Friday, 18 May 2007

Infallibility parallels

Over the last couple of weeks, some events have happened in New Zealand that have parallels with the Baha'i community's struggle with the concept of infallibility.

When I ran my case against the New Zealand NSA in 2002, my lawyer, Colin Withnall QC, was at the same time preparing a case for a young man, David Bain, who had been accused of killing all his family. This mass murder occurred here in my hometown of Dunedin in the early 1990s. What happened was that David Bain went out early one morning as usual to deliver newspapers. When he got back, he found all his family dead. The police argued that David had sneaked back early, killed his family, and then used his paper round as an alibi. A message had been left on the computer in the house by, apparently, the murderer. It said something like "You were the only one who deserved to live". The police argued that David had turned on the computer and written the message to make it look like his father had done the killings, left the message and committed suicide. As it turned out, David was convicted of the murders and sentenced to 16 years' imprisonment.

But that wasn't the end of it. A businessman from up north, Joe Karam, took up David's cause and tried to get David's conviction quashed. New evidence kept on emerging; for example, some witnesses testify that one of David's sisters was having an incestuous relationship with her father and that she was about to make this known to the family. A year after my court case in 2002, Colin Withnall took this new evidence to the New Zealand Court of Appeal and asked for a retrial. But the court refused. David's supporters argued that the Court of Appeal made the mistake of itself determining whether the evidence was persuasive, not whether the evidence should be put to a jury in a retrial.

In the years following, Colin Withnall had been interviewed by the media at various times and he was reported to have said that he was not happy with our criminal justice system. I remember him saying on TV that he didn't believe that an adversarial system delivered justice. When my case was thrown out by the High Court, Colin couldn't believe it. To him, I had a clear case. I remember him saying that sometimes judges did strange things and this was one such instance. He felt that the judge had missed the point of our arguments, and had actually decided the case, when he was only required to decide if a prima facie case existed.

Here's a quote from Colin about the justice system, from the New Zealand Listener in March this year:

If anyone knows about playing the system, it’s veteran defence lawyer Colin Withnall, QC. He fought for 10 years to get Rex Haig cleared of murder and has another case before the Court of Appeal after a jury "went right off the rails". He thinks it is time for a judicious makeover.

"Back when I was doing a lot of crime [defence] 20 odd years ago, I would have said the adversary system is the greatest thing since sliced bread," says Withnall, "because I enjoyed playing these games. But it’s not a search for the truth. It’s a question of putting forward the best case on the material you have within the ethical constraints. It is a bit devious."

He knows of police and prosecution taking liberties with their duty to disclose all the evidence and he has had important documents turn up months after a trial. Defence lawyers also have their tricks, he says. "Abstract justice means finding out the truth, not finding out which side puts up a better case or manages to obscure the truth more effectively."

"Evidence to the contrary" by Amanda Spratt, March 24-30 2007 Vol 208 No 3489.

One of the points made in my final submission (and in previous submissions) related to the House's infallibility. The NSA, with its arm now up its back due to court scrutiny, was now cuddling up to the court saying that it would be 'only too happy' to review the decision to expel me. Here's the submission I made in response, pointing out that such a review would be waste of time given that the original decision was made by the 'infallible' House:

  1. It is not accepted that the "review" procedures suggested by the Defendant offer any real means of redress. Paragraph 11.9 of the affidavit of Mr Wilcox dated 27 June 2002 makes that perfectly clear. In that paragraph, Mr Wilcox states that the appropriate course of action for an individual that has had his or her membership removed by the NSA is to seek a review of the decision by the NSA in the first instance. He goes on to say that where the NSA made the relevant decision itself it would give full and impartial consideration to any request for reconsideration. However, in this situation, where the NSA had received and acted on an express instruction from the Universal House of Justice, he says that it "would refer any request for review to the Universal House of Justice."
  2. This follows on from paragraphs 7.7 and 7.9 in which he says that the NSA will carry out any instruction it receives from the Universal House of Justice without question, and that it does not have any discretion to disobey or to fail to carry out the instruction.
  3. It is therefore abundantly clear that any request for a reconsideration made to the NSA will result in nothing more than that request being passed on to the Universal House of Justice in Israel. There is no reason to suppose that that body would even consider reversing the decision which it has made, as it is considered, and considers itself to be, infallible and incapable of being wrong.

Early this year, Joe Karam took David's case to the Privy Council in London. Until a few years ago, the Privy Council was New Zealand's highest court - a remnant of our colonial past. David's defence asked the court to quash David's conviction on the basis of the new evidence, which our Court of Appeal had felt did not justify a retrial. In a shock decision released about 10 days ago, the Privy Council quashed David's conviction, describing it as a "substantial miscarriage of justice" because all the evidence had not been heard by the trial jury. The court ordered a retrial.


David Bain hugging ex-Baha'i and long-time campaigner, Patti Napier, after his release on bail. (Photo courtesy of the Sydney Morning Herald)

As a result, early this week, David was released from prison on bail. He had been in prison for 13 years. When he walked out of the courtroom and onto the street after so long, he was an instant celebrity. He was greeted by a wall of media - more cameras and attention than most people ever face in a lifetime. His life had been turned upside down in a matter of days.

I was listening to Colin being interviewed on Radio New Zealand National about the Privy Council decision. I was fascinated to hear him describe the issue with the criminal justice system as a problem with the assumption of infallibility. He said that the public believes in the system and that it is infallible. So, if a person is convicted, then people assume that the person must be guilty. But, he argued, an 'infallible' system is, in fact, one that can admit it can get it wrong.

Another lawyer who previously worked on the case, Colin Withnall QC, says what the Privy Council in London heard is basically what the New Zealand Court of Appeal heard.

He said there's a drive in New Zealand to maintain the belief that the system is infallible and that's what the Court of Appeal did by rejecting the idea that David did not get a fair trial.

But, he said on Morning Report, people should have more faith in a system that's prepared to say: "we got it wrong".

Lawyers ask how New Zealand judiciary got David Bain case wrong

It is also interesting to note that the Privy Council's criticism of the Court of Appeal's decision in David Bain's case is essentially Colin's criticism of the judge in my case. In both cases, the courts' role was simply to assess that sufficient issues were raised by the evidence for the case and all its facts to be presented before a court so that a jury/judge could rule on it. Instead, in both cases, the court made this ruling itself, even though it did not have all the evidence placed before it.

The quote from Colin above indicates that Colin believes the Court of Appeal did this because, perhaps unconsciously, it wanted to maintain the facade of infallibility in the system.

I can only guess why the judge did it in my case. As I understand it (I wasn't at the hearing), the NSA's lawyer bombarded the judge with a lot of irrelevant evidence - the sort of evidence and detail you'd expect at a full hearing not an interlocutory hearing as this was - and come about 3pm, Colin reports, the judge got tired and just stopped listening. After that, he started looking for ways to get rid of the case and turned his attention to finding me guilty for not doing things he assumed I would have done if I'd been bone fide. It seemed that the NSA's attempt to discredit me in the eyes of the judge had worked, for some of the material they presented was designed to paint me as unstable. As Colin explains it in the quote above, the system isn't designed to find the truth but to run with the side that "manages to obscure the truth more effectively".