Editorial: A measure of justice

20:21, Jul 25 2012

The coronial findings in relation to the deaths of the Kahui twins highlight a thorny issue that can be described as the unhappy balance between the law and legal principle on the one hand, and on the other, pejorative expressions of the need for justice to be done.

In saying he is “satisfied to the point of being sure” that Chris Kahui was present when the fatal injuries were inflicted, the coroner is not simply expressing an opinion, albeit an official one with legal force. He is saying, very clearly, that he was satisfied to the criminal standard of proof that Chris Kahui caused the deaths.

This leaves hanging whether people charged with crimes should be compelled to give evidence. In this case, it seems such a rule would be just, especially recalling the infamous silence from all concerned in the hours and days following the deaths. But what of Ewen Macdonald, Arthur Allan Thomas, David Bain and any accused who may (or may not) be in the wrong place at the wrong time?

There are at least two significant differences between the business of the coroner's court and the criminal court. First, the coroner can require witnesses to attend and be questioned, which an accused person cannot be compelled to do in criminal proceedings. Ewen Macdonald's acquittal highlighted that but it is commonplace and, rightly or wrongly, more than a few people have walked free because of it.

Secondly, the coroner can make a decision based on a standard known as "the balance of probability" in other words, more probable than not. This is easily understood by the numerical 51 per cent or a C-exam pass. It is the same standard as applies in civil proceedings: contract and negligence claims, family and employment court matters and the like.

In contrast, the widely known criminal standard is "beyond reasonable doubt". Its numerical equivalent is 100 per cent and when summing up to juries and directing on the law, this standard is expressed by trial judges as ‘being sure'.


And that is why the coronial finding is so important. The coroner was saying, after hearing witnesses, including the father of the victims, that he was satisfied of his conclusion to the criminal standard. It is no wonder Kahui had been trying, for six months, to keep these findings from the public. The coroner described his evidence as “unreliable, conflicting and, on many occasions, untrue”.

So far so good, but that is still not the same thing as saying Chris Kahui intentionally killed the boys, as opposed to, for example, treating them violently in a misguided attempt to quieten them, or for some other, darker motive short of the intention to kill. As noted in the reports, the coroner is not alleging the acquitted murder but rather is unequivocally linking Chris Kahui to the deaths in a causative way: it is not the same thing.

However, on that basis, Kahui cannot be heard to complain about this result, although he seems to be anyway. And while to some extent vindicated, none of this congratulates the mother for the domestic situation she was in or the general upbringing of the babies. Even so, there is now finally some justice for Chris and Cru.

■ Tim Jackson is a former practising Timaru solicitor, with criminal trial experience.

The Timaru Herald