Legal Beagle by Graeme Edgeler


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

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, 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].

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