Explanation of Extraordinary Circumstances

The meaning of extraordinary circumstances in the claim for compensation for wrongful imprisonment has been explained.  In David Bain's case, he is not even likely to pass the extraordinary circumstances test because his case has to fit with one of the following criteria:

  1. unequivocal innocence - cases in which it is demonstrable that the applicant was innocent beyond reasonable doubt, for example due to DNA evidence, strong alibi evidence.
  2. no such offence - the applicant has been convicted of an offence that does not exist in law
  3. serious wrongdoing by authorities - a judicial admission or official finding of serious misconduct in the investigation or prosecution of the case.  Examples might include bringing or continuing proceedings in bad faith, failing to take proper steps to investigate the possibility of innocence, the planting of evidence, or suborning perjury.

It must be noted that In New Zealand, there is no legal right to compensation for wrongful conviction and imprisonment.  Compensation may, however be paid, at the Government's discretion on an ex gratia basis in accordance with a framework agreed by Cabinet.  To receive compensation, claimants have to establish their innocence on the balance of probabilities.

The above has been supplied by Simon Power from the Ministry of Justice in the letter attached.  The final words in the letter are:

"I can assure you that a thorough assessment will be undertaken before Cabinet considers paying any compensation".

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serious wrong done by authorities

The hghest court in the English-speaking realm already has ruled that "a substanti
al miscarriage of justice has actually occurred".

No further questions are necessary.

That is a good argument,

That is a good argument, plainjane, but I think the criteria for "wrongdoing" is far stronger than the criteria for "substantial miscarriage of justice".  Also that judgment was passed by the Privy Council which no longer holds any sway. It is pretty clear from all the Appeals made on the Bain case what view the NZ Justice system holds on the matter.  No further questions there either.

You are probably correct in that item 3 is where the discussions are taking place between the Bain team and the Ministry,

persistent criterial inequities

Kent, the criteria for wrongdoing by ordinary citizens never will be the same as the criteria for wrongdoing by

"authorities".

Two Northland judges both took the same money for unused motel expenses...Heskith pleaded 'guilty', and

Beatty said 'not guilty', and he was acquitted, because one of those judges was 'above the law'.

The worst wrongdoing in the Bain case was the destruction of evidence.

Dr. Paul Eklund, the'human lie detector', should be asked for his opinion of the re-trial's opening witnesses.

When Reed asked  why evidence was destroyed, the answer was that they "didn't have room to store samples".

Yet many other items of evidence were kept, without the excuse of insufficient 'room' for storage.

When Reed asked why the incest allegations, known on 21 June 1994, weren't investigated, the answer was because

they "had murders to investigate".

Maybe the answers were belivvable to you, but they're "wrongdoing", to me.

Did you notice the witnesses's quivering lower lip?

He was a schoolyard bully, cornered by Reed, and he was close to tears.

Can we consult with Dr. Eklund?

(PS: I hope 'criterial' is a valid adjective, because I'm not really sure...)

 

 

Judge Beattie

How come Jane that when Judge Beattie pleads not guilty and is acquitted you still infer that he is guilty nevertheless, (above the law) but in the David Bain situation it is another story?  You just can't seem to face the fact that David Bain's acquittal in a retrial does not alter the actual facts if he really was the killer.  You have a twisted and inconsistent approach to things.  You accept court verdicts, only when it suits you.  Your buddy Joe Karam doesn't think we should be able to say David Bain killed his family because the retrial jury acquitted him, but you feel free to publicly infer Judge Beattie's guilt regardless of his acquittal.  very peculiar!

Judge Beattie

Bushy,I am only replying to your post because it relates to Judge Beattie.I always thought at the time that he was very lucky to be acquited.Because one of the aspects of my job was to check various manager's expense sheets I liked to think I was capable of doing that.Some managers would "try it on"as it were ,but only to a minor degree.Such as claiming for a meal with a client when the "client" might have been their wife/girlfriend or whatever.They always had to submit a receipt detailing who the client was,but I must admit I very seldom phoned the client named,and even when I did I couldn't be sure whether the client named had been "wised up" to confirm the meal,regardless.

