The Incorrectables: Or, Why Judith Collins Won't Resign.

Justice Minister? The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of the internationally renowned Canadian jurist, Justice Ian Binnie. Collin’s conduct condemns us as a nation of ignorant and politically reckless barbarians.

ARTHUR ALLAN THOMAS, Peter Ellis, David Bain – and these are just the cases that have seared themselves into our consciousness. How many similar miscarriages of justice have blighted the lives of innocent men and women: passing unnoticed for want of a Pat Booth, a Lynley Hood or a Joe Karam to stir the nation's conscience? What is it about the New Zealand Establishment that renders it virtually incapable of self-correction? What makes our rulers so unwilling to admit their mistakes?

 

Today it’s Judith Collins whose been caught in flagrante delicto with error. But the present Justice Minister is simply the most recent in a long line of politicians who have decided that they and the system they represent are in all respects beyond reprimand, admonition or rebuke. That in New Zealand the powers-that-be are incorrectable.

 

Is it because we’re so small? Are the hidden networks connecting those who wield political, judicial and economic power over our daily lives so hopelessly entangled; so pervasively compromised by unacknowledged conflicts of interest; that even the slightest scrutiny would instantly provoke a general collapse in public trust and confidence? Is that the reason we constantly emerge from international comparisons as the least corrupt country on the planet? Not because we are incorruptible, but because by the general (if unspoken) agreement of the elites, incidents which in other jurisdictions would inevitably attract accusations of corruption and malfeasance are in New Zealand consistently characterised as something else?

 

There’s no doubt that the New Zealand Establishment has become extraordinarily proficient at protecting itself. Just consider the three cases already referred to: the Thomas Case, the Ellis Case and the Bain Case. What was the common factor which ensured that Thomas and Bain were vindicated? What is Peter Ellis still waiting for? The answer, of course, is a foreign pair of eyes. Thomas was rescued by Rob Muldoon’s populist instincts. Recognising an obvious Establishment stitch-up, he initiated a Royal Commission of Inquiry headed by an Australian judge. Bain was saved by the five pairs of British eyes assigned to his case by the Privy Council in London. Peter Ellis’s great misfortune is that those responsible for reviewing his case have all been senior members of the New Zealand judiciary.

 

It should never be forgotten that in all of these cases the New Zealand Court of Appeal upheld the wrongful conviction of innocent men. Evidentiary insecurity – in all cases due to “lapses” in the gathering and retention of crucial forensic material and/or testimony – was never considered by the Court as being of sufficient weight to vacate the earlier verdicts. Not even when, in the Ellis case, the evidence was patently absurd and obviously untrue.

 

And now we have the Report of Justice Ian Binnie – a Canadian jurist with a formidable international reputation – who, like so many other foreign judges, has studied the evidence used to convict a New Zealand citizen and unequivocally rejected it as unpersuasive of anything except that person’s innocence. In arriving at his conclusions he has had a few highly critical things to say about the way the New Zealand Police conducted their investigations. And, by implication, the New Zealand Court of Appeal is criticised for its failure to spot what was so clear to both himself and UK Privy Council.

 

Asked by the then Justice Minister, Simon Power, to help the Cabinet to decide whether or not to compensate David Bain for the 13 years he spent in jail, Justice Binnie could have had no inkling of the insults to which Power’s successor, Judith Collins would subject him.

 

Collin’s behaviour is explicable only in terms of the New Zealand Establishment’s blank refusal to be corrected. Upon receiving Justice Binnie’s report her first instinct was to pass it on to the Solicitor General and the Police. The Canadian judge had dared to suggest that they had erred – a conclusion which was plainly false since the New Zealand authorities are incapable of error. In spite of passing on the report to parties which were, in effect, Bain’s opponents, the Justice Minister did not think it proper to provide a copy to the legal representatives of the man most directly involved. Not content with this extraordinary breach of the basic principles of fairness, she then commissioned a former New Zealand High Court judge, Robert Fisher QC, to “peer review” the former Canadian Supreme Court Judge’s findings.

