Legal Beagle: On the possibilities of a retrial of Chris Kahui (edited)
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Graeme Edgeler, in reply to
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.
Not proven has identical effect to not guilty. Scotland began with two general verdicts: proven and not proven. It was felt that not proven was insufficient, and left a cloud over the accused, so they introduced a not guilty verdict. And also changed proven to guilty (I’m not sure if this was at the same time, or subsequently).
I understand approximately one-third of Scottish verdicts are not proven verdicts.
As Keir notes, such verdicts are of exactly the same effect as not guilty verdicts – the same double jeopardy rules apply.
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Graeme Edgeler, in reply to
So what do you think about this option, Graeme? (Have you blogged on it?)
I have not blogged on it. I am opposed to it. A basic part of our constitutional framework is that the state should not imprison someone unless it can prove beyond reasonable doubt that the person is guilty of a crime serious enough to warrant it. I support this, and allowing guilt to be determined not by what the prosecution can prove, but by a defendant's silence when questioned, undermines it. Silence provides no evidence whatsover that a person has done anything, and if the state wishes to imprison someone it is up to it to prove its case.
I would note that judges are permitted to do this at the moment, in circumstances where the defence being run is such that one would expect them to give evidence. The prosecution can't do it however, in its closing.
There are other practical consideration too - some defendants, even though perfectly innocent will just sound really really guilty if they give evidence, and this is more likely with inexperience/uneducated defendants etc.
But mostly, I'm about the principle on this question. You want to lock me up? Prove I'm a criminal.
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Cameron Pitches, in reply to
I'm not so sure about the defendant's right to silence. Silence does indeed provide no evidence whatsoever that a person has done anything. But putting him on the stand also might provide evidence that they have. Especially in Kahui's case, where it was as if Macsyna was the one on trial.
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But mostly, I’m about the principle on this question. You want to lock me up? Prove I’m a criminal.
How does that work in an inquisitorial system rather than adversarial Graeme? If you can be forced to take the stand as a defendant, would you be likely to still be able to refuse to answer questions?
And if you're not allowed to answer questions, are the consequences as you've outlined above (jury can take this into account when deciding whether you are guilty), or does it lead to a contempt of court type charge against you?
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TracyMac, in reply to
Ahah, thanks for clarifying the double jeopardy being the same (and Graeme). Interesting it still hangs on.
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Graeme Edgeler, in reply to
How does that work in an inquisitorial system rather than adversarial Graeme? If you can be forced to take the stand as a defendant, would you be likely to still be able to refuse to answer questions?
Inquisitorial systems also recognise a right to silence and a right against self-incrimination.
Many inquisitorial systems still prohibit defendants giving sworn evidence, in the same way that common law systems used to. In such cases the defendant will be allowed to give unsworn evidence instead, but it is not compulsory.
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Connelly v DPP! That's the UK one where the guy gets off on murder, but is then subsequently convicted for the aggravated robbery that occurred at the time. (But we've got a different rule, and I think that there was also some strange form of indictment thing going on.) This was nagging me all day.
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Bumping this post, because it came up again:
Kahui is all but protected from facing another homicide charge because of double jeopardy provisions in the Bill of Rights Act that say a person, once acquitted, can be prosecuted for the same charges again only if there is compelling new evidence.
Kahui is not all but protected from a new homicide charge. He is totally protected.
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Kumara Republic, in reply to
Kahui is not all but protected from a new homicide charge. He is totally protected.
Reminiscent of when OJ Simpson was acquitted of murder in the criminal trial, but subsequently found liable for wrongful death in a separate civil trial.
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