Saturday, June 13, 2009

Whereof one cannot speak, thereof one must be silent

So, what can we say? Not a lot really; we are prohibited today from saying anything about the Mount Albert by-election, lest we sway the opinions of voters. We might want to say something about the David Bain case, but we might need an Opinion to discover whether what we want to say is permissible. However, throwing caution to the wind, I will venture to say something.

As I understand it, the Supreme Court decided last week that it would not allow the evidence about what might have been on the 111 tape to be heard by the jury. It is fortunate that the Court should reach this decision, since the jury had gone home last week, having found Mr Bain not guilty. Despite this, the Supreme Court would not allow anyone else to hear the tape, or at least the part that was disputed, until they said so. One could, though, read the Supreme Court's decision, which said what was thought to be on the tape. The Supreme Court itself decided it did not want to hear the tape, and would instead read what was said about it by Experts; it also did not want anyone else to hear it, until such time that they could.

Despite this test of self-control, some broadcasters broadcast the part of the tape which the jury had not been allowed to hear in the trial that ended in the previous week. They may now be in contempt of the Supreme Court, or one or several of the other Courts that have made decisions about this. If they had just waited a little longer, until the time that the Supreme Court decided it was acceptable to hear the tape, they would not be so contemptuous.

I may have some of this wrong. I apologise to any Court which might be reading this post for any contempt that I might have shown it. Steven, who knows about these things, suggests that the Supreme Court's decision is, in some respects, no more clear than the tape; this might be the basis of my defence.

So, you will be wondering by now (having covered your ears when it was broadcast, to avert any possibility of being in contempt), what's on the tape? Many scholars have concluded that Bain said, or aspired, the words "I shot the prick," although to my ears it sounds something like Uriah the Hittite, or possibly Pseudo-Dionysius the Areopagite (known to the Catholic Encyclopedia as Dionysius the Pseudo-Areopagite, to avoid confusion). Since Mr Bain was from a religious family and studied Classics, both are possible. But I wouldn't rely on my Opinion, if I were you - my ears are alight:


Anonymous said...

Steven didn't say that at all, Paul. He didn't really even analyse the plurality of opinion on the Supreme Court.

The truth is that they didn't need to listen to it because they were simply deciding a legal issue, not the factual issue of what the recording disclosed. It's normal for them not to listen.

Paul said...

You might have to tell more, because I am confused. The remark by Steven to which I was referring was: "There’s just one nagging question mark. There is a suggestion in the Rogers case by Justice McGrath that in some circumstances it may be an abuse of court process for a party to undermine the court’s ability to protect its processes (including its record) and thereby prejudice the administration of justice. (There, the police had - improperly, said McGrath J - leaked to TVNZ a copy of a video confession that was later ruled inadmissible)."

I accept that this is the comment of McGrath J and not the decision of the Court, but it seems to me that the matter is not settled. But then, I am no lawyer.

As for the matter of the Supreme Court not hearing the tape, my comment was only meant to draw attention to the curiosity of how some of those involved have heard the recording, others have decided not to and others have been prohibited from hearing it, while broadcasters have made it available to everyone.