 

The Minister’s extraordinary behaviour was then compounded by her decision to unleash a campaign of public denigration against Justice Binnie. The eminent jurist was painted as an incompetent assessor of evidence and accused of having a poor understanding of “New Zealand Law”. In a chilling example of ruthless politicking, Collins withheld Justice Binnie’s report until Fisher QC’s critique of its findings could be released simultaneously. In this way Bain’s opponents would have a ready counter to Justice Binnie’s conclusions.

 

The rest of the world will look askance at a New Zealand Cabinet Minister’s public denigration of an internationally renowned jurist. Collins’ conduct condemns us as a nation of ignorant and politically reckless barbarians. Her seeming disregard for the ability of future New Zealand governments to access expert international legal advice renders her unfit to hold the office of Justice Minister, and her failure to honour the most basic requirements of natural justice should attract the strong censure of the New Zealand Law Society.

 

Will it happen? Probably not. Judith Collins’ behaviour is entirely consistent with the New Zealand Establishment’s “incorrectable” traditions. The Prime Minister has already cast the cloak of his protection over her shoulders, and that part of the population which prefers to believe that its political, judicial and economic masters are as blameless and honourable as they are disinterested and incorruptible will cheer her to the echo.

 

Better by far that ten innocent people remain incarcerated than the corrupt New Zealand Establishment which wrongfully convicted them ever be held accountable.

 

This posting is exclusive to the Bowalley Road blogsite.

More on the Bain Case

Challenging the "official" version: Joe Karam, David Bain, and the Defence Team exposed the the State's failures - a sin not easily forgiven by bourgeois New Zealand.

An anonymous commentator responded to my "David Bain and the class divide" posting by dismissing it – along with my focus on class issues generally – as both nonsensical and overly simplistic. This is my response.

Nonsense Anonymous? Simplistic? I don’t think so.

You claim that the national division of opinion over Bain’s innocence/guilt breaks along intelligence rather than class lines. Well, forgive me, but it is difficult to conceive of a more forthright assertion of class prejudice.

The association of intelligence with class advantage is well established historically. This is because the modern middle-class, until relatively recently, was limited in the degree to which it could transfer the social advantages it enjoyed to its offspring. High progressive taxation and death duties militated against the straightforward transfer of physical capital from one generation to the next, and so most middle-class effort was directed at securing, and passing on, its cultural capital.

Obviously, the key to securing cultural capital, along with all the advantages it brings in terms of access to the professions, and hence higher social status and income, lay in gaining control of the education system. Educational institutions, along with familial example, are the prime conveyor-belts of cultural capital. Making sure that their children had access to the best teachers, the most lavish educational infrastructure, and the most appropriate (i.e. professionally oriented) curriculum has been, and remains, one of the most important "jobs" of the middle-class as a distinct social formation.

Equating the ability to negotiate this complex pedagogical system successfully with "intelligence" has always been crucial to the middle-class’s claim that society operates on "meritocratic" principles. If people "fail", it is vitally important that they are seen to do so simply because they fall on the wrong side of life’s great bell curve. It certainly has nothing to do with a system quite consciously designed to advantage one class over another.

If you’re really interested in this stuff, I strongly recommend the writings of Barbara Ehrenreich and Prof. James Flynn.

Now, let’s return to the "class struggle" aspects of the Bain case.

The case has always been problematic for the middle-class because of the extremely confused and conflicting signals it has transmitted over the past 15 years.

The default position of the middle-class on practically every issue – economic, social, political and legal – is to remain safely within the boundaries of the "official view". In the Bain case that meant trusting the police evidence, the original trial judge’s exclusion of critical evidence, and accepting the first jury’s verdict. The "safety" of this position was further reinforced by the Court of Appeal’s upholding of the original verdict.

