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23 September 06
The Tight 12 - their right to silence

Police reported that a so-called "Tight 12" of family members who had contact with Chris and Cru before they died had stonewalled the murder investigation by refusing to reveal who was responsible. Members of the Tight 12 know who killed the babies. By not telling police they are exercising their legal right to silence. While that seems neither fair nor just, since it protects a child killer, it is nevertheless a fundamental democratic right.

I asked Associate Professor of Law at Auckland University, Scott Optican, if he could explain this right to silence. This is his response:

The law on this is very simple. Everyone in New Zealand has an absolute right to refuse to answer questions from the police (or anyone else for that matter) unless Parliament takes that right away by legislation. This is called the "right to silence" and it is affirmed in the NZ Bill of Rights Act 1990 for persons who are arrested by the police. However, even without being arrested, the right exists - anytime, anyplace, anywhere - unless Parliament takes it away.

With respect to having to cooperate with police in a criminal investigation, Parliament has not legislated away the right to silence. So, by refusing to speak, members of the Kahui family are simply asserting a right given to them by the common law, affirmed in the Bill of Rights if they arrested on suspicion of murder, and never taken away by Parliament through a statute. As a result, merely refusing to cooperate with an investigation or answer questions cannot be obstruction of justice. The reason is that a person cannot obstruct justice by asserting a right that they have to remain silent. If assertion of rights amounted to obstruction, the rights would have no meaning.

So, bottom line: because members of the Kahui family can legally resist answering police questions or cooperating with the police, their conduct in that regard cannot be made criminal as obstruction of justice or interfering with a police investigation. In order to do that, some more active obstruction or interference would have to be proved on their part: such as destroying evidence or threatening witnesses to remain silent. As of yet, the facts don't show that this has occurred.

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