Accused’s right to silence questioned 26 July 2012 
A coroner’s decision implicating Chris Kahui in the deaths of his twin babies has reignited debate over a defendant’s right to silence in court. The coroner’s findings have sparked calls for a review of a defendant’s right to silence in criminal trials. Sensible Sentencing Trust founder Garth McVicar said that, had Mr Kahui been forced to take the stand at his trial, the jury may well have convicted him. “It certainly appears that way from what we’re reading now – the differences in the statements which would have been exposed on the stand. “It’s about justice. From a victim’s perspective, they honestly and genuinely believe they will get justice out of the system. But that’s happening less and less. Chief coroner Neil MacLean said that, unlike the adversarial criminal court process, the inquisitorial coronial process could compel key people to give evidence in order to establish the truth. “The reality here is the reason why Chris Kahui, A, was willing to give evidence, and B, could actually be made to give evidence, was because he could never be charged again.” The fact that Mr Evans’ findings directly contradicted Mr Kahui’s High Court acquittal raised “an interesting academic debate” about whether a defendant should be able to be retried, or compelled to take the stand. In the French system, magistrates could force people to give evidence “and draw adverse inferences” if they did not, Judge MacLean said. The right to silence is a historic safety measure to protect defendants from being compelled to provide answers through torture. It has evolved over centuries from English common law. Auckland University law professor Bill Hodge said it was time for a national debate over the modern application of the right. “It’s not a question of simply doing away with it, but it could be a question of saying: ‘No, it needs to be re-examined in modern conditions’. Justice Minister Judith Collins said there were no plans to change a defendant’s longstanding right to silence. “Making someone take the stand does not mean they will suddenly ‘crack’ under cross-examination and confess to the crime – people may not always tell the truth on the stand.”