Karam’s refusal to accept the "official" verdict against Bain marked him out as a threat to all "right-thinking" and "intelligent" citizens. The growing body of evidence that Bain had been the victim of a serious miscarriage of justice – much of it from professionals like themselves – could, therefore, be swept under their mental carpet and ignored. The emotional energy required to repress the logical consequences of Karam’s new evidence was, however, bound to multiply the irrational elements in the bourgeois mindset.

The mentally dislocating effect of the Privy Council’s rejection of the "official" result must, therefore, have been devastating. Karam’s new evidence was deemed to be compelling, and that meant that there was now a new, much more "pro-Bain" official position on the case. However, because this new official position came from outside the ambit of the New Zealand bourgeoisie, it could be dismissed as in some way illegitimate. In a very important sense, the Law Lords – by challenging the competence of the local ruling class – had "let the side down".

Which is why it was so important to secure a second conviction of Bain. Only by persuading the new jury to reaffirm his guilt could the legitimacy of the original official judgment (and hence the competence of the ruling-class and its middle-class backers) be reinstated.

The dissonant effect of seeing so many expert witnesses confront and contradict the Crown’s (i.e. the Police’s) evidence must have grown increasingly pronounced in middle-class minds as the trial progressed. The official narrative of the Bain family murders was unraveling before their eyes, and that part of their being not bound up with the "politics" of the trial, would, almost certainly, have been warning them that the Crown’s case could not possibly pass the test of "beyond reasonable doubt".

And so it proved. In just 5.5 hours the Jury acquitted Bain on all five murder charges.

The middle-class’s subsequent and quite astonishingly vicious response to Bain’s acquittal has nothing whatsoever to do with "intelligence" and everything to do with its profound resentment toward, first and foremost, the Jury, and secondly, towards Bain, Karam and the Defence team, for overturning the original official view in such a public and final fashion.

Bain has moved beyond their reach – at least in a legal sense – and it rankles.

He has not, however, moved beyond their ability to cause him grief and harm. The bourgeoisie’s control of the news media allows it to harass Bain with impunity, and prevent him from leading the quiet and unmolested existence he now has the right to expect.

And, it is here that the irrational and atavistic impulses which lie so very close to the surface in the bourgeoisie make their most frightening appearances.

In their fury at being gainsaid, middle-class opinion-formers are openly calling for the abolition of trial by jury, and promoting Europe’s inquisitorial justice system. Also under attack is the right of accused persons to remain silent, along with their entitlement to proper protection against the admission of evidence highly prejudicial to receiving a fair trial.

That the New Zealand middle-class is willing to sacrifice the protections of the common law for the inquisitorial methods of the absolutist state, testifies to the highly tenuous nature of its commitment to the democratic state.

"If juries cannot be relied upon to deliver the right verdict, then we should do away with them altogether, and leave the adjudication of guilt and innocence to middle-class professionals – like ourselves. After all, people like us don’t have the time to sit on juries, and – clearly – justice can no longer be left to the sort of dummies who do."

For the bourgeoisie, retaining control is everything.

But why?

Because, in the middle-class mind Bain represents much more than a convicted murderer. As the sole survivor of the Bain family, he has always been expected to carry the guilt – and bear the punishment – for its terrible failure to uphold core bourgeois values.

The dilapidated, squalid, stinking family dwelling: a fine (and valuable) old house allowed to go to wrack and ruin. The parent’s failed marriage: followed by their mental and moral disintegration. The waywardness of the children: with one of the daughters regularly prostituting herself. The dark hints of rape and incest. The whole, tragic picture of an attractive and talented middle-class family descending into a pit of self-neglect and social demotion. It is this, the truly terrifying spectacle of family failure and downward social mobility, that gnaws away at the middle-class psyche whenever the Bain case is contemplated.

That is the real, unspoken crime for which the entire Bain family stands condemned in the court of bourgeois opinion. For acting out the middle-class’s most fearful nightmares, it was psychologically vital that nobody emerged from 65 Every Street – "not guilty".

