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Dr Muriel Newman

State culpability: the Kahui twins

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“On the afternoon of Monday, 13 June 2006 Auckland Police received a telephone call from a staff member of Kidz First Children’s Hospital, situated adjacent to Middlemore Hospital in Otahuhu, advising that hospital staff were treating two seriously injured twin infants. Their names were Christopher Arepa Kahui and Cru Omeka Kahui. Police went immediately to the hospital to investigate the causes and circumstances of the twins’ injuries. That evening, the twins were admitted to the Paediatric Intensive Care Unit at Starship Hospital. There, the true nature and extent of their injuries became known. On Sunday 18 June 2006, following the withdrawal of life-support intervention, the twins died as a result of the injuries they had received.”

This is how the newly released Coroner’s Report into the violent deaths of three month old Chris and Cru Kahui begins.1 In 2006, their deaths sparked national outrage, which escalated when family members closed ranks as the “tight 12”, refusing to cooperate with the Police. Over a year later, in August 2007, their father Chris Kahui was charged with their murder, but in May 2008, a Jury found him not guilty.

In cases like this, where there was a violent death with no-one held responsible, the Coroners Act enables a Coroner to step in. His role is to investigate cases where a death has occurred in unusual or suspicious circumstances in order to “prevent deaths and to promote justice”. The Coroner is charged with making specific recommendations or comments that, if drawn to the attention of the public, may reduce the chance of future deaths in occurrences similar to those in which the investigated deaths occurred.

In general, a Coroner will open up an inquiry to establish the identity, time, place and circumstances of a death, but if the case warrants further investigation, an inquest will be held. An inquest is a judicial hearing that uses an inquisitorial process to investigate the evidence surrounding a death in order to find out the cause. Since the objective is not to apportion blame, the Coroner is able to question suspects including those who may have chosen to invoke the “right of silence” in their criminal trial. A right to silence does not exist in the Coroner’s Court, since its purpose is to find out the truth behind a death rather than to establish criminal culpability. As a result, the Coroner is able to reach a decision based on a “balance of probabilities”, rather than the higher “beyond reasonable doubt” test that is central to criminal trials.

Many countries have based their whole criminal justice systems on this type of inquisitorial system – rather than the adversarial criminal justice system New Zealand inherited from Britain. France is the best known, but similar systems can be found in Europe, Africa, South America, and Asia, with some countries like Italy, using a combination of both types of system.

Essentially an adversarial justice system like our own uses a neutral Judge (and Jury) to evaluate the evidence of a case and determine whether, beyond a reasonable doubt, an accused is guilty of a crime. It is the responsibility of the police and the defence to gather the evidence and present it to the Judge during the course of the trial, making their case for the guilt or innocence of the accused. The system enables discretion, including the ability for the prosecution to decide not to proceed with a case – even if there is ample evidence to support a criminal charge – and for the defendant to plead guilty to avoid a trial. The court’s role is confined to overseeing the process by which the evidence is given, and to weighing up that evidence to determine whether or not there is reasonable doubt. There are strict rules to prevent the admission of evidence that may prejudice the Judge or Jury.

In contrast, in an inquisitorial justice system, an investigation is usually carried out by an “independent” prosecutor or an examining magistrate who can undertake particular lines of inquiry that are favourable to either the prosecution or defence in order to determine whether there is sufficient evidence to take a case to trial. The process depends on the integrity of this pre-trial process to seek out the truth. By the time a case reaches trial, there is a greater presumption of guilt than in an adversarial model. The conduct of the trial is largely in the hands of the court, with the trial Judge determining what witnesses to call and the order in which they are to be heard. There are far fewer rules of evidence and much more information is available to the court at the outset, including an offender’s criminal history.2

The right to silence is central to an adversarial criminal justice system. It is based on the principle that no person should be compelled to incriminate themselves. When the right to silence is exercised, convention holds that the Judge will instruct the jury that they are not to draw any adverse inferences from the fact that the accused has not testified. It is fair to say that this rule causes significant public angst especially in high profile cases such as the Kahui trial where Chris Kahui chose not to testify. In comparison, in Britain the right to silence has been downgraded so that if an accused refuses to give evidence, the court is instructed that it “may draw such inferences as appear proper”.

Another long-standing right that caused significant public concern was the law relating todouble jeopardy. It meant that if new incriminating evidence emerged after a trial in which a defendant was acquitted – or if it became known that an acquittal had been obtained by perjury or some illegal means – the accused could not be tried for the same crime a second time. However, the law has now been changed so that under such circumstances, an accused may be tried again – providing the acquittal occurred after 26th June 2008 when the new law came into effect. Chris Kahui’s acquittal was on 22nd May 2008.

Notwithstanding the ins and outs of the different approaches to criminal justice used in the adversarial and inquisitorial systems, the Coroner has the responsibility to look into the deeper public policy issues surrounding the deaths under investigation in order to make recommendations to prevent such outcomes occurring in the future.

