You might think a jury's "not guilty" verdict finally puts a matter to rest but David Bain is discovering that it can be just the beginning

While the David Bain trial was still running, I tried my best to avoid getting captured in its myriad of details. I feared it would be the legal equivalent of Uncle Remus' tar baby, with the slightest contact inexorably trapping me as surely as Brer Rabbit. But the frenzied aftermath to the verdict's announcement has fooled me into taking a swing at it. I just hope I don't get thrown into a Bramble Bush at the end of it all!

Let's get one thing straight, from the very outset. When the jury told the court its decision was "not guilty", this deemed David Bain to be forevermore "innocent" of the crime of murdering his five family members. As far as the criminal law is concerned, he was no more responsible for those deaths than are you, me or anyone else. That's because, in the eyes of the criminal law, everyone is innocent of everything—right up until the contrary is proved beyond a reasonable doubt before a court of law. And right there is where the tricky stuff begins.

Because, in spite of Justice Panckhurst's blunt statement "was it Robin or David?", the "not guilty" verdict says nothing about Robin Bain's role in the events at Every St. All it means is that the jury, after hearing three months of evidence on both sides, concluded that some sort of reasonable doubt still existed as to whether David was responsible for the killings. Maybe the jury were convinced beyond reasonable doubt that Robin was the murderer. Or maybe they just thought that he could have been the murderer, meaning they weren't sure enough as to whether David was responsible to convict him. We'll never know—because the law explicitly prevents us from talking to juries about what lay behind their decision.

That fact doesn't particularly worry or upset me. A criminal trial exists to do one thing and one thing only—determine if sufficient grounds exist for society to label an individual a criminal and impose its sanction on him or her. If the matter is serious enough, we as a society delegate responsibility for the decision to 12 of our "peers". They act as our proxy in deciding that most important of issues, but that's all they have to decide. So if after sitting through three months of evidence the 12 folks on David Bain's jury still had reasonable doubts about his guilt, no arm-chair observer has a right to come in and say "but he obviously should be in jail!"

As for the argument that the jury got it wrong because they didn't hear all the evidence, this also mistakes what a trial is all about. To reiterate, a criminal trial is a process for deciding whether or not we as a society can justifiably sanction an individual for committing a crime, not for establishing "the real truth" of an event. What then counts as valid "evidence" solely is determined by that narrow function. This involves legal tests that encompass theories of truth (i.e. what is fitted to demonstrate something did or did not take place?), predictions about human psychology (i.e. what is the likely impact on a jury of hearing certain things, whether true or not?), and outcome-oriented concerns (most importantly, that the trial process produces as few "false positives"—innocent people found guilty—as is humanly possible).

Seen this way, it is obvious why various matters of alleged "evidence" were kept from the jury. The supposed "confession" heard in the 111 call may not even have been words at all (thus unable to prove anything), while even suggesting it sounded like a confession risked prejudicing the jury against David. The schoolmates' tale that David planned a rape, using his paper round as an alibi, did little to show that's what he then did on the day of the murders; while linking his name with even the suggestion of rape risked a jury convicting him simply of "being a bad guy". These aren't just arbitrary decisions reached by judges who toss coins for an answer. They help safeguard the general reliability of a trial as society's way of punishing only the truly guilty.

Nevertheless, uncertainty over the meaning of the jury's "not guilty" verdict still leaves the "truth" of the Bain murders as a bone to be tussled over in the public arena. And that is where matters get even more tricky for David Bain. From now on any future legal battles (as well as contests in the court of public opinion) will get fought out on the basis of what is regarded as the more likely: was it Robin or David? And that "balance of probabilities" standard may well be a tougher one for David Bain to meet (although I again reiterate that I've tried to avoid tangling myself up in the evidence on this issue, so I don't really claim to know one way or the other if he can do so.)

Thus, if David Bain wants to fully "clear his name", he'll need to have his father's death certificate changed to reflect the "fact" of Robin's suicide. That will require a new coronial inquest, which works on a quite different basis to a criminal trial. If David Bain wants to silence those on the internet who are openly maintaining he did kill his family, he'll have to sue for defamation in civil court. Equally, if David Bain wishes to get compensation for his time in prison, current Cabinet guidelines require that he demonstrate (on the balance of probabilities) that he is innocent of the five deaths in fact, not just that he has been deemed innocent by a "not guilty" verdict. (Actually, under current guidelines he is totally ineligible precisely because he was found not guilty at a retrial—but that little detail may well get swept aside.)

Alternatively, David Bain may well decide he has fought more than enough legal battles. Frankly, if he wants to just get on with things and leave people to believe what they will believe, then more power to him. After all, it's his life to live, not our reality show to script.

Comments (13)

by Nathan_Mills on June 12, 2009
Nathan_Mills

You're wrong in only one regard.  It's not just his life to live.  It's Joe Karam's as well. I've been uncomfortable over his motivation since reading "David vs Goliath" where the first picture in the centre spread was not of Bain or his family, but a full page portrait of himself.

On the internet side, if they were to sue those openly saying he did it, does not the same apply for them, openly stating that Robin did it?  I know he's dead, but does not the principle still apply, in fact you could say it's worse, in that Robin is unable to defend himself!

Playing devils advocate here BTW, I'm undecided either way.   Apart from the release tape, which sounded suspiciously like the old eighties recordings of Judas Priest played backwards, in a feeble attempt to pin blame for suicides!

by Andrew Geddis on June 12, 2009
Andrew Geddis

"On the internet side, if they were to sue those openly saying he did it, does not the same apply for them, openly stating that Robin did it?  I know he's dead, but does not the principle still apply, in fact you could say it's worse, in that Robin is unable to defend himself!"

