National has promised a new crime of staying silent about the killing of a child, carrying up to 10 years in prison, and within a day defence lawyers were calling the plan dangerous and a presumption of guilt. Justice spokesperson Paul Goldsmith announced the policy on Sunday 18 October, eight days before advance voting opens for the 7 November election. If National is re-elected it would amend the Crimes Act so that a person who was present where a child aged 12 or under was killed commits an offence by not disclosing information to police.
The policy is aimed squarely at the household cases that have frustrated New Zealand police for two decades. “New Zealanders will remember numerous high-profile examples throughout our history where children have been brutally murdered, and Police have been unable to identify the attacker because people have chosen not to share critical information with them,” Goldsmith said in the party’s release. “The right to remain silent is a fundamental principle, however, it should not be absolute when a child has lost their life and, for example, there are only three people in the house, but no one is talking.”
National says the offence would apply when a child dies and it is unequivocal that one or more adults were present at the time of death or in the lead-up to it. The party would work with legal experts to draft what it calls an exception to the general right to silence, limited to exceptional circumstances involving the death of a child. Goldsmith said the threat of prosecution would do the work that voluntary cooperation has not. “This will place perpetrators, and their accomplices, into a corner where they will eventually call each other out, because if they don’t, they will all face the consequences,” he said.
The right in question is set out in section 23 of the Bill of Rights Act 1990, which gives anyone arrested or detained the right to refrain from making any statement and to be told of that right. National has conceded its policy may breach the Act. Asked about that by the New Zealand Herald, Goldsmith said he was “sure there will be something that the Attorney General will look at closely”. He added, “All those rights sometimes will be breached if there’s a real good reason to do so, and we believe holding to account and bringing justice for children who have been killed in our society is reason enough.”
Police spokesman Mark Mitchell told the Herald the issue had come up at public meetings on the campaign trail. “They can maintain their right to silence, but we’re saying there’s going to be consequences for that,” he said.
The cases behind the policy are well known. Twins Chris and Cru Kahui died in 2006, aged 84 days, after being assaulted at their home in Mangere. Their father was tried for murder and acquitted by a jury, and nobody has since been charged over the deaths. In Lower Hutt, the toddler known as Baby Ru died on 22 October 2023 from blunt force trauma that fractured his skull. Three adults were in the house. Three years on, the homicide investigation remains open and nobody has been arrested or charged.
Parliament has already legislated once in response to the Kahui case. The Crimes Amendment Act 2011 created section 195A, failure to protect a child or vulnerable adult, which carries the same 10 year maximum. It catches a member of the household who knows a child is at risk of death or serious harm and fails to take reasonable steps to protect them. What it does not do is compel anyone to answer police questions after the fact, which is the gap National now says it wants to close.
The legal profession’s response arrived on Monday morning. Defence lawyer Marie Dyhrberg KC told RNZ the proposal inverts the basic rule that the state must prove its case. “It’s a reverse onus, it’s a presumption of guilt whereby somebody who just happened to be at the location, they’re presumed to be withholding evidence,” she said. “It just flies in the face of justice.” She argued the right to silence exists because the state holds all the resources, and that proving innocence is sometimes impossible. “[The right to silence] is protection against wrongful conviction,” she said.
Retired law professor Bill Hodge said the offence appeared designed for relatives rather than the person who actually did the killing. “It may be aimed not so much necessarily at the primary perpetrator, but the relatives, the family members and so on, who engage in what National might call a ‘conspiracy of silence’,” he said. Hodge, who has worked as an investigator, said the new charge would hand police a powerful lever in the interview room. “I think it changes the dynamic of an investigation in a way which I would say is dangerous. The investigator could now be seen to have the upper hand, given that powerful threat which they have behind them,” he said. He also acknowledged the public frustration driving the policy, saying there had been situations where housemates and extended family refusing to assist “upsets our conscience”.
Criminal defence lawyer Anoushka Bloem told the Herald the policy looked good on paper but was vague, describing it as a “quick fix” and a “knee-jerk reaction”. She pointed to the wrongful conviction of Terri Friesen over the manslaughter of her seven week old baby as an example of what pressure to talk can produce. “And the way to fix it isn’t to change fundamental parts of the justice system,” Bloem said.
Victims’ advocates took the other side. Sensible Sentencing Trust spokeswoman Louise Parsons told the Herald the current law encourages a culture of silence that lets family members protect offenders. “We recognise the right to silence as an extremely important civil right and should not be violated other than in exceptional circumstances. The killing of a child is one of those exceptional circumstances,” she said, while warning that “the devil is in the detail” and that the trust would hold any government to making the law meaningful rather than window dressing.
Child Matters, the child abuse prevention charity, sat in the middle. Chief executive Megan West told RNZ any law change holding people to account for harm to children was worth considering, but it would need testing against real cases. “However, it does need careful and informed consideration because cases involving children are always complex and they’re never straightforward so any legislation needs to be tested for real world application,” she said.
The policy also lands in a campaign where law and order has become a live contest. National’s release describes the measure as part of “fixing the basics in law and order”. Labour has not yet responded to the proposal, and no other party had done so by Monday morning. National’s release itself refers to the age threshold two ways, as a child “12 years and under” in one paragraph and a child “under 12” in the next, a detail the promised work with legal experts would need to settle before any bill is drafted.
Whatever the merits, the proposal cannot become law before the election. It is a pledge for the next Parliament, and its fate depends on who forms the next government and whether coalition partners would support a measure the Attorney-General may have to report as inconsistent with the Bill of Rights. With the coalition arithmetic still unsettled, the numbers for any such bill are far from certain. If you are still weighing up where your vote goes, our voting tool compares the parties’ positions across the issues that matter to you, and enrolment closes on 25 October.
Should adults who were present when a child was killed lose the right to stay silent, or is this a line the justice system should never cross? Tell us what you think in the comments.
This article was written by AI, briefed to report the facts, hopefully without some of the bias people bring to the job 🙂
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