A legal expert says police could charge Chris Kahui, found not guilty after a seven-week trial in 2008 of the murder of his twin sons, with being a negligent parent.
After a review prompted by coroner Garry Evans, police said last week they would not lay further charges over the 2006 deaths of 3-month-old twins Chris and Cru.
The decision came three months after Evans found their injuries were inflicted while they were in their father's care, ruling out the involvement of their mother, Macsyna King.
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.
But Auckland University's law school associate professor Bill Hodge said there was a strong legal argument that police could charge Kahui for a different crime.
"There are other possibilities in the Crimes Act," he said.
Hodge said the most obvious was section 152 that says every parent, or those in charge of a child under 18, has a duty to take reasonable steps to protect them from injury.
"It's a seven-year [maximum sentence] offence, and you can be charged under that section if the child is not fed or looked after."
The twins had been left in Kahui's care while King went out. Evans found Kahui did not feed the twins that night.
After King returned and found the babies unresponsive, she and Kahui took them to a doctor, who told them to go to hospital. Instead, Kahui drove home, and King took the twins to hospital.
"The question is, was he at risk of being charged as negligent? Could he have been found guilty of failing to provide necessaries - that's the issue," Hodge said.
Whether police could charge Kahui revolved around the issue of whether being a negligent parent was sufficiently different from the homicide charge, and Hodge said there was an argument that was a "separate kind of crime".
"There is a good argument that this could be pursued as an independent charge," he said.
If that avenue were pursued, it would be the beginning of another lengthy process. "It would be a tremendous exercise," Hodge said. "The police can't just roll up and say ‘the coroner said this'. They would be back at square one."
Kahui's lawyer, Lorraine Smith, said she had not researched the law but her understanding was that negligence was part of the charge. "The Crown would not proceed with it, and I doubt the police would either."
Superintendent John Tims, of Counties Manukau police, said while no charges would be made now, if extra information came to hand, it would be considered. "The case will always be alive and active."
Family First national director Bob McCroskie said King could also be accused of negligence. "She wasn't around. You have to look at what's directly related to the critical time, that period before the deaths."
- Sunday Star Times