Then you had the petrol receipts where sundries appeared[cigarettes,for example].

But as I understand it with Beattie is that he didn't have to produce receipts.That's what got me .In our company the rule was no receipt,no reimbursement.

Judge Beattie

That wasn't the point I was making with respect Mike.  I was addressing Plain Jane's double standard.  She and the other Bainaholics do not insist that we respect all not-guilty verdicts only those that suit them, the causes they have/are championing.   I agree with you that we should be able to express our displeasure at not guilty verdicts whether they are for David Bain, Judge Beattie or OJ Simpson.

Judge Beattie

http://davidbain.counterspin.co.nz/comment/reply/2105/2480

Sorry bushy,I wasn't responding to your post as such,I was just saying that when I saw the name Judge Beattie it rang a bell,because I remembered the case from way back.There was a great deal of controversy about the verdict at the time,the media were all over it and I couldn't believe the jury verdict.Judge Beattie was entitled to stay overnight and claim expenses,but if you don't stay overnight and go home instead,then you have no expenses to claim.How can a person be reimbursed for money they havn't spent?As I said,no receipt ,no payment.He wouldn't have received the money if he had been working for our company because he had no receipt.But I was only reminiscing,really.

Judge Beattie

http://www.crime.co.nz/c-files.aspx?ID=42

Somehow I managed to get a different thread up to the one that was meant to go with my last message.Sorry about that.

different threads

Is it just on my puter or have things changed?  Used to have a reply tab with each post and another one at the bottom of the page (thread).  clicking the latter would ensure your post went onto the tail of the thread, whereas the other (the one with each post) seems to place the posts out of sequence.  I find it a little confusing following the debate.

I'm responding to your

I'm responding to your comment by clicking on the reply button associated with the comment and it is appearing immediately below your comment which is how it should be.

If you want to have your comment appear at the end reply using the button in the original post at the top of the page.

Well, whatever you say here

Well, whatever you say here on this forum, plainjane, it's all irrelevant because you are not making the decision regarding compensation.  From what I know there was no investigation into destruction of evidence that can be described as a wrongdoing and it certainly wasn't in the Privy Council decision, so you are up a tree in a wheelbarrow without a cell phone.

Feel free to comment as much as you like but I am not going to reply.  Mike and others may well do.  Just bear in mind that some of them are easily provoked and I may be forced to ban you in order to stop this thread from becoming a flame war.  This may not be due to you but to the way that other people respond to you so don't take it personally.  Counterspin is a site where people come who feel disgusted and angry at the way that Joe Karam has manipulated the legal system.  There are probably better places for you to promote your particular flavour of Bain discussion than here.

decision making authority

Kent, yes, we're not making the decision.

But the Privy Council listed wrogs, including, but not limited to, the following:

1. jury were misled by the claim that a specular effect was an eyeglass lens

2. jury weren't told of optometrist's corrected statement of eyeglass ownershiip

3. Denise Laney's corrected statement was not disclosed to the defense, nor to the jury

4. fingerprint material,claimed to have been made from human blood, had not been tested

5.. reliability, or not, of a potential witness(not heard) should have been up to the jury, and not to the judge

The Privy Council didn't comment on the destruction of evidence, or other wrongs, but I'll post some of them soon.

Mike: yes, I know the location of Robin's caravan, relative to the violent struggle in Stephen's room, and you're

ridiculous to claim that Robin didn't hear it. Of course Robin heard it, because he was in Stephen's room.

And Arawa didn't run for help from her father, because Arawa knew Robin was the madman upstairs.

When you see or hear about a frail man who uses a large chain saw, and who won't harm a spider, yet goes hunting for pips, rabbits and possums, and who appears timid and meek, and then

rages at the Board of Education, and who is a kindly, grandfatherly man, who later hits some of  his students,

be alert. the ones who have dual characters( or 2, or 3, or 4, or...) ...those are the ones who end up shooting up

the town.

