End right to silence, Kahui inquest told

Babies Chris and Cru Kahui died of head injuries at Starship in 2006. File photo / Supplied

The country's leading authority on child protection has questioned the right to silence for defendants in some child-abuse cases.

Starship hospital's director of child protection, Dr Patrick Kelly, told the inquest into the death of the Kahui twins yesterday that he was disappointed new legislation from the Government did not include some limitations on the right to silence.

"I know it is the Holy Grail in criminal law and I mention it with temerity."

Since the trial, the Government has drafted its new Crime Amendment Bill Number Two which could see extended family and close friends of child abusers face up to 10 years in prison if they turn a blind eye to abuse and do not report it.

Dr Kelly said the Law Commission in Britain had recommended that the right to silence be removed in child-abuse cases where the accused is a caregiver of the child.

The document Dr Kelly was referring to, Children: Their non-accidental death or serious injury, recommends that jurors should be allowed to make inferences when defendants remain silent in some cases.

Babies Chris and Cru Kahui died of head injuries at Starship in 2006. Their father, Chris Kahui, was acquitted of their murders two years later in the High Court at Auckland.

His defence lawyers said the injuries were caused by their mother, Macsyna King. She denied the killings.

Dr Kelly said it was difficult to cross the threshold of "beyond reasonable doubt" unless a healthy baby was left in the house with one person, or there was a confession.

"If the way the criminal system operates is the best it can be then the media outcry is unjustified. The outcome is to be expected and it is just unfair ... If, on the other hand, we could do better, then we should."

He was also asked how the new bill might have affected the Kahui case.

Dr Kelly said there were four adults in the house when baby Cru stopped breathing momentarily and none of them chose to call an ambulance.

He said that while the new bill was unlikely to have changed their actions, it could give police more ability to act.

Under cross-examination from Mr Kahui's lawyer, Michele Wilkinson-Smith, Dr Kelly confirmed that he was aware that Mr Kahui had spoken to the police before he was arrested.

University of Auckland law professor Warren Brookbanks said the right to silence was a part of New Zealand law but there had been talk about the Government removing it in child-abuse cases. He would not be surprised if the Government did "bend".

He said at present jurors were directed not to make inferences if an accused chose not to speak to police or give evidence at trial.

CHILD PROTECTION

Dr Kelly's recommendations:
* More training for family doctors to recognise signs of abuse. Currently they get only two hours during their five-year undergraduate degree.
* Mandatory reporting of suspected child abuse by health professionals.
* Specialist child protection teams set up in every District Health Board.
* A statutory requirement for health and education workers to treat child safety as part of their responsibility.