Human Rights or Victim Plights? Rethinking the Right to Silence in Child Abuse Cases in New Zealand
By Nithya Narayanan
[Trigger warning: child abuse]
In 2006, the New Zealand public was shocked by the deaths of twin babies Cris and Cru Kahui. The two infants had suffered what paediatrician Dr Patrick Kelly described as some of the worst brain injuries he had seen in his career. The evidence suggested that the babies had either been violently shaken, or hurled against a hard surface. There were at least nine adults living in the home where the harm occurred. However, all exercised their right to silence. The right was similarly exercised by the twins’ father, Chris Kahui, who never took the stand during the homicide trial that followed. The right to silence in child abuse cases has recently come under scrutiny in New Zealand again. The time is ripe to re-examine what the right to silence entails, and whether it should continue to be available in this context.
The right to silence is commonly confused with the privilege against self-incrimination. The right to silence allows suspects in criminal investigations to not answer questions posed by law enforcement officials. In the trial context, this means that defendants can refuse to testify entirely. By contrast, the privilege against self-incrimination is far broader, and can apply outside of criminal contexts. For example, the privilege may be claimed in contexts such as civil discovery (the pre-trial collection of relevant evidential material), or where a person appears before commissions of inquiry. In New Zealand, the right to silence is protected by the Bill of Rights Act, which provides that any arrested or detained individual has the right to “refrain from making any statement”. The essence of the right is also enshrined in other legislation. For example, s 32 of the Evidence Act 2006 states that where a defendant exercises their right to silence at trial, a fact finder cannot legitimately draw an inference of guilt on this basis alone.
Whether the right to silence should exist in child abuses cases has long been a hotly contested topic. The debate acquired particular significance in the wake of the Kahui case. Chris Kahui was eventually acquitted of his sons’ murder. However, in 2012, Kahui gave evidence at a coronial inquest, a hearing that aims to establish the facts of a death. At the inquest, Kahui’s evidence led to a finding that the children were in his sole care and custody at the time of death. This strongly suggested that Kahui had inflicted the injuries that resulted in the twins’ death.
The right to silence walks a fine line between defendant rights and victim welfare. On one hand, victims—particularly where they are vulnerable children—deserve the ongoing protection of the law. Where it is—sadly—too late for such protection, victims deserve to have the true perpetrator held to account. Often, as in the Kahui case, this is impossible without evidential input from the perpetrator or key witnesses. On the other hand, many consider the right to silence a fundamental part of our human rights framework. Human rights lawyer Dr Tony Ellis argues that the right to silence is “a well-recognised national standard”, and that it often serves the more disadvantaged members of society. Dr Ellis further argues that abolishing the right in certain contexts will not necessarily improve outcomes at trial. He notes that “(a)bolishing the right…doesn’t ensure that people will tell the truth, it could create another form of criminality”.
Some legislative measures have been introduced since the Kahui case. Under the Crimes Amendment Act, introduced in 2011, people can be prosecuted where they have frequent contact with the victim, and know the victim is at risk of death, grievous bodily harm or sexual assault. In such circumstances, there is a duty of care to take reasonable steps to protect the victim. Where reasonable steps are not taken, the person could face prosecution. To fall under the scope of the duty, an individual would need to be a member of the same household as the victim. However, the Act construes “household” fairly broadly. A person can be considered a member of a household even if they do not reside in that household, provided they are “so closely connected with the household that it is reasonable, in the circumstances, to regard [them] as a member of the household". As a result, it is likely that extended family members will be caught by the duty. This provision was likely enacted as a direct response to issues raised in the Kahui case.
Nevertheless, the right to silence broadly endures in cases of child abuse. In September 2020, Children’s Commissioner Judge Andrew Becroft called for a national debate on the issue. He suggested altering the right to silence for witnesses only. Such a model would not affect the right to silence for someone arrested by the police. It would also not affect the right to not testify against oneself. However, Judge Becroft also recognised that the law change could disproportionately affect marginalised communities, who have the highest risk of abuse.
The issue appears to have gained prominence this election season. The Labour Party appear largely sceptical about the merits of abolishing the right to silence in child abuse cases. Prime Minister Jacinda Ardern notes that this policy has been attempted in Australia, but has failed to increase the number of successful convictions. By contrast, the National Party—in line with their famously ‘tough on crime’ stance—are promising to criminalise a failure to disclose child abuse. It is unclear whether this policy is the same as the one foreshadowed by ex-leader Simon Bridges in February. That policy would have seen the law include certain “caveats” to protect human rights. Bridges stated that “reasonable excuse” and “reasonable knowledge” tests would apply, although he failed to elaborate on what exactly this would entail for witnesses. The Act party has proposed a similar policy, noting that there are a plethora of exceptions to the right to silence in other areas of the law. Examples include police officers conducting breath tests, customs officers, and even liquidators.
It is unclear whether these political promises are genuine, or products of eleventh hour campaigning that seeks to appeal to the public conscience. Either way, the need for change in this area is swiftly growing. Between 2006 and 2016, 61 children died due to non-accidental injuries in New Zealand. The names of Chris and Cru Kahui sit alongside those of Nia Glassie, JJ Ruhe-Lawrence, Jyniah Te Awa and Moko Rangitoheriri, and countless other victims. In the words of NZ Herald’s Anna Leask, “(t)heir names are scars on a shameful landscape of child abuse”.
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