Bain Compensation Denied

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#1603025 2-Aug-2016 15:21

networkn:

Why is it you are allowed to speculate, but us mere mortals are not?

Here's the difference: you're speculating; I am not. You were speculating whether if some evidence had been correctly gathered/raised, David Bain would have been found guilty.* I am responding to your speculation -- what I was telling you is that it is logically possible that even if all the evidence was gathered/presented correctly, a jury could have reached another verdict. Unless you've reviewed the evidence transcripts, you can't refute this. Nor do you have enough evidence to prove your original point, the one that I have marked with an asterisk. So what's my point? Don't guess about what difference any evidence would have made, especially for any trial this complex and lengthy.

And I was responding to Frankv's point that David Bain would have been advised not to testify. And in my professional judgement (which is based on 6.5 years of undergraduate and post-graduate training and years of actual, practice experience) and based on what I know about defence lawyers' professional obligations to offer the best possible advice to their clients, I offered my professional opinion that Bain would have been advised not to testify. Notice that I never speculated as to the reasons why the lawyer told him not to testify, unlike you.

surfisup1000

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#1603039 2-Aug-2016 15:43

The only person who will ever know is David Bain himself.

In some ways this reminds me of the Kahui twins murder case.......both are crimes where we know who knows the truth but we cannot read their minds.

Very frustrating and I can understand why people get agitated.

But, please, spare me from opinions stated as facts!!!

dejadeadnz

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#1603042 2-Aug-2016 15:50

sir1963:

You can not be tried for the same crime twice. So in the end he was found not guilty, therefore any time spent in prison was wrong.

On a pure, principles-first level, you are right. But pragmatically I can tell you that I know of no common law jurisdiction that provides compensation as of right just because someone has been acquitted by a jury or an appellate court either first or second time around. I am not necessarily defending either approach as this is one of those arguments that can easily drag on for pages upon pages, with zero end in sight and mostly just statements of a positional, intractable nature. However, the reasons why you might not want to give people compensation as of right for being acquitted only by a jury include:

1. The person might actually not be factually innocent;

2. People are sometimes explicitly acquitted even when the courts acknowledge that the evidence can support a conviction, e.g. staying/ending of prosecutions on the ground of abuse of process by the prosecution; and

3. Sometimes witnesses just can't turn up through no fault of anybody's, e.g. people dropping dead.

frankv

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#1603050 2-Aug-2016 16:03

networkn:

frankv:

networkn:

I understand why these rules apply, but for my money is he guilty because if the evidence HAD been collected properly, he wouldn't have been allowed a retrial in the first place, and if he had, it would have been guilty a second time.

Pure speculation. I'll claim that if the evidence HAD been collected properly, he wouldn't have been found guilty in the first place.

Huh?

Any assertion that "if the evidence HAD been collected properly, he wouldn't have been allowed a retrial in the first place" is completely baseless. Just as was my assertion that he wouldn't have been found guilty.

There are reasons that evidence has to be collected in a particular way... to be fair to the accused. We have NO idea what this hypothetical "properly collected evidence" was, because it was never available, because the evidence wasn't collected properly. If the evidence had been collected properly, it *could* have shown that Bain was innocent. Yes, the correct evidence *could* have shown that Bain was guilty, or it could have been completely inconclusive, or anywhere in between.

Making any kind of assertion based on hypothetical evidence is just wishful thinking.

networkn

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#1603055 2-Aug-2016 16:07

frankv:

networkn:

frankv:

networkn:

I understand why these rules apply, but for my money is he guilty because if the evidence HAD been collected properly, he wouldn't have been allowed a retrial in the first place, and if he had, it would have been guilty a second time.

Pure speculation. I'll claim that if the evidence HAD been collected properly, he wouldn't have been found guilty in the first place.

Huh?

Any assertion that "if the evidence HAD been collected properly, he wouldn't have been allowed a retrial in the first place" is completely baseless. Just as was my assertion that he wouldn't have been found guilty.

There are reasons that evidence has to be collected in a particular way... to be fair to the accused. We have NO idea what this hypothetical "properly collected evidence" was, because it was never available, because the evidence wasn't collected properly. If the evidence had been collected properly, it *could* have shown that Bain was innocent. Yes, the correct evidence *could* have shown that Bain was guilty, or it could have been completely inconclusive, or anywhere in between.

Making any kind of assertion based on hypothetical evidence is just wishful thinking.

Right, hence why I proffered "for my money" meaning, it's my OPINION. It may not be any more valid than anyone elses, but 90% of what people put on the internet is opinion based on experience, etc.

loceff13

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#1603098 2-Aug-2016 16:54

jim.cox:

He's happy enough to claim his innocence now

So how come he wasn't prepared to give evidence at either trial?

