Is system about proof or truth? I'm not encouraged

Not enough of the cold Wellington morning had gone when I joined the boarding-pass queue for the Tranzscenic.

Perhaps it was the politically charged Wellington air, but for some reason the queue was skewed and when I thought I was joining its end, a bulging back-pack burdened traveller gently explained I was out of line.

As we blearily shuffled to the railway ticket counter we were each greeted with a genuine-sounding "How are you today?" by the seat allocator, who thrilled me by working from a paper list, drawing the numbers on our tickets with that underrated technical tool, the blue Biro.

The man in front of me, confronted with the cheery early morning greeting, said, in a distinct American accent, "I'm encouraged."

I am not sure I could prove this beyond reasonable doubt. There are no recordings of it. He may have said, "I am in a huge rage."

He said nothing further. I have spent the last week or so wondering what he was encouraged by while I have been feeling discouraged and disquieted.

Significantly, or perhaps not (you decide) this encounter took place the day after the verdict of not guilty in the trial of David Bain for the murders of five members of his immediate family.

As I was having a sojourn in the capital, I thankfully missed the media hoopla when the verdict was returned and only heard about it when a friend I was dining with mentioned it lateish in the evening.

Attention has since been drawn to the behaviour of some jurors. There has been news of the juror-Bain hug or the Bain-juror hug, and the two jurors who turned up to the Bain after-party.

While not everyone seems to find this behaviour appalling, it would be interesting to know how the defence might have felt if the jury lined up to high-five crown counsel should Mr Bain have been found guilty.

Why couldn't jury members involved in these reported incidents grasp that such behaviour was wrong?

Does the intense media coverage of such a trial impede jurors' ability to act properly? Do they get to believe they are performers in some strange reality television show where they must deliver the goods to a live and braying studio audience?

Perhaps the hugging and party-going jurors' behaviour is a reflection of poor understanding about the justice system. Many pupils could happily complete school learning very little about it. There is no compulsory jury training.

Is our system about proof or truth? Who understands the difference between the balance of probabilities and reasonable doubt?

What experience do most people have of weighing up huge amounts of conflicting information dispassionately when players in the court may be doing their best to douse everything with emotion and innuendo?

In the Bain case, what were jurors to make of defence counsel, Michael Reed QC, whose behaviour was commented on by Waikato lawyer Warren Scotter in a Radio New Zealand Insight programme.

In an interview, recorded before the end of the trial but broadcast afterwards, he reckoned the behaviour was so extraordinary it was the subject of wide debate in the profession .

He suggested it made the antics of the cast of Boston Legal look like something from Enid Blyton. He alluded to what he viewed as Mr Reed's arrogance, rudeness to professional witnesses and to the judge himself, which he said had lawyers up and down the country wondering what he was up to.

Mr Scotter hypothesised it could have been a deliberate tactic perhaps to provoke Justice Panckhurst into losing his temper, something which then might have been used to suggest Mr Bain was not getting a fair trial.

Sensible discussion of such issues seems unlikely as the aftermath of the not guilty verdict goes on and on like some macabre soap opera.

What headlines might we look forward to? "Karam seeks funding for Bain babies search in Papua New Guinea - Veitch and Worth want to go too", "Karam and Bain fall out over book and movie deal", or hopefully, "Bain seeks Keith Murdoch in Australian outback for tips on becoming recluse".

And in the midst of this, the deaths of five people are sidelined.

I am reminded of this every time I go to my unkempt basement to do the washing. A jar of plums which must be more than 11 years old sits near the machine. I put it there some months ago for throwing out, but it remains.

Looking at it, I think of fellow hopeless housekeeper and mother-of-four Margaret Bain.

I wonder about the snuffing out of her motherly hopes and dreams and reflect that while she may have been good at preserving fruit, in the end she had no chance to preserve her life or those dreams.

Unlike my American fellow traveller, I am not encouraged.

- Elspeth McLean is a Dunedin writer.

 

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