Dunedin is lucky Robin only had a .22...otherwise, he would have gone around the town, or at least up to the Karitane

Retirement Home, and he would have kept shooting, until he was shot, by himself or by someone else.

 

Re plain jane

Kent,I did say I would ignore posts by plain jane,but have a read of his/her latest one,do we really want this clown on counterspin?

Plainjane is Out.

Plainjane is Out.

plane jane,you're doing it again

Plain jane,long time no hear,have you been away somewhere?Did you get my message about where Robin Bain's caravan was in relation to Stephen Bain's room.A lot further than you thought.But ,look,good to have you back,Lee,isn't it?You were always good for a laugh.Are you still banned on Trade Me?

What do you think about the three strikes and your in law?Isn't it a cracker?.

Miscarriage of justice

The Privy Council ruled that the appeal should be allowed and a retrial ordered as they considered the new evidence put forward to the NZ Court of Appeal should have been heard by a jury,and it was not up to the NZ.Court of Appeal to make a judgement as to whether a jury should hear it or not.

One has to wonder what the Privy Council would have made of the ruling by the judge not to let the jury at the retrial hear all the new evidence.Would they have said it was not up to the judge to make that decision?Would they have considered that to be a miscarriage of justice?

re plain jane

Ok,no more responses from your's truly,I will just treat with ignore.

So Plain Jane's back

the real problem that Jane has in reckoning that the Privy Council decision regarding a substantial miscarriage equals the requirement for compensation is the remedy the Privy Council gave.  It did not free David Bain but ordered a retrial. If the PC thought that David Bain was worthy of discharge and compensation it would not have suggested he wait in prison for a retrial for one moment more.  It was our NZ courts that released Bain on bail a position he had never enjoyed since his first arrest prior to his first trial.  Jane and her ilk just can't get there little minds around the fact that no appeal court has ever said David Bain was innocent.  It took a half-witted retrial jury to reach that conclusion or at least the conclusion that he was not guilty "beyond reasonable doubt".  Bain won the lottery, plain and simple.

Simon Power's words

Hey Kent you can't get better than this - straight from the horses mouth.  We will have to keep him to his word an make certain that the assessment is thorough but on the face of it I will be utterly surprised if Bain can meet the criteria eh!

I totally agree.  Previously

I totally agree.  Previously I would have thought that the extraordinary circumstances would be an easy hurdle, but now seeing them, someone has got to get pie on their face in order for the Bain team to even get to the QC's office door.  By pie on the face I mean someone has to be found guilty of serious wrongdoing and no one is going to admit to that in a hurry!

Further on Extraordinary Circumstances

Or someone else has to actually be found guilty of the offence Bain was charged as in Dougherty's case and they can't actually convict Robin Bain, although they have practically done so by insinuation.  However, a word of caution on that note, a really smart lawyer could argue that the fact that the "alternative" killer suggested by the prosecution is dead and there is no chance of a trial could itself add up to the "extraordinary circumstances".  To take that course poor Robin ain would have to be retried again to the QC as he was in the retrial and fortunately I don't think a QC would swallow it as simply as that dumb jury and a gullible sector of the NZ public has.

So that would have to be the

So that would have to be the first item: unequivocal evidence.  They would have to prove that Robin did it beyond reasonable doubt.

With Robin dead

Yes and with Robin dead this is impossible.

Number 3 is what Karam & Reed

Number 3 is what Karam & Reed will be going for.

Yes, but anything from number

Yes, but anything from number 3 has to be demonstrated.  Nothing has been demonstrated historically so then something will have to be investigated and proven to be wrong.  Milton Weir instigated an investigation into his own conduct and got a clean bill, so that rules out police misconduct.  No one has been charged with perjury and no one has been charged with acting in bad faith. 

All of the items from number 3 involve the Crown demonstrating that someone did something wrong and this means that whoever is accused of doing something wrong will be professionally disadvantaged and will want to and need to fight back.