I'm guessing you are one of those who also says "if you have got nothing to hide what's the problem" etc

dejadeadnz

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#1603101 2-Aug-2016 16:59

http://www.radionz.co.nz/news/national/309985/bain-payment-'pragmatism-over-principle'

I have to agree with all the opposition parties. As someone who has either voted National or conscientiously abstained, the way this business has been handled confirms once again why I will never again vote for this government.

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sen8or

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#1603102 2-Aug-2016 17:01

Who went after the evidence that "wasn't collected properly"?

If it was the Bain team, logic would tell you that they wanted it excluded as it worked against their case of David's innocence (lets face it, if a piece of evidence that supports Bains innocence was included 1st time around, they are hardly likely to question the legitimacy of that evidence this time).

What impact did the excluded evidence have on the first jury's decision? Given that first time around he was found guilty but not 2nd time around, its fair to say that the excluded evidence carried significant weight.

What was it about the evidence that was incorrect in its collection / handling?

How much weight did the media attention and "propoganda" from Joe Caram have on the jury decision the 2nd time round? Sure, Jury's are instructed to ignore outside influence, but lets face it, jurors are human beings and it would be nigh on impossible to select a jury of 12 who hadnt heard about the case and didn't know its history and current political status.

I don't know whether he is innocent or guilty. My gut feel has always been the latter, but as I have not studied the cases or the evidence etc, its very much a subjective opinion.

Being not convicted on the basis of a technical error in the way evidence was collected or treated is different "IN MY OPINION" than being not guilty. Whilst not guilty (or innocent) may be legal terms and absolutely we must hold our courts to the highest standard where rules of evidence are strictly adhered to, for the average joe blogs observing the case through our televisions or newspapers etc, it seems to be which spin do you accept?

tdgeek

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#1603109 2-Aug-2016 17:21

networkn:

The fact he can carry on appealing that gives him $925K in GO the HELL away money is bad in my opinion.

For my money he should consider himself exceptionally lucky to be free at all.

And the amount is apparently to cover legal fees in the past. I wonder if Joe will want some back. I dint think its done yet, but the coast to the taxpayer better well be

tdgeek

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#1603118 2-Aug-2016 17:35

sir1963:

nathan: He hasn't been found innocent. This sets a terrible precedent.

He was not found guilty either.

Our laws are meant to be Innocent until proven Guilty, not the other way around.

I dont care how anyone feels, what they believe, the fact remains the law has failed to prove guilt and has taken away 14 years of someones life. If this finding had been made right at the beginning then those 14 years would have been vastly different/better, that is what the compensation is for.

As I see it, he, like everybody is innocent till proven guilty. The police planted evidence, they wanted the case prosecuted. That doesnt help. No witnesses, that doest help either. At the end of the day, he could not be found guilty beyond reasonable doubt. That he may or may not have done it, isn't relevant, the justice system could not find him guilty beyond reasonable doubt. Now, to get compo, he has to prove his innocence beyond reasonable doubt, he couldn't. You give compo to someone who was incarcerated and DID NOT DO IT.

So he got no compo. As this whole affair was full of holes, police bad conduct and so on, it is tainted. So he got a payment that I heard was for expenses over the period. Legal I assume. He is not innocent nor guilty, so its impossible to compensate. As Deja said, you can look at the compo rulings and find holes. There is bias, there is "we don't want a precedent, and so on. Is this compo a precedent? I dont think so.I see it that the Police evidence issue has caused this to go on and on, so the money covers that IMHO.

tdgeek

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#1603123 2-Aug-2016 17:42

dejadeadnz:

networkn:

Now who's speculating? It's as likely he was guilty, they interviewed him, realized he was going to give the game away and told him not to do it.

Sorry to break it to you, as somebody who knows much more about these issues than you do, frankv is right. Any competent lawyer (and for the umpteenth time I have actually prosecuted and defended) would have advised David Bain not to testify, as it his right. And the jury would have been instructed to draw no adverse inferences based on that.

yes, we have all watched legal TV shows, where the counsel goes in all guns blazing, trying to persuade the jury his way, to say something that sounds bad about the accused, then "no further questions, your honour" Real life may be different, but possibly not that different, just less dramatic. Bain could have answered a question with an accurate answer that based on the question to him, and his less then stellar upbringing, that could have been worded poorly, then that becomes a fact. I can see why he was kept away from the wolves. Guilty or not, thats not a fair fight.

tdgeek

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#1603126 2-Aug-2016 17:45

networkn:

dejadeadnz:

networkn:

Now who's speculating? It's as likely he was guilty, they interviewed him, realized he was going to give the game away and told him not to do it.

