing Margaret's glasses when he shot his family. I appreciate that Tom Tom was trying to tidy up an unlawful conviction that had resulted from an actual Miscarriage of Justice, but I think he was adding to the miscarriage by making assertions that were 'contrary to all common sense' when in fact nobody had made them. To use imaginary assertions to compliment the Crown who, as time has shown, had perpetrated an actual MOJ makes old Tom look like silly Tom.
After this startling answer to a claim that had never been made, Tom Tom really got wound up. He stated that he felt more emphasis should have been given to the 'never given on oath evidence' from Michael Guest that David was going to admit wearing the glasses belonging to his mother. It is apparent that Tom Tom thought that David was going to do the 'decent' thing and link himself to a glass lens that had been found in the most mysterious circumstances in the deceased Stephen Bain's room. That would have been a great help in perpetuating the MOJ and dispelled any questions as to why the lens was under clothing, dust covered and not bearing any DNA from the scene that had seen blood scattered throughout.
I guess by then Tommy Tom had got on a roll by then and may have been unaware at the time (I can't recall the sequence of events at the moment) that the herald of this message was a disbarred member of the Bar who among other things has been disbarred for lying.

The burning of the house at Every Street.

I need to take two views here, it seems a difficult situation to resolve on the surface.

First, I look at how the fire might be viewed at the time:

The fire was symbolic ritual to satisfy, or try to satisfy, a deeply traumatised city. It showed that the authorities were in control and that civil order had returned.

The fire was also a 'signal' that the right person had been arrested and the burning of the house attested to the 'fact' that all evidence needed to prove this had been gathered - being another 'subtle' signal to a concerned public.

The reason given for the need to burn the house remains rather unfortunate. The house was burned obstensibly to save it from being burnt.

A Second View:

Should authorities ever be empowered, or seek to be empowered, to destroy the property of a person who has not been availed of due process? I can answer that, no.

The fire, premature and hasty as it was, strikes at a problem that is still relevant today. What duty does the State have to an accused person who is in custody and has obligations they may be unable to complete due to their incarceration. I think that is an issue for Counsel and the Courts. Much better to have an informed Judicial decision by motion to the Court, rather than one-sided situation where the Prosecuting authority are seen to be dealing with the affairs of an accused person in a way that could easily be argued is none of their business.

Unfortunately for David Bain at the time, his Counsel wasn't proactive on the matter of the property. In many ways it seems that Michael Guest was accomodating toward the Crown. It's certainly an area where the consideration of funding shouldn't take precedence, at least not until an accused person is either found guilty or acquitted - until that point the onus, it seems fair, to look after an accused's property should remain with the Crown, rather than was seen to have happened in this case 'look after it by destroying it.' I can't buy into an argument that the condition of the property is in anyway important. I think overall as I've said above, interim orders should be (actually are in my opinion - as it rests as a civil matter, until an accused's fate is finalised) available to both the Crown or an accused in situations of this kind.

Legal remedy (2)

I'm fairly certain that among the hang-bainers is an anxiety that paying David, or remedying the situation he was put in by the Crown, would lead to a precedent that anybody tried and acquitted would be entitled to legal remedy of some sort.

Generally, that would never be the case, unless a prosecution was shown to be malicious or so poorly constructed that negligence became an issue. David's case stands alone for many reasons, also unique in that it falls into an area that would be hard to argue that part of the original trial and evidence offered (and that withheld) was if not malicious, then certainly negligent. The reason for this being that the first fully informed and instructed Jury to hear the evidence for and against David was readily able to acquit. Further, the first Jury asked questions pertinent to the issue of the glasses, and the sighting of David that morning on the street before the suicide note was written but were not given the relevant information, part of the police file, but withheld.

It's fair to say the first Jury were on the trail of what might have had the hallmarks of travesty of Justice. This, following the attacks made on the credibility of David that the fateful glasses were indeed his mothers as he had maintained but which the Crown kept silent knowing he was telling the truth.

So to the second trial. The Crown after 16 years still unable to explain the forensic evidence which beyond reasonable doubt showed that Robin suicided. The attendance of motive, the 'well-being' of Robin's mental state, and so forth all became secondary, perhaps even not required once on the balance of probabilies Robin's death was shown as suicide.

I'll try to make a list of what David has lost, although only he will fully appreciate his loss:

His family, and the cruel twist that he was falsely accused as being their killer.
His freedom and dignity.
His opportunity for privacy and grief.
The life before him had he not spent 13 years in prison.
His home.
His inheritance.
His privacy and the chance to live his life anonymously if he had so chosen.