No. You cannot defame the dead. That's an absolute legal rule.

by Nathan_Mills on June 12, 2009
Nathan_Mills

Wow, so where does it leave Bain in regards to having his father's death certificate amended?  If he's been found not guilty, then assumedly the death certificate HAS to be changed to either suicide or murder by a third, unknown person (or whatever it is that's put there in cases like that).  And what would happen if the coroner's enquiry, for arguments sake, suddenly came across evidence that further implicated David Bain?  Could he be then retried or would that be some form of double jeopardy?

I need a lie down!

by Nathan_Mills on June 12, 2009
Nathan_Mills

Oh, and by the way, Hitler was an a*sehole.

Sweet law. :) Unless of course the conspiracists are right, and he's not dead.  Crap.

by Andrew Geddis on June 12, 2009
Andrew Geddis

Nathan,

A coronial inquiry may be held if the coroner thinks it necessary (and David calling for one would probably push that decision along ... though it appears his "team" don't want one held). But the finding in any coronial inquiry has absolutely no bearing on the outcome of the trial, nor could it provide grounds for reopening the verdict. Like I say in my post - the trial and the trial alone determines "guilt" or "innocence" as a criminal law matter. Any other issue (like what a death certificate should read) proceeds by its own different processes - even if this produces an apparently inconsistent outcome with the trial.

As for potentially defaming Hitler ... I don't think you've much to worry on that score.

by Tim Watkin on June 12, 2009
Tim Watkin

Here's a question that's been bugging me, Andrew. The judge kept any hearsay about David - the paper round alibi and "confession" tape - out of the trial, and you explain clearly why they did that. So why was there so much seeming hearsay around Robin permitted? (That he was raping his own daughter, that he was smelly and depressed etc). There's no proof of any of that, only memories, just like the paper round alibi... That might be an unfair question given that you haven't followed the trial closely, but I'm wondering.

It's not a matter of defamation... And if, as the judge said, it came down to Robin v David, surely they both deserved the same rights?

by Graeme Edgeler on June 12, 2009
Graeme Edgeler

if, as the judge said, it came down to Robin v David, surely they both deserved the same rights?

In short: no, they don't. The person actually charged has the rights that people who are charged have. Had Robin been charged, he'd have had those rights and some of the evidence about him that was allowed in this trial wouldn't have been allowed as evidence against him.

Basically, the rules of evidence are about ensuring those that being tried for criminal offending get fair trials. If you're not being tried, you don't have a right to a fair trial. Indeed, in a potential trial of Robin Bain, the evidence that wasn't allowed to have been heard by the jury about David would have been allowed.

I would note, for completeness, that the evidence wasn't rejected because it was hearsay, and indeed not all of it was hearsay.

by Andrew Geddis on June 13, 2009
Andrew Geddis

Tim,

What Graeme said. David faced conviction as a murderer and a reinstatement of his life sentance. Robin didn't. That matters.

Plus, the evidence about Robin was a mix of direct observation (i.e. that he was smelly and appeared depressed) and hearsay (i.e. that he molested the daughter(s)). This latter evidence had to be allowed in because (i) it was crucial to the defence case as providing a possible motive for Robin to commit the crimes; and (ii) the source of the information wasn't around to testify about it directly. I also note that it was pretty thoroughly tested, in the sense that the wide variations of the tale were put before the jury and the Crown made a lot of these inconsistencies.

FInally, the verdict DOES NOT mean that Robin Bain killed his family before committing suicide. It just means there is reasonable doubt as to whether this was the case. Frankly, I'd have liked the jury to have followed up their "not guilty" verdict with a codicil ... "and we find Robin not guilty also".

by Adolf Fiinkensein on June 13, 2009
Adolf Fiinkensein

Thanks for an excellent piece of commentary.

I must say I thought for some time it would be very difficult for a jury to bring in a guilty verdict, on the grounds that there was too much room for doubt.  However I did not know a 'not guilty' verdict deemed him innocent.  Probably doesn't matter too much because it is very much a technicality.

What did matter for me was the almost obscene media coverage of this case.  For goodness sake, have we all not got better things on which to fix our attention?

by Raymond A Francis on June 13, 2009
Raymond A Francis

An excellent coverage of these matters

Andrew, I wonder if you would care to comment on the "so called level playing field" of Courts at this time

It seems to me (and from what I have been told) that the prosecution side claim it is not in their favour at the moment (disclosure rules seem to favour the defence etc) I don't see this as a bad thing as it mitagates against the weight that the State can bring to bear

Just interested in your thoughts and wheither you see a bias

by Andrew Geddis on June 14, 2009
Andrew Geddis

Raymond,

Thanks. I'm not really a criminal law specialist - hence my reluctance to leap too deeply into commentary on the details of the Bain saga - so I can't really comment with any particular insight on a claim the prosecution is "unfairly" hampered in the trial process. Therefore, I hope you forgive me if I don't!

by Graeme Edgeler on June 14, 2009
Graeme Edgeler

It seems to me (and from what I have been told) that the prosecution side claim it is not in their favour at the moment (disclosure rules seem to favour the defence etc) I don't see this as a bad thing as it mitagates against the weight that the State can bring to bear.

Disclosure rules have been like this for a long time - so if there's a problem, it shouldn't be a recent occurence. However they have recently changed. The defence will soon (a matter of weeks, I think) have an obligation to disclose expert evidence in advance, which seems to have been the main prosecution beef in this case.

I'd suggest that in this case, the playing field probably favoured the defence, but generally, this wouldn't be the case.

by winnie on July 02, 2009
winnie

Andrew, you obviously think Bain is quilty by your comment that you would have liked the jury to have also come back with a not guilty for Robin. The impartial choice would have been for for the jury to return with a verdict on Robin as well as David. So any comments on your final line that it is not our reality show to script??

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