David Bain's retrial is now in the hands of the jury. Their verdict will bring down the curtain on a superb piece of legal theatre

There's a reason why so many movies and TV shows are set in the criminal courtroom. Trials not only revolve around the seamiest, hence most enthralling, of human activities (sex, violence, deceit and greed), but they operate in a neatly packaged format involving clear and predictable procedures. The prosecution has its say. The defence has its rebuttal. Witnesses come and go, with the cross examination providing ample opportunity for a dramatic twist. There's a judge to keep everything in check. And at the end of it all, there is the jury filing back into their seats, providing the ultimate black and white resolution of "guilty" or "not guilty". It all makes Aristotle's six-part theory of tragedy look like mere amateur night improv!

(It's this basic theatricality that makes the criminal justice process seem so unreal to those who have experienced firsthand the events behind it. If you're the victim of some crime, or if you're standing in the dock as the accused, the arcane ritual and methodical picking apart of seeming trivia must appear entirely disconnected to what actually happened to bring you to that place. Yet it is the events in the courtroom that finally matter – that must "give closure" or "provide justice" to those who have experienced perhaps the worst thing to ever happen to them.)

This point – the criminal trial as theatre – also got me to wondering: which dramatist's style does courtroom procedure most resemble? My money is on Harold Pinter. It has his simple, repetitious dialogue carrying an undercurrent of unsettling menace: "Did you go out that night?" "Yes, I went out that night"; "Did you wear a black hoody?"' "Yes, I wore a black hoody". It has his trademark long pauses, as the court stenographer records the transcript. Hell, if this description of Pinter's ouevre from his Nobel Prize citation doesn't describe a criminal trial, I don't know what does!

In a typical Pinter play, we meet people defending themselves against intrusion or their own impulses by entrenching themselves in a reduced and controlled existence. Another principal theme is the volatility and elusiveness of the past.

And now we're all waiting on the denoument to "undoubtedly the most extraordinary case in New Zealand's history", The Bain Case. Frankly, I've no idea which way it'll turn out. I have my own views on what happened at Every St back in 1994, but the "truth" of the matter is not as important as what the 12 folks on the jury make of what has taken place in front of them over the last three months. And what that jury has witnessed is a performance.

There's the prosecution, telling the story of the Bain killings as a straight matter of logic and science. In what could be a promo for CSI, prosecutor Kieran Raftery channelled William Peterson and "told the jury there is not a single piece of forensic evidence that links Robin Bain to the murders of his family, but there is a volume of evidence connecting David Bain to his younger brother's bedroom." Use your head, not your heart, and all will be clear.

Ah, says the defence, but what is the head without the heart? The police and their experts concluded early on that David was guilty, and so stopped looking for anything that said he wasn't. Even worse, the police were so sure of his guilt that they stooped to planting evidence. Yet, why would this "nice, friendly, jovial 22-year-old with the new girlfriend, cutting a CD on the preceding Friday" want to kill his entire family?

Furthermore, defence lawyer Michael Reed QC has not only told his story in words, but he's played it out in his actions. There were the battles with the presiding judge over legal rulings. There was the accusation that the police sought to "gild the lilly" in their evidence. There was his snapping at photo expert Simon Schollum to just "stick to his job", and not give advice on whether his evidence supported David's case. How better to show to the jury the persecution that David and his supporters have had to overcome in the quest for truth than to play it out right in front of their eyes?

Like I say, there's still the final act to come. It may happen today. It may happen next week. Hell, it may all end in the damp squib of a hung jury, if the 12 responsible for our ending can't agree on where the story arc should go. Then there will be the critics' reviews, led by Mark Sainsbury and John Campbell, which might even include interviews with the event's star, David. And then the show will be done... until the next great trial of the century comes along.

Comments (1)

by on March 06, 2010
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