OPINION: The inability of prosecutors to establish criminal responsibility for the horrific death from severe brain injuries of the 3-month-old twins Chris and Cru Kahui six years ago continues to frustrate many people.

After an Auckland coroner this week found that the twins suffered their fatal injuries when in the sole custody and care of their father Chris Kahui, a child advocate and others have called for an end to an accused's right not to give evidence in a criminal trial.

While Kahui elected not to give evidence in his trial for the murder of the twins, he could not avoid giving evidence to the coroner. The frustration is understandable, especially in view of the different outcomes, but while outright abolition of the right to silence is not necessary, some modifications should be considered.

The case was one where the law seemed powerless from the outset. A co-ordinated lack of co-operation by many of those around the twins at or near the time they suffered their injuries meant the police were seriously hampered. Nonetheless, some months after the twins' deaths, Kahui was arrested on a charge of murder. After a lengthy trial in which Kahui gave no direct account of what happened, a jury acquitted him of the charge.

The right of an accused not to give evidence is a long- standing one. It is based on the principle that no person should be compelled to incriminate him or herself. One reason for it stems from the fact that, in New Zealand's adversarial system of criminal justice, it is entirely the obligation of the prosecution to prove its case beyond reasonable doubt. There is not only no requirement on the accused to give evidence, he or she may elect not to call any evidence at all.

In New Zealand, the right not to give evidence goes further than a mere right to silence. It is conventional when the right is exercised for a judge to instruct the jury that they are not to draw any adverse inferences from the fact that they have not heard from the accused. On many occasions, this direction must appear to juries to fly in the face of common sense and cause them some difficulty.

In this, New Zealand law now diverges from the law in England. There, the right to silence has been greatly reduced. If, for instance, an accused declines to give evidence in his or her own defence, the court "may draw such inferences as appear proper".

The same applies if the accused fails to explain circumstances that they could. This does not abolish the right to silence, but it does create a risk to an accused if he or she exercises it. Provided it is carefully explained by a judge so as not to unfairly disadvantage an accused, it must make life much easier for juries. It is a change that could well be considered in New Zealand.

There is precedent for change to long-standing rights. Until recently, the so-called rule against double jeopardy meant that a person acquitted of a crime could not be charged with the same crime. This rule held even if new evidence emerged later or it became known that the acquittal had been obtained by perjury or some other illegal means.

After a gang member was cleared of murder as a result of perjured evidence the last Labour government changed the law. Now, if new and compelling evidence emerges after an acquittal or the acquittal was obtained by an illegality, an accused may be tried again.

The law was passed too late to apply to the Kahui case and, in any event, there is no suggestion that either of those conditions could be met.

- © Fairfax NZ News

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