KEY POINTS:
Police investigating the death of babies Chris and Cru Kahui had a far more substantial case against the twins' mother but chose to ignore it, focusing on their father instead, a jury was told today.
Defence lawyer Lorraine Smith made the comments in her closing address in the murder trial of Chris Kahui at the High Court in Auckland today.
Kahui has denied murdering them in June 2006.
Simon Moore QC finished the crown's closing address late this morning after a day and-a-half on his feet.
Mrs Smith told the jury, in front of a packed public gallery, that the crown case was made up of very thin strands of circumstantial evidence against Kahui and that there was a far more substantial case of circumstantial evidence against the twins' mother Macsyna King.
The defence had not gone out of their way to blacken Ms King's name, nor had they invented any of the evidence against Ms King, given her history of abandoning several of her children and her drug use, she said.
The defence had not manufactured the evidence of medical experts either, she said.
"The crown advanced a theory which is simply not capable of withstanding proof beyond reasonable doubt," Mrs Smith said.
She said the police chose to focus their investigation on Kahui based on an early medical opinion by Dr Patrick Kelly, ignoring Ms King.
Mrs Smith also said no one heard the babies crying on the night the twins were allegedly injured.
"And if anyone had, the Crown would've brought that evidence to you with a 10-piece brass band," Mrs Smith said.
She told the jury that if medical witnesses cannot be sure of when the injuries were inflicted on the twins, then neither can they.
"It is not a question of whether he may have done it but a question of beyond reasonable doubt," Mrs Smith told the jury.
She also told the jury that they had been lied to about a cellphone call to Macsyna King's allibi, her sister Emily, on the night the Crown alleges the Kahui twins were fatally injured.
"It places her in Mangere, the very place where the twins are," Mrs Smith said.
She said Emily King first told police that the phone call could not be explained but later said she had been called by her partner who asked her to return the car.
Crown prosecutor Simon Moore said yesterday in his summing up that Emily King was driving through the Mangere cell site area on her way home.
But Mrs Smith said this would make it very difficult to remain in the Mangere cellsite area, driving at the speed limit and being on the phone for 3.45 minutes.
She told the jury that they must have reasonable doubt why the call was not first explained to police.
Mrs Smith said there was a window of opportunity for Macsyna King to go home and find Kahui at the hospital before flying into a rage.
She went on to say that the return trip "did not make sense".
"The defence says you have been lied to by Macsyna and Emily King," she said.
Earlier Crown prosecutor Mr Moore finished his closing address to the jury of seven men and five women.
Mr Moore said the prosecution's case came down to just two quotes.
He quoted Ms King as saying in her evidence that: "I just left. I left them like before and they were sweet.
"I've just come home and now they are not. Now they are f*****. I don't know what to do and I don't know what happened".
Mr Moore said the key piece of evidence to come from Kahui was simply: "You should've been here".
He said that indicated that the twins' mother was not at the house on the day that the Crown alleged the fatal injuries were inflicted on the twins.
"Who better than him to know?" Mr Moore asked the jury.
'Too amped' to take sons to hospital
Mr Moore told jurors Kahui was playing Play Station while his partner was at Middlemore with his dying sons.
He said Ms King made three calls to Kahui about the twins' condition and told him "something about a broken leg, broken ribs and brain damage".
"He knew the twins were sick and he carried on playing the Playstation," Mr Moore said.
"She told him that the twins were in critical condition and unlikely to make it," Mr Moore said.
Earlier Mr Moore described an upset and crying Ms King as she gathered together some belongings for the twins before taking them to hospital.
Mr Moore contrasted this with Kahui, who when asked by police why he did not go to hospital, said he "was too amped".
Kahui told police that after arguments with his sister Tracy Still, his father Banjo Kahui and the twin's mother, he was too angry to go to hospital.
Mr Moore has described Kahui as a "slow building eruption" in the events leading up to the time that baby Cru stopped breathing on the day before the twins were admitted to hospital.
He said Ms King had gone out for the second day in a row and Kahui had to look after the twins and one year-old Shane.
His sister, Tracy Still, stopped by the house and told him it was messy, Kahui couldn't visit his mother in hospital and "was a bit down" before his father Banjo had an argument with him about Ms King not being there to help, Mr Moore said.
He said Kahui played the argument down in police interviews but Mr Moore said his sister Mona contradicted that.
"The accused told his father to shut up and mind his own business. He then asked Mona to tell his father to shut up," Mr Moore said.
He told the jury that they had been told that Kahui didn't like the babies crying and his relationship with Ms King was under pressure.
Changed story
Earlier this morning Mr Moore told jurors Kahui had changed his story during an interview with police when describing the events leading up to baby Cru receiving CPR.
Mr Moore said Banjo and Mona Kahui had said Mona was behind Kahui when he went into the nursery.
"Mona and Banjo say there is just not an opportunity. Mona was hard on his heels. If anything happened, they would have been right there," Mr Moore said.
But he said Kahui was questioned by police about how long he was in the nursery alone with the twins before Cru stopped breathing.
Kahui originally agreed with Detective Sergeant Barry that he was in the nursery for 10 minutes but after a break in the interview, Kahui told Mr Barry that he had been in the nursery for three minutes, said Mr Moore.
"He had 17 minutes to think about what he'd said and he obviously realised that the time he was alone in the room was a critical issue," he said.
Mr Moore said either way Kahui had enough time to inflict the injuries and tidy the room up by the time his sister Mona entered the room.
He said that timing fitted with the Crown's medical evidence which argued Kahui inflicted the injuries immediately before Cru Kahui stopped breathing.
Mistakes made
Mr Moore earlier said mistakes had been made by both sides in the trial.
He told the jury that Detective Sergeant Barry "accepted criticism on the chin" when asked why the evidence of Eru Tuari was not released to the the Crown and defence counsel until six weeks prior to the trial.
Mr Tuari previously told the jury that he had recorded a conversation with the twins' mother Macsyna King, when she said: "Chris didn't do it, I did it".
Mr Moore said Mr Barry conceded that the Manukau CIB had been too busy to re-interview Macsyna King and release the evidence to both sides earlier.
"It was a mistake. It should've happened but how were we disadvantaged?" Mr Moore said.
He said the Crown and defence got the evidence at the same time and six weeks was enough time to address the "issues" raised.
Mr Moore said the defence only released information regarding one of their witnesses to the Crown two working days before the trial.
"This isn't like some kind of television drama story where you can put it together and everything makes sense until the end," Mr Moore said.
He said the Crown also made a mistake when cross-examining Kahui's older sister Tracey Still when there was a mix up between the Crown lawyers about who would do the cross-examination.
"We dropped the ball. It was embarrassing," Mr Moore said.
The trial has heard from more than 60 witnesses over 5 1/2 weeks and the jury has been given 1390 pages of evidence.
Lorraine Smith is due to finish summing up the defence's case tomorrow morning.
- with NZPA
