Four very recent legal issues justify comment - David Bain's return to the Privy Council, the Swann/Harford fraud case at Dunedin Hospital, the planned introduction of a three-month probationary period for employees and potential misuse of CTV footage on the Internet.


David Bain

Mr Bain's defence lawyers returned to the Privy Council last week.

The general right to appeal was abolished on January 1, 2004, but if the main case was heard before that date you still have the right to trip off to "Their Lordships, at No 4 Downing Street".

But any case going to the Privy Council has to "open the gate" first with an application for leave to make an application.

The Privy Council must hear this initial application for leave.

That was what this hearing was about last week.

It was quite wrong for comment to be made in the media that the Privy Council had granted an application to hear new evidence as if it was some triumph of process.

Wrong.

The Privy Council had an application on its plate and it was bound to deal with it.

It did so, and it refused leave in a matter of minutes.

Cases must not be tried in the media and here was yet another example of the media being manipulated to report the application as a successful attempt in itself to have alleged fresh evidence heard.

It is quite wrong for the processes of any court to be manipulated in this way.

It's a bit like crowing "The court has decided to hear my application for a limited licence" as if to suggest the court had already made some determination on the merits of your application.

The second worrying thing about the manipulation of the media in this case is that no less a person than the Queen's Counsel acting for Mr Bain is reported in last Wednesday's newspapers around the country as saying - "If the Law Lords had known what the defence knew now, the Privy Council would have last year ordered an acquittal instead of a retrial".

If that was a direct quote it is my honest opinion it amounts to a contempt of court for breaching the sub judice rule.

This retrial is set down for March.

Comment like this is unacceptable.

The text books and case law make it clear that the law of contempt is even-handed.

Just as it is contempt to prejudge a person guilty, it is also contempt to prejudge that he is innocent.

In a famous Australian case, a leading politician, Mr Neville Wran, went in to bat for a judge who was on trial for an offence.

Mr Wran said in a public statement that he thought the judge was innocent of charges brought against him and that he would be acquitted at his trial. Mr Wran was found guilty of contempt and was heavily fined.

The Dunedin Hospital fraud case

Does every scurrilous villain deliberately misunderstand what amounts to a reasonable doubt? Do they think that a reasonable doubt means beyond a shadow of the doubt or beyond a fanciful doubt.

These two latter tests are quite wrong.

Juries are well directed and equipped to determine issues of fact and draw reasonable inferences from those facts.

But there are too many accused who are naive in their belief that they have a chance of "getting off" serious allegations.

There was no reasonable defence in this case.

There was no chance of an acquittal without such a verdict being a perverse verdict. Judges give detailed instructions to juries about what amounts to a reasonable doubt, but we need not go further than the judge starting off a direction that a reasonable doubt means just that - "a reasonable doubt".

No extra gloss is needed on the words.

But somehow, too many accused get it into their heads that they cannot be convicted unless there is an eyewitness or a confession, and even then they will attempt to question the eyesight of the eyewitness and then have a crack at snivelling that the confession was beaten out of them.

The Nia Glassie bunch of accused were shuffling, prevaricating no-hopers shiftily looking from side to side hoping to catch on to the slippery tale of a reasonable doubt.

I wasn't there.

I didn't know.

It wasn't me.

Yeah, right.

And we are seeing weekly processions of these optimists.

All praise to the common sense of juries.

Employment probationary periods The new Government intends to follow the Australian law which allows for an "as of right" power for an employer of fewer than 20 to sack at the end of three months with no reasons given.

The employers say that they cannot really tell whether an employee is suitable until three months has been worked.

That's a little tough on the employee who, under the new system, will not be able to claim that he or she had not been given sufficient training or assistance or time to improve in the work standards.

Of course, if a falsehood is included in a CV, then that in itself gives rise to a right to dismiss but that is not what we are talking about here.

If a CV is honest, but the employee just turned out not to be right for the job, the current law requires the employer to take reasonable steps to assist the employee to get up to scratch.

That is the fair position.

CTV footage

Frankly, I am concerned to see that the police at Queenstown and Blenheim have posted footage of baddies on the Internet.

Their motives may be admirable because they say that the footage shows an offence or a crime actually being committed.

That's being judge, jury and executioner but the real issue is, despite assurances that proper security and protocols were in place, the police clearly think they have the power to use the footage in this way without there being any reasonable public debate on the limits of those protocols.

It is too simplistic to say "Well, they're bad guys anyway.

Who cares?" The law has justifiably frowned on pre-arrest publicity except in exceptional circumstances.

I say the very fact the police thought it was all right to post the footage on the worldwide web without any public consultation on the issue is sufficient in itself for the securities and protocols to be examined far more carefully before this practice is allowed to continue.

An interesting seven days in the law.

- Michael Guest is a former lawyer and District and Family Court Judge.