Posts by Graeme Edgeler
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Legal Beagle: On the possibilities of a…, in reply to Steve Parks,
So what do you think about this option, Graeme? (Have you blogged on it?)
I have not blogged on it. I am opposed to it. A basic part of our constitutional framework is that the state should not imprison someone unless it can prove beyond reasonable doubt that the person is guilty of a crime serious enough to warrant it. I support this, and allowing guilt to be determined not by what the prosecution can prove, but by a defendant's silence when questioned, undermines it. Silence provides no evidence whatsover that a person has done anything, and if the state wishes to imprison someone it is up to it to prove its case.
I would note that judges are permitted to do this at the moment, in circumstances where the defence being run is such that one would expect them to give evidence. The prosecution can't do it however, in its closing.
There are other practical consideration too - some defendants, even though perfectly innocent will just sound really really guilty if they give evidence, and this is more likely with inexperience/uneducated defendants etc.
But mostly, I'm about the principle on this question. You want to lock me up? Prove I'm a criminal.
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Legal Beagle: On the possibilities of a…, in reply to TracyMac,
I understand that verdict is given in very much a minority of cases, and has the effect of getting around potential double-jeopardy problems. You’d want it to be relatively rare to avoid back doors being continually left for the convenience of police/prosecutors.
Not proven has identical effect to not guilty. Scotland began with two general verdicts: proven and not proven. It was felt that not proven was insufficient, and left a cloud over the accused, so they introduced a not guilty verdict. And also changed proven to guilty (I’m not sure if this was at the same time, or subsequently).
I understand approximately one-third of Scottish verdicts are not proven verdicts.
As Keir notes, such verdicts are of exactly the same effect as not guilty verdicts – the same double jeopardy rules apply.
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Legal Beagle: On the possibilities of a…, in reply to Katita,
what about laying (new) charges against him for failing to provide the necessities of life?
I now see the news story to which you may have been referring. http://www.nzherald.co.nz/crime/news/article.cfm?c_id=30&objectid=10821986.
If the article is accurate, I guess I should be open to the possibility (it's not as abundantly clear as the retrial point is), but I do very much doubt it is permitted. The police have had their chance in holding Chris Kahui to account under the criminal law, whether these two events - the alleged killing of the boys, and the failure to take them to hospital - are closely connected enough may be debateable. Whether he can be re-tried still isn't.
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Legal Beagle: On the possibilities of a…, in reply to Rich of Observationz,
A person (such as Gwaze) can appeal a conviction, and the appeal courts can order a retrial. The prosecution can’t appeal an acquittal.
Gwaze didn’t appeal. He was acquitted at both his original trial and the new trial. The Crown appealed on a reserved question of law.
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Legal Beagle: On the possibilities of a…, in reply to David Ritchie,
Noob question: can you explain how George Gwaze was retried, and why that would/wouldn’t apply to Chris Kahui?
Yes. George Gwaze was retried because at the trial a legal question arose "should this defence evidence be admitted, or not?" which was reserved by the judge. This meant that the Crown could appeal on this legal point, which is rare, and when that appeal was successful (because the defence evidence should have been excluded), they were allowed a new trial.
No matter like this arose in the Kahui case, so there was no possibility of a Crown appeal, and thus no possibility of a new trial.
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Legal Beagle: On the possibilities of a…, in reply to Glenn Pearce,
would it even be possible for him to have a fair (re)trial now the coroner has basically come out and said he is culpable ?
I think so. The research is very good at showing that once you get a jury in a courtroom, they will tend to focus on the evidence put in front of them. Unless there was a big splash of publicity about something like this shortly before the trial (say within six months), it will likely have gone from the public consciousness.
Most jurors are simply going to look at the evidence and say: “I don’t care if the police say he’s guilty. I don’t care if the coroner says he’s guilty. They’re not on the jury. Does the evidence of the prosecution prove it beyond reasonable doubt, or not?”
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Legal Beagle: On the possibilities of a…, in reply to Kumara Republic,
And what exactly would revoking the right to silence entail, doing an Abu Ghraib?
Revoking the right to silence would entail allowing a judge, in more circumstances than are presently permitted, to tell a jury:
You will have noted that the defendant did not give evidence. Defendants are not required to give evidence, and you may wonder why he did not. You should not convict solely on the basis that the defendant chose not to give evidence, but you may look at the decision of the defendant not to give evidence as one factor you may take into account when reaching your verdict. How much weight you put on that factor is up to you.
Or:
The defendant gave evidence, giving you his story of what happened on that day. You may be asking yourself: why did he say that now, and not tell that to the police when he was questioned on the day after the murder? That is one factor you may wish to consider when considering whether to accept the evidence you heard from the defendant. How much weight you put on that factor is up to you.
This already happens in the UK, and I suspect in a number of other countries as well.
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Legal Beagle: On the possibilities of a…, in reply to Katita,
Graeme – what about laying (new) charges against him for failing to provide the necessities of life?
Nope. Double jeopardy covers events, not particular charges. Chris Kahui has been charged and acquitted over the events involved in the deaths of his two sons. That's it. We can't go back and charge him with manslaughter, or failing to provide, those options were available to police at the time as alternative or additional charges, and they don't involve a separate set of actions (like, for example, a charge - which I am not suggesting in any way could apply here - of perverting the course of justice).
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The stuff article I orginally quoted (still linked here) appears to be an on-line only version combining elements of different Fairfax stories, and while it is still wrong, as there is now another article directly on point, and just as misleading, I decided to quote from that instead.
http://www.stuff.co.nz/national/crime/7342551/Kahui-unlikely-to-be-charged-with-murders-again
Accordingly, I've taken out the quote from the overall article, and replaced it with the quote from the article which directly addresses the double jeopardy point. (Hopefully) needless to say, any article that implies Chris Kahui could face a second trial in respect of the deaths of his sons, absent some future law change, is wrong.
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Legal Beagle: On the possibilities of a…, in reply to Richard Aston,
If the coroner''s finding we published before or during the trial would that have made a difference?
Steve has it. Coronial Inquests are basically prohibited from happening while criminal processes are ongoing. Section 68 of the Coroners Act states:
68 Procedure if person charged with offence
(1) This subsection applies to a coroner to whom a death has been reported under section 15(2)(a) or section 16(2)(b) and who—
(a) has been informed that some person has been, or may be, charged with a criminal offence relating to the death or its circumstances; and
(b) is satisfied that to open or (as the case requires) proceed with an inquiry might prejudice the person.(2) A coroner to whom subsection (1) applies may—
(a) postpone opening an inquiry into the death; or
(b) open an inquiry into the death and then adjourn it; or
(c) adjourn an inquiry already opened into the death.(3) A coroner who has under subsection (2) postponed or adjourned an inquiry must not open or proceed with it until criminal proceedings against the person have been finally concluded (as defined in subsection (6)).
(4) Subsections (2) and (3) do not limit or affect sections 44 and 45 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (which require the coroner to notify a Registrar of the death).
(5) Despite subsection (3), a coroner who has under subsection (2) postponed or adjourned an inquiry may later open or resume it if satisfied that—
(a) the person is no longer to be charged with a criminal offence relating to the death or its circumstances; or
(b) to open or resume it would not prejudice the person charged, or thought likely to be charged, with a criminal offence relating to the death or its circumstances.(6) Criminal proceedings are finally concluded for the purposes of this section if no appeal (or, as the case requires, no further appeal) can be made in the course of the proceedings unless the High Court, Court of Appeal, or Supreme Court grants an extension of time.