Weir v Karam

Does anyone know where one can find some details of that court case where Weir and another police officer sued Karam for defamation.They lost the case as Karam was able to get away with  pleading that it was his "honest belief" that the glasses lens had been planted.What I want to know is if Karam actually apologised and did he accept that the lens had not been planted.

At the Court of Appeal the defence team were very careful not to say the lens had been planted,they focussed on the fact that the jury was told it was where it wasn't.If it was out in the open it appeared it may have only recently got there.If it was where it was found,under an ice skating boot,then it could have been there for a while.

The Privy Council said that a jury should have heard the correct evidence.

Weir v Karam

Karam's account of this case is in the "introduction' to Bain & Beyond(there is a foreword, a prologue and an introduction to this book) pp 22-27.  According to Karam it was an outright win on all points to "Joe" but he doesn't elaborate or actually report the details of the verdicts, therefore I do wonder.  It would be interesting to research this and find out how Weir and Anderson view it.  According to Karam, the judge presented a list of 19 issues (questions) for the jury to decide.  Karam only sets out how the claims fell (there were five claims) and doesn't say how all the questions were answered.  Its almost as if he has something to hide since it is Karam's usual style to be locquatious about the details when it suits him.   He neither sets out the questions or the jury's reply to those questions.  Neither does he detail the five claims and although he claims they were wins he doesn't say what awards were made etc etc.  He does admit to being nervous and anxious about the outcome whilst waiting for the verdict and having an "altercation" with his QC Julian Miles (this doesn't surprise me - I think Karam is a bolshie combative arogant type personally).  I do remember reading in the press at the time and although I can't remember what it was I don't think the press reports at the time interpreted the case as quite the "total" victory for Joe Karam that he insists it was in Bain & Beyond.  I must find out more. 

Interpreting outcomes of defamation cases can be tricky.  The questions before the jury are the question the action amounted to defamation and then if so how much compensation is due.  A defamation jury decision could be critical of a defendant but nevertheless decide against awarding damages to the applicants, for instance. My gut feeling is that this could be most likely in this case.  Since the two detective, applicants, are salaried public servants it would be hard for them to quantify actual or potential monetary damage that could eventuate from ill-advised criticism.  This contrasts with a private employed professional person for instance whose business could be adversely affected by a slur.  Publicly employed police continue to work for the department drawing salaries etc so it is hard for them to demonstrate that they have lost $millions as a result of a slur.  It could be that Karam decides he has won on the basis that no monetary award was made against him, but that may not be all there is to it and that could explain why he is careful not to give too much detail in Bain & Beyond.   

My own faint recollection of my reading press reports is that it was not considered quite the resounding victory that he portrays but more of a muted victory if not approaching a draw.

The Police association may be a good place to inquire about the actual details and outcome of the case.

Bain and Beyond

Thanks for that bushy.I must have a look,Bain and Beyond is in the library here,I havn't read it,David and Goliath was enough for me.

Apparently Karam never actually said that lens was planted .I have been having another glance through David and Goliath,I think the implication is there.Apparently the first time the word "planted " was used was at the retrial.

Karam - Planting lens

No, you are right, Mike.  fortunately for Joe he never actually went to print in so few and direct words but the inference is most definitely there and it is clear when you talk to the believing public that they have taken that inference.  Also Karam inferred that Weir deliberately lied to the jury, a suggestion that the Court of Appeal and other authorities refute.  Weir was mistaken or not, depending on how you finally recognise the evidence of the lens in the photo.  On the important issue, however, the facts were never in dispute.  The lens was missing from the frames and found in Stephen's room.

It is an example of Karam's double standards.  He is not averse to insinuating things against other people such as the police but gets very upset and litigious when he perceives that he is on the receiving end of similar conduct.

 

I would also guess that a fair bit of Arthur Allan Thomas' sympathy with the Bain case is because he has been convinced by Karam that police interfered with evidence in the Bain case similarly to what they did in Thomas' case.  The difference, is that the police simply had no reason to wish to implicate David Bain because a simple finding of murder suicide would have been the simplest and speediest route to wrap up the case.  In the Crew murders they had no option as the missing bodies, later turned up in the river, meant that someone else other than the deceased had to be in someway involved and Thomas became their leading suspect.

