So why didn't David Bain testify at his trial in 2009

Opinion. The one person we didn’t hear from at trial in 2009 was the defendant David Bain himself. It was only a short walk from where he was seated to the witness box, only about 15 steps, you may think if you are falsely accused of your family’s murder you would make that short walk, you may even think you would run there to reassure the jury of your innocence, but when given the opportunity to give his own account or explanation of the evidence against him, when given a chance to protest his innocence, to shout it from the rooftops David Bain choose to stay silent, instead he allowed his lawyers to speculate, to throw red herrings around to try and distract you from the truth.

You may conclude that the reason for all these distortions and the reason David Bain did not get into that witness box is because he knew he couldn’t defend himself, he preferred to stay silent, to hide behind the fabricated stories his lawyers and others fought to convince you of.

Comments

Right to silence

David Bain exersised his right to silence because had he not done so he would have almost certainly have been found guilty. 
In England , interestingly enough, it became commonplace for defendents to give evidence in court.

Defendants giving evidence in court became commonplace to such an extent that by 1957, it was actually a shock when a defendant did not give evidence. When suspected serial killer John Bodkin Adams decided, on the advice of his lawyer, not to give evidence — the prosecution, the gallery and even the judge were surprised.[1] In the view of Melford Stevenson, junior counsel in the prosecution (and later a prominent judge), speaking in the early 1980s: "It should be possible for the prosecution to directly examine an accused [...] It was a clear example of the privilege of silence having enabled a guilty man to escape."[2]

 

I agree with the red

I agree with the red herrings. The public and the jury in the retrial have been fed a school of red herrings.  You can barely dig through that big smouldering heap of red herrings to get at the crucial and inviolable evidence at the bottom of this case.

Not testifying is not a sign of guilt

 It is virtually impossible to convince someone you are innocent of a crime.   There is no “right way” to behave when you’re testifying and prosecutors have a built-in cross examination advantage.


Right way

Just tell the truth. If you are innocent and you tell the truth surely it does not matter how you behave? 

Unfortunately it does matter how you behave

Some people look like they are lying when they tell the truth. There are a number of ways that the "truth" can be distorted to give a diffrent picture in evidence. During Victorian times there was a lot of emphasis put on countenance - a psuedo science based on facial expresions. They thought it was possible to judge a persons character based on the way they looked and expressed their face. It not advisable to let someone charged with a serious offense testify at their own trial.

Doesn't matter what a person looks like.

If a person is genuinely innocent it doesn't matter what they look like. They would almost certainly be acquited if there is no evidence that points to them as being the perpetrator. Hells teeth, in David Bain's case there was plenty of evidence that pointed to him as being the perpetrator and he was still found not guilty.  I say get rid of the right to silence. If David Bain had not been able to exercise that right there might not even have been a retrial, costing the taxpayer millions of dallars. 

Elv  these are not Victorian

Elv  these are not Victorian times, and we do not burn witches anymore, personaly I think the truth at these trials would be a lot clearer on a percentage basis if the defendant was required to tell the court what they know.

I've had the unfortunate experience

I've had the unfortunate experience of giving evidence myself in 2004 for a trafic offence which I was not guilty of. The district court took the word of the Police over my word - despite there not being any evidence other than the officers testimony and there was plenty of evidence to the contrary.

I was innocent, gave evidence and it was not believed. 

It got overturned in the high court where the judge was very critical of the police prosecution and ruled that the police officer was mistaken. I have the high court transcript still to prove it.

Despite peoples beliefs that they can spot an innocent man - it i just not true in reality.

You cannot compare a traffic offence with a murder

In your case in was one person's word against anothers. It doesn't happen like that in a murder trial as a general rule. 
Certainly not in the case of David Bain.  If you hadn't given evidence you would probably still have been found guilty. 
So even if you had exersised your right to silence the outcome would probably have been the same. 

it is simplistic to believe that

When dealing with crime the police often deal with the drunk, drugged and the not so bright. My niece testified naively at her own trial and was found guilty. Her accuser was the guilty one. She still has the conviction and served the sentence imposed. A person I know with a intellectual impairment admitted to stealing because he was too embarrassed to admit someone had given him some money cause they had felt sorry for him. Someone I know sat on a jury trial where the defendant was convincing giving testimony Resulting in a not guilty verdict. She later found out that he had done the crime. Having worked with cctv evidence for years - the guilty look innocent and the innocent look guilty - the cctv evidence tells the truth..

it is simplistic to believe that

When dealing with crime the police often deal with the drunk, drugged and the not so bright. My niece testified naively at her own trial and was found guilty. Her accuser was the guilty one. She still has the conviction and served the sentence imposed. A person I know with a intellectual impairment admitted to stealing because he was too embarrassed to admit someone had given him some money cause they had felt sorry for him. Someone I know sat on a jury trial where the defendant was convincing giving testimony Resulting in a not guilty verdict. She later found out that he had done the crime. Having worked with cctv evidence for years - the guilty look innocent and the innocent look guilty - the cctv evidence tells the truth..

Looks don't matter

I don't care what a person who has been charged with a crime looks like. 
If a person is innocent then they should be only too happy to front up. Best to have a good lawyer though. 
We all know that sometimes an innocent person will be found guilty and that a guilty person will be found not guilty regardless of whether or not they front up. elv, if your niece hadn't testified she would have no doubt have still been found guilty. So it wouldn't have made any difference to the outcome. 
So why not get rid of the right to silence?  If David Bain had not exercised his right to silence there probably would have been no retrial, thus saving the taxpayer millions of dollars. 

a good lawyer

A good lawyer would have told her not to testify and picked holes in the accusers story. I knoevthe details and am still horrified that she  got charged and the police believed the accusers story. Your argument that it would have made no difference if she hadn't testified cand also be used the other way around. Why testify if it makes no difference on the result.

A good lawyer

I agree. The way the system works now a good lawyer would have told her not to testify. 
But if the system was changed she would still have testified but that good lawyer would have picked holes in the accusers story and she would probably have been found not guilty. 

Inquisitorial and adversarial systems

http://www.lawcom.govt.nz/sites/default/files/adversarial_and_inquisitorial_systems_2.pdf

Both systems have their advantages and disadvantages. I don't believe an inquistorial system is right for New Zealand. It places a huge amount of power on the role of a single person. It leaves a lot of room for corruption and incompetence. As a private security consultant I have seen both sides of the law operate. I have seen terrible defence lawyers and extremely incompetent prosecution / investigation. A brilliant investagatative magistrate would get great results. An incompetent one or worse - a corrupt one - could do a massive amount of damage.

http://www.telegraph.co.uk/news/worldnews/europe/france/4160680/Nicolas-Sarkozy-to-abolish-controversial-French-magistrate.html

Focused on Right to silence being abolished.

I am not all that interested in what system should be used, I am saying the right to silence should be abolished. 

http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10817417

  • Joe Karam: Making money

    People ask me what I do, and I say, I think. That’s how I make my money. I spend a lot of time on my own and you can make a lot more money thinking than you can working. With the Bain case, I think about things that never dawn on other people.

    Joe Karam, quoted by Amanda Spratt, Listener, 2007.