Public Address | Cafe | Legal Beagle: On the possibilities of a retrial of Chris Kahui (edited)

Kumara Republic

Sun, 21 Oct 2012 16:44:55 +1300

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.

Graeme Edgeler

Sun, 21 Oct 2012 07:45:50 +1300

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.…

Keir Leslie

Fri, 27 Jul 2012 20:09:37 +1200

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…

Graeme Edgeler

Thu, 26 Jul 2012 16:17:22 +1200

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.…

TracyMac

Thu, 26 Jul 2012 14:36:29 +1200

Ahah, thanks for clarifying the double jeopardy being the same (and Graeme). Interesting it still hangs on.

Kyle Matthews

Thu, 26 Jul 2012 12:01:12 +1200

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…

Cameron Pitches

Wed, 25 Jul 2012 22:40:27 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 21:51:13 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 21:33:27 +1200

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.…

Steve Parks

Wed, 25 Jul 2012 20:05:01 +1200

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…

Keir Leslie

Wed, 25 Jul 2012 19:27:30 +1200

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

TracyMac

Wed, 25 Jul 2012 19:19:05 +1200

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…

Al O`Connor

Wed, 25 Jul 2012 16:53:08 +1200

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…

Lilith __

Wed, 25 Jul 2012 16:23:54 +1200

epic science fail

Neo-Coronialism. ;-)

Ian Dalziel

Wed, 25 Jul 2012 16:01:30 +1200

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)

Matthew Poole

Wed, 25 Jul 2012 15:27:05 +1200

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,…

Rich of Observationz

Wed, 25 Jul 2012 15:06:56 +1200

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

Graeme Edgeler

Wed, 25 Jul 2012 14:22:56 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 14:09:14 +1200

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.

Graeme Edgeler

Wed, 25 Jul 2012 14:08:17 +1200

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…

Rich of Observationz

Wed, 25 Jul 2012 14:03:46 +1200

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

David Ritchie

Wed, 25 Jul 2012 13:58:36 +1200

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

Graeme Edgeler

Wed, 25 Jul 2012 13:42:34 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 13:38:12 +1200

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…

Kumara Republic

Wed, 25 Jul 2012 13:21:18 +1200

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?

Glenn Pearce

Wed, 25 Jul 2012 13:19:55 +1200

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 ?

Richard Aston

Wed, 25 Jul 2012 13:12:50 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 13:06:45 +1200

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…

Graeme Edgeler

Wed, 25 Jul 2012 13:01:55 +1200

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,…

Katita

Wed, 25 Jul 2012 12:57:07 +1200

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

Graeme Edgeler

Wed, 25 Jul 2012 12:18:14 +1200

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…

Steve Curtis

Wed, 25 Jul 2012 12:03:41 +1200

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

Richard Aston

Wed, 25 Jul 2012 11:56:58 +1200

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?

Graeme Edgeler

Wed, 25 Jul 2012 10:34:16 +1200

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

Public Address

Wed, 25 Jul 2012 10:34:16 +1200

Discussion from blog post.