Bain Matters Referred To Court Of Appeal

The Governor-General has deferred David Bain’s application for a pardon, and referred a number questions relating to his conviction to the Court of Appeal for its opinion, Minister of Justice Phil Goff announced today.

David Bain petitioned the Governor-General for exercise of the Royal prerogative of mercy in June 1998. Both the application and a number of supplementary submissions made by David Bain’s defence team have since been the subject of an investigation by the Ministry of Justice. The investigation included an independent peer review by a retired High Court Judge, the Hon. Sir Thomas Thorp.

“I have received advice from the Ministry and Sir Thomas Thorp on Mr Bain’s application for exercise of the Royal prerogative of mercy. Both the Ministry and Sir Thomas have concluded that there has not been a miscarriage of justice in Mr Bain’s case.” Mr Goff said.

“However, the Ministry’s investigation has shown that a number of errors may have occurred in the presentation of the Crown case against Mr Bain at trial. These possible errors have been highlighted by Mr Bain’s defence team, and have created a significant community concern about the safety of Mr Bain’s convictions.

“I have therefore advised the Governor-General to defer Mr Bain’s application for a pardon. I have advised him, before making a final decision on the application, to refer any errors that might have been established in the petition back to the Court of Appeal for an opinion on whether a different verdict might have been reached if the relevant aspects of the evidence presented at the trial had been accurate.

“Were there errors of such a significance that they may have had an effect on the jury’s verdict at trial, thus rendering the verdict unsafe?

“Once the Court has provided its opinion on this, a final decision on the application will be made by the Governor-General, on my advice.

“I must emphasise that my recommendation to the Governor-General is being made in the interests of certainty, finality and public confidence in the result. There are a number of unusual circumstances relating to David Bain’s application. The case against him at trial was entirely circumstantial. In circumstances such as these, the justice system needs to go the extra mile to determine whether David Bain’s convictions are safe. Obtaining a further opinion from the Court of Appeal will allow any possible errors in the Crown’s case to be considered openly and publicly.

“I do not propose to comment on the substance of the case as the matter is now before the Courts, and much of the material is subject to legal professional privilege. An Order in Council setting out matters to be referred to the Court for their opinion has been executed. The Court of Appeal will now decide how the case should proceed,” Mr Goff said.