In the case of the deaths of Chris and Cru Kahui, the summary of findings showed that the twins had suffered blunt force trauma to their heads causing traumatic brain injury. Both had fractures to their ribs, consistent with injuries inflicted some two weeks before their death. In addition, Chris had fresh rib fractures and a severe fracture to his upper thigh, while Chris was suffering from acute colitis and peritonitis.

When it comes to responsibility for these injuries, the Coroner was very clear: “The Court is satisfied, on all the evidence before it, to the required standard of proof, that the traumatic brain injuries suffered by Chris and Cru Kahui were incurred by them during the afternoon/early evening of 12 June 2006, whilst they were in the sole custody, care and control of their father at 22 Courtenay Crescent, Mangere, Auckland.”

The public policy issue at the heart of the Kahui case is the scourge of New Zealand society – child abuse. The report states: “Dr Nick Baker, Chair, Child and Youth Mortality Review Committee says injury is the leading cause of death amongst New Zealand children. Out of 24 OECD countries, New Zealand has the highest rate for deaths from accidents or injuries in children under 19 years. Our rate of death from maltreatment of children under 15 years is the 5th highest out of 26 OECD countries, with the largest proportion occurring in infants less than 1 year of age.”

According to the New Zealand Herald, Ministry of Health data shows that babies under a year old accounted for half of all hospital-recorded suspected abuse cases involving young children in the past year. Of the 71 cases where children younger than 4 years old were recorded as being assaulted, 44 percent of the cases were classified as Maori and 41 percent as European. 36 of the cases involved babies younger than a year old. These figures underestimate the real extent of child abuse in New Zealand, since they do not record “short stays” in emergency departments, nor the many cases that do not make it to a hospital, let alone a doctor.3

The Coroner’s findings outline a number of worthwhile public policy changes. These include strengthening the laws to protect children through the establishment of specialist multidisciplinary Child Protection Teams in each Health Board District, better training in recognising child abuse for health and education professionals who have close contact with children, and the mandatory reporting of child abuse by these groups. However, much of the focus of such recommendations is to help children once abuse has occurred. What we also need are strategies to prevent abuse from occurring in the first place.

Factors that create the environment for child abuse to flourish are well known. The report outlines some of them including poor parental education, inadequate housing, low income, long-term unemployment, solo parenthood, high residential mobility, poor health, alcohol and drug dependency, poor parenting, involvement in criminal behaviour, and young motherhood.

More specifically, the Coroner found that CYFS had previously been involved with both parents – Macsyna King and Chris Kahui – before their twins were born. A range of risk factors were identified as contributing to their tragic deaths:

  • A couple in a brief informal relationship which led quickly to the birth of 3 children in under a year.
  • A mother who had failed to parent three previous children from previous relationships.
  • A history of abuse and/or neglect pertaining to both parents when they were children themselves
  • An unwanted pregnancy resulting in premature twins.
  • A lack of bonding evidenced by both parents while the twins were in hospital following their birth but most worryingly for medical staff a lack of bonding evidenced by the mother who would usually be the primary caregiver.
  • An episode in hospital which was not reported where the mother was observed reacting angrily to her partner and being rough with a baby.
  • Financial stress.
  • Unstable living arrangements with the family sharing a three bedroom house with another couple and their baby.
  • A lack of support and assistance for the mother on a day to day basis.
  • A mother who used methamphetamine while caring for the twins.
  • A father who was often absent because he was visiting his critically ill mother.
  • A mother who walked out on three occasions, staying out all night and leaving her partner to care for three children under thirteen months by himself.

This week’s NZCPR Guest Commentator, Dr Anthony Daniels – a retired British doctor and prison psychiatrist – is an acclaimed English writer and fellow of the Manhatten Institute. Under the pen name of Theodore Dalrymple, he has long exposed the public policy failures that create the underclass. Dr Daniels visited New Zealand in 2006 just after the Kahui twins were murdered and his article Family Structure Matters was written for the NZCPR in response to the Coroner’s report. In it he condemns the state’s continual attack on the traditional family:

“Immense intellectual, or at least mental, efforts have gone and continue to go into denying the obvious, that on the whole family stability is better for children than instability, and that not all forms of family, or perhaps I should say household, life are equal from the point of view of children’s welfare. The terrible saga of the Kahui twins is but another illustration of the obvious.”

He concludes: “What few people will doubt is that the state, in New Zealand as much as almost anywhere in the world, has progressively undermined the basis of stable family life. It has turned what was once a limited problem, the plight of the single mother and her child or children, into a mass condition; it is now constantly attempting to sweep up the mess that it has left behind, by the same means that it created the mess in the first place. The statistics show, again for very understandable reasons, that instability of family life is associated with all kinds of abuse of children. The state is to much of that abuse what the pimp is to the prostitute”.

It is an indictment of our political system that so many of those in leadership positions have for decades turned a blind eye to the fragmentation of the family caused by welfare and other misguided social policies. The results have devastated generations of children. While the present benefit reforms seek to discourage sole parenthood and unplanned pregnancies, whether they will be effective enough remains to be seen. With the government’s White Paper on child abuse due to be released next month, one can only hope that for the sake of our children a significant focus of future policy change is on strengthening the family – and marriage, which still remains the safest institution in which to raise children.