Twelve members of the jury - who took only minutes after a seven-week trial to find Chris Kahui not guilty of murdering his twins - must be worrying “how could we have got it so wrong?”
And they must wonder too what compelling new evidence coroner Garry Evans heard at the inquest into the three-month-olds' deaths, testimony which prompted him to positively link the twins' injuries to their father.
Others - both inside and outside legal chambers - may worry as I do whether the judgment breached the act governing such hearings?
The Evans judgment: “The court is satisfied, on all the evidence before it, to the required standard of proof, that the traumatic brain injuries suffered by Chris and Cru Kahui were incurred by them during the afternoon/early evening of June 12, 2006, whilst they were in the sole custody, care and control of their father.”
He said that on the level of proof he applied - “on the balance of" "probabilities” - he was “satisfied to the point of being sure”.
The problem: As it stands, Coroner Evans appears to have overstepped his legally defined role in the Coroners Act which specifically rules out such a verdict from a coroner.
That act's wording: That coroners should “so far as possible … establish the causes of death and the circumstances of the death … NOT determine civil, criminal or disciplinary liability".
The Evans judgment's combination of “sole custody, care and control” and references to “traumatic brain injuries” doesn't seem to leave doubt as to his suspect.
Except that the Coroners Act specifically rules out such a judgment.
Either this type of pseudo criminal case verdict should be left to criminal trials with coroners told to stick to the letter of that present rule on cause of death, etc, but no findings on “criminality or culpability” or the Coroners Act 2006 should be amended to legalise it.
Significantly too, my reference files show that chief coroner Neil McLean seemed to mirror the act exactly when he weighed up a possible inquest specifically on the twins back in May 2008 soon after the Kahui acquittal.
He said then: “An inquest does not consider criminality or culpability, instead tries to establish how a death happened and what can be learned to help avoid similar circumstances in the future.
"The reality is often a trial, particularly if there's an acquittal, means that not all relevant issues are actually being canvassed because the focus of a trial is different from what an inquest may be.
"I've got to weigh up a number of factors, including whether there is any point to an inquest.
“Are there sufficient unresolved issues that an inquest could investigate. Bearing in mind an inquest can't go over the coals of criminality or culpability?"
Well this inquest judgment did. I heard him repeat that “not-consider criminality-or-culpability” ruling to Mary Wilson on National Radio a few hours after the release of the Evans judgment when he simply defined this inquest judgment as “uncommon”.
No hint of concern and pointedly avoiding debate on whether what was said should have been said. In his Kahui judgment, coroner Evans spelt out a definition of the act that an inquest was an inquisitorial hearing to determine facts, not a murder trial. True.
That in criminal cases, like the Kahui murder trial, the standard of proof is the higher "beyond reasonable doubt". True.
That the standard of proof required in civil court cases was “on the balance of probabilities". True.
And that using this civil standard of proof in this case he was "satisfied to the point of being sure".
Which in itself sounds like simply another version of the criminal case verdict of “beyond reasonable doubt”.
Coroner Evans: "The question of how the twins came to meet their deaths is quite different to the question of whether Chris Kahui bears any responsibility in terms of the criminal law for their deaths. He has been found (by a jury) to bear no such responsibility."
But does that “balance of probabilities” and being "satisfied to the point of being sure" breach the act?
There's no question how the Kahui twins died.
Is it good law to use a standard of proof retained for civil cases - and officially not part of inquests - to rule so apparently positively on criminal actions? Particularly, when the act which coroners work under says that's beyond their brief.
As is “going over the coals of criminality or culpability", as Judge McLean described it four years ago.
Judge McLean should perhaps think again. The Evans verdict on the Kahui deaths seems to go well beyond that “no criminality or culpability” ruling and not meet obligations under the act.
As a result, the media were justified, for instance, when they said - some in huge headlines: “Coroner points the finger at Kahui.” Did he ever?
Which brings us back to the original Kahui inquest judgment which coroner Evans apparently completed months ago but had to withdraw and change.
Why? Apparently, because Kahui, through his counsel. formally objected - as he was legally entitled to do - to something said in that draft.
If the revised and released edition is any indication just how much further did the coroner go with his opinion in the first draft he was forced to change?
What did he say then which was unacceptable and edited out later under pressure?.
How much further might it have offended the “no criminality or culpability” rule if it had been released then?
How different is “satisfied to the point of being sure" from “guilty beyond reasonable doubt” which was something the coroner was legally obliged to avoid?
I am not expressing a view on the jury verdict - swift and all as it was.
I'm not slating coroner Evans for his “satisfied to the point of being sure".
He's entitled privately to believe what he likes.
But the Coroners Act seems to make very clear that he should not have used a sort of Clayton's version of “beyond reasonable doubt” guilty verdict - particularly on a man who has been acquitted by a jury. He should simply have ruled on how the twins died and what lessons had been learned. Perhaps one lesson: Be aware of your job description.
★ ★ ★
In the mailbag: A citizen journalist made his own inquiries on asbestos in the civic centre: “It's still in the Civic Building.
“I talked to chief executive Doug McKay and he says it's on every single level, mainly throughout the lift wells and in all the corners of the block.
"It could not be removed from these areas when attempts were made some years ago to rid the building of it all because the entire building would have to be taken apart.
“These areas are the most difficult in terms of access and work.
‘”So you are quite wrong to say ‘so much for asbestos' and to cite Dame Cath Tizard's claims. She's wrong too.”
- © Fairfax NZ News
