Tuesday, 22 September 2009

hearsay

listening to this radio nz interview (nine to noon, 9.09am) with members of robin bain's family, i have to say that i agree with the proposition that people should have some protection from defamation during the course of a criminal trial. particularly people who are dead and are therefore no longer able to defend themselves.

in the last version of this trial, it seems to me (and as i always say, i'm no lawyer) that there were more relaxed rules of evidence around blaming a dead person for the crime. would that same evidence have been allowed if robin bain had been alive? and if not, why should it be allowed once he's dead? makes no sense to me.

13 comments:

Julie said...

I have seen some discussion recently of the idea of having someone to advocate for the deceased in court, although I'm not sure how that could work in practice, particularly in the Bain case where there were several victims (and Laniet was pretty much dragged through the mud too).

Boganette said...

You can't (legally) defame a dead person, But it can be considered defamation if what you say about the dead person reflects badly on their (living) friends and family.

But when it comes to court cases they might use the 'honest opinion' defence - which is usually used by the media for editorials.

Andrew said...

I think the defence position was quite justified in this case. David Bain maintained his complete innocence of the crimes for which he stood accused. From the defence perspective then this left one scenario and one scenario only: i.e. that Robin Bain murdered his wife and younger three children, before killing himself.

I would agree that technically David's legal team simply had to prove, or at least to create reasonable doubt, that he could not have been the perpetrator. However, realistically it was always going to be a very fine line between arguing David's innocence and the logical next step of proving Robin was the murderer. Even the Crown case involved Robin in the sense that they realised the need to eliminate him, as it were, from suspicion. Obviously the defence were then required to refute that.

Let's remember that here's a guy who's fighting to clear his name of an horrific crime. Who among us would say he shouldn't be allowed to argue this to the hilt with his version of events? If this seems defamatory to his father well all I can say is that's unfortunate but necessary. I don't think David Bain should have to accept his fate because the person he says is the killer isn't alive to defend himself. That's just not fair.

stargazer said...

but i still don't see that a dead person should have less protection under the law than a live person. and the defence, in trying to prove motive, certainly defamed both robin and his daughter. i see that as more than just unfortunate, it's unjust.

katy said...

Just curious - is "defamation" the right term?? I know it is the one the media is using but was wondering if it is appropriate in a technical/legal sense??

Hugh said...

So Stargazer you are against anybody trying to prove they are innocent of a crime by claiming somebody else did it?

Hugh said...

Katy, yes and no. Defamation is the general term but is specifically not applicable because, as Boganette says, to prove defamation you need to prove harm to a 'natural person' and a dead person doesn't fit this legal definition.

But what is being proposed here is effectively an expansion of the concept of defamation, so I guess it is appropriate, even if not strictly 100% accurate.

stargazer said...

i didn't say that anywhere hugh. i talked about dead persons having the same protections in law as living persons.

Hugh said...

So do you think David Bain wouldn't have been able to accuse his father the way he did if his father had been alive? Because that's not my impression.

katy said...

Hugh, I think the point is that if the person accused is alive they can respond to the allegations. If they are dead there is no mechanism for their estate/representatives to respond.

Hugh said...

Katy, do you think the front page Listener story whereby Robin Bain's brother argues that Robin wasn't and couldn't have been guilty is not somehow a mechanism allowing a response to this 'defamation'? Or do you think there needs to be a mechanism within the court?

katy said...

Hugh, I don't think relying on a commercially-driven media is the best option in terms of this particular problem.

Hugh said...

So you're looking at a specifically legal mechanism to achieve counterbalance?