The Minister of JusticeParliament BuildingsWELLINGTON
Friday 21 December 2012
Dear Minister, I refer our previous correspondence. I have subsequently had referred to me the response from Justice Binnie to your discussions with him about the glasses evidence which I raised in my letter to you dated 10 September. I am most grateful for the circumspect way in which you raised that matter with the Judge.But the Judge’s self-defensive reply is most disturbing, almost as if it is designed to blind you to the relevance of that evidence. My e mail to you was dated 10 September, your discussion with the Judge was on 13 September and his reply was dated 25 September. He chooses to go on the attack raising issues of my own character and credibility and thus obfuscating the intense relevance of the very matter you raised with him. The detail he hasprovided raises the question as to who gave him all of the Law Society material. How is it relevant? I have been judged and found wanting but those issues do not alter the incontrovertible facts of the matters I have raised.However much of a scoundrel Justice Binnie wishes to paint me, the salient facts are these.
1. Trenchant and continual criticism of me by the Bain team surely waived privilegefrom the early stages. There is common law authority to that effect.
2. Mr Bain informed both myself and my co-Counsel, Miss Jonelle Williams, that he had been wearing the all-important glasses on the Sunday evening before the 6.30 am murders the next morning.
3. In response to a question from the Crown, Mr Bain specifically lied about wearing the glasses the night before the killings and the ethics of my profession required me to disclose that lie to the prosecution which I immediately did.
4. The Crown Solicitor therefore knew this fact at trial.
5. Justice Thorp gives my evidence to the PCA the clear stamp of credibility because theCrown Prosecutor confirmed to him what I had told him at trial.
Sent: Monday, 10 September 2012 8:43 a.m.
To: Judith Collins
Subject: David Bain
My name is Michael Guest and I was the senior defence Counsel for David Bain at his first trial. I am concerned to read in the press this morning that Justice Binnie's recommendation to Cabinet will be that Mr Bain is innocent.
My concern is that neither myself nor my co-Counsel were interviewed by the Canadian Judge despite the Bain team suspending privilege for the purposes of the Police Complaints Authority Investigation in 1997. I told that Investigation (relieved from the obligation of privilege) that Mr Bain has informed both myself and my co-Counsel that he had been wearing the all-important glasses on the Sunday evening before the 6.30 am murders the next morning.
That was a devastating admission and we took all possible steps within our ethical duties to minimise the possibility of that information coming out at trial. However, in response to a question from the Crown, Mr Bain specifically lied about wearing the glasses the night before the killings and the ethics of my profession required me to disclose that lie to the prosecution which I immediately did. Mr W.J. Wright, for the Crown, decided that due to the fact that we were in the closing three days of an almost three week trial, we would simply let matters lie and proceed.
Justice Thorp, in his 1998 Review of the Police Complaint's Authority Report, refers to this evidence as significant and gives it the clear stamp of credibility because the Crown Prosecutor confirmed what I had told him at trial months before Mr Karam fomented a trail of half and quarter truths up and down the country. Your Ministry will have easy access to Justice Thorp's Report.
The importance of this admission of wearing the glasses the night before is, quite simply, a damning admission because the police found the bent frame and one lens in David's bedroom and the other lens in his murdered brolher's bedroom.
The press slatement now suggests an opinion of "innocence" by Justice Binnie, when this evidence was available to be read, and Mr Bain's first Counsel were not interviewed. I find that incredible.
Maybe there is something in the Judge's Report that sheds some different view on this evidence but, in my opinion, it shatters any suggestion of innocence.
That Mr Bain spent 13 years in prison and then was acquilted at a second trial might be seen as an "exceptional circumstance" but a finding that he is innocent is not a correct conclusion.
I can be contacted by any person you wish to nominate at this email address, or .....
Yours faithfully, Michael Guest