On the possibilities of a retrial of Chris Kahui (edited)

10:30 Jul 25, 2012 34

After a fair bit of legal wrangling, the decision in the inquest into the deaths of Chris and Cru Kahui has been released. I haven't read it, but from media reports, it appears to lay the blame squarely on their father. The New Zealand Herald reports the Coroner as saying:

The coroner said he was satisfied on the "balance of probabilities", which is the standard of proof required in civil court cases.

In criminal cases, such as the murder trial of Mr Kahui, the standard of proof is the higher "beyond reasonable doubt".

Mr Evans said that if he was wrong about using the balance of probabilities as the standard of proof in this case, he was "satisfied to the point of being sure".

When Judges say "satisfied to the point of being sure" they mean satisfied beyond reasonable doubt.

But I'll leave discussion of that up to others. I, naturally, am going to focus on the criminal procedure aspects of it, because that is what I do.

The article carried on Stuff.co.nz, and I presume in one or more Fairfax publications, includes the following:

Despite the coroner pointing the finger of blame at Chris Kahui, it is unlikely he could ever be tried again for the murder of his twin sons.

Auckland University law professor Warren Brookbanks said the only way Mr Kahui could be charged with the murders again would be if “dramatic” new evidence against him emerged.

In a case such as the deaths of 3-month-old twins Chris and Cru, in which there was no "smoking gun" evidence that could prove who killed them, it would take a confession to reopen the case, he said.

This is because of New Zealand's "double jeopardy" laws, enshrined in the Bill of Rights Act, which protect people against the “patent injustice” of being punished twice for the same offence.

However, in 2008 Parliament agreed there were exceptional circumstances in which a second trial could be appropriate. Those circumstances include a "tainted acquittal" due to perjury, bribery or fabricated evidence.

Someone could also be tried a second time if new and compelling evidence came to light.

But that was a high threshold to meet, Mr Brookbanks said.

“It would have to be something in the nature of a confession or some very powerful evidence that points towards the guilt of the person that's been acquitted.

"It's likely to be fairly rarely the case that such evidence would come forward, certainly after a major trial where the police have put a lot of resources into getting a conviction in the first place.

"It would have to be something out of left field that was completely unanticipated or unknown at the time of the original prosecution.”

There have been no cases yet in New Zealand of a second trial for murder after an acquittal because of fresh evidence.

This is highly misleading. Even if Chris Kahui confesses, and presents police previously hidden video footage of him shaking his children, he will not be tried again for their murder (or anything else to do with their deaths).

I examined the new exceptions to the double jeopardy in my previous posts on changes to our criminal procedure, but THESE LAW CHANGES DO NOT APPLY TO THE KAHUI CASE.

The new provisions of the Crimes Act, and the provisions in the Criminal Procedure Act yet to come into force, do allow retrials in limited circumstances where fresh and compelling evidence is found, or where an acquittal was tainted by perjury, but they do not apply to cases where the acquittal was entered before 26 June 2008. And Chris Kahui was acquitted on 22 May 2008.

A retrial of Chris Kahui is not so much "unlikely" as impossible. Unless Parliament wants to pass a Bill of Attainder, Chris Kahui is never going to be tried again for causing the deaths of Chris and Cru.

Edit: I have chosen a new Stuff Article to quote, with notes about this in a comment below. Also, please note that I am not faulting the actions of either Fairfax or of any journalist. Other than not yet correcting their story based on the rantings of some guy on the Internet, they appear to have done exactly what I'd expect of a professional news media [also, I don't really expect some quick retraction based on my musings].

34 responses to this post

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Graeme Edgeler, 10:34 Jul 25, 2012

Would you believe it? I remembered to turn on comments!

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Richard Aston, 11:56 Jul 25, 2012

Wow !
And why did the coroner's inquest lag so far behind the trial ?
If the coroner''s finding we published before or during the trial would that have made a difference?

Northland • Since Nov 2006 • 510 posts Report
Steve Curtis, 12:03 Jul 25, 2012

Richard there would be no way the Coroner would publish before or during the trial.
Mostly a trial establishes who was responsible.

Auckland • Since Nov 2006 • 314 posts Report
Graeme Edgeler, in reply to Richard Aston, 12:18 Jul 25, 2012