Sorry to break it to you, as somebody who knows much more about these issues than you do, frankv is right. Any competent lawyer (and for the umpteenth time I have actually prosecuted and defended) would have advised David Bain not to testify, as it his right. And the jury would have been instructed to draw no adverse inferences based on that.

Yes, yes, we get it, you are an all-knowing lawyer! Maybe add it to your tagline, not everyone knows by now apparently!

You haven't said anything that refutes the possibility, or likelihood that he was guilty and that he was likely to incriminate himself, and THAT was why he was advised not to testify.

The reason he didn't testify isn't clear, and so your claim is as speculative as mine!

I am perfectly aware he is entitled NOT to testify.

I think the point is, he could have incriminated himself by being attacked and badgered by highly qualified and educated adults in the confines of a courtroom where what his naive young mind meant was not what he stated or that he was lead into a response. Not lead into a lie, but lead into a vague answer, vague = doubt = maybe he did it, etc.

tdgeek

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#1603130 2-Aug-2016 17:52

sen8or:

Who went after the evidence that "wasn't collected properly"?

If it was the Bain team, logic would tell you that they wanted it excluded as it worked against their case of David's innocence (lets face it, if a piece of evidence that supports Bains innocence was included 1st time around, they are hardly likely to question the legitimacy of that evidence this time).

What impact did the excluded evidence have on the first jury's decision? Given that first time around he was found guilty but not 2nd time around, its fair to say that the excluded evidence carried significant weight.

What was it about the evidence that was incorrect in its collection / handling?

How much weight did the media attention and "propoganda" from Joe Caram have on the jury decision the 2nd time round? Sure, Jury's are instructed to ignore outside influence, but lets face it, jurors are human beings and it would be nigh on impossible to select a jury of 12 who hadnt heard about the case and didn't know its history and current political status.

I don't know whether he is innocent or guilty. My gut feel has always been the latter, but as I have not studied the cases or the evidence etc, its very much a subjective opinion.

Being not convicted on the basis of a technical error in the way evidence was collected or treated is different "IN MY OPINION" than being not guilty. Whilst not guilty (or innocent) may be legal terms and absolutely we must hold our courts to the highest standard where rules of evidence are strictly adhered to, for the average joe blogs observing the case through our televisions or newspapers etc, it seems to be which spin do you accept?

Is that a fact? That he was found not guilty due to a technical error? As simple as that? No one has mentioned the police planting evidence in the first trial, some stuff at the property from memory. I thought the thread was about compo. He didn't get any compo. Thats a fact.

sir1963

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#1603144 2-Aug-2016 18:23

tdgeek:

dejadeadnz:

networkn:

Now who's speculating? It's as likely he was guilty, they interviewed him, realized he was going to give the game away and told him not to do it.

Sorry to break it to you, as somebody who knows much more about these issues than you do, frankv is right. Any competent lawyer (and for the umpteenth time I have actually prosecuted and defended) would have advised David Bain not to testify, as it his right. And the jury would have been instructed to draw no adverse inferences based on that.

yes, we have all watched legal TV shows, where the counsel goes in all guns blazing, trying to persuade the jury his way, to say something that sounds bad about the accused, then "no further questions, your honour" Real life may be different, but possibly not that different, just less dramatic. Bain could have answered a question with an accurate answer that based on the question to him, and his less then stellar upbringing, that could have been worded poorly, then that becomes a fact. I can see why he was kept away from the wolves. Guilty or not, thats not a fair fight.

Having sat on a jury where the defendant did go on the stand.... he was an A$$hole, a horrid man who clearly did not help his case by opening his mouth, everyone on the jury took a personal dislike to him.

HOWEVER, we said not guilty because he did not commit the crime the police charged him with, sure he committed other crimes that he was guilty of, but the police wanted to up the charges to try and imprison him. The police got it wrong. Some juries may have been swayed based on their dislike rather than the facts.

Rikkitic

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#1603231 2-Aug-2016 21:19

I don't know if Bain is innocent or guilty. Neither does anyone else, except Bain. We have a legal system and we all know it makes mistakes, but if we start making exceptions to suit our own doubts or prejudices, the whole thing becomes meaningless. Bain was ultimately found Not Guilty. It doesn't matter if that was based on a technicality or anything else. The only thing that matters is that guilt was not proved. On that basis alone he should be compensated. This half-arsed let's keep looking until we find a decision that suits us is a huge slap in the face to the rule of law. It says that if we don't like the answer, we just make up something else that we like better. This is ridiculous.

Sometimes the law errs on the side of caution and gets it wrong. Guilty people go free. They get compensation they don't deserve. That's too bad. I still prefer that to the alternative.

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