David Bain and the class divide

The Trial of the Century: David Bain's acquittal has provoked a storm of middle-class outrage.

HAVE YOU NOTICED that most of those who’ve come out against David Bain’s acquittal are middle class?

Quite why there should be such a glaring class divide over the verdict is puzzling. Is it simply a case of those with something to lose naturally reposing more faith in the institutional guardians of private property – the police and the courts?

Or perhaps the middle class is reacting to a rare New Zealand example of épater les bourgeoisie – skewering the middle class. Taking umbrage at the one-fingered proletarian salute from all those on the receiving end of bourgeois "justice", as they witnessed the spectacle of this strange, gangly jailbird finally making it over the cuckoo’s nest.

On the other hand, the explanation could come down to something as banal as journalistic jealousy. Unlike Arthur Allan Thomas and David Doughety, David Bain wasn’t freed by the professional skills of a tenacious and courageous journalist, but by the dogged determination of the surly ex-All-Black businessman, Joe Karam.

Openly scornful of what he regarded as the news media’s inexcusable failure to recognise a blatant miscarriage of justice, Bain’s swarthy champion made few friends on the press bench. It is in the nature of journalists to simplify and dramatise. If Karam was in David’s corner – they would be in the Crown’s.

But to blame in on the journalists doesn’t get rid of the class issue, it merely pushes it back a few steps. Journalism is very much a bourgeois trade – especially in its upper reaches. Only someone with the gift for translating the subtle, and not-so-subtle, nuances of class interaction can write a truly great tabloid headline.

Never forgetting, of course, the New Zealand journalist’s infatuation with authority and "official sources". When the Court of Appeal rejected Bain’s bid for a re-trial, few – if any – of this country’s editors were willing to second-guess the judges. Karam’s persistence in the face of the Court’s rejection was interpreted as the behaviour of a crank; someone who didn’t know when to quit.

We can only imagine their consternation when the Privy Council ordered a re-trial of the Bain case. Implicity, the British Law Lords were criticising the entire New Zealand Establishment; telling them in no uncertain terms that they were a bunch of provincial buffoons who couldn’t recognise the most rank injustice (and police incompetence) even when a layman like Karam had made sure it was staring them in the face.

No wonder they wanted Bain to be found guilty a second time. An acquittal could only be seen as vindication of every accusation Karam had ever levelled at the New Zealand Police and the New Zealand legal system – as well as a serious indictment of its news media.

So, when, last Friday, that Christchurch jury found David Bain "Not Guilty" of murdering all five members of his family, it turned out to be much more than a victory for the Defendant, Karam and their supporters. It was also a victory for the potent democratic impulse our Anglo-Saxon ancestors enshrined in the practice of judging an accused person by a jury of his or her peers. Not by the Police; not by lawyers and judges; and certainly not by editors and journalists: but by twelve ordinary men and women.

The almost obscene delight the news media has taken in revealing the highly prejudicial "secret evidence" which had been, quite rightly, suppressed by the courts prior to Bain’s trial, speaks volumes about the vigilante temperament of so many of our editors and journalists. And, it only gets worse. Because, not content with helping to defame Bain, these same middle-class journalists are now calling into question the whole institution of trial by jury.

The vindictiveness and fury of the middle-class, when robbed of its prey, is truly terrifying to behold.

So, God bless that Christchurch jury! Because, in freeing David Bain, they were, in effect, freeing us all. Not, as far too many of my journalistic colleagues seem to think, from the responsibility we all have to uphold the law, but from the oppressive power of a wayward State which, having failed in its duty to administer the law without fear or favour, persisted in that failure regardless of contradictory evidence, and heedless of the fact that it had imprisoned an innocent man for 13 years.

Ruling classes do not enjoy being told they got it wrong. But just as the Tree of Liberty must occasionally be watered by the blood of patriots, so must the keenness of Justice’s blade every now-and-again be tested on the bone-hard prejudices of the bourgeoisie.