If the coroner''s finding we published before or during the trial would that have made a difference?
Steve has it. Coronial Inquests are basically prohibited from happening while criminal processes are ongoing. Section 68 of the Coroners Act states:
68 Procedure if person charged with offence
(1) This subsection applies to a coroner to whom a death has been reported under section 15(2)(a) or section 16(2)(b) and who—
(a) has been informed that some person has been, or may be, charged with a criminal offence relating to the death or its circumstances; and
(b) is satisfied that to open or (as the case requires) proceed with an inquiry might prejudice the person.
(2) A coroner to whom subsection (1) applies may—
(a) postpone opening an inquiry into the death; or
(b) open an inquiry into the death and then adjourn it; or
(c) adjourn an inquiry already opened into the death.
(3) A coroner who has under subsection (2) postponed or adjourned an inquiry must not open or proceed with it until criminal proceedings against the person have been finally concluded (as defined in subsection (6)).
(4) Subsections (2) and (3) do not limit or affect sections 44 and 45 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (which require the coroner to notify a Registrar of the death).
(5) Despite subsection (3), a coroner who has under subsection (2) postponed or adjourned an inquiry may later open or resume it if satisfied that—
(a) the person is no longer to be charged with a criminal offence relating to the death or its circumstances; or
(b) to open or resume it would not prejudice the person charged, or thought likely to be charged, with a criminal offence relating to the death or its circumstances.
(6) Criminal proceedings are finally concluded for the purposes of this section if no appeal (or, as the case requires, no further appeal) can be made in the course of the proceedings unless the High Court, Court of Appeal, or Supreme Court grants an extension of time.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Katita, 12:57 Jul 25, 2012

Graeme - what about laying (new) charges against him for failing to provide the necessities of life?

Auckland • Since Nov 2006 • 67 posts Report
Graeme Edgeler, 13:01 Jul 25, 2012

The stuff article I orginally quoted (still linked here) appears to be an on-line only version combining elements of different Fairfax stories, and while it is still wrong, as there is now another article directly on point, and just as misleading, I decided to quote from that instead.
http://www.stuff.co.nz/national/crime/7342551/Kahui-unlikely-to-be-charged-with-murders-again
Accordingly, I've taken out the quote from the overall article, and replaced it with the quote from the article which directly addresses the double jeopardy point. (Hopefully) needless to say, any article that implies Chris Kahui could face a second trial in respect of the deaths of his sons, absent some future law change, is wrong.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Graeme Edgeler, in reply to Katita, 13:06 Jul 25, 2012

Graeme – what about laying (new) charges against him for failing to provide the necessities of life?
Nope. Double jeopardy covers events, not particular charges. Chris Kahui has been charged and acquitted over the events involved in the deaths of his two sons. That's it. We can't go back and charge him with manslaughter, or failing to provide, those options were available to police at the time as alternative or additional charges, and they don't involve a separate set of actions (like, for example, a charge - which I am not suggesting in any way could apply here - of perverting the course of justice).

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Richard Aston, in reply to Steve Curtis, 13:12 Jul 25, 2012

Mostly a trial establishes who was responsible
Thanks Steve and Graeme for the clarification. Hey I am no lawyer but it just seems odd to me that a Coroner's inquest can produce conclusions that challenge those found in a trial but after the fact. I don't understand the thinking behind this.

Northland • Since Nov 2006 • 510 posts Report
Glenn Pearce, 13:19 Jul 25, 2012

Assuming for a moment the acquittal had been post 26 June 2008, and the limited circumstances had been met (new evidence etc.) would it even be possible for him to have a fair (re)trial now the coroner has basically come out and said he is culpable ?

Auckland • Since Feb 2007 • 504 posts Report
Kumara Republic, 13:21 Jul 25, 2012

Regardless of guilt or innocence, there’s a whiff of 2 Minutes Hate about the whole thing, methinks? And what exactly would revoking the right to silence entail, doing an Abu Ghraib?

The southernmost capital … • Since Nov 2006 • 5446 posts Report
Graeme Edgeler, in reply to Kumara Republic, 13:38 Jul 25, 2012

And what exactly would revoking the right to silence entail, doing an Abu Ghraib?
Revoking the right to silence would entail allowing a judge, in more circumstances than are presently permitted, to tell a jury:
You will have noted that the defendant did not give evidence. Defendants are not required to give evidence, and you may wonder why he did not. You should not convict solely on the basis that the defendant chose not to give evidence, but you may look at the decision of the defendant not to give evidence as one factor you may take into account when reaching your verdict. How much weight you put on that factor is up to you.
Or:
The defendant gave evidence, giving you his story of what happened on that day. You may be asking yourself: why did he say that now, and not tell that to the police when he was questioned on the day after the murder? That is one factor you may wish to consider when considering whether to accept the evidence you heard from the defendant. How much weight you put on that factor is up to you.
This already happens in the UK, and I suspect in a number of other countries as well.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Graeme Edgeler, in reply to Glenn Pearce, 13:42 Jul 25, 2012

would it even be possible for him to have a fair (re)trial now the coroner has basically come out and said he is culpable ?
I think so. The research is very good at showing that once you get a jury in a courtroom, they will tend to focus on the evidence put in front of them. Unless there was a big splash of publicity about something like this shortly before the trial (say within six months), it will likely have gone from the public consciousness.
Most jurors are simply going to look at the evidence and say: “I don’t care if the police say he’s guilty. I don’t care if the coroner says he’s guilty. They’re not on the jury. Does the evidence of the prosecution prove it beyond reasonable doubt, or not?”

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
David Ritchie, 13:58 Jul 25, 2012

Noob question: can you explain how George Gwaze was retried, and why that would/wouldn't apply to Chris Kahui?