What were/are the contributing factors to David's loss:

A poor inquiry into his family's death and David having been prematurely charged before any forensic tests were returned and before it was understood that his father had, as it has so graphically appeared, committed suicide.

The lethargy of the NZ Courts to recognise and react to a Miscarriage Of Justice.

The decision to hold a retrial when it was clear to the Crown they were (after 15 years) still unable to reconcile Robin's death, forensically, with common sense or in any other way with murder, instead of suicide.

The 'abandonment' post trial of David after his acquittal: ie,

No effort made to assist or advise him but rather the placing of an onus on him to go to those that had wrought this disaster on him for help.

Put another way, the pedestrian struck down on a crossing while the offending driver, either drives off or waits in his car for the pedestrian (if he can) to get to his feet, come forward and remonstrate about the injury he has received.

The abandonment by The Crown of liability for what has happened to David as he was held for 13 years under a MOJ, including the loss and burning of his property and the apparent mountain now before him to regain what is lawfully his.

The proliferation of hate messengers and sites, driven to attempt to mislead the public into the belief that the Justice System failed not David, but the memory of a man who killed his family and then himself.

Legal remedy.

Much has been speculated about 'compensation' that may be paid to David Bain to address his wrongful imprisonment. I reject the word compensation in the sense that many commentators have described it, I do this because the 'compensation' process that has been applied in other cases over the years is untested in law as far as my research tells me. Before going on to explain my view I need to clarify what for some might be confusing titles as they apply to legal remedy that is available to David.

Wrongful imprisonment: It is fair to assume that rightful imprisonment is lawful imprisonment and that therefore wrongful imprisonment is thereby unlawful application of the law. In the case of David, he spent 13 years in prison subject to an 'Actual miscarriage of Justice' a determination set down by the highest appellant court of New Zealand until recent years. My opinion is that any citizen that has some form of punishment or loss applied to them unlawfully, or by virtue of an 'Actual Miscarriage of Justice,' is entitled to legal remedy not decided by the whim of the 'King' The 'King,' being in modern times, Government.

Compensation: is something of a misnomer particularly as applied by Executive Power (A Minister in Cabinet) as is the case in New Zealand. To this point 'compensation' masquerades as 'legal remedy' without, to this point, it's confirmation tested by the Courts. This appears to have resulted from an improvised formula for someone seeking 'legal remedy' for false imprisonment to deal with, or find favour from a Government of the day. This appears to be a 'convenient' step helpful to the Government to adjudicate on wrongs rather than for such 'wrongs' to be adjudicated by law in The Courts. To me this is the Executive usurping the rights of an individual to seek lawful remedy and also impinges on the independence of The Courts.

Our Law: is largely silent on the subject of compensation or legal remedy for wrongful imprsonment as to this point, having not been asked. I think this has happened because false imprisonment, or remedy by compensation of some sort has not been tested - largely because Governments have sought to deal with such situations independently. This action 'independently' of the Courts is a loss of rights until a point in time when there might be a judicial review of a Government's decision not to settle with a legal remedy for false imprisonment or such like, or when an applicant is unsatisfied with the settlement. Once either of these steps are taken to The Courts the rights of citizens will have returned from the 'whim of the King' to the proper place of remedy, the Courts.

I shall close on these points for now with the following: it is a rejection of centuries old law for a man not to have guilt or innocence determined by his peers, for a person to need to prove his innocence by any greater test than applied by his peers is Executive denial of Justice. I say this particularly in David's case. There is no argument that can satisfy the assertation that David would not have spent 13 years prison but for an 'actual MOJ' and that his acquittal - the announcement of 5 not guilty verdicts completes all principles in Law and should not be adjudicated on by any other body, particularly one unable to show independence of political whim and seeking to work outside legal remedy as entitled to any citizen through the Courts.

Who am I anonymous.

After posting yesterday about anonymous posters claiming to have been defamed on message boards, last night I read a startling post on Trade Me. An anonymous poster, drunk though he might have been, gave notice that he/she was going to sue TM and four other posters. linz4me claimed to have taken legal advice, later he/she said that he would prepare the brief and send it onto a barrister. Now I don't know who gave linz4me legal advice, or if linz was truthful with the initial lawyer, but I'm very confident that even an inexperienced first year law student would have asked the question, 'how can you claim loss or offence as an anonymous person who nobody knows apart from a cyber name?' Effectively, that would be the end of the matter.
linz4me is an interesting cyber identity who blogs on the issue of law for the hate-sites Counterspin and Justice For Robin Bain. No wonder they're getting sued - this guy, guyette doesn't know who he/she is. Very interesting.

Slightly off topic but regarding the same issue, I've invited a fellow by the name of Goodnewsguy to make a guest blog on here at some point about what ever he feels like writing about.