A child advocate believes changes need to be made to the right to silence law in the wake of a Coroner's report into the deaths of the Kahui twins.
Coroner Garry Evans found the twins' fatal injuries were inflicted while they were in their father Chris Kahui's "sole custody and care", and he has ruled out any involvement from their mother Macsyna King.
The findings, released following an inquest in 2011, are a new development in a case that started when three-month-old boys Chris and Cru Kahui died from brain injuries in Auckland's Starship Hospital six years ago.
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After the family initially refused to co-operate with police in their homicide investigation into the twins' deaths, Kahui, then aged 21, was charged with their murders. He maintained his right to silence throughout the trial and was acquitted by a jury in 2008.
Former Families Commissioner and child advocate Christine Rankin said the case shows a shake-up is needed in the justice system.
"You talk about the right to silence, I think that the right for justice outweighs the right to silence," Rankin told TV ONE's Close Up.
"It just seems to be we go out to protect people who don't deserve the protection. Those babies don't seem to matter."
However Simon Moore, who was the Crown prosecutor when Kahui stood trial, said there are a lot of issues that also need to be considered.
"I'm pretty hesitant to get into this whole question of the right to silence. This gets bandied around a lot," he told Close Up.
"We've got a Law Commission which is a terrific organisation with highly trained and skilled people who look at these issues. They're always looking at ways in which we can do things better."
Britain has removed the right to silence and brought in a penalty if people do stay silent but Justice Minister Judith Collins has ruled out New Zealand following suit.
Moore said studies in Britain showed acquittal rates in child homicide cases were at around 25% and there is "no reason" to expect that they would be any different in New Zealand. The conviction rate for other forms of homicide in New Zealand sits at "between 80 and excess of 90 percent," Moore said.
"So there is something wrong in terms of our ability to bring these cases to trial successfully," Moore said.
Further charges possible
Despite the Coroner's findings, Kahui cannot be tried again for the killing of the twins because of the law at the time.
But he could face other criminal charges, legal expert Jeremy Finn said.
"They may want to consider charging him with failing to provide the necessaries of life for the twins," he said.
Police say they are still reviewing the evidence from the coroner's inquest.
Mother 'exonerated'
Kahui's defence claimed that Macsyna King was responsible for the deaths, but she denied this at his trial and at the inquest.
Evans said in today's report that the allegation King was responsible for the infliction of the twins' fatal injuries "lies unsupported by the evidence and is without substance in fact".
King's lawyer said her client felt the coroner's findings ''have completely exonerated her''.
''They found that she did not injure her twin boys," Marie Dyhrberg said.
Dyhrberg said evidence at the coroner's hearing showed King had cared for Chris and Cru.
"What came out of the coroner's inquest was evidence from the agencies that were called in and dealt with the twins and they found they were warm, they were cared for, they were flourishing under her care.
"As far as Macsyna is concerned she did as much as she could to look after those children. Of course you have somebody who is sharing a house with others."
Moore said the media needed to "take a good look at itself" in the wake of the Coroner's report.
"Macsyna King was undoubtedly demonised, but I think it leads us to a wider issue here," Moore said.
"The way in which the media portrays those who are intimately connected in these proceedings can be extremely unhelpful, and I'm putting that in the mildest way. It actually affects fair trial rights."
Dyhrberg said King had been unfairly blamed for the twins' deaths since the beginning.
"She spent years being hated. But she had to sit quietly until the inquest was over. Now she can say publicly, 'I didn't do it'.
''People said the most dreadful things about her, based on no evidence.''
She said the media and public had "really jeopardised" King's right to a fair trial and she hoped lessons could be learned from the case which took the judicial system to a "dark place".
Dyhrberg said her client was now going to "put her life back together".
Evidence 'unreliable'
The coroner said the allegation that King's brother Stuart King might have brought about the twins' deaths is also unsupported by the evidence and without substance.
Evans said the twins were injured in the same manner, at the same time and at the hands of the same person.
The coroner also said in his report: "The evidence given by Chris Kahui was unreliable, conflicting and, on many occasions, untrue."
But Kahui today rejected outright the findings of the Coroner's Court and again denied any involvement in his sons' deaths.
In a statement released by his lawyer Lorraine Smith, Kahui said he objected in the strongest possible terms to the coroner's findings and criticisms of him personally.
Feeding
In his report, Evans said statements made by Kahui to police that he had continued to feed the twins after King and another woman left the house on June 12 were false.
The coroner said Kahui knew the twins had ceased to feed and cry out for food and that they were very unwell and in need of urgent medical help. But at no time during the later afternoon-evening of June 12 and the next morning did Kahui arrange medical help for them, Evans said.
Had the twins been taken to hospital after Cru had stopped breathing on the evening of the 12th, their lives might have been saved, the coroner said.
King did not return to the house until the following morning. And when Kahui and King took the twins to a doctor that day, Kahui did not tell the doctor the twins had not cried or fed for almost 24 hours, Evans said.
Told by the doctor they should be taken to hospital straight away, Kahui drove on past the hospital, refused to accompany King to hospital with the twins, left her with them at home and went for a walk.
On his return, he refused to join King at the hospital and played a video game instead.
The coroner said the behaviour of Kahui throughout this period was "incompatible with what might reasonably be expected of a caring father who had nothing to hide about his care of his children".
Child protection
In his report, Evans recommends the Government establish "effective and appropriately-resourced" child protection teams in each health board district under the management and control of the District Health Board.
The teams would have the ability to identify children and young people at risk and intervene in the interests of their health and safety.
The coroner also wants the Government to give health and education authorities legal responsibility for child protection, and oblige them to work with other state agencies concerned with the protection of children.
He also wants health professionals given a legal obligation to report to CYF, or another body, documented instances of child abuse or suspected cases.
Kahui said in his statement that although he strongly disputes and is most dissatisfied with the outcome of the Inquest, it is important for all involved to bring matters to a close so far as ongoing legal processes flowing from the tragic deaths of the twins are concerned.
He is therefore,
as revealed on Monday ,
discontinuing his judicial review proceedings in the High Court
brought against the Coroner's Court.
- With Fairfax