The blog of Dr Glenn Andrew Peoples on Theology, Philosophy, and Social Issues

David Bain and the meaning of a "Not Guilty" verdict


Today, at the conclusion of what was probably New Zealand’s most closely followed murder (re)trial ever, David Bain was found not guilty of killing his parents and three siblings in Dunedin in 1994.

I don’t quite know what I think about whether or not David did it. “What?” you might say. “But the court found that he didn’t do it!” No, actually it did not. I want to stress before writing this that I’m not saying he did it. Maybe – and hopefully – he didn’t. But this high profile case does present the opportunity to correct a mistaken, although widely held, view of exactly what a “not guilty” verdict really is. There’s a common belief afoot that when a court declares a person “not guilty,” they are making the claim about history like this:  “It’s a fact that this person did not do what he is accused of.” Some media outlets perpetuate this belief. For example in the news article linked above, we read, “Bain spent 13 years in jail for a crime the jury took five hours and 50 minutes to decide he didn’t do.”

Although common, this view of a not guilty verdict is mistaken. Yes, a person is regarded (presumed) by law as innocent until proven guilty, so the law will treat people who are found not guilty as innocent people – as it certainly should. They will still be presumed innocent by the law. But there is a difference between legally declaring a person not guilty and stating that it has been proven that they did not do what they are accused of.

In the Scottish court, a third verdict is available – “not proven.” In our court, only two are available: Guilty or not guilty. Guilty means that the evidence establishes that the person has committed the offence in question. Our broader “not guilty” verdict actually encompasses both the Scottish “not guilty” as well as the Scottish “not proven.” “Not proven” itself also encompasses both of these, since when a person is deemed “not guilty” the case against them is deemed “not proven.” The upshot of all this is that when our courts find a person “not guilty,” they are actually commenting on the case for their guilt, not on the facts of history.

If this seems a little odd to you, think of it in logical notation. In such notation the symbol ~ means “not” or “it’s not the case that.” Let G = Guilty, which means “the prosecution has established that this person committed the crime.” “Not guilty” is ~G, which means “it’s not the case that the prosecution has established that this person committed the crime.” Many members of the public aren’t aware of this, and they wrongly assume that ~G means “it is the case that the defense has established that this person did not commit the crime.” But this is not contained in either ~ or G.

Legal experts concerned about the public perception of high profile cases have been expressing this concern for some time. In 1994 Lord Donaldson advocated that Britain adopt the “not proven” verdict instead of “not guilty,” precisely because “not guilty” gives the misleading impression that the court has found a person to be innocent. “[t]he verdict of ‘not guilty’,” said Donaldson, “says nothing about innocence. It simply says that the jury was not wholly sure that the accused committed the crime.” Bear in mind after all, in order to find a person not guilty, all the defense has to do is introduce reasonable doubt. In case there was any room for doubt as to his meaning, Donaldson says again: “The only real issue for the jury is whether they are sure the accused is guilty. Whether he is innocent or not is irrelevant for their purpose, and it is a pity that this is generally not understood.” [The Mail on Sunday, 4th Sept 1994, my birthday, incidentally]

It has been established that it has not been established that David Bain committed these murders. Is he innocent? I hope so, and I certainly have no basis for treating him as guilty.

Glenn Peoples


Dualism: Plantinga’s soft spot


David Bain, reasonable doubt and defamation


  1. He is innocent because of the presumption of innocent. That is the presumption we each owe him if we are to have any faith in the justice system. I think the not proven option undermines the presumption of innocence so I don’t like it.

    However, as you rightly point out, anyone who beats a charge of this nature does not automatically clear their names but this is largely due to media reporting of cases and the resulting mistrust of court decisions.

    There are processes available for the wrongly accused to be cleared as good as innocent and Bain did try this route with the Privy Council and failed.

    I suspect, for the same reasons that the Privy Council ordered a new trial, that any attempt on his part to succeed in a compensation claim would not fly as the balance of probabilities, for which all civil actions must meet, is a lower standard than beyond reasonable doubt.

  2. As I said, he is presumed innocent (although the claim that “he is innocent” certainly doesn’t follow from the fact that he should have a legal “presumption of innocence”). All I’m getting at is what not guilty actually means, which is not the same as innocent, since our “not guilty” verdict actually includes all “not proven” cases. I make no comment on whether or not he did it (other than to say that I have no strong belief and I hope he didn’t, and of course I would treat him like a non-murderer).

    The lawyer interviewed about the possibility of compensation made it sound absurdly difficult. He said that David would have to actually prove his innocence, which seems crazy and unfair to me if the law is supposed to presume his innocence.

  3. Pauline

    Well Im not sure about all this. Been watching from Aussie as an expat and I ahve to say Im not convinced. I think he did it, and its all just too weird. If I were Jo karam Id watch my back. But he has served more than many of our murderers serve anyway, so hes probably paid his due. I hope he can find some peace, and live a productive life.

  4. Pauline, a few people think that, but the reality is – the jury sat through more evidence than any of us from our living rooms. If they have all decided that the case wasn’t enough to establish guilt, then I’d have to say they’re in a better position to know than I am.

  5. Dan

    I think you need to emphasize the corollary — “guilty” does not mean that the accused actually did the deed. I don’t know what your jury pools are like in NZ, but in the US they are dominated by folks who weren’t smart enough to think up a good enough excuse. That’s not to say all jurors are of below average intelligence, but it is a common perception of our jury system that many jurors do not spend a whole lot of their free time off their couches and away from watching Oprah.

    Given that, there is a substantial possibility that a guilty verdict is incorrect. While the state was able to use its resources to convince 6 to 12 people that the accused did the deed, that itself does not mean that the defendant did the deed.

    Case in point — the vast majority of cases in which the accused is represented by a public defender (the U.S. Constitution guarantees all criminal defendant a right to effective counsel) result in a guilty plea. About 6 years ago, the prosecutors in the county in which my brother — of whom I am inordinately proud — pressed my brother too hard to settle a drug case in which the defendant insisted that the cops had planted the drugs on the defendant when they made the arrest. When my brother got the defendant off on this issue, he started taking a much higher proportion of his cases to trial and wins an absurdly high percentage of his cases just because he puts the state to its burden of proof. This strongly suggests that there is a significant rate of errors in guilty verdicts obtained through plea bargains.

    At the end of the day, all that the guilty or not guility verdicts mean is that the state has met or not met its burden of proof. It is a proxy for truth, but not truth itself. And often not a good proxy.

  6. Dan, yes it’s true that juries are fallible, but I’m really just talking about what they do mean to say when they find a person not guilty.

    The David Bain trial is evidence of the fallibility of juries of course, as this was a re-trial where the jury reached a different conclusion from the first jury.

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