Lens

Yes,Weir did make a mistake re that lens,he told me that himself,although the latest evidence does tend to show that it could have been very near where he said it was.But his notes,written at the time ,do say he found it under that ice skating boot.I think Weir had probably forgotten about those notes,and when he saw the photo he thought he saw that lens.

Of course Karam has played merry hell with that mistake,and the Privy Council said that a jury should hear where the lens was actually found.The crux of the matter was,as I understand it,correct me if I am wrong,is that if the lens was found out in the open,as it were,then it seems pretty obvious it fell there recently,whereas if it was under the ice skating boot,it could have been there for some time.

To me,the reason why it was found under the ice skating boot is because when David Bain was floundering around looking for it without any glasses on he probably moved a few things and put them back.I mean he admitted to wearing those glasses,though denying it on the stand,and he wouldn't have been wearing them with one lens missing.I guess the retrial jury would not have heard about Bain telling his defence counsel that he was going to admit to wearing those glasses,and because Bain did not take the stand at the retrial he could not be cross-examined about them,as he was at the first trail,where he floundered about trying to answer the questions put to him.

Why lens under skate

There could be many reasons why the lens ended up under the skate and it simply is not conclusive that because it was under the skate it had to have been there for some time.  Apart from your explanation, Mike, another explanation which appeals to me is:

The glasses are damaged in the fight between David and Stephen and the dislodged lens falls to the floor where it is kicked under the skate by the shuffling feet of one of the combatants.  I argue, similarly for the position of the gloves, which if I remember right were under a bed.  The frames may also have fallen, where David picks them up without realising a lens is missing and takes them back to his room, or he could have as you said unsuccesfully tried to find the lens.  However, if as in your scenario David knew the lens was missing from the glasses, I am sure he would not have asked a policeman for them later and in fact, if he was a thinking criminal, he should have disposed of them on his paper round or in the garden or flushed them down the loo.

Further on the subject of inferences, I think Joe has to be fortunate that defamation cases are decided by juries.  I think a judge only trial would have been harsher on him and the inferences (which in my opinion are definitely there in the books) would have been recognized by a Judge as sufficient to be defamatory. 

This is why I say that the case was not the resounding victory for Joe that he would have us believe in Bain and Beyond.  It was a close run thing and from his own description of his nervous wait for the jury to return a verdict it is easy to imagine that he recognised that it could go either way.  Bit like a test match being decided by a Joe Karam drop goal in the last second I would suggest or John Eales jumping to stop a penalty goal from crossing as he did in Wellington.

Missing lens

Bushy,we all have our own theories about many things to do with the Bain murders.I have wondered whether those glasses actually fell off in that struggle,or if only the lens fell out.And it could well be that ,in that struggle,the lens could somehow have got kicked under those boots.

So far as David asking for those glasses ,that has always puzzled me,Maybe he wasn't aware they were damaged,as you said.I think you have also suggested that he may have just asked for them as a sort of "reflex" action,"pass me my glasses,please".He also asked an ambulance officer for them,so maybe he didn't know they were broken and had a lens missing.

Or maybe he did know that missing lens was in Stephen's room,and he wanted to get hold of those glasses so he could get rid of them somehow.But then ,would he have not got rid of them earlier.But maybe he needed them for that last shot.Maybe this,maybe that.

There are theories and there are theories.

Exactly Mike

Exactly Mike there are many potential variations but they all add up to the same conclusions - David was using those glasses that morning and the lens beneath a skate proves nothing.

Trademe poster

A poster on Trade Me has this to say re claim.

Cases may have other extraordinary features that render it in the interests of justice that the compensation claim be considered and it is up to the claimant to show the existance of such features.It is open to Mr Bain to do this.

This poster is a David Bain fanatic,but her information is usually correct.