Since Nov 2006 • 166 posts Report
Rich of Observationz, in reply to David Ritchie, 14:03 Jul 25, 2012

A person (such as Gwaze) can appeal a conviction, and the appeal courts can order a retrial. The prosecution can't appeal an acquittal.

Back in Wellington • Since Nov 2006 • 5550 posts Report
Graeme Edgeler, in reply to David Ritchie, 14:08 Jul 25, 2012

Noob question: can you explain how George Gwaze was retried, and why that would/wouldn’t apply to Chris Kahui?
Yes. George Gwaze was retried because at the trial a legal question arose "should this defence evidence be admitted, or not?" which was reserved by the judge. This meant that the Crown could appeal on this legal point, which is rare, and when that appeal was successful (because the defence evidence should have been excluded), they were allowed a new trial.
No matter like this arose in the Kahui case, so there was no possibility of a Crown appeal, and thus no possibility of a new trial.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Graeme Edgeler, in reply to Rich of Observationz, 14:09 Jul 25, 2012

A person (such as Gwaze) can appeal a conviction, and the appeal courts can order a retrial. The prosecution can’t appeal an acquittal.
Gwaze didn’t appeal. He was acquitted at both his original trial and the new trial. The Crown appealed on a reserved question of law.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Graeme Edgeler, in reply to Katita, 14:22 Jul 25, 2012

what about laying (new) charges against him for failing to provide the necessities of life?
I now see the news story to which you may have been referring. http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10821986.
If the article is accurate, I guess I should be open to the possibility (it's not as abundantly clear as the retrial point is), but I do very much doubt it is permitted. The police have had their chance in holding Chris Kahui to account under the criminal law, whether these two events - the alleged killing of the boys, and the failure to take them to hospital - are closely connected enough may be debateable. Whether he can be re-tried still isn't.

Wellington, New Zealand • Since Nov 2006 • 3215 posts Report
Rich of Observationz, in reply to Graeme Edgeler, 15:06 Jul 25, 2012

I stand corrected. Didn't realize that could happen.

Back in Wellington • Since Nov 2006 • 5550 posts Report
Matthew Poole, in reply to Richard Aston, 15:27 Jul 25, 2012

it just seems odd to me that a Coroner's inquest can produce conclusions that challenge those found in a trial but after the fact
Remember that the trial didn't find Kahui innocent. It only found that the Crown hadn't proved to the satisfaction of the jury that, beyond reasonable doubt, he was guilty. It's a significant distinction, and means that there was no "conclusion" to be challenged by the result of the inquest. If he'd been found guilty and the inquest then announced that it was someone else, that would have been a challenge to a conclusion that came out of the trial.

Auckland • Since Mar 2007 • 4097 posts Report
Ian Dalziel, 16:01 Jul 25, 2012

Maybe they could use one of them 'Coronial Mass Injections' I read about in The Press - but that was to do with sun spots! (epic science fail)

Christchurch • Since Dec 2006 • 7953 posts Report
Lilith __, in reply to Ian Dalziel, 16:23 Jul 25, 2012

epic science fail
Neo-Coronialism. ;-)

Dunedin • Since Jul 2010 • 3895 posts Report
Al O`Connor, 16:53 Jul 25, 2012

I wrote to stuff this morning pointing out that their report was misleading. I also wrote to the learned author of the information relied on by stuff, he responded:
Hi Alwyn
You are absolutely right. That is a matter I had completely overlooked in my very quick look at the statute. At this stage the new provisions have never been used. In the circumstances the provisions can have no application to Chris Kahui. Thank you very much for pointing that out. I have another media interview tonight. I will point that out if the issue arises .
Many thanks,

Wellington • Since Jul 2012 • 1 posts Report
TracyMac, in reply to David Ritchie, 19:19 Jul 25, 2012

This is the kind of situation, and even more so in the Ewan Macdonald case, where the Scottish verdict of "not proven" is appealing, when the preponderance of motive and evidence goes one way,but not beyond "reasonable doubt".
I understand that verdict is given in very much a minority of cases, and has the effect of getting around potential double-jeopardy problems. You'd want it to be relatively rare to avoid back doors being continually left for the convenience of police/prosecutors.

Canberra, West Island • Since Nov 2006 • 701 posts Report
Keir Leslie, 19:27 Jul 25, 2012

Not proven also stops a second trial on the same offence.

Since Jul 2008 • 1452 posts Report
Steve Parks, in reply to Graeme Edgeler, 20:05 Jul 25, 2012

Could be charged with perjury?
Also,
Revoking the right to silence would entail allowing a judge, in more circumstances than are presently permitted, to tell a jury:
You will have noted that the defendant did not give evidence. Defendants are not required to give evidence, and you may wonder why he did not. You should not convict solely on the basis that the defendant chose not to give evidence, but you may look at the decision of the defendant not to give evidence as one factor you may take into account when reaching your verdict. How much weight you put on that factor is up to you.
So what do you think about this option, Graeme? (Have you blogged on it?)

Wellington • Since May 2007